TSHEPO KOKA | The lawyers won the case, but did they fail their GBV client?

The Constitutional Court answered one question. The Legal Practice Council (LPC) may yet be asked another.

The first asked whether the police had failed Andisiwe Kawa. The second asks whether those entrusted to secure justice also bear a duty to account for how that justice is pursued. Those questions are not the same.

For the past 15 years I have had the privilege, and at times the anguish, of walking alongside one of South Africa’s most remarkable women. I have watched her survive an act of unimaginable brutality. I have watched her refuse to surrender when the criminal justice system failed her. I have watched her challenge the state through every level of our courts until the Constitutional Court affirmed a principle that now forms part of South African jurisprudence: that the state can be held accountable when it fails women who are victims of gender-based violence.

Like many South Africans, I believed that judgment marked the end of the story. It did not. It was merely the end of the first chapter. The second chapter is one I never expected to witness. It is the story of what happens when a client who has successfully held the state accountable finds herself asking difficult questions of the very professionals she entrusted to help her achieve that victory. This is not a story about legal fees. Indeed, that aspect of the dispute has already been resolved.

Following mediation, Deneys Reitz (formerly Norton Rose Fulbright South Africa) agreed to reduce its fee claim and repay a substantial amount to Kawa. That financial chapter has closed. The questions that remain are altogether different. If the money has been returned, why does the dispute continue? The answer lies in a word too seldom discussed within the legal profession. Stewardship.

She arrived as a survivor of prolonged sexual violence. She arrived carrying years of trauma, disappointment and institutional failure

Lawyers are fond of speaking about duties of care, fiduciary obligations and professional standards. Those concepts are indispensable. But beneath every legal file lies something profoundly human. A client. A family. A life placed in the hands of another.

When Andisiwe Kawa instructed one of South Africa’s largest commercial law firms, she did not arrive as a sophisticated corporate client engaged in a commercial dispute. She arrived as a survivor of prolonged sexual violence. She arrived carrying years of trauma, disappointment and institutional failure. She was not merely looking for legal representation. She was looking for justice. Justice, however, is not merely measured by judgments.

It is measured by the experience of the journey itself. That is a lesson I have learnt not from textbooks, but from watching one family live through 15 years of litigation.

For lawyers, delay is often measured in court rolls, postponements and procedural timetables. For survivors of profound trauma, delay is measured differently. It is measured in birthdays that pass without closure. In opportunities lost. In careers interrupted. In families that cannot move forward because the past refuses to release its grip. Every adjournment extends uncertainty. Every unanswered question deepens frustration. Every unexplained strategic decision chips away at trust. Justice delayed is justice denied.

But there is another truth that deserves equal attention. Justice poorly stewarded can also become justice prolonged. That observation should not be controversial. Nor should it be mistaken for an accusation. It is a question every profession ought to ask of itself. Doctors ask whether patients were treated with dignity. Accountants ask whether clients received proper advice. Engineers ask whether standards were met.

Surely lawyers should be equally willing to ask whether clients felt informed, respected and carried through the most difficult chapters of their lives with the care that such moments demand. The fee dispute that later emerged between Kawa and her former attorneys was, in my view, never the real dispute. It merely exposed something deeper. It exposed a relationship in which trust had broken down. The financial issues have now been settled. The questions of accountability have not. Those questions are now before the LPC. That is precisely where they belong.

Can lawyers win the case and still owe their client an explanation for how that victory was achieved? I believe they can

The LPC is not asked to determine whether lawyers won an important ConCourt case. History has already answered that. It is asked to consider whether the standards expected of the profession were met throughout that journey. That distinction matters. Much has recently been said about the future of the legal profession, about transformation, public confidence and the role of large law firms in a constitutional democracy.

Those debates are important. But they are incomplete if they focus only on ownership structures, briefing patterns or commercial success. Public confidence in the profession depends just as much on accountability. The greatest institutions are not those that never make mistakes. They are those willing to examine themselves when questions are raised.

I am struck by one final irony. After 15 years of demanding accountability from the state, Andisiwe Kawa now finds herself asking for accountability from a profession whose very purpose is to hold others accountable. Whether one ultimately agrees with every allegation before the Legal Practice Council is almost beside the point. The larger question belongs to all of us.

Can lawyers win the case and still owe their client an explanation for how that victory was achieved? I believe they can. Because a favourable judgment, however historic, is not the only measure of justice. The manner in which justice is pursued matters just as much. If the legal profession asks every other institution to account for its conduct, it must be prepared to do the same when the spotlight turns inward. That is not an attack on the profession. It is the very essence of professionalism.

The ConCourt has already spoken about the state’s duty to account. Now another institution has an opportunity to demonstrate that accountability is not something lawyers demand only of others. It is something they are prepared to demand of themselves.

• Koka is an econometrist and a social commentator whose work engages economics, culture and public thought