‘THERE is no country in which everything can be provided for by the laws, or in which political institutions can prove a substitute for common sense and public morality’. These were the words of Alexis de Tocqueville, the nineteenth-century French political philosopher. It would be hard to find a more apt warning for South Africa. Lawyers pop out of the woodwork of the most unlikely organisations and leave the harsh imprint of legalism on every aspect of national life. Common sense and civic morality are on the back foot.

The standard response today from a public official of dubious integrity and questionable conduct is that nothing has been proved in a court of law. Disciplinary proceedings and commissions of inquiry drag on for months, while the accused and their lawyers find every possible loophole to delay the process. Weeks are required to study the simplest documents. This absurd game is widespread. Last year a Msunduzi municipal employee walked out of his long-overdue disciplinary hearing, then complained it had been improperly held in his absence. Case after case collapses because of obscure technicalities or is strung out for so long it becomes irrelevant or is simply forgotten. Meanwhile, in the words of Roman epigrammist Martial ‘lawyers … hire out their words and anger’. Martial forgot to mention the fat fees.

Legalism explains why there is a revolving door for disgraced and failed politicians and public servants. In a modern democracy it is not necessary to have a criminal record to deserve the political wilderness. Lack of honesty, failure to deliver and an inability to act in an accountable manner do not need to be proved in a courtroom. They are plain to see in attitudes and practice. Whether or not National Police Commissioner Bheki Cele signed a lease agreement and set police heavies loose on the Public Protector’s office is neither here nor there. He is accountable for a key national institution and has been found wanting, a populist politician ill-suited to the demands of constitutionalism and good governance. He is in the wrong job as the parliamentary portfolio committee on the police recently found out.

South Africa, sadly, is full of square pegs in round holes. Academic and other qualifications and political connections are not enough. Plenty of people have these but lack management skills, the strength of character and basic intelligence to know and do the right thing, and the energy and imagination to make sure their organisations remain functional. In fact, scores of people with these qualities have been driven out of formal employment and even the country.

This is not surprising. Legalistic process has become a cudgel with which to beat the good manager. The bad ones long ago learned how to play the system. One outcome is collective punishment. Instead of nailing a miscreant, who will find every means including a few inventions, to escape responsibility, some mindless, time-consuming bureaucratic routine is imposed on everyone.

In institutions rottenness moves down from the top. Legalism breeds bureaucracy and that not only stifles initiative but inhibits freedom of expression. Public institutions stamp documents confidential, even when they have circulated to scores of people. It’s a neat tactic that inhibits protest about decisions already arbitrarily taken and allows for disciplinary action against anyone who communicates with the media. There is also a growing reluctance to commit anything to paper in case it can be used as evidence. Instead, communication with decision-making potential is reduced to car-park conversations.

Yet this legalistic charade carries on, a theatre of the absurd in a culture of entitlement and materialism. For some people, democracy is simply a stepping stone to power and influence. Whatever the outcome and circumstances, there is no intention to give these up. Legalism is one means to retain that power. But it diminishes good governance, devalues considered judgement and defeats those qualities of basic justice and common sense that keep societies moving forward. Legalism protects the corrupt and unscrupulous and the inertia, dysfunctionality and instability they represent can lead to institutional or even national collapse.

But the main and most serious casualty is trust, a commodity in desperately short supply. Trust flourishes where conscience, truth and justice prevail above slavish adherence to rules and regulations. And out of trust comes endless creative possibilities that South Africa can ill afford to ignore.

This article was first published in The Witness on 31 March 2011 and entitled ‘The curse of legalism’