Is the law indeed an ass in this case?

If it were to be established that the law is indeed as dumb as an ass, as suggested by English writer Charles Dickens in his 1838 novel Oliver Twist, what would society think?

- Jo-Mangaliso Mdhlela

Second, how does this understanding fit into the “fit and proper” paradigm sought by the Legal Practice Council, when it admits legal practitioners to practise law?

I prefer to use the lens of this analogy — “the law is an ass” — to understand the recent decision by the council to investigate Dali Mpofu, SC, for alleged impropriety or breach of its code of conduct.

The ass — in the Dickensian world, a place characterised by squalor, poverty and social injustice — was known to be the dumbest creature under the sun.

Its obstinacy in not doing what it was ordered to do was thought of as legendary.

Dickens, with his critical political mind, as we also saw in his masterpiece A Tale of Two Cities, makes it clear that the law becomes “an ass” when its application is rigid and not applied in keeping with prevailing conditions affecting the poor and oppressed.

To drive home his point, he makes an example of Oliver, the young title character of the novel, who had experienced a difficult upbringing, but his need was overlooked by the cruel and unjust system.

We must, then, even today, as Dickens suggested a couple of hundred years ago, infer that evil and unjust law practitioners are antithetical to what the “fit and proper” dictum connotes.

Bad legal systems, adorned with repressive and unjust legislation, in many ways unconstitutional and lacking respect for others - should be rejected by communities, as the apartheid system was in this country.

The implications for the law, as for the "fit and proper" paradigm, are stark when we turn a blind to an injustice.

The “fit and proper person” requirement in South African law is a key criterion for admission and readmission to the legal profession.

The would-be legal practitioner ought to pass the litmus test — the assessment of character, integrity and suitability — and, to top it all, to be above reproach.