Low and high Presidential lawfare in post-apartheid South Africa: legal ethics in democratic backsliding

Challenges for constitutional democracy in post-apartheid South Africa include ethical issues facing the legal profession. Democratic backsliding dangers in South Africa relate less to electoral integrity and more to prosecutors’ independence, efficacy and commitment to the rule of law. In assessing democratic challenges and resilience, it is useful to distinguish between low and high Presidential lawfare. Low Presidential lawfare consists of the formal use of law to advance or defend the personal interests of a President within a democracy. The long-running legal defense of former President Jacob Zuma, known as Stalingrad, constitutes an exercise of low Presidential lawfare. High Presidential lawfare is constituted by the formal use of law to attack or defend the democratic infrastructure of a nation. One instance of high Presidential lawfare during the South African state capture years occurred in the politics of legal professional ethics: an initially successful striking off proceedings against an allegedly captured state prosecutor that served as a pivotal episode in the legal mobilization against state capture. Questions of legal ethics are significant for both high and low Presidential lawfare. In order to ensure independent prosecutions and accountability, specified understandings, strategies and tactics are proposed and are recommended to be followed in the realms of both high and low Presidential lawfare.