Attorneys urged not to take democracy for granted at FSLS AGM

December 1st, 2012
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By Nomfundo Manyathi

The Law Society of the Free State (FSLS) held its annual general meeting in Clarens in the Free State on 26 October. Topics on the agenda included the Legal Practice Bill (B20 of 2012), the Attorneys Fidelity Fund (AFF) and council matters. Legal Aid South Africa (Legal Aid SA) also made a presentation on its annual performance and urged attorneys to join its pro bono programme.

Professor Barney Pityana on law and society in the ‘new age’

The AGM was preceded by a gala dinner, where the rector of the College of the Transfiguration in Grahamstown, Professor Barney Pityana, addressed delegates on ‘Law and society in the new age’. Professor Pityana warned attorneys present never to take South Africa’s democracy for granted. He said that any system of law was capable of being corrupted by citizens ceasing to be vigilant and failing to hold the state to account because of political and moral choices. People suspend moral judgments at their own peril, he added.

Professor Pityana said that the challenge of law and governance in the country is to give practical meaning to the Constitution, which aims, among others, to improve the quality of life of all citizens and free their potential.

‘The problem is that those promises, to some of our people, are no longer worth the paper they are written on. Instead, inequality continues to balloon … . When we are told that the Constitution was a mere compromise document, we have another tactic of delegitimisation. It suggests that what was negotiated in honour and integrity can just as easily be thrown into the dustbin of history. I think not. I accept that the Constitution is a living document and must continuously breathe the life of the people in their existential environment. It also means that the Constitution is a solemn pact with the people and all of us must commit to abide by it,’ he said.

Professor Pityana said that the state of law in South Africa was a matter deserving ‘urgent reflection’. He added that the state of law and order is never far from nor unrelated to the social conditions in which people live, as the moral character of society expresses and responds to the daily conditions of life people experience. ‘It is also about the extent of the confidence they have in the legal system,’ he said.

Professor Pityana said that the state of the country’s economy was not being openly declared to citizens and downgrades by the rating agencies were matters that ordinary citizens would feel in terms of unemployment, food insecurity, homelessness and poverty.

He added that this leads to misgovernance, corruption and collapsing education and health systems for ordinary citizens. It also means that the courts are ‘embroiled in this’ in labour disputes, excessive levels of political crimes, the extent of all forms of crime, land occupations, labour unrest and the effect of this on productivity and economic performance and eventually in ‘bulging court rolls’, and a prison population in excess of standards in economies of similar size.

In addition, Professor Pityana said: ‘It is possible for legitimate instruments of state to be corrupted because they get to serve partial political and social interests. … It is too easy to label worthy citizens as “anti-transformation” in order to delegitimise them. It is also just as easy to label the courts as “anti-transformation” or reactionary or counter-revolutionary merely to justify and undermine their legitimacy in the eyes of the people. By so doing, law itself, and the proper regard the population must have for the law, is threatened.’

Professor Pityana said it was unfortunate that the courts, especially the Supreme Court of Appeal and the Constitutional Court, have had to judge ‘on a range of matters that, with legal acumen and sensitivity to the Constitution’, should never have gone to the courts.

‘I understand that it is unprecedented in our baby democracy that so many rulings and decisions of the President have been overturned by the courts. They range from the embarrassing climbdown in the appointment of the Chief Justice to the purported recent appointment of the National Director of Public Prosecutions. All these suggest a disdain for the processes of law in the highest office in the land. South Africans should be worried about the level and extent of incapacity at executive level,’ he said.

He added that it was proper that the country stood up as one against the Protection of State Information Bill (B6 of 2010).

In respect of labour matters, Professor Pityana posed the question: ‘Why is it that we cannot find it in ourselves to construct, once again, a legitimate labour relations system, given that some of the presumptions on which our current system was based are no longer supported by sufficient numbers of those who are the social partners. I am afraid our problem is simply that we are governed by complacency instead of by innovation and continuous reference back to the people who are the sources and legitimisers of power.’

In conclusion, Professor Pityana said: ‘The fundamental premise of the justifiability of law to the people is that government, officials and all arms of the law must be seen to be practising just rule, even if that brings out results contrary to what they believe. If that is the case, then police would not just be gangsters and thugs enforcing the law with lethal force, but those who police with the consent of the people, and negotiate their respective roles for mutual benefit. Power that is exercised without any pretensions of acting justly is tyranny.’

Legal Aid SA’s performance report

Legal Aid SA’s regional operations executive, Zanele Msweli, spoke on the organisation’s performance during the 2011/12 period. She said that Legal Aid SA had assisted in 682 962 legal matters. Of these, 254 286 constituted general advice to clients, while 382 125 were criminal matters and the rest civil matters.

Ms Msweli shared the body’s highlights and challenges in the period under review. She said that Legal Aid SA was planning to increase its client base by using the services of judicare practitioners and the body had increased its civil capacity and now has civil units and employs specialist civil attorneys.

Ms Msweli said that the ‘biggest issue’ Legal Aid SA had was non-compliance in respect of tax clearance certificates regarding matters issued to judicare practitioners. She said that all practitioners registered with the body are required to provide these certificates. ‘Only 25% of the practitioners accredited with us complied,’ she said.

Ms Msweli said that Legal Aid SA was also faced with challenges in reaching out to communities and in respect of matters outside of the jurisdiction of Legal Aid SA. To remedy the situation, the body has engaged with the Law Society of the Northern Provinces, the KwaZulu-Natal Law Society and the FSLS and proposed an agreement whereby it will provide work to practitioners who will deal with those matters on a pro bono basis. Ms Msweli said that this pro bono scheme is still to be implemented. ‘We will engage all practitioners … . Once an attorney shows interest in the programme and [indicates] areas [he] want[s] to cover, [he] will sign an agreement with the justice centre. [He] will then be given matters we are unable to deal with. Once the matter has been finalised, a certificate will be issued on the amount of hours rendered, which can be submitted to the relevant law society,’ she said.

Ms Msweli added that legal practitioners would need to render pro bono services of up to 24 hours per annum. She said that in the event of more than 24 hours being rendered, the balance of the hours could be transferred to the following year.

Legal Practice Bill

FSLS council member David Bekker spoke on the Legal Practice Bill. He went through the existing governance structures in the legal profession, as well as the proposed structure of the Legal Practice Council (LPC) to be established in terms of the Bill. He spoke on the proposed ministerial appointees to the LPC in terms of the current version of the Bill. He added that the Justice Minister would have the power to dissolve and replace the LPC, as well as the power to determine the jurisdiction of regional councils. Mr Bekker added that this was one of the biggest concerns raised in respect of the Bill but this was addressed to a great extent in its most recent version.

Mr Bekker said that the General Council of the Bar (GCB) supported parts of the Bill but it wanted to keep the two branches of the legal profession separate, as it wanted to –

  • organise advocates in their own bodies;
  • administer its own rules of conduct for its members;
  • administer its own training;
  • employ its own staff; and
  • regulate its members’ fees.

Mr Bekker said that in the current version of the Bill there was no fusion of the two branches of the profession, adding that this was ‘good news’ as attorneys ‘have a much more complicated system to regulate’. ‘For example, advocates do not have trust accounts,’ he said.

Mr Bekker said that the outstanding issues still to be resolved were practical, as opposed to political, in nature. He said that the progress made thus far was positive.

In respect of independence, Mr Bekker said: ‘The Constitution states that a profession may be regulated but it does not state that government must run the profession and the Justice Department’s stance is clearly that it does not want to run the attorneys’ profession. That assurance was given over and over again.’ Mr Bekker added that while some attorneys were satisfied with three ministerial appointees, others felt that two were sufficient and others were adamant that no ministerial appointees were necessary.

Further, he said that the attorneys’ profession believed that the ombudsman provided for in the Bill should be appointed by the Chief Justice and not the President.

Mr Bekker concluded by saying that in August the Law Society of South Africa and the GCB had reached a compromise whereby they agreed to have an attorneys’ and an advocates’ chamber under each of the regional councils.

Fees

The society’s membership fees will increase by R 100 to R 1 700 in 2013.

New FSLS council:

President – Johannes Fouché

Vice-president – Vincent Matsepe

David Bekker

Etienne Horn

Nolitha Jali

Sizane Jonase

Jan Maree

Joseph Mhlambi

Deirdre Milton

Vuyo Morobane

McDonald Moroka

Hendrik van Rooyen

*This list must still be approved at the next FSLS council meeting, which will take place after this issue of De Rebus goes to print.

Nomfundo Manyathi, nomfundo@derebus.org.za

This article was first published in De Rebus in 2012 (Dec) DR 14.