Deepening constitutional democracy discussed at NADEL AGM

May 1st, 2018
x
Bookmark

On the first day of the conference, the evening of 15 March, a panel discussion was held titled: ‘Corruption in the public and private sector. Our views on state capture investigations and terms of reference’. Panelists included (from left) former Member of Parliament, Vytjie Mentor; Professor at the University of Cape Town, Dr Lwazi Lushaba; and Honorary Professor at the University of South Africa, Dr Somadoda Fikeni.

By Mapula Sedutla

The National Association of Democratic Lawyers (NADEL) held its annual general meeting (AGM) and annual conference in East London from 15 to 17 March under the theme: ‘The Role of Progressive Lawyers in Deepening Constitutional Democracy’.

On the first day of the conference, the evening of 15 March, a panel discussion was held titled: ‘Corruption in the public and private sector. Our views on state capture investigations and terms of reference’. Panelists included former Member of Parliament, Vytjie Mentor; Professor at the University of Cape Town, Dr Lwazi Lushaba; and Honorary Professor at the University of South Africa (Unisa), Dr Somadoda Fikeni.

Speaking about state capture, Ms Mentor asked what NADEL has done, as an organisation, about corruption in the country and challenged the organisation to take responsibility and do what is needed to be done to ensure that corruption does not overtake the country. She added: ‘It is organisations such as NADEL and progressive lawyers that can hold the democratic state accountable for corruption in the country.’

Prof Lushaba began his address by asking why the Gupta family chose South Africa (SA) as a destination for state capture. ‘The Guptas could have gone to a country such as Japan. In the hierarchy of races, it is possible that the Guptas thought that the black South African government was inferior, therefore, it would be easy to capture the state,’ he added.

Judge President of the Eastern Cape High Court, Selby Mfanelo Mbenenge said that the topics that were covered at the conference reaffirms NADEL’s role of upholding the rule of law in the country.

Another question Prof Lushaba posed was: What is law? He said using the state capture situation as an example, it is clear that the law is not the final arbiter of truth. He added: ‘There is no causal relationship between the law and morality. … Power and not truth makes the law.’

Prof Fikeni noted that the presidency of former President Jacob Zuma was not all bad, as he hired former Public Protector Thuli Madonsela and Chief Justice Mogoeng Mogoeng. ‘Because prior to their appointment Ms Madonsela and Chief Justice Mogoeng kept a low profile, the president hired them thinking that they were going to work for the master. They became the last line of defence and defended democracy in the country.’

Prof Fikeni noted that liberation movements do not do well when they get into power. ‘When they are in power, they have influence and have access to money, whereas when they were in the bush there was little to steal,’ he added.

Prof Fikeni said that there have always been different levels of state capture and there has always been elements of state capture in SA’s history. He pointed out that the country must be mindful of the fact that it is not only the government that is corruptible; the private sector can also be corruptible.

Re-elected President of the National Association of Democratic Lawyers (NADEL), Mvuzo Notyesi, delivered the Presidential Report. In the report, Mr Notyesi said that the resolutions taken at the 2017 conference and annual general meeting were inspired by NADEL’s commitment to building a just society free from exploitation that is based on the values of the Constitution and adheres to the advancement of human rights.

NADEL’s role in upholding the rule of law

On the second day of the conference, Judge President of the Eastern Cape Division of the High Court, Selby Mfanelo Mbenenge, was the first guest speaker to deliver an address. Judge President Mbenenge said that the topics that will be covered at the conference reaffirmed NADEL’s role of upholding the rule of law in the country. He added that the topics d

emonstrate that NADEL seeks to promote the constitutional order and socio-economic rights.

Judge President Mbenenge noted that NADEL is committed to the transformation of the judiciary in training lawyers with judicial skills and seeks to establish a relationship with the judiciary. He added that the judiciary and lawyers need one another to enhance the rule of law in the country.

Re-elected President of NADEL, Mvuzo Notyesi, delivered the Presidential Report. In the report, Mr Notyesi said that the resolutions taken at the 2017 conference and AGM were inspired by NADEL’s commitment to building a just society free from exploitation that is based on the values of the Constitution and adheres to the advancement of human rights. He added that the resolutions also reaffirmed NADEL’s commitment to the promotion of an independent judiciary as this was the core principle of the existence of

NADEL.

Mr Notyesi noted that public office bearers should be held accountable for their wrongdoings and their involvement in corruption as this has devastating consequences to the poor people of the country. ‘In the country we still have high levels of poverty, inequality and unemployment,’ he added.

Ambassador of Cuba, Rodolfo Benitez Verson, thanked NADEL for the role it played in the release of the Cuban Five.

Speaking about the life after the full enactment of the Legal Practice Act 28 of 2014 (the LPA), Mr Notyesi said that NADEL has advocated strongly for the formation of the successor of the Law Society of South Africa (LSSA). He added that the Legal Practice Council (LPC) will place both attorneys and advocates under one regulatory body and only perform regulatory duties, which will be geared towards the protection of the public. ‘We are a step closer to a unified body that we have advocated for, a body that will look after the interest of the profession. … That body will not be a replacement for NADEL,’ he said.

Ambassador of the Bolivarian Republic of Venezuela, Mairin Josefina Moreno-Merida, also delivered an address in support of NADEL and its efforts.

Messages of support

Ambassador of Cuba, Rodolfo Benitez Verson, thanked NADEL for the role it played in the release of the Cuban Five. Speaking about the Cuban government, Mr Verson said that more than half of the Cuban Parliament consists of women. He added that Cubans receive free high quality education for all levels and that Cuba has the highest share of its budget dedicated to education. ‘Cuba has the highest number of doctors ratio per capita, Cubans have a life expectancy of 80 years,’ he said.

Mr Verson noted that the Cuban revolution inspired all and that the country is proud of its African roots. He commended NADEL for its efforts aimed at healing the wounds inflicted by Apartheid and its commitment to the betterment of the lives of South Africans.

Incoming Co-chairperson of the Law Society of South Africa, Ettienne Barnard, noted that listening to NADEL’s president report, it is clear that the organisation is serious about adhering to constitutional values.

Incoming Co-chairperson of the LSSA, Ettienne Barnard, noted that listening to NADEL’s president report it is clear that the organisation is serious about adhering to constitutional values. Ambassador of the Bolivarian Republic of Venezuela, Mairin Josefina Moreno-Merida, also delivered an address in support of NADEL and

its efforts.

Legal education

Member of the LSSA’s Standing Committee on Legal Education, Zaahira Tiry, said that professional vocational training (PVT) is an essential paramount part of legal education. ‘What we need to decide upon is what model this important part of legal education should take. … We cannot leave the conference without deliberating this issue’ she added.

Ms Tiry noted that the role of a progressive lawyer is to deepen the nation’s democracy. She added: ‘If we are going to give South Africa the best legal practitioners, we can only achieve this by giving proper training. The present system has failed. … We fought for freedom and we stand for justice and we are inclined to support the adoption of a sincere recommendation for the benefit of future generations.’

Member of the LSSA’s Standing Committee on Legal Education, Zaahira Tiry, said that professional vocational training is an essential paramount part of legal education.

Speaking about the issues the LPA is trying to solve, Ms Tiry said access to legal services is not a reality for most South Africans. ‘Many people have legal problems and are in dire need for legal representation. The legal profession is not broadly representative of the demographics of the country. Opportunities for entry into the profession are restricted in terms of the current legal framework. We have reached the end of the struggle and now is the time we transform the profession,’ she added.

Ms Tiry noted that in the future there must be quality uniform legal training for all legal practitioners. ‘The training must not discriminate, which will include proper compensation for all candidate legal practitioners. The training must strengthen the independence of the profession,’ she added.

Head of the Law clinic at the University of Fort Hare, Nasholan Chetty, noted that many LLB graduates lack a number of skills such as the ability to draft and understand ethics and, as always, universities are blamed for this reality.

Head of the Law Clinic at the University of Fort Hare, Nasholan Chetty, noted that many LLB graduates lack a number of skills such as the ability to draft and understand ethics and, as always, universities are blamed for this reality. Mr Chetty added that the legal profession asks universities ‘what is going on, what are you teaching them and that graduates have to be ready from day one no matter what’.

Mr Chetty noted that the legal profession should discuss the future model of the LLB, as they owe this to the future generation of lawyers. He added that many students who qualify for their LLB want to work in major cities such as Johannesburg and that they should be taught to rather work for communities in rural areas and have an interest in promoting human rights.

Mr Chetty stated that university law clinics could provide assistance in ensuring that candidate legal practitioners know and understand the ethical standard they have to adhere to in order to be lawyers that the community needs.

Member of Advocates for Transformation, Dali Mpofu SC, said that the preamble of the Legal Practice Act clearly states what the Act is trying to achieve.

Discussion on the future of the profession

Member of Advocates for Transformation, Dali Mpofu SC, noted that in the 80s and 90s the distinction between advocate and attorney was irrelevant that is why he was part of the NADEL delegation that negotiated during the formation of the LSSA. ‘No one found that to be an issue because our approach was never about us and them, unlike now, we are trapped in colonial divisions,’ he added.

Mr Mpofu said that the preamble of the LPA clearly states what the Act is trying to achieve. He said that the first piece of the preamble is about transformation as it states that the profession needs to be broadly representative of the demographics of the country. ‘We as the profession, particularly the organised profession, need to start asking deep questions. It does not mean that we will have the same view; there are political ideological questions that need to be answered,’ he said.

Touching on the topic of a progressive lawyer, Mr Mpofu said that progressive lawyers fight for human rights and that one does not need to be a formal member of a political organisation to achieve this. ‘Money is not everything, winning is not everything. Some cases need to be argued. Money should not guide you, it will come, winning should not drive you, it will come. … As a progressive lawyer you should ask yourself: What is it that I have done to lessen the gap of inequality?’ he added.

Member of the National Forum on the Legal Profession, Krish Govender, noted that it took 20 years for the Legal Practice Act to be enacted because some lawyers are only interested in stopping progress.

Member of the National Forum on the Legal Profession (NF), Krish Govender, noted that it took 20 years for the LPA to be enacted because some lawyers are only interested in stopping progress. ‘At the National Forum we are still fighting with lawyers who do not want to see change. The whole issue of PVT is being fought over at the National Forum,’ he added.

Mr Govender then went on to unpack the chapters of the LPA and gave ‘the lazy lawyers’ guide to the Act’, he said:

  • Chapter 1 deals with the definitions, the administration of the Act and the preamble.
  • Chapter 2 deals with the LPC, which will be a regulatory body much like the Health Professions Council of South Africa. The LPC will comprise of 23 members, 16 of which will be from the profession, that is ten attorneys and six advocates. The right people will have to be elected to fill those positions. The LPC will be purely regulatory, look after the interest of the public and ensure that lawyers do not break the rules. The LPC will not hold any AGM and will be nothing like the LSSA.
  • Chapter 2 part 2 deals with how the LPC will operate.
  • Chapter 3 deals with the regulation of legal practitioners and candidate legal practitioners.
  • Chapter 4 deals with the codes of conduct.
  • Chapter 5 speaks about the envisaged legal ombudsman, which the LPA will introduce.
  • Chapter 6 deals with the Fidelity Fund.
  • Chapter 7 is about handling trust money.
  • Chapter 8 deals with the general provisions and tying up loose ends.
  • Chapter 9 is about the rules that have already been gazetted.
  • Chapter 10 deals with provincial law societies.

Deputy Chairperson of the National Forum on the Legal Profession, Max Boqwana,
said that when one looks at the Legal Practice Act in its current form, they might ask
what happened to the issue of fusion between the advocates and attorneys profession.

Deputy Chairperson of the NF, Max Boqwana, said that when one looks at the LPA in its current form, they might ask what happened to the issue of fusion between the advocates and attorneys profession. ‘Even the issue of unity within the profession is not really covered by the Act. South Africa is thirsty for a different type of lawyer. The greatest tragedy of our country is the fact that there is so much inequality. So the country needs a lawyer who will be able to address this issue,’ he added.

Decolonisation

Chairperson of the Justice Portfolio Committee and Member of Parliament, Dr Mathole Motshekga said the South African Constitution is hailed among the best in the world and it has earned that position. Dr Motshekga noted that any truthful decolonisation would deepen human rights.

Chairperson of the Justice Portfolio Committee and Member of Parliament, Dr Mathole Motshekga, said the South African Constitution is hailed among the best in the world and it has earned that position.

Dr Motshekga said that colonisation led the Europeans to believe that Africans were sub-human. ‘Colonisation was the genesis for the ideology for the Apartheid system. It also aided the white settlers to enslave the Africans. … When religion was brought to Africans, the Africans were told that they could not be ordained because they cannot communicate with God directly,’ he added.

Dr Motshekaga went on further to state: ‘When we talk about the decolonisation of the entire legal system and the country we need to start in the minds of its citizens otherwise we will not go anywhere. … Today we are told that African customary law has the same status under the Constitution, this is not true. We do not teach African customary law at universities. If students have a choice between customary law and Roman Dutch law, they will choose Roman Dutch law.’

Corruption as a conduct that undermines democracy and the rule of law

Associate Professor at the University of Johannesburg, Mcebisi Ndletyana spoke about democracy and the rule of law.

Associate Professor at the University of Johannesburg, Mcebisi Ndletyana began his address by saying there is a ‘toxic problem’ that has emerged because of colonisation. ‘Land was taken by force and the perpetrators were protected. The natives were forced to live in the Bantustans and were migrant temporary contract workers. The natives did not have rights and the owners of the mines they worked for could make maximum profit because they did not have to provide for proper housing,’ he added.

Prof Ndletyana noted that when the Commission for Rugby Affairs subpoenaed former President Nelson Mandela to court, he went. ‘Madiba did not have to appear in court because he was the president, but he went because he understood what protecting the rule of law entailed,’ he added.

Prof Ndletyana said that the Zuma Presidency did not have respect for the rule of law and this can be seen by the firing of competent individuals and the public lynching of the former Public Protector, Thuli Madonsela.

Challenges facing women and young practitioners

Judge President of the Bloemfontein Division of the High Court, Mahube Molemela, said patriarchy is one of the major reasons why female legal practitioners face challenges in the profession.

Judge President of the Bloemfontein Division of the High Court, Mahube Molemela, said that women constitute 35% of the number of judges in the country. Quoting Justice Mokgoro, Judge President Molemela said: ‘Having women in law with positions of power should not be underestimated as this could bring enormous returns.’

Judge President Molemela added that patriarchy is one of the major reasons why female legal practitioners face challenges in the profession. ‘Patriarchy is the number one challenge for women in the profession. We need to face it head on because it has devastating consequences for women. We must inculcate steps to root it out,’ she added.

Judge President Molemela noted, however, that not all is bleak when it comes to gender transformation of the profession and that there is hope for change.

Judge President Molemela said that another issue the profession needs to have a closer look at is the fact that female practitioners do not stay in the profession and this can be seen by the number of female senior attorneys and advocates. ‘Most women do not practice law, they work at corporate organisations,’ she added.

Judge President Molemela conducted anecdotal research with female legal practitioners she encountered and said she was shocked to realise the challenges she faced as a legal practitioner were still prevalent. ‘The glass ceiling that I experienced was still in place. There are still law firms that use female legal practitioners to get good BEE scores and females are still used for window dressing. … Law firms hire female practitioners as a ticking box exercise and do not make sure they retain them,’ she noted.

Judge President Molemela added that during her anecdotal research, she also found that black advocates were mostly given unopposed divorce work. She added: ‘The women also highlighted sexual harassment as an obstacle in advancing their careers. They said it is difficult to gain knowledge from senior male practitioners because they keep asking for sexual favours. The women are taken advantage of. The women also mentioned that there is no promotion of wellness at law firms and they are not given coping skills, which may lead to misconduct or even substance abuse.’

Another issue Judge President Molemela’s research highlighted was that black female legal practitioners are presumed incompetent until they prove otherwise. ‘They are constantly micromanaged, they have to prove themselves in every role while their white counterparts are trusted with the work.’

In conclusion, Judge President Molemela said that the issues raised by her research need to be addressed and that the profession needs to be a better place for female legal practitioners.

Minister of Justice and Constitutional Development, Michael Masutha, spoke on the progress of the Legal Practice Act and transformation of the profession in general.

Progress in the implementation of the LPA

On the third day of the conference (17 May), Minister of Justice and Constitutional Development, Michael Masutha, delivered an address. Mr Masutha spoke on the progress of the LPA and transformation of the profession in general.

Mr Masutha said he was disappointed at the pace at which the profession has not been able to transform. He added: ‘I received proposals for silks from the Cape and Pretoria Bar and the composition was almost entirely white male. This should not be the case 25 years after democracy. … How best do we turn this situation around?’

Mr Masutha noted that it lies in the hands of the profession to make transformation a reality. ‘The profession has to make sure that it is representative of the population. The profession also has to make sure that the rule of law is upheld in the country.’

Speaking about the LPA, Mr Masutha said that part 1 and 2 of the Act came into operation in 2015, which mainly deals with the workings of the NF, which is put in place to deal with unresolved issues within the LPA.

For more on the LPA see:

Delegates who received a copy of the launched book in honour of their contribution to NADEL.

Life and history of NADEL

On the evening of the third day of the conference a gala dinner, which included a book launch was held. JB Sibanyoni opened the proceedings by rendering a moving poem titled The Detainee.

JB Sibanyoni opened theproceedings of the gala dinner by rendering a moving poem titled The Detainee.

Judge Ndumiso Patrick Jaji welcomed delegates to the gala dinner. Giving background to the book, Judge Jaji said that the documenting of the life and history of NADEL was the idea of its president, Mr Notyesi. Judge Jaji added that 70% of NADEL members are youth, therefore, documenting the history of the organisation will remind the youth of the aims of the organisation.

During the proceedings of the evening, a documentary depicting the history of the organisation through interviews with its founding members was screened.

Judge Ndumiso Patrick Jaji welcomed delegates to the gala dinner.

Deputy Chief Justice, Raymond Zondo, delivered an address in tribute to the first President of NADEL, former Chief Justice Pius Langa. Deputy Chief Justice Zondo noted that when one pays tribute to a giant, the question arises as to where to start. He added that former Chief Justice Langa worked tirelessly for the freedom of the country and made an immense contribution to the country.

Deputy Chief Justice Zondo noted that during his articles, his principal would often encourage him to read the pleadings written by Justice Langa because his principal said that is how pleadings should be written. He said that when he met Justice Langa he was struck by his humility. ‘When you worked with Pius Langa on a matter he made sure that you were given a chance to make an input,’ he added.

Deputy Chief Justice Zondo said: ‘Pius Langa was an activist. He was not only part of the community he was an active member of the community and was accessible and ready to resolve the community’s problems for those who needed legal assistance. During the state of emergency, advocate Pius Langa was relied on by many members of the community.’

Deputy Chief Justice, Raymond Zondo, delivered an address in tribute to the first President of NADEL, former Chief Justice Pius Langa.

Deputy Chief Justice Zondo went on to state: ‘Pius Langa was a humble person. … He lived by the motto “people first”, he never put his own interest ahead of others.’

New NADEL National Executive Committee

  • Mvuzo Notyesi (President)
  • Lawrence Manye (Deputy President)
  • Nolitha Jali (General Secretary)
  • Ugeshnee Naicker (Deputy General Secretary)
  • Strike Madiba (Treasurer)
  • Reshen Pillay (Deputy Treasurer)
  • Mfana Gwala (Secretary for Public Relations)
  • Seeham Samaai (Gender Desk)
  • Zincedile Monde Tiya (Youth Desk)
  • Zolile Sontshi (Fundraising)
  • Eunice Masipa (Projects and Events)

Delegates who received a copy of the launched book in honour of their contribution to NADEL.

Mapula Sedutla NDip Journ (DUT) BTech (Journ) (TUT) is the editor of De Rebus.

This article was first published in De Rebus in 2018 (May) DR 5.

Loading...