Ethics and moral fibre of the legal profession discussed at the BLA’s AGM

December 10th, 2019
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By Kgomotso Ramotsho

The Black Lawyers Association (BLA) held its 42nd Annual General Meeting (AGM) under the theme ‘Collaborations and Synergies in Building Law Firms to Serve Marginalised Communities’ on 23 November in Polokwane. In his opening remarks, Judge President of the Limpopo Division of the High Court, Ephraim Makgoba, said that the BLA has come a long way and recalled that he joined the BLA, three years after it was formed. He paid tribute to the outgoing President of the BLA, Lutendo Sigogo, saying that he is proud to have had a leader who hailed from the Limpopo province.

Judge President of the Limpopo Division of the High Court, Ephraim Makgoba, gave opening remarks at the Black Lawyers Association’s 42nd Annual General Meeting in Polokwane.

Delivering a message from the judiciary, Judge President Makgoba said the judiciary was concerned about legal practitioners. He pointed out that the judiciary is worried about the moral fibre of legal profession, as well as their lack of ethics. He added that magistrates and judges often complain about the conduct of some legal practitioners and said that it is regrettable that legal practitioners would behave in such a manner, because the judiciary draws its pool from the legal profession.

Judge President Makgoba asked if the legal profession cannot behave itself ethically, what types of judges will be produced in future? He pointed out that of the nine judge presidents in the country, six were attorneys. He said that legal practitioners must recognise the role they play in the judiciary. He added that the judiciary urges legal practitioners to hold on to ethics, because the leadership of the judiciary is also selected from the pool of legal practitioners.

Judge President Makgoba said the judiciary does not take joy in striking legal practitioners from the roll, adding that the greatest feeling the judiciary has, is when new legal practitioners are admitted to practice. He appealed to legal practitioners to spare the judiciary the pain of having to strike them from the roll. He added that it is not costly to behave like a gentleman or a lady.

Outgoing President of the BLA, Mr Sigogo, started his speech with a quote by Steve Biko, ‘Black man you are on your own.’ He said female legal practitioners and black legal practitioners must utilise the meaning of Mr Biko’s statement, and went on further to state that Mr Biko said: ‘A black man should be more independent and depend on himself for his freedom … . The blacks are tired of standing at the touchlines to witness a game that they should be playing. They want to do things for themselves and by themselves.’

Mr Sigogo said female legal practitioners and black legal practitioners should live by Mr Biko’s statement. He added that if government does not believe that female legal practitioners and black legal practitioners are capable of doing work for government, they – female and black legal practitioners – should show government that they are capable by litigating against government. Mr Sigogo pointed out that collaborations and synergies among legal practitioners ­– as opposed to competing with one another – is the only positive step that the members of the BLA in sustainable law firms can take to serve marginalised communities.

Mr Sigogo noted that almost all of the matters that emanate from communities are referred to the Constitutional Court. He gave examples of children that have fallen into pit toilets; children who do not receive text books on time, and sufferers of illnesses, such as silicosis, are from marginalised communities. He said it should be legal practitioners who come from those communities who should be litigating in such matters.

LPFF

The Chief Executive Officer of the Legal Practitioners’ Fidelity Fund (LPFF), Motlatsi Molefe, gave an update on risk trends and risk mitigation. Mr Molefe echoed the words of Judge President Makgoba on moral fibre and ethics as it is a problematic issue in the legal profession. He said that in 2018 the LPFF paid a total of 377 claims, amounting to R 125 million and in 2019 the LPFF paid in excess of R 400 million from a lower number of claims. He added that with these kinds of claims, theft is becoming evident in the legal profession. He pointed out that this is something that has to be addressed by the legal profession.

Chief Executive Officer of the Legal Practitioners Fidelity Fund, Motlatsi Molefe, gave an update on risk trends and risk mitigation at the Black Lawyers Association’s annual general meeting.

Mr Molefe spoke about the contribution that is to be made by legal practitioners towards the payment of professional indemnity (PI) insurance cover as set out in s 74 of the Legal Practice Act 28 of 2014 (LPA). He said that from 1993 this cover was provided for free to legal practitioners by the Legal Practitioners’ Indemnity Insurance Fund NPC (LPIIF) and the premium was paid by the LPFF and not by legal practitioners. However, Mr Molefe pointed out that the business model has proven to be problematic because it is unsustainable.

Mr Molefe said that the LPFF took a decision – at board level – that legal practitioners should contribute an amount of R 5 100 per practitioner with effect from 2019 when the applications for Fidelity Fund Certificates (FFC) opened this year. He added that it was intended that legal practitioners not only pay for their FFC, but would also pay for the PI cover. Mr Molefe said, however, the LPFF was approached by a number of stakeholders and the matter has been postponed for a period of 12 months. He noted that in the next 12 months, the LPFF will engage stakeholders to ensure that legal practitioners prepare themselves.

Mr Molefe emphasised that the 12-month period given to legal practitioners is not to negotiate on what the board has already decided on, but to give legal practitioners enough time to apply for their FFC. He said that the LPA clearly states that legal practitioners – in order to receive their FFC – need to pay all their dues including a contribution determined by the LPFF.

Mr Molefe pointed out that even the figure of R 5 100 is still being subsidised over the next five years. He added that it is only the risk element that relates to the payment of claims that legal practitioners will have to bear. He added that in terms of the management and operational costs that are associated with running the scheme, the LPFF will continue paying in perpetuity.

Chairperson of the Legal Practice Council (LPC), Kathleen Matolo-Dlepu gave an update on what the LPC has done since its inception in 2018.

LPC

The Chairperson of the Legal Practice Council (LPC), Kathleen Matolo-Dlepu, gave an update on what the LPC has done since its inception in 2018. Ms Matolo-Dlepu said the LPC consists of 23 councillors, however, she noted that the LPC will call for nominations for two vacancies in the next few months. She said that she would assume that all the legal practitioners have read the LPA and its code of conduct, but if not, Ms Matolo-Dlepu urged legal practitioners to read both the Act and the code of conduct.

Ms Matolo-Dlepu said ch 1, ch 2 with exclusion s 14; ch 3 with exclusion of s 35(1), (2), (3) and (7) up to and including (12); ch 4 with exclusion of s 37(5)(e)(ii), s 40(1)(b)(ii) and (7)(b), s 41 and s 42, ch 6; ch 7; ch 8 with exclusion of s 93(5); ch 9 with exclusion of s 95(2); and parts 3 and 4 of ch 10 of the LPA are in operation. She noted that the LPC has nine provincial councils that are now operational with a total of 261 staff members. Ms Matolo-Dlepu said in the first year of operation the LPC has received and approved the admission of 2 753 legal practitioners since November 2018 and 9 434 candidate legal practitioners have written admission examinations.

The Vice-President of the Law Society of South Africa (LSSA), Mabaeng Denise Lenyai, gave a presentation about the LSSA. Ms Lenyai said the LSSA changed its constitution and added ‘representative of legal practitioners’ to its mandate.

LSSA

The Vice-President of the Law Society of South Africa (LSSA), Mabaeng Denise Lenyai, gave a presentation about the LSSA. Ms Lenyai said on 31 October 2018 the LSSA changed its constitution and added ‘representative of legal practitioners’ to its mandate. She pointed out that LSSA has the following constituent members: The BLA, the National Association of Democratic Lawyers (NADEL) and independent attorney associations that consist of legal practitioners who do not belong to either the BLA or NADEL. Each member has a one third majority.

Ms Lenyai added that among other things the LSSA does, is to deal with various issues, for example engaging with the LPC with regards to the interest of legal practitioners in matters, such as, regulatory issues. The LSSA also administers examinations on behalf of the LPC. She pointed out that the LSSA is also perusing the issue regarding conveyancing examinations. Ms Lenyai also highlighted that the LSSA has engaged in litigation matters on behalf of the legal profession and the public. One of the matters the LSSA was involved in was Proxi Smart Services (Pty) Ltd v Law Society of South Africa and Others (CC) (unreported case no CCT114/19, 5-8-2019) (Mogoeng CJ, Carmen J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J and Theron J).

Incoming President of the Black Lawyers Association (BLA) and Chairperson of the Attorneys Development Fund, Mashudu Kutama, addressing members of the BLA at the organisation’s 42nd Annual General Meeting held in Polokwane on 23 November.

ADF

The chairperson of the Attorneys Development Fund (ADF), Mashudu Kutama, gave an update on the developments and the role the ADF will play in future. He said that the ADF started in 2001 with the capital of more than R 40 million, however, he pointed out that there had been a misappropriation of funds amounting to R 24 million by the late Chief Executive Officer of the ADF, Mackenzie Mukansi. Mr Kutama added that the ADF is now certain that the R 24 million will not all be recovered as some of it was already spent, but some of the money will be recovered, as the matter has been handed over to the Hawks.

Mr Kutama added that the board of the ADF believes that there is life after the misappropriation of funds that took place at the ADF. He said the board of the ADF has resolved to continue and create the Legal Practitioners Development Fund, which will also facilitate the employment of candidate legal practitioners. He added that the ADF is looking into ways to support and contribute to the training of staff in law firms. Mr Kutama said there is a new financial system in place at the ADF and he reassured legal practitioners that no money will be stolen again.

BLA statement on the elective AGM

The BLA released a statement after its 42nd AGM, which stated that the National Annual General Meeting (NAGM) accepted and adopted the organisational report that was presented by its outgoing President Mr Sigogo on behalf of the former National Executive Committee (NEC). The report reflected on the state of the country in general and the situation within the legal profession. The statement added that the NAGM noted the slow pace of transformation manifesting itself through the unfair briefing patterns, which has led to black and female legal practitioners being excluded ‘by the dangerous and racist tendencies of the government in entrusting their legal work with white legal practitioners to the exclusion of black legal practitioners.’

The BLA stated that it has accordingly resolved to strengthen its fight for a transformed legal profession and judiciary by using all platforms available and by any means necessary, including litigation and civil disobedience. The NAGM also noted the reports presented by the LPFF, ADF, LPC and the LSSA. The BLA pointed out that it will continue to actively participate in these bodies to effect transformation.

At the NAGM, the LSSA received a considerable amount of attention. The BLA stated that it had previously resolved that the LSSA must only continue for a period of three years from the time that ch 2 of the LPA comes into effect. The NAGM noted that the period of three years given to the LSSA was meant to give the BLA space and time to reflect on the new developments regarding the establishment of the LPC and determine if there will be a role for the LSSA to play.

At the NAGM, the BLA resolved that there is a need for the continuation of the LSSA under the current climate and that the LSSA must be prepared to be vigorous in the pursuit of the transformed legal profession. In line with the long-held position of the BLA regarding the fusion of the advocates’ and attorneys’ profession, which has been made possible by the establishment of the LPC, the NAGM resolved that the LSSA must be prepared to open space within itself to include other bodies, such as the South African Women Lawyers Association and Advocates for Transformation if they so wish to join it so that voices of as many legal practitioners are fairly represented by the LSSA.

The newly elected leadership of the BLA is as follows –

  • Mashudu Kutama (President);
  • Bayethe Maswazi (Deputy President);
  • Noveni Kubayi (Treasurer);
  • Mabaeng Denise Lenyai (General Secretary);
  • Charlotte Mahlatji (Deputy General Secretary);
  • Nolundi Nyati (Head of Policy and Legislation);
  • Vumani Mthembu (Head of Legal Education and Research); and
  • Zanele Nkosi (Head of Events and Campaigns).

In terms of the Constitution of the BLA, the outgoing president becomes the ex officio member of the new NEC for a period of one year.

The new National Executive Committee of the Black Lawyers Association (BLA) from left: Head of Events and Campaigns, Zanele Nkosi; Deputy President, Bayethe Maswazi; Head of Legal Education and Research, Vuman Mthembu; General Secretary, Mabaeng Denise Lenyai; President, Mashudu Kutama; Head of Policy and Legislation, Nolundi Nyathi; Treasurer, Noveni Kubayi; BLA Student Chapter President, Nompumelelo Khaba; and Deputy General Secretary, Charlotte Mahlatji.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.