By Mapula Thebe

The Law Society of South Africa (LSSA) held its 17th annual general meeting (AGM) in Durban on 20 and 21 March. The well-attended AGM coincided with Human Rights Day. On the first day of the AGM Justice Minister, Michael Masutha, delivered the keynote address, while former United Nations Commissioner for Human Rights, Judge Navi Pillay, delivered the keynote address on the second day.

On 20 March delegates also attended a dinner and lecture in honour of the centenary celebrations for Archie Gumede. The lecture was delivered by former Minister of Finance and Minister in the Presidency, Trevor Manuel.

Opening the proceedings, CEO of the LSSA, Nic Swart, asked delegates to stand and observe a moment of silence in memory of the late Minister of Public Service and Administration Collins Chabane who had passed away with others during a motor vehicle accident.

The President of the KwaZulu-Natal Law Society, Manette Strauss, welcomed delegates to KwaZulu-Natal. Speaking on the Legal Practice Act 28 of 2014, she said: ‘Most of us are keen to see what impact this legislation is going to have on the way that we not only do business, but serve the public. The future implications are up to us, together with our colleagues from the Bar and other stakeholders, to determine what the Act is to achieve for the profession as a whole. … The legal profession’s slate has been wiped clean and we now have the rare opportunity to contribute to making it a more accessible, a more reflective and a more competent system.’

Co-chairs report

The outgoing Co-chairperson of the LSSA, Ettienne Barnard, highlighted aspects of the Co-chairs report and said that the LSSA through its six constituent members, represents about 23 000 attorneys and just under 6 000 candidate attorneys. ‘Statistics show that the profession is changing slowly year on year and of the practising attorneys, 36% are black and 37% are women (13% are black women). Statistics from 2008 to 2014 show that, while white male attorney numbers have grown only marginally, the total of white male attorneys has dropped by 7% from 2008 to 2014. Black male attorneys have increased from some 3 900 to 5 100. As regards candidate attorneys, 56% are females and 57% are black. Eighteen percent of candidate attorneys are white males, whereas 31% are black females. Black female and white female candidate attorneys are 26% and 25% respectively. An average of 1 590 attorneys have been admitted to the profession per year over the past ten years. Last year, 57% of these were women and half of those admitted were black. Generally, for the past five years, more women have been admitted to the profession than men, and the number of black attorneys that are admitted vary between 47% and 50%,’ he said.

Speaking on the strategy and vision of the LSSA, Mr Barnard said: ‘Our vision is a unified, independent, legal profession that protects and promotes the rights enshrined in the Constitution. … The Law Society of South Africa still has a very important role to play.’ He added that the LSSA will provide sustainable support in concluding the transitional process of the Legal Practice Act to ensure meaningful transfer of institutional knowledge. The LSSA will also ‘communicate developments widely to stakeholders and assist with strategic planning, as well as the development of policies, protocols and guidelines,’ he said.

‘White boys club?’

Opening his keynote address, Mr Masutha on behalf of the Justice sector, expressed heartfelt condolences to the family, friends and colleagues in the Cabinet and the Executive, for the passing away of Minister Collins Chabane and his two bodyguards. He said that the AGM was an opportune time for the LSSA to reflect on the progress made with regard to the transformation of the profession in the past 20 years of democracy – or lack thereof – in order to put in place a workable plan of action for the future.

Speaking on the National Forum on the Legal Profession in terms of the Legal Practice Act, Mr Masutha said that he faced embarrassment and was bombarded with questions relating to the composition of the forum when he presented the names of the members to Cabinet. At the time, only three of the 19 members were women, therefore, he had no choice but to ensure that both his nominees were women. He added: ‘If the white males were to allow me, no offense to themselves, [the forum is] essentially a white boys’ club and my apologies for bad manners and bad language, but that is a reality that we need to confront, because it is not just a reflection of this body, which is meant to lead transformation, but it is a reflection on us as a profession. It poses questions about how transformed we are. Where are we, relative to the rest of society?’

Mr Masutha said that the developmental character of the Constitution remains an important tool that is necessary to redress the imbalances of the past. ‘Then enforcibility of the Bill of Rights places a higher responsibility on the judicial system of ensuring that all people have access to justice. Access to justice is, therefore, a universal and an honourable right without which all rights in the Bill of Rights would be meaningless. The judiciary and the legal profession are at the epicentre of the government’s or the state’s quest to provide an accessible and affordable judicial system. Legal practitioners have a legal and moral duty to assist litigants to enforce their rights in courts of law. It is important, therefore, in order to restore public confidence in the judicial system that the legal profession, like the judiciary is transformed in line with the tenets of our democratic constitution,’ he said.

Addressing the issue of gender transformation, Mr Masutha said that the few women judges on the Bench is partly attributed to the few women practitioners across the attorneys’ and advocates’ professions. ‘The latest statistics brought to my attention indicates that of a total number of 22 912 attorneys, … only 8 343 are women. Of the latter number, only a mere 2 989 are black female practitioners. In respect of the advocates’ profession, of the 2 571 advocates who are enrolled through the constituent Bars of the General Council of the Bar, only 116 are African women practitioners out of a number of 645 women advocates. The Legal Practice Act must help us change, not only the face of the profession, but also the way in which the profession provides services to the people who are the beneficiaries of the legal system,’ he said.

In conclusion, Mr Masutha thanked the legal profession for the role it continues to play in aspects of the justice system and society. ‘One such important service is in relation to the small claims courts, which are an important vehicle of widening access to justice, in particular for the poor members of our society. Let me also express profound gratitude following the enthusiasm and support that the profession has shown in the court-annexed mediation dispensation, which we have recently introduced into our legal system. Attorneys and advocates have come forward in their large numbers to play part in this worthy cause that is aimed at maximising access to justice,’ he said.

• See 12.

Word from the Attorneys Fidelity Fund

Outgoing Chairperson of the Attorneys Fidelity Fund (AFF), CP Fourie, spoke on the position of the AFF during the transitional phase of the Legal Practice Act and also gave a report on its performance during 2014. ‘We are now indeed and at long last in the transitional phase and during this phase, which will be for a period of at least three years, the AFF will continue to operate and fulfil its obligations in terms of the Attorneys Act [53] of 1979, as amended. … During 2014 the total nett assets of the fund improved by 5,1%. As at 31 December 2014 the total nett assets of the fund amounted to R 4,324 billion. The positive result for 2014 can be attributed to investment performance. The Fund’s investments grew by 9,33% on average across all asset classes,’ he said.

Speaking on claims paid out to the public Mr Fourie said: ‘Theft claims paid in 2014 amounted to R 97 million. Over the last six years, theft claims paid totalled R 549 million, which, on average, is R 91,5 million per year. This, no doubt, is a shocking figure. The positive side, however, is that members of the public were assisted to such an extent, which is the very purpose why the fund was established. Even more alarming is the fact that the cumulative percentage growth in claims on record over the past five years is an enormous 99%. In other words, the growth in claims on record over five years has doubled. Therefore, concerns remain over the fund’s financial sustainability in the longer term. The way forward: The Board of Control has approved and implemented a comprehensive three-year plan to address the challenges and also the opportunities presented by the Legal Practice Act. In order to endeavour to ensure the financial sustainability of the fund [and that it] remains intact going forward, the fund has to continue to maximise income, curb expenses where practically possible and ensure effective risk management and the limiting of risk exposure.’

With regard to maximising income for the AFF, Mr Fourie made the following points:

• The Legal Practice Act provides that a percentage of the interest earned on s 78(2A) trust account investments shall vest in and be paid over to the AFF. The Attorneys Act may be amended to include this provision during the transitional phase so that this new income stream is available to the fund earlier.

• With effect from 1 March 2015, it will become mandatory for practitioners to pay over interest earned on trust current banking accounts to the AFF via the appropriate collecting law society on a monthly basis. The money will not be automatically swept if there is no money in the trust account.

• The AFF will have a focused investment strategy, designed to preserve capital and to achieve investment growth that should continue to be followed.

As regards the curbing of expenses, Mr Fourie said that there will be capping of s 46(b) – funding until 2017. ‘This primarily impacts on legal education and the necessity and/or affordability to have three providers of legal education should again be closely scrutinised. Secondly, there will be capping of the fund’s contribution for professional indemnity insurance cover, pending the re-engineering of the Attorneys Insurance Indemnity Fund [AIIF]. The review of the business model has been concluded and the recommendation is that the AIIF continues with the current model, with the exception that in future practitioners be responsible for the funding of the [Professional Indemnity] cover they enjoy or a contribution be levied in respect thereof,’ he said.

Further, Mr Fourie said that the management of the AIIF scheme by Aon finally came to an end in November 2014. ‘The management of the AIIF’s business is now fully in the hands of its own management and the entire business of the AIIF is conducted from the new premises of the AFF in Centurion. Staff members formally employed by Aon have now been absorbed into the AIIF. Operating from the same premises makes the sharing of services possible, which should hopefully result in achieving significant savings,’ he said.

• See 16.

In terms of continued effective risk management and the limiting of risk exposure Mr Fourie said the Legal Practice Act has an empowering provision that the Minister may cap claims. ‘This will significantly reduce the risk exposure of the fund. Hopefully by way of an amendment to the Attorneys Act the capping of claims will be possible, also during the transitional phase. The new Compliance Support program, to assist new practices with their opening audits and to also assist such practices into the mainstream as soon as possible, has commenced in KwaZulu-Natal. In due course, it will hopefully be introduced nationally. Under the Legal Practice Act the Fund will be able to inspect the accounting records of any trust account practice. Such compliance inspections should significantly contribute to effective risk management,’ he said.

Word from the Southern African Development Community Lawyers Association

Vice-president of the Southern African Development Community Lawyers Association (SADC LA) James Banda gave a brief history of the association: ‘This organisation was formed in Maputo, in Mozambique in 1999 by senior law society members and Bar leaders from within the SADC region. Currently the association has 12 institutional members of the 15 SADC countries. Three of the SADC countries, namely the Indian Ocean Island nations of Madagascar, Mauritius and Seychelles are not members. … Member law societies second their members to sit on the SADC LA Council and from there Executive Committee members are elected every two years. So, each law society will provide two representatives,’ he said.

Mr Banda said that SADC LA has recently embarked on a drive to recruit individual lawyers as members in order to encourage direct participation in the work of the association by lawyers outside of the law society membership, as well as help improve sustainability of the organisation. The membership fee for individuals is $ 100 per year.

Mr Banda noted, at its inception, SADC LA’s main focus was on the promotion of the interest of lawyers and the development of the legal profession and this was one of the reasons the association was established. However, he said that this focus has shifted as currently human rights and rule of law work dominates operations of SADC LA, as such work is largely funded by donors, while program activities focusing on the interest of the profession require direct funding from lawyers in the region.

Speaking on joint initiatives between the LSSA and SADC LA, Mr Banda said: ‘Election observation is obviously important for the simple reason that apart from having a few truant leaders in our region, it’s obviously important for lawyers to observe elections … . At the beginning of 2014 SADC LA Secretariat worked closely with LSSA Management in developing and implementing an election observation project. The activities included the training of lawyers in South Africa, in election observation, as well as the deployment of lawyers to observe the elections, which were held on 7th May 2014.’

Mr Banda raised concerns on the SADC Tribunal. ‘In the past year, following the suspension of the SADC Tribunal by the SADC Heads of State and governments in 2010, SADC LA has been working very closely with the law societies and Bar associations in the region in challenging the suspension of the Tribunal and advocating for its reinstatement. Multiple strategies were used in an effort to meet this objective and these include direct engagement with the governments in the SADC region, research and publication of opinions on the legality of the suspension, as well as litigation. Now, in 2014 the focus was on litigation and SADC LA worked closely with some of the law societies in the region to institute legal proceedings in their respective national courts, challenging, amongst other things, the decision making process that led to the suspension of the Tribunal. The LSSA has been one of the key supporters of this process,’ he said.

• See 18.

Other speakers

Manager of the Attorneys Development Fund (ADF), Mackenzie Mukansi spoke about the progress of the ADF since its inception. The final speaker of the day was Mr Gavin McLachlan, from the National Law Library. For more information on how to access the services of the library visit www.lawlibrary.co.za

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

This article was first published in De Rebus in 2015 (May) DR 5.