LSSA responds to statements made by ministers

October 1st, 2018

Co-chairperson of the Law Society of South Africa, Mvuzo Notyesi, at the LSSA media briefing on 21 August in Johannesburg. The purpose of the briefing was to deal with allegations against the attorneys’ profession.

By Kathleen Kriel

The Co-chairpersons of the Law Society of South Africa (LSSA), Mvuzo Notyesi and Ettienne Barnard held a media briefing on 21 August in Johannesburg. The purpose of the briefing was to deal with allegations against the attorneys’ profession by the Minister of Justice and Correctional Services, Michael Masutha; Minister of Police, Bheki Cele; Minister of Health, Dr Aaron Motsoaledi; and Special Investigation Unit (SIU) Head, Andy Mothibi.

In a statement published by the Department of Justice and Constitutional Development on 14 August, Mr Masutha elaborated on the reason for President Cyril Ramaphosa’s proclamation authorising the SIU’s probe into the affairs of the Office of the State Attorney.

In the statement, Mr Masutha stated: ‘I have visited several public and private entities within the Justice portfolio – including meeting with relevant professional bodies – to appraise myself of various matters affecting the administration of justice in South Africa. In the course of wide-ranging conversations, I held with these entities, it became apparent that a number of challenges exist that inhibit the effective administration of justice.’

The statement added that the concerns raised, included –

  • alleged malpractice;
  • lack of professionalism; and
  • suspicion of abuse of office.

Additional concerns also included the way some officials at the Office of the State Attorney handled their matters, which resulted in unnecessary financial loss.

In a summary of the press conference held on 14 August, Mr Masutha said: ‘The allegations as articulated in the proclamation, include serious maladministration in the Office of the State Attorney. It is calculated to bring a halt to the alleged practices in the provision of state legal services, particularly in conducting litigation for and against the state, and apparent collusion between officials within the Office of the State Attorney, private legal practitioners and real or fictitious litigants to defraud and conduct other acts or irregular and corrupt activities against the state.’

Mr Mothibi stated that the proclamation authorising the SIU to investigate these allegations has been gazetted and added that the investigation would determine which Offices of the State Attorney would be prioritised. He added that the investigation would take no more than 12 months.

Mr Motsoaledi said that the scope of the investigation covered an approximate R 56 billion, however, not all of it related to fraudulent claims. Mr Motsoaledi added that there were private lawyers in the Eastern Cape ‘who must be arrested. Why is it taking so long? We need to break this cartel’. Mr Motsoaledi also claimed that doctors were involved in the alleged collusion.

Mr Masutha said that the investigation would not just look at financial loss, but at the issue of how many law firms are involved. How many law firms who were operating, were active participants. ‘We will leave no stone unturned to eliminate this scourge’.

LSSA press briefing

At the press briefing held by the LSSA, Mr Notyesi referred to an article that was published, where the Minister of Health stated that an approximate R 80 billion had been spent on litigation where corrupt activities and collusion between attorneys, State Attorneys and other officials from the state took place. ‘The suggestion, in essence, was that the legal profession was involved in those corrupt activities,’ Mr Notyesi said.

Mr Notyesi said that these allegations – if left unattended – are harmful to the legal profession and portray the legal profession as being complicit in criminal activities and corruption. He said the legal profession, among other things, is tasked to uphold the Constitution and to inform the citizens of the country about their constitutional rights, which are guaranteed in the Constitution. ‘If it is suggested that the legal profession is involved in corruption, or in corrupt activities, it has a negative impact on the public confidence in the legal profession,’ he said.

Mr Notyesi said that all the ‘sweeping statements’ made by the ministers ‘are surprisingly not supported by any form of evidence.’

Mr Notyesi added that the LSSA serves with the Minister of Justice on two forums, namely:

  • The National Efficiency Enhancement Committee, a structure that was established by Chief Justice, Mogoeng Mogoeng. In this forum all issues pertinent to the profession are dealt with. Mr Notyesi said that the Minister of Justice and the Minister of Health is presented in this forum, but the matter of collusion was never raised.
  • The National Forum on the Legal Profession is a forum where the negotiations of the future of the legal profession are being discussed; when the Legal Practice Act 28 of 2014 comes into effect in November. Mr Notyesi said that the Minister of Justice interacts with the LSSA in this forum from time-to-time and added that the matter was never raised there either.

Mr Notyesi said that this was nothing else but a ‘grandstanding on the part of the ministers, who seek to avoid the real issues’.

Mr Notyesi focussed on the work of the LSSA and the four statutory law societies (the Cape Law Society, the Free State Law Society, the KwaZulu-Natal Law Society and the Law Society of the Northern Provinces), including the Black Lawyers Association and the National Association of Democratic Lawyers. He added that the LSSA is the voice for approximately 26 000 lawyers in the country and the LSSA stands as a voice for all in the country. He added that the LSSA deals with attorneys’ interests, as well as the public interest. Mr Notyesi noted that any corrupt act from a member of the legal profession, surely goes against the rule of law. He said provincial law societies regulate attorneys and complaints that are received have to be investigated. He added that there is a procedure that has to be followed and, in the past, where corrupt actions have been reported and the attorney has been found guilty, those attorneys have been struck from the roll.

LSSA Council member, Anthony Millar, said that one should not lose sight of the fact that every complaint is initiated by somebody and the provincial law society waits for members of the public or the aggrieved party to come forward to make a complaint.

Mr Notyesi referred to the Ronald Bobroff matter. He explained that the matter has taken so long, as a process of investigation had to be followed. Once the investigation process was completed, it was taken to court to strike Mr Bobroff from the roll, he then fled the country. He said the provincial law society assisted other institutions, such as the Hawks, to make sure that Mr Bobroff was brought to account. He added that Mr Bobroff was struck from the roll in December 2016. Mr Notyesi stated that the provincial law society was now liaising with the Australian regulatory body. ‘We want to have Mr Bobroff brought to book, the law society has taken steps to ensure that he is taken to task’.

Mr Notyesi gave a short summary of the Attorneys Fidelity Fund, which compensates members of the public who have been victims of the unprofessional conduct from attorneys. Systems have been put in place – by the profession – who have acted swiftly in dealing with unscrupulous attorneys and who are involved in unlawful conduct. Mr Notyesi said: ‘We have acted on various times and successfully, we have investigated all the complaints that have been brought to us.  It takes us by surprise that the minister [of Justice] – who at least understands our system – would come out and make [a] generalised statement. … That conduct was disingenuous, it was unacceptable.’

Mr Notyesi said that this was not the first time that the Minister of Health made allegations against the profession. In a press release from the LSSA on 11 March 2015, the LSSA voiced serious concerns at statements made by Dr Motsoaledi regarding the possible limitation of the right to fair compensation of medical malpractice victims and the role of lawyers in these claims. In the press release issues by then Co-chairpersons Mr Barnard and Max Boqwana they stated: ‘We would have expected the minister to raise his concerns with the LSSA before going to the media and to include the legal profession in recent discussions and in the way forward.’

Mr Notyesi again referred to a press release from the LSSA on 27 March 2017 regarding similar matters. He added that the minister was invited to a meeting with the LSSA to deal with these issues, and he did not attend.

Mr Notyesi said the LSSA is committed to upholding the rule of law and protecting the Constitution. ‘We stand firm and undertake to act and ensure that actions are taken against members of the profession who defraud members of the public or who engage themselves in unprofessional conduct, we request members of the public to report such instances to the provincial law societies. … We would like to clean the profession. We know that the state capture inquiry is ongoing. We know that state capture was facilitated, in many instances, by the involvement of practitioners and where it can be demonstrated that there were legal practitioners who knowingly involved themselves in corrupt activities, let us receive those reports. If somebody complains, we will investigate. We also invite the minister if he has any cases, … they will be investigated.’

LSSA Council member, Mfana Gwala, said lawyers are an integral part of our Constitution and democracy and people are entitled to use lawyers.

LSSA Council member, Anthony Millar, said that one should not lose sight of the fact that every complaint is initiated by somebody and the provincial law society can only investigate a case when members of the public or the aggrieved party comes forward to make a complaint. Mr Millar added that the various ministers were invited to come forward with specific complaints that could have been investigated. When an attorney in their employ is identified to be involved in improper conduct, the ministers should be aware of the processes and procedures to follow. He added that the entire R 80 billion cannot be attributed to fraudulent or illegitimate claims. ‘We do not have that information and the ministers are talking in terms of a global figure and not identifying where the specific problems are to enable the proper investigation. … We need these departments to come forward with specific complaints and identify specific individuals and specific instances. … We are committed to the investigation process, as was mentioned, in 2015 an open invitation was extended to bring instances forward so that it can be investigated. It does not help to sit silent for three years and, then somewhat opportunistically, as and when the political climate suits the call, to then start complaining about the behaviour of errant attorneys. It does not help the profession,’ he said.

LSSA Council member, Mfana Gwala, said the major problems are politicians as they use some of these issues ‘as a political weapon for political expediency. It is our considered view that any practitioner who does wrong must be punished. Lawyers are not immune from being punished.’

Mr Gwala added that there is a problem with regard to the claims that have been made through the State Attorneys in particular regarding malpractice, but to simply soil the entire profession without having the practical evidence to show is irresponsible. ‘We are not trying to avoid the situation … . Lawyers are an integral part of our Constitution and democracy and people are entitled to use lawyers. … If you say R 80 billion has been stolen, tell us who stole the money and bring them before the regulatory board, let them be struck off and let them go to jail. We are not trying to prevent that from happening,’ Mr Gwala said.

Kathleen Kriel BTech (Journ) (TUT) is the Production Editor at De Rebus.

This article was first published in De Rebus in 2018 (Oct) DR 9.