NADEL discuss decolonisation of the law at AGM

May 1st, 2017

From left: Deputy Minister of Justice and Constitutional Development, John Jeffery; General Secretary of NADEL, Patrick Jaji; Vice President of NADEL, Xolile Ntshulana; and President of NADEL and former Co-chairperson of the LSSA, Mvuzo Notyesi at the NADEL conference held in March.

By Mapula Sedutla

The National Association for Democratic Lawyers (NADEL) held its annual general meeting (AGM) and conference in Pietermaritzburg from 24 to 26 March. The AGM was also in celebration of NADEL’s 30th anniversary. The theme of the conference was ‘Decolonisation of the law’.

On the evening of 24 March, President of NADEL and former Co-chairperson of the Law Society of South Africa (LSSA), Mvuzo Notyesi, delivered the President’s Report. In his address, Mr Notyesi said that the goal of NADEL is the realisation of the aims of its constitution, which would lead to a truly democratic society. He added that NADEL adopted the Freedom Charter, as the Freedom Charter is what the South African Constitution was informed by. He noted that it is the duty of lawyers to maintain the rule of law and ensure the survival of democracy in South Africa (SA). ‘We should remember that as lawyers we need to remain concerned that there are too many people suffering in the country,’ he said.

Speaking about the recent development in the country, Mr Notyesi said: ‘It has been demonstrated that SA has a strong judiciary. Seventeen million people would not be able to get their social grants if it was not for the involvement of the judiciary. We know for a fact that SA judiciary is under capable hands.’

Transformation of the legal profession as a constitutional imperative

On 25 March, Mr Notyesi welcomed delegates to the conference. The keynote address was delivered by Deputy Minister of Justice and Constitutional Development, John Jeffery. Mr Jeffery’s address centered on transformation of the legal profession as a constitutional imperative.

Mr Jeffrey said that one cannot see transformation of the legal profession in isolation, as the legal profession should reflect society. ‘A transformed legal profession will lead to a transformed judiciary. What it means, in short, is that society as a whole must be transformed – the Constitution demands it. Transformation can be many things: Economic transformation, institutional transformation, social transformation. All forms of transformation, just like human rights perhaps, are indivisible and interconnected,’ he added.

Mr Jeffrey asked: What is the role of the legal profession and the judiciary to bring about the achievement of a better life for all? Reflecting on what was reported in the media recently; Mr Jeffrey said that much had been written over the past few weeks about the role of the courts in holding the other branches of government to account.

Mr Jeffrey noted: ‘Some argue that the court is performing its duty as the custodian of the Constitution. Others will say that it’s judicial overreach, with the judiciary entering the domain of the executive. Whichever way one argues it – and whether or not one agrees with the judgments or not – two important points emerge: Firstly, our courts have proved themselves to be independent. And secondly, as President [Jacob] Zuma said at the United Nations: “Perhaps nothing reflects adherence to the rule of law like the judicial settlements of disputes.” But, claim the pontificators, watch this space, because all this is about to change. Phephelaphi Dube, the Director of the Centre for Constitutional Rights, writes about a “vulnerable judiciary”. Justice Malala says “judges (are) being intimidated”. And, some claim, it is government who is making the judiciary vulnerable. Nothing could be further from the truth. … In fact, I could stand here all day citing cases, but the bottom-line is this: Government complies – so how can it possibly be capturing or undermining the judiciary?’

Mr Jeffrey said that to ensure that the judiciary is transformed, the legal profession has to be transformed. ‘For a long time in the history of our legal profession, black people and women were almost entirely absent from the ranks of senior partners in large firms of attorneys and senior counsel at the Bar.  Unfortunately, although there is better representation in these upper echelons, they are no way close to reflecting the race and gender demographics of the country. They were also largely absent from the controlling bodies of the Bar councils and law societies until recently, when steps were taken to make these bodies more representative,’ he added.

Speaking about the Legal Practice Act 28 of 2014 (the Act) Mr Jeffrey said: ‘Some of the main challenges clearly evident are the need to make the legal profession representative of the diversity of South African society and the need to make the legal profession more accessible to the public. Therefore, the Legal Practice Act was passed to transform the legal profession. … The Act paved a way for the establishment of a National Forum [of the Legal Profession]. The Forum will develop [an] election procedure for constituting the South African Legal Practice Council, which will serve as a regulatory authority of the legal profession in South Africa. The Forum will make recommendations for, amongst others, the establishment of the Provincial Councils and their areas of jurisdiction, composition, functions and manner of their election. It will also set all the practical vocational training requirements that candidate attorneys must comply with before they can be admitted by the court as legal practitioners; prepare and publish a code of conduct for legal practitioners, candidate legal practitioners and juristic entities.

With regard to where we are in the process, the code of conduct for legal practitioners, candidate legal practitioners and juristic entities was gazetted on 10 February 2017 [GenN81 GG40610/10-2-2017]. The code is not in force yet, but will apply to all legal practitioners (attorneys and advocates), as well as candidate legal practitioners and juristic entities when the Legal Practice Act comes into operation.

I can also advise that the Minister has granted an extension of time to the National Forum to finalise outstanding issues and negotiations with the statutory, provincial law societies. The timeframes for the implementation of the Act have accordingly been amended in view of the extension granted by the Minister.  A Legal Practice Act Amendment Bill is currently before Cabinet to give effect to this.  The Bill also effects some amendments to the transitional process that the National Forum identified.’ (See LSSA News ‘Code of Conduct for the future of the profession published’ 2017 (March) DR 9.)

Mr Jeffrey noted that by the second half of 2017, the National Forum is to make recommendations to the Minister in terms of s 97(1)(a) of the Act. He added: ‘By early 2018 we envisage the implementation of chapter 2. The minister’s proclamation for the establishment of the Legal Practice Council and provincial councils should be finalised. The Forum is to make all rules in terms of s 95(1)). By the second half of 2018 we want to ensure the implementation of the rest of the LPA in terms of s 120(4).  All Rules and Regulations will need to be in place, law societies to be abolished and regulatory functions of advocates’ structures to be transferred to the Legal Practice Council and the Provincial Councils. The Council and Provincial Councils will then commence as the bodies responsible for regulating the legal profession.’

From left: Speakers during the decolonisation of the law panel discussion Professor Suren Pillay; Chief Executive Officer of the LSSA, Nic Swart; and Professor Adam Habib.

Panel discussion: Decolonisation of the law

Starting off the panel discussion, Professor Adam Habib said that the term ‘decolonisation’ is not a new term. ‘We have been grappling with this term for over 23 years. The terminology emerged from the “fees must fall movement”’, he added. Prof Habib noted that the easiest way to deal with decolonisation of the law is by removing all colonial symbols in the court systems. ‘Even during graduation ceremonies, there are many symbols that are linked to colonial manifestations,’ he said.

Prof Habib noted that some work has been done, in the past 20 years, in terms of decolonisation of the LLB curriculum. He added: ‘We recognise customary law, we have looked at the legal framework on traditional leadership and government. We also apply the law to the context and realities of South Africa. However, there is still much more to be done. We need to protect the rights of citizens and if that is done the law will be deployed to assist the fundamental problems in society.’

Speaking about the Constitution, Prof Habib said the Constitution is not static and it is meant to be read in a more progressive way. ‘The Constitution also requires universities to teach in an imaginative way… . There are threats to this debate, we should not enter the debate by having an inwards focus, we should focus on what is happening in the world at large. We need to be focused on our challenges but we must not be blind to what is happening in the rest of the world as this is fundamental to learning,’ he said.

Second to the podium on the discussion on decolonisation of the law was Chief Executive Officer of the LSSA, Nic Swart. Mr Swart’s presentation centered on what decolonisation means in the context of education and how the discussion will be taken further. Mr Swart said that prior to writing his presentation, he consulted with 2016 graduates who now attend the School for Legal Practice and attorneys and others who have an interest in, and a passion for the topic.

Below are remarks, gathered by Mr Swart, made by graduates on the matter:

  • We are concerned about the inequality at primary, secondary and tertiary levels. Most of our schools and some of our campuses are under-resourced in comparison to those of the advantaged. So are the families of many students.
  • We are concerned about the position of the profession that our degrees are not up to standard as this will influence our access to the profession and our ability to be competitive.
  • The emphasis is on Eurocentric jurisprudence. Why is an effort not made to teach us African jurisprudence? Why are there so few African legal experts teaching and why are more resources by African authors not prescribed? African culture and practices must be integrated to influence our thinking and application.
  • Language is a problem. Even if English is chosen as the language of tuition, some of us have not been effectively exposed to the language at school level. Why is there little emphasis on indigenous languages?
  • Self-confidence is at a low level, we feel that some lecturers and employers see us as inferior.

Cake to celebrate the 30th anniversary of NADEL.

Mr Swart added that the most touching remark for him was: We do not see ourselves in our education.

Mr Swart noted that following the LLB summit in 2013, the Council of Higher Education (CHE) published new standards for the LLB. In 2016 the LLB’s of all faculties were reviewed and the way forward with regard to accreditation, was advised by the CHE. He added that the standards document gives opportunity to move away from a historical curriculum as it states:

‘The graduate has a comprehensive and sound knowledge and understanding of the South African Constitution and basic areas or fields of law. This relates to the body of South Africa law and the South African legal system, its values and historical backdrop.’

The standards document goes on further to state that the basic areas must include:

‘(c) the dynamic nature of law and its relationship with the relevant contexts such as political, economic, commercial, social and cultural contexts.’

Mr Swart said that in the preamble to the standards, the following is stated:

‘[L]egal education cannot be divorced from transformative constitutionalism.’ Mr Swart quoted Judge Pius Langa, who said: ‘At the heart of a transformative Constitution is a commitment to substantive reasoning, to examining the underlying principles that inform laws themselves and judicial reaction to those laws.’

Mr Swart noted that the process to integrate or replace the curriculum will be intensive and time consuming. ‘It is necessary to ensure that a conflict between rules are avoided, to prevent a resort to western principles. Commencement with the development of a digest of African laws and principles is critical. In addition to codifying African law that require attention, legal processes, instruments and the administration of justice at all levels will be transformed. This includes training of aspirant judges in understanding their critical role in the process of development and application. NADEL/LEAD developers of the judicial courses will have to look at this.’

Other speakers during the panel discussion were Professor Suren Pillay and Professor Thandabantu Nhlapho.

Judge of the Western Cape, Siraj Desai, delivered an address in tribute to late Judge Essa Moosa.

A word from the AFF

Chief Executive Officer of the Attorneys Fidelity Fund (AFF), Motlatsi Molefe, spoke about s 46(b) of the Attorneys Act 53 of 1979. Mr Molefe said that s 46(b) requires the AFF to carry out certain functions with the objects of enhancing the practice of practitioners. He noted that the AFF through s 46(b) has concentrated on education in order to enhance practice standards. He added that the AFF continues to subvent education services rendered by NADEL, LEAD and the Black Lawyers Association.

Speaking about Proxi Smart, Mr Molefe said that the AFF has a possible competitor for the income the fund accrues via interest. He said that Proxi Smart wants to conduct the admin functions in the conveyancing value chain. Proxi Smart seeks to render certain conveyancing-related services, which are currently exclusively performed by conveyancers – who are regulated by the statutory, provincial law societies. (See editorial ‘Conveyancing work encroached upon’ 2016 (Dec) DR 3.)

Justice of the Constitutional Court, Nonkosi Mhlanta, delivered the 11th Dullah Omar memorial lecture.

Current state of the nation

Chairperson of the Justice and Correctional Services Portfolio Committee, Dr Mathole Motshekga, reminded delegates that the current situation that the country is facing arises from the legacy of racism and colonialism. Dr Motshekga added that the aim of revolution in SA was to eradicate colonialism and Apartheid. He noted that at the root of Apartheid was racism and justified seizure of land from the indigenous population.

Dr Motshekga said that the South African struggle was to liberate citizens of SA under the concept of human rights for all. ‘South Africa was to be reclaimed so that Africans can participate in the economy of the country. … The people of South Africa developed their own Freedom Charter, which was a document for all Africans, not just the ANC [African National Congress]. The Freedom Charter came up with the concept of the rule of law in the African context. … Therefore, it is not a surprise that after 1994 we developed a new jurisprudence that embraces the notion of ubuntu, which one can argue permeates the Constitution,’ he said.

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

This article was first published in De Rebus in 2017 (May) DR 6.