By Mapula Thebe
The KwaZulu-Natal Law Society (KZNLS) held its annual general meeting (AGM) on 14 October in Durban. Former President, Kgalema Motlanthe, delivered the keynote address.
Former President Motlanthe began his address by saying that during the days of the freedom struggle, lawyers helped usher South Africa into democracy. He went on to name a few ‘giants in the noble profession’, such as Nelson Mandela, Oliver Tambo, Bram Fischer, Robert Sobukwe and Duma Nokwe. ‘Oliver Tambo led the team that led a path for democracy in South Africa. He would have celebrated his 99th birthday this year. In 1994 Tambo led the ANC leadership in the deliberations of the future that we hoped for,’ he added.
Former President Motlanthe asked: What is the role of a lawyer in the construction of a new society? He attempted to answer the question by saying that the role of a lawyer in society is to be worthy of being called an officer of the court. ‘I do not have an answer, but we need to attempt to analyse what it means to practice law during democracy. As we go ahead and formulise our state based on non-racialism, society is still struggling to emerge from the remnants of the Apartheid regime. Against this context, how will the lawyer of this new society practice? As the organised profession, there are a number of ways you can influence legislation and ensure public participation,’ he said.
Speaking about the future of the legal fraternity, former President Motlanthe said: ‘If we want to invest in the future, the future lawyers should have a culture of fighting for human rights and reinforcing constitutionalism. Lawyers of the future should be equipped with legal skills that will enable them to work towards the realisation of justice for all.’
Words from the LSSA
In the absence of the Co-chairpersons of the Law Society of South Africa (LSSA), immediate past Co-chairperson of the LSSA, Richard Scott, presented the Co-chairpersons Mid-term Report. Mr Scott said that the LSSA has been working towards implementing two resolutions that came from its 2016 AGM, namely, enhancing the role of women in the profession and creating an action group to deal with the past and present discriminatory practices that are experienced by legal practitioners when it comes to the distribution of work and briefing.
Speaking about the National Forum on the Legal Profession (NF) – the transitional body setting in place the new dispensation for the Legal Practice Council (LPC) – Mr Scott said that the NF has met six times since it was set up when ch 10 of the Legal Practice Act 28 of 2014 (LPA) came into effect in February 2015. ‘The NF is grappling with the rules for legal practitioners, the staffing and costs relating to the future Legal Practice Council, as well as where provincial councils and committees will be located in the new dispensation, among other aspects,’ he added. (To view the full mid-term report visit www.LSSA.org.za.)
Mr Scott noted that the legal landscape is changing due to the changes brought about by the LPA. He said that the profession will be regulated through the LPC. ‘Since the four provincial law societies will disappear, it means that the LSSA will also disappear. This will then leave a vacuum, we need a professional association that will represent the interest of practitioners, promote the profession and promote the rule of law. In 2015 a unanimous decision was taken that such a body should be formed. Remember the function of the LPC is to regulate the profession and it will not represent the interest of practitioners,’ he added.
Mr Scott went on further to say: ‘We need to discuss who will be the members of such a body and ensure the independence of the profession. The organisation will also ensure that practitioners adhere to creating a just society and protect our constitutional values. Through consultation, before the organisation is formed, we will look at the needs of the profession so as to ascertain the best value proposition and ensure that practitioners benefit from such an organisation. Other issues that will be looked at through consultation with the profession are, the leadership, governance, branding and sustainability of the organisation.’
Words from the AFF
In the absence of the Chairperson of the Attorneys Fidelity Fund (AFF), Nonduduzo Khanyile-Kheswa, Ebi Moolla presented the Chairperson’s report. Mr Moolla said the AFF is a fund set up in terms of the Attorneys Act 53 of 1979 with the primary objective to provide compensation to members of the public against misappropriation of trust funds by practitioners.
Mr Moolla went on further to say: ‘In the last financial year the AFF experienced a deterioration in growth of 1,4% and is currently valued at R 4,451 billion, which may seem huge but when looked at against the backdrop of its annual spending, the opposite is true. For instance in the last six years the fund spent just over R 1,6 billion on funding the activities of the profession to the exclusion of its own activities.
The LPA has brought with it certain fundamental changes in the regulatory environment of the practitioners. In the current environment, only the law societies have the power to carry out functions such as inspections of books of accounting, applications for the appointment of curators, as well as initiating prosecutions against practitioners guilty of theft although in certain amending legislation the fund has similar powers. The LPA vests these powers in the fund originally including the power to determine the rules associated with inspections, which it might carry out. This has necessitated the fund to adapt its business model to be able to carry out these functions in its own right.’
Words from the AIIF
Risk Manager of the Attorneys Insurance Indemnity Fund (NPC) (AIIF), Thomas Harban, said that in the future practitioners would be called on to make a contribution towards their AIIF indemnity insurance. He stressed that the vast majority of claims are avoidable and are caused by negligence. ‘We have seen instances where practitioners are blatantly reckless,’ he added.
The AIIF tabled a report written by its Managing Director, Sipho Mbelle. The report stated that the AIIF has seen an annual increase in the number and value of claims. ‘The outstanding claims liability was calculated at R 388 million as at the end of March 2016. Professional indemnity claims have increased at a rate in excess of the official inflation rate on an annual basis,’ the report states.
The report further states that the sole source of the AIIF’s funding remains the annual premium received from the AFF. ‘The consideration of the sustainability of the AIIF includes re-looking at the funding model of the company. Practitioners will be called upon to make a contribution to the premium funding in the near future. We have warned the profession of this in our reports to the various structures in the last few years. The rates at which the members of the profession will be expected to contribute are being actuarially calculated. We are sensitive to the fact that the introduction of the payment regime should not create a barrier to entry into the profession,’ the report states.
Words from the KZNLS President
Outgoing President of the KZNLS, Lunga Peter, presented his report during the conference. Speaking about the voluntary association for legal practitioners, Mr Peter said that the profession has agreed that it was imperative that a national voluntary association must be established as the unified voice of the profession representing members’ interests as the LPA only addresses issues of regulation of the legal profession.
Mr Peter encouraged members of the profession to make use of the facilities offered by the Attorneys Development Fund (ADF) should they qualify to apply for same. ‘To this end the society has participated in joint venture workshops with the ADF and the AIIF in promoting the services offered by the ADF and the AIIF,’ he added.
Mr Peter said that the National Law Library continues to provide a valuable service to members nationally and has established as a national resource library. ‘As part of the awareness campaign around the library’s benefits the society has arranged workshops nationally in association with the ADF and the AIIF. The society records its gratitude to the AFF for its funding contribution towards the escalating costs of operating the library,’ Mr Peter said.
New councillors 2016/2017
Mapula Thebe NDip Journ (DUT) BTech (Journ) (TUT) is the editor of De Rebus.
This article was first published in De Rebus in 2016 (Dec) DR 6.