Separation of power defines ethical boundries between South Africa’s law makers

September 26th, 2016
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Former President of South Africa, Kgalema Motlanthe, speaking at the 74th Johannesburg Attorneys Association annual general meeting held in Johannesburg on 7 September.

Former President of South Africa, Kgalema Motlanthe, speaking at the 74th Johannesburg Attorneys Association annual general meeting held in Johannesburg
on 7 September.

By Kgomotso Ramotsho

Former President of South Africa, Kgalema Motlanthe, spoke at the 74th Johannesburg Attorneys Association annual general meeting (AGM) on 7 September, at the Sunnyside Park Hotel, in Johannesburg. Mr Motlanthe discussed the topic ‘Judiciary, an executive encroachment of each other’s domain, fact or fiction?’ He said the topic, without a doubt, called to mind the achievement of democracy and its foundational tenets. He said the topic asks to navigate the ethics and institutional values that structure contemporary democracy and form the blue print of the way society functions, and plays the role – including rights and responsibilities – of each citizen.

Mr Motlanthe said the separation of powers defines ethical boundaries required between the three arms of state, namely, the legislature, executive and judiciary. Each setting out to map functions, form responsibilities and oversee that each of the three arms of state becomes individually responsible for law making, execution and obligation. ‘This doctrine was initially developed as a way to form a critical distinction and oversight between the different modes of government, ensuring that power is never abused and always kept in check,’ he said.

Mr Motlanthe said: ‘The reason why we have separation of powers, is to make sure that there are checks and balances, so that power is never centralised in the hands of one arm or the other of the state.’ He added that in modern democracy the idea of separation of powers has become synonymous with the definition of democratic governance. He referred to Deputy Judge President of the Gauteng Local Division, Johannesburg, Judge Phineas Mojapelo, when he gave the meaning of separation of powers and said it differs across geographical arenas, and also cautioned that complete separation is not possible. He said, however, it should be strived for, in terms of ethical and moral obligation as outlined by the Constitution.

Mr Motlanthe quoted English philosopher and physician, John Locke’s Two Treatises of Government (Filiquarian Publishing 2007), saying ‘because it may be too great a temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and execution, to their own private advantage.’

Mr Motlanthe said even though constitutional democracy is a process, which is moving at a snail’s pace, the beauty of it clearly states that if one steps wrong at the foot of law, they will be held accountable. He said it showed the strength of the democracy, and added that the legal fraternity should educate citizens on the basic aspects of the Constitution. Teach citizens that their rights and, democracy will thrive, however, he added it needed the participation of all citizens and not just that of lawyers. He said citizens must know and demand that such rights are not taken from them under any circumstances.

Mr Motlanthe also said that the executive members in Parliament must be educated. He referred to a discussion he heard on one occasion at the National Assembly, where it was noted that executive members and members of Parliament are elected by the people, but that judges are not elected. He said it was questioned why judges seemed to have the final say on matters in dispute. He said the principle of judicial review must be popularised so that people understand that on the act of ensuring compliance to the Constitution and law, the judiciary is not above the other two arms of state.

He added that in terms of the processed law, the legislature passes laws, the executive has to implement it and the judiciary has to adjudicate the dispute.

President of the Law Society of the Northern Provinces, Anthony Millar, said that while the public and legal practitioners have been patient with the transformation process of the legal profession, 20 years later it has not been completed. He said it was a source of concern, however, it was not all bad, as there is the Legal Practice Act 28 of 2014 (LPA) that will be implemented on 1 February 2018.

President of the Law Society of the Northern Provinces, Anthony Millar, speaking at the JAA annual general meeting.

President of the Law Society of the Northern Provinces, Anthony Millar, speaking at the JAA annual general meeting.

Mr Millar quoted the preamble in the LPA that its purpose is to: ‘Provide a legislative framework for the transformation and restructuring of the legal profession in line with constitutional imperatives so as to facilitate and enhance an independent legal profession that broadly reflects the diversity and demographics of the Republic, to provide for the establishment, powers and functions of a single South African Legal Practice Council and provisional councils in order to regulate the affairs of legal practitioners and to set norms and standards, to provide for the admission and enrolment of legal practitioners, to regulate the professional conduct of legal practitioners so as to ensure accountable conduct’.

Mr Millar said reading from the preamble of the Act, shows that it will protect everybody else but legal practitioners. He said the Act is regulatory and does not deal with the many functions that the statutory law societies and other voluntary associations such as the Law Society of South Africa (LSSA) deal with. He asked what is going to happen to those functions? Who is going to fulfil them?  How will legal practitioners interact with the new practice council that is coming to operation?

Mr Millar said at the present stage the National Forum on the Legal Profession is tasked with implementing the LPA. He said there is going to be nine provincial councils (one in each province), and they will be headed by the Legal Practice Council. He added that the assets and income of the four provincial law societies will then have to provide resources for the nine councils. He said there is a possibility that the free insurance that the legal profession receives, through the Attorney Insurance Indemnity Fund might also be lost as early as next year. This means that practitioners will have to pay approximately R 7 000 extra just to stay in practice.

Mr Millar said the LSSA and provincial law societies recognise the need for an independent body to represent the interest of the legal profession outside the scope of the legal practice council. ‘Since 2014 the LSSA has continuously addressed this need and strategic planning sessions and discussions and has prepared working papers and reports to its council on this issue,’ he said.

National Director of ProBono.Org, Erica Emdon, was also a guest speaker at the 74th Johannesburg Attorneys Association annual general meeting held on 7 September.

National Director of ProBono.Org, Erica Emdon, was also a guest speaker at the 74th Johannesburg Attorneys Association annual general meeting held on 7 September.

Mr Millar said it was necessary for legal practitioners themselves to establish, promote and fund a broad-based professional association, which can –

  • act in their professional interest;
  • represent them in various forums;
  • act as their spokesperson, nationally and internationally; and
  • position the legal profession as the champion of the rule of law, and as protector and promoter of constitutional rights.

Another speaker, National Director of ProBono.Org, Erica Emdon, said that ProBono.Org was set up as a non-government organisation. She said the idea was to bring the private professional to do civil work, and fill the gap and serve people who cannot afford legal fees. She said that legal practitioners needed to transform the profession and build a culture of pro bono and added that practitioners must want to do pro bono work.

Ms Emdon asked why legal practitioners are not encouraged by finding interesting things they can and want to do as part of their pro bono services?

She urged legal practitioners to extend the access to justice by doing more pro bono work.

 

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

 This article was first published in De Rebus in 2016 (Oct) DR 5.

 

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