The state of the profession discussed at LSSA AGM

June 1st, 2017
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By Mapula Sedutla

The Law Society of South Africa (LSSA) held its annual general meeting (AGM) on 21 and 22 April in Port Elizabeth under the theme: ‘The state of the profession – looking forward’.

Acting President of the Cape Law Society, Lulama Lobi welcomed delegates to Port Elizabeth, while former Co-chairperson of the LSSA, Jan van Rensburg, welcomed delegates to the AGM. After which a Council Meeting of the LSSA was held. During the Council Meeting, Chairperson of the Board of Control of the Attorneys Fidelity Fund (AFF), Strike Madiba; Chairperson of the Attorneys Development Fund (ADF), Nomahlubi Khwinana; Chairperson of the Briefing Patterns Task Team, Busani Mabunda (see LSSA news ‘Procurement protocols for the legal profession adopted’ on p 18); and Chairperson of the Women’s Task Team, Mimie Memka, presented reports.

Chairperson of the Board of Control of the Attorneys Fidelity Fund, Strike Madiba, said that attorneys should be aware that in the future they would be required to pay for professional indemnity cover.

AFF report

Mr Madiba said the AFF was established at the initiatives of attorneys in terms of s 8 of the Attorneys’ Admission Amendment and Legal Practitioners’ Fidelity Fund Act 19 of 1941 as amended. ‘The Fund is obliged to reimburse members of the public who may suffer pecuniary loss as the result of the theft by practicing attorneys and/or their employees. It is administered by a Board of Control consisting of 16 members, made up of four members from each of the provincial law societies,’ he added.

Speaking about the contribution made towards audit costs, Mr Madiba said: ‘The AFF introduced a minimum contribution towards audit cost of the law firms in order to assist, specifically, smaller firms with the meaningful contributions towards the cost of their trust audits. The Fund has of late increased the minimum contribution from R 3 500 to R 4 000 with effect from 31 March 2016.’

Mr Madiba noted that the AFF has been looking at its sustainability for the future. He said almost all of the AFF’s income is interest rate and investment return dependent. ‘The trust balances are positively influenced by higher levels of business confidence and economic activity. A weak investment, low interest rate and a low business and consumer confidence negatively impacts on the fund’s financial position. Theft claims, the PI [professional indemnity] premiums and section 46(b) expenses constitute almost 60% of the fund’s total expenses. A major concern remains the high level of claims, which show no sign of abatement. Most affected areas of practice is conveyancing and the Road Accident Fund related work,’ he added.

Mr Madiba said the AFF continues to pay the annual premium to the Attorneys Insurance Indemnity Fund (AIIF). He added: ‘In 2016 the premium was
R 147 million, excluding VAT. The AIIF’s outstanding claims liability as at 31 December 2016, as actuarially assessed, is the amount of R 391 million. This amount increases on a daily basis as new claims are notified to the AIIF. The liability in respect of bonds of security issued by the AIIF in favour of attorneys appointed as executors of deceased estate is valued at approximately R 11 billion. The AIIF, once again, made an underwriting loss in 2016 as the value of claims notified has exceeded the premium. In 2016 there was a 16% increase in claims, when compared to the corresponding year in 2015. In the last few years the Fund has consistently warned members of the profession of the implication of the growth in indemnity claims notified to the AIIF. The profession has also been alerted to the fact that the current funding model is unsustainable both for the Fund and the AIIF. … Members should be made aware that with effect from 2018 or going forward at a date to be determined by the Board, members would be expected to make contributions towards the PI cover. The operating premiums to the AIIF will still be covered by the Fund.’

ADF report

Ms Khwinana said the ADF was established in 2011 as an independent non-profit organisation that focuses on the development of attorneys. She noted that in 2016 the ADF broke its 50 beneficiary mark. ‘These beneficiaries exclude those that the ADF assist with technical business requirements, such as drafting business plans and the creation of financial projections, with the view of sourcing funding,’ she added.

Ms Khwinana reported that the ADF has made agreements with numerous service providers to give a facelift to the loan it provides to beneficiaries. ‘An agreement has been concluded with LEAD [Legal Education and Development] for the ADF to extend loans to practitioners who require an amount of R 3 100 to register for practice management training. The repayment of the loan is 12 months payment holiday and repaid over a specific period thereafter,’ she added.

From left: Former Co-chairperson of the LSSA, Mvuzo Notyesi; Deputy Chairperson of the South African Human Rights Commission (SAHRC), Priscilla Jana; Commissioner of the SAHRC, Mohamed Shafie Ameermia; and Commissioner of the SAHRC, Jonas Sibanyoni, during the MoU signing between the LSSA and the SAHRC.

Women’s Task Team report

Ms Memka noted that one of the great injustices that have been committed against women in this country and in particular in the legal profession, is that everybody else has gone upfront and progressed, but the women in the legal profession, in particular those in practice, have been left to fend for themselves. ‘And so it is for this purpose that the women have seen it fit to take their destiny upon themselves in their hands and engage in programmes and activities that will see to it that they progress,’ she added.

Ms Memka reported that the task team had decided to focus on three areas. ‘Mentorship for female legal practitioners, identifying opportunities for learnership for young female candidate attorneys and the third one is supporting the already existing significant leadership programme, which focuses on the more senior women lawyers to develop them in their business, to create networks among themselves and other practitioners and as well as to develop their leadership skills,’ she said.

Speaking about what the task team has achieved thus far, Ms Memka said that the task team engaged with the South African National Space Agency and the National Energy Regulator of South Africa to explore opportunities for the organisations to mentor young female legal practitioners. ‘Surprisingly, these organisations were very enthusiastic about working with our task team for the purposes of identifying and participating in female mentorship initiatives and there is ongoing engagements with these establishments,’ she added.

Judge of the Eastern Cape Local Division of the High Court in Mthatha, Justice Buyiswa Majiki, delivered an address on behalf of Judge President of the Eastern Cape Division of the High Court, Themba Sangoni. She said: ‘You must make up your mind whether you want to propel the winds of the unstable society that we find ourselves in, or you want to remain giving a proper direction and quieting the winds.’

Message from the judiciary

Judge of the Eastern Cape Local Division of the High Court in Mthatha, Justice Buyiswa Majiki, delivered an address on behalf of Judge President of the Eastern Cape Division of the High Court, Themba Sangoni.

Speaking about the Legal Practice Act 28 of 2014 (LPA), Judge Majiki asked, where does the existence of the Legal Practice Council (LPC) place practitioners? ‘What would you like to see going on in the profession? Do you still see any parallel structures existing together with the Council? The issue about legal education, the fees, code of conduct, cancellation of enrolment.’

Judge Majiki said that lawyers have the ability to ‘quieten winds’. ‘The society, is very stormy. South Africa is facing very turbulent times. And I think I would not be lying when I say the society looks up to us as lawyers as their hope. And what does that mean or what does this require? It requires that we ensure that we sharpen our minds, we continue to skill ourselves to be alert so that we are appropriately responsive to the needs of the society,’ she added.

Judge Majiki noted that the legal profession is placed in an advantage of having the last word. ‘Whatever profession issue, there will always be the last question: What does the law say? So, I think that is what I mean when I say we are the hope of the society. We are the people who have to interpret whatever is said to them. We are the people who have to direct their thoughts in whatever they are confronted with. So we must remain that voice of reason,’ she said.

Judge Majiki added: ‘I want to call on you never to compromise your independence. You are charged with the very important task of taking up issues on behalf of the voiceless. And for proper dispensation of justice, we need well formulated and well-presented submissions. So, if you are going to have a lawyer who represents someone who has an important issue, but comes unprepared, I think we would be failing and would not be assisting the dispensation of justice. It really does not depend on judges. We decide the issues as they are presented to us. You must make up your mind whether you want to propel the winds of the unstable society that we find ourselves in, or you want to remain giving a proper direction and quieting the winds.’

Human rights lawyer and President of the People’s Democratic Party in Zimbabwe, Tendai Biti, delivered the keynote address.

Keynote address

Human rights lawyer and President of the People’s Democratic Party in Zimbabwe, Tendai Biti delivered the keynote address. Mr Biti’s topic was motivated by the reality that South Africa (SA) is a society in another transition. Mr Biti said that SA finds itself at a cross-road. ‘I beg you and the authorities in this country that while you may physically cross the Limpopo, do not metaphorically cross the Limpopo, because north of the Limpopo are terrible experiences that we would not want to see in the promise and the hope that your society is and represents to the majority of democracy and democrats across the continent. So, I labelled my topic, “Law in a Turbulent Society. A Personal Journey from North of Limpopo”.’

Mr Biti said: ‘In the case of Zimbabwe the ruling party will ask you, why should we respect the Constitution when we spent 15 years in the bush? Why should we, for instance, lose power on the back of a pen that cost ten cents? So the source of legitimacy is a war that was fought 30/40 years ago and in Zimbabwe we are still fighting a war that finished 40 years ago. Your source of legitimacy now, if you are a citizen, is your location and your relation with the liberation struggle. If like most of us you were too young to go to the war, then you have no standing.’

Mr Biti said that Zimbabwe has a ruling elite that is very hostile to the concept and the doctrine of separation of powers. ‘The executive must emasculate and capture the other two departments of the state, the judiciary, in particular. … The biggest judicial battle we had was the battle over who succeeds the outgoing chief justice. So, we adopted a new Constitution in May of 2013, which is a tribute to your Constitution, because we largely cut and pasted your own Constitution and made it our Constitution and for legitimacy, of course, we went to a referendum. So one of the things we did in our Constitution, in section 288, was that we said the executive should no longer have carte blanch power of appointing members of the judiciary. So we introduced the concept of public interviews.’ The fight over the control of ZANUPF [Zimbabwe African National Union Patriotic Front] will somehow spill to the courts, that is why controlling and capturing the next chief justice is important,’ he added.

Mr Biti believes that in a turbulent changing society, the law is an instrument of change, however, the law can also be an instrument of the retention of the status quo. ‘I prefer to believe that law is an instrument of social change. I believe in the philosophy of the critical legal school in America. I believe in the work of people like Roscoe Pound, who consciously accept that we have to use the law to achieve change. I am a great admirer of the great Judge Benjamin Cardozo and his work, because he understood from the beginning that we have to use law as an instrument of social change,’ he said.

Member of the National Forum for Legal Practice (NF), Jan Stemmett presented an overview of the progress of the NF.

Discussion on the LPA

Member of the National Forum on the Legal Profession (NF), Jan Stemmett, presented an overview of the progress of the NF. The NF has recommended nine fully functional provincial councils in the nine provinces of the country. ‘Their areas of jurisdiction will be within the provincial boundaries of the provinces. That is the new governing structure that we will have in the new dispensation with the centre of power being in the national level, at the Legal Practice Council and below that the nine provincial councils,’ Mr Stemmett said.

Speaking about funding of the LPC, Mr Stemmett said that the funding issue is still ongoing as the NF is in discussions with the AFF on various issues. He said the new structure will cost R 213 million in the first year and the levies that will be payable by legal practitioners, will be –

  • R 2 500 per year for practicing legal practitioners, excluding VAT; and
  • R 500 for those on the non-practicing roll.

Mr Stemmett added that unfortunately, there will be a shortfall after taking into account the levies to be paid and the possible funding from the AFF. He said the shortfall will be approximately R 32 million. ‘Now, what are we going to do about it? There are two choices. Either we can try and get the funding from the government. We will, in our proposals to the minister, suggest that the minister ask Parliament to make a contribution. If that does not succeed, then we will have another round of discussions with the Fidelity Fund about the issue. But if all else fails, we will have to recover that from practitioners. … So the levies will likely increase. We are trying our best to curb that,’ he added.

Another member of the NF, Krish Govender described the work of the NF as attempting to fix an aeroplane while it is in flight. ‘That’s what we are doing with the legal profession. So you can imagine the trouble, the disputes, who decides to pilot the plane while the other one is doing some repairs,’ he added.

President of the SADC Lawyers Association (SADC LA), James Banda, said that SADC LA has joined the LSSA in calling for a stop to the unwarranted attempts by government to decrease the capacity of citizens to hold their government to account.

SADC Lawyers Association and Pan African Lawyers Union

President of the Southern Africa Development Community Lawyers Association (SADC LA), James Banda, said that SADC LA has joined the LSSA in calling for a stop to the unwarranted attempts by government to decrease the capacity of citizens to hold their government to account. ‘The attempt by South Africa to pull out of the ICC is a direct assault on the rule of law as it reduces the probity of government in the eyes of citizens and we have joined voices in pushing for the preservation of the ICC as an institution dedicated to enabling countries to uphold the rule of law. I would like to also take this opportunity to applaud you, our colleagues, for the efforts of the LSSA in taking the government to court over the disbanding of the SADC Tribunal. It is our duty as lawyers to remind our governments that the road to the rule of law and democracy is straight and narrow,’ he added.

The next SADC LA AGM will be held in Gaborone, in Botswana from 9 to 12 August under the theme ‘A skilled and Competent Legal Profession, a Catalyst for a Prosperous SADC’.

President of the Pan African Lawyers Union (PALU), Elijah Banda, said that the organisation was founded in 2002 in Ethiopia. He added that the profession on the continent was divided along a linguistic divide of either Francophone or Anglophone and that the Anglophone were represented by the African Bar Association, while the Francophone had their own professional associations. ‘The Pan African Lawyers Union has brought together all these divides across linguistic divides, across common law, civil law, jurisdictions. It brings together 55 national lawyers associations and over a 1 000 individual members and is growing,’ he said.

Mr E Banda said that the vision of PALU is to see a united, just and prosperous Africa built on the rule of law and good governance. ‘PALU’s governance consists of three bodies, the General Assembly, the Council and the Executive Committee. The General Assembly consists of its corporate and individual members and meets at least once every year. The Council is made up of presidents of the five regional associations and all the lawyers associations and Bar societies on the continent. The General Assembly elects an executive committee to lead and represent the organisation and this is the secretariat. Our secretariat, is situated at Arusha and this was strategically placed on account of it being the seat of the African Court on Human and Peoples’ Rights,’ he said.

Speaking about the activities of PALU, Mr E Banda said: ‘PALU has undertaken a lot of activities in the last couple of years and in accordance with our current strategic plan. These are institutional development started with the creation of a secretariat at Arusha. The development of the legal profession, this has dominated our activities and are centred on annual conferences in various aspects and various regions of the continent. … I wish to invite you to our conference that is going to take place in Durban in July this year. It will be an opportunity for you to meet lawyers from various parts of Africa.’

From left: Justice Willie Seriti, Esmé du Plessis and Silas Nkanunu during a gala dinner that discussed the inception of the LSSA. The trio received certificates in recognition of their contribution to the attorneys profession as Council members and Co-chairpersons of the LSSA.

Taking practice and case management to a higher level

The second day of the AGM kicked off with a case management session. Speakers of the session was attorney and LSSA Council member, Ettienne Barnard and e-Law Committee member, Brendan Hughes.

Mr Barnard spoke about why case management is necessary and what the ‘forces’ are telling attorneys and how attorneys should respond to this. He also touched on how attorneys can grow a litigation practice by systems, client and court satisfaction as these were some of the important ‘forces’. ‘So what are we talking about when we talk about case management systems? … Who are the important role-players? Obviously clients will always be one of the role players, but judges also play a much more active role in managing cases. And then of course lawyers are supposed to be less adversarial, you are supposed to try and solve problems for clients. … Settlement is supposed to be considered much earlier. Need I tell you about the judges who have complained about us not settling matters before we get to the doors of the court of the actual trial?,’ he added.

Speaking about guidance from the courts, Mr Barnard said: ‘Judges are already applying case management, we appear at the rule 37 conferences and the judges are involved. Some are more tolerant at this stage, some are less tolerant but we are getting the picture, there is a diary that we must abide to, which means we must get our matters sorted out.’

Attorney and e-Law Committee member Brendan Hughes spoke on new developments in information technology for legal practitioners.

To demonstrate that judges are aware when lawyers waste time during court proceedings, Mr Barnard quoted the judgment of W v H [2016] 4 All SA 260 (WCC) (see law reports ‘Marriage – waiver of maintenance’ 2017 (Jan/Feb) DR 42). ‘This was a divorce trial which ran for 50 days. So you can imagine the bill there. The judge said “in my view it is the fault of the husband that the divorce trial has taken 50 days of court time, which I have set out in the first part of this judgment. He adopted a ‘scorched earth’ policy with a total disregard for the costs involved”. The husband was a Silk,’ Mr Barnard added. (For the full presentation see: www.lssa.org.za.)

Mr Hughes noted that the rate of change in business and in industry is fast and seems to be accelerating. Technology is speeding up the change and the law is not exempt. ‘The law perhaps is slightly later to the party in terms of being changed by technology, but we are now really at the beginning of an era where I think we are going to see fundamental transformation in the legal industry. … The most recognised legal brand in the world is a company called LegalZoom. It was started by a bunch of people in the States; one of them is Robert Shapiro, who was quite famous for being one of OJ Simpson’s dream team of trial lawyers. LegalZoom is a web-based service, which has access to legal precedents and documents but one can also receive advice online and it literally has tens of millions of clients. It has more clients than your traditional type law firm and it is run as a website,’ Mr Hughes said. (For the full presentation see: www.lssa.org.za.)

Legal education

Executive Dean of the School of Law of Unisa, Professor Rushiella Songca, asked if there is a need to decolonise and what is it that needs to be decolonised? Professor Songca added: ‘What is the problem that we are trying to solve by decolonising? And when we say decolonising, what is the role of higher education, because we are the ones that start the training of lawyers who might go out into the world either to be lawyers or to be legal advisers or to be academics, … The most tricky one is how do we go about this project of decolonisation. How do we go about it in as far as it relates to the curriculum and the content that we are giving to our students and to what end? What will be the end product of this whole enterprise and what will be the impact of course for the profession?’

Executive Dean of the School of Law of Unisa, Professor Rushiella Songca, discussed the meaning and impact of decolonisation on the profession.

Prof Songca went on further to state: ‘The first point of call will be of course to look at our epistemologies. We all know, we have read many a times and we are aware of the criticisms that have been labeled against our programmes. And the main one is that they are too Eurocentric and the majority of the people cannot find themselves in that space, that some systems like African law are not regarded as highly as common law. So the question, therefore is: How do we begin to ensure that we integrate those other epistemologies, especially African epistemologies, in ways that are meaningful into our programmes? But also as we are doing that we are keenly aware of the fact that we in the process will be disrupting the hierarchy of knowledge because there is a view that is justified that knowledge is not seen as equal. We have been for a very long time in the legal profession side lining African epistemologies and African systems. And we are saying that they should be integrated meaningfully into our knowledge. And also we, because of the Constitution and the values embedded in the Constitution, are saying as we interpret the law, as we interpret phenomena we should move away from legal domination to a law of justification as part of our transformative constitutionalism.’ (For the full presentation see: www.lssa.org.za.)

South African Law Dean’s Association, Professor Rosaan Kruger, said that the four universities, which were given a notice of deaccreditation are all in the process of drafting improvement plans, and these improvement plans must be submitted to the Council for Higher Education by October of this year. Prof Kruger added: ‘From these individual institutional reports the Council for Higher Education has drawn together a committee that will draft a national report and this national report will be out in the public domain. The national report, which is based on an academic peer review exercise, will form the basis of a national discussion about legal education, in which all of us have a stake. Once this national report is out I would encourage the profession to engage quite seriously with the report and make submissions that will be relevant for us in considering in conjunction with the Department of Justice, in conjunction with the Department of Higher Education where we as co-stakeholders and different complementary stakeholders in legal education and legal training can take the discussion about legal education further.’

Administrator at the Safety and Security, Sector Education and Training Authority, Jennifer Irish-Qhobosheane, also made a presentation (see www.lssa.org.za).

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

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