Symptoms of a state in gradual collapse discussed at NADEL conference – Day 2

May 22nd, 2019
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By Mapula Sedutla and Kgomotso Ramotsho

On the second day the National Association of Democratic Lawyers (NADEL) held its policy conference and annual general meeting (AGM), a panel discussion was held under the title: ‘Land redress must seek to restore human dignity, equality and economic imbalances.’ Members of the panel were Deputy President of the Economic Freedom Fighters (EFF), Floyd Shivambu; the First Deputy General Secretary of the South African Communist Party, Solly Mapaila; and Chairperson of the NADEL Land Committee, Gcina Malindi.

On the third day of the conference a panel discussion was held under the title: ‘Land redress must seek to restore human dignity, equality and economic imbalances.’ Members of the panel were Deputy President of the Economic Freedom Fighters, Floyd Shivambu; the First Deputy General Secretary of the South African Communist Party, Solly Mapaila; and Chair of the National Association of Democratic Lawyers Land Committee, Gcina Malindi.

Mr Mapaila noted that the Black Administration Act 38 of 1927 gave the Governor General, at the time, exclusive power to give land and to take land. He added: ‘This included giving land to traditional leaders and in many instances this Governor General would move traditional leaders from the land that they were holding and replace them with people that were not even of royal blood. Basically, arbitrarily use the land to try and coerce the traditional leaders into the systemic oppressive system of the colonists.’

Speaking about Apartheid, Mr Mapaila said that the enactment of Apartheid further created deeper problems regarding the land question. He said: ‘Immediately when the Apartheid government came into power, their first and main target was to remove the communist party and enacted the Suppression of Communism Act [44 of 1950]. They banned communism because they saw it as a threat. At that time the communist party was a non-racial party and the government could not accept non-racialism because the policy of Apartheid could not be consulate with an organisation that was non-racial.’

Mr Mapaila said that it is important to highlight key issues regarding the foundations of the land question. He added: ‘We see land as a resolution to the property relations problem in society. Property relations are inherently linked with production relations and, therefore, distribution relations, as well as consumption relations. In other words, the organisation of society is largely based on production, for human beings to eat and live, which is the economy. That platform of production is the basis of inequality and exploitation of human beings historically. That is why you cannot restore the dignity of people, coming to the theme of this conference, and redress particularly the imbalances of the past without necessarily fundamentally resolving the system that creates those inequalities, which is the system of capitalism. Therefore, the foundation of the capitalism system is based on production. When you have taken away the primary tool of production, which is the land, those who scavenge to use the land will invariable become permanent slaves on the land in the field of production.’

Mr Malindi noted that the whole debate on the question of land and ownership of property, lacks the ideological approach from those people who want to agitate for land redistribution and land reform. He added: ‘For all the people who already own land, own property and control the economy of the country, there is no doubt that they come from an ideology, which they want entrenched forever and that is capitalism.’

Mr Malindi said the question of land expropriation, which has always been an issue, started as far back as the question of who the land belongs to and some of the answers are contained in the Freedom Charter. He noted: ‘When we intensified the question about the land and the expropriation, it was initially clear that there were no limits on the basis on which the state may expropriate land. But very cleverly, the people who control the debate and the dissemination of information on this debate, have forced us to talk about the limited basis upon which land can be expropriated.’

Answering a question from the floor, Mr Shivambu said that he does not understand why people ask: Which land must be expropriated? He answered the question while holding a map of South Africa and pointed to the whole country and said: ‘This is the land to be expropriated, all of it.’

Mr Shivambu noted that the Expropriation Bill is extremely problematic. He added: ‘The Bill defeats the process we have been using by dealing with the issue of land expropriation by using the Constitution. We cannot expropriate land piece by piece, it is going to take us 100 years for land to be expropriated.’

Speaking about the process of land redistribution, Mr Shivambu said: ‘We have agreed on the security of tenure of the current occupants for agricultural purposes, for residential purposes, for industrial purposes for fishery and forestry purposes and then we redistribute on needs basis then the distribution will become equitable. That is the only way, there is no other way. We can even have a land redistribution Bill, not expropriation because that would have been handled. In the land redistribution Bill, we then outline who will be responsible for which functions at what level. Then municipalities can play their role in terms of allocation of residential land and other forms of land in areas they are in charge of. Provinces can play a role as well; and national departments can play a role.’

Conveyancing

Conveyancing examiner, Anton Theron, said claims that conveyancing pass rates are limited to white male legal practitioners are false.

A panel discussion titled ‘The need to review conveyancing courses and assessment of candidates for qualifications as conveyancers: Is there a need for conveyancing examinations?’ was held on 16 March. Conveyancing examiner, Anton Theron, said there is still a need for conveyancing. He added that SA is very lucky to have one of the best registration systems. He pointed out that conveyancing and the work done by conveyancers does not only focus on transferring property, but also consists of property development, consultation and a number of other areas. He added that legal practitioners aspiring to be conveyancers need to work through the process of conveyancing, which not only focuses on the security of ensuring an owner’s title to their property but ensures that legal practitioners are equipped properly to deal with everyday challenges.

Mr Theron pointed out that not all aspects of conveyancing is reserved for conveyancers. He said a large portion of work can be done by legal practitioners and only a portion of work is reserved for conveyancers, as it requires the skills of a conveyancer.

Conveyancing examiner, Kuki Seegobin added that the biggest challenge with the conveyancing examination is that it is an ‘application’ examination. She pointed out that the first paper examines application of skills, while the second paper tests their knowledge of how well they know the Deeds Registries Act 47 of 1937 and other statutes. She added that one of the challenges that examiners come across, is that legal practitioners do not have practical experience of conveyancing and they are not able to understand what is required from them.

Conveyancing examiner, Pumla Mncwango said that if legal practitioners want to become conveyancers they need to be exposed to that environment. She added that conveyancing is practical and if one prepares for the examination they will be able to pass. Ms Mncwango shared the story of how she volunteered at a law firm’s conveyancing department for an hour per day, for eight months before she wrote her conveyancing examination. She pointed out that she has been a conveyancing examiner for 12 years and among the scripts she marks there are students who have written the examination more than eight times.

Conveyancing examiner, Pumla Mncwango, said candidate legal practitioners must prepare for the conveyancing examination over a period of at least six months before writing the conveyancing examination.

Ms Mncwango said the challenge is that most legal practitioners go into the examination unprepared and with the mentality that by only preparing two months in advance for the examination they will pass. She advised that legal practitioners need enough time – approximately six months at least – to prepare for a conveyancing examination. She added that another thing she had realised was that legal practitioners were of the view that because the examination is ‘open book’ it would be easy, however, Ms Mncwango said an open book examination is the most difficult examination individuals can write.

During the question and answer session, NADEL members who attended the session had different views regarding the conveyancing examination. One member said she believed that the conveyancing examination was still relevant and that legal practitioners should take pride in writing the conveyancing examination, as they do writing the Board Examination to be admitted as legal practitioners. The member added that she understood how traumatising it could be for someone who had never written the examination because failure is not something anybody can appreciate.

Another member disagreed and said there should be a review of the conveyancing examination. She said the LLB curriculum covers most modules, which go hand in hand with conveyancing, such as property law. She added that conveyancing is about drafting contracts and that every admitted legal practitioner is trained in drafting. She said the specialisation of conveyancing has been exaggerated.

Responding to questions from the floor, Ms Seegobin said that the way to overcome the difficulty of legal practitioners failing the conveyancing examination, is that legal practitioners needed to attend conveyancing courses. She added that not everyone is lucky enough to have a deeds office in the area where they practice but said that legal practitioners who aspire to be conveyancers should visit the deeds office to understand the way things work and what conveyancing entails. Ms Seegobin pointed out that there is no gatekeeping in the conveyancing area. She said examiners are not given the names of legal practitioners who are writing exams. It is only after marking the examination that the names are given to prepare for the oral examination. She added that legal practitioners – who ask for a remark on their examinations – the scripts are given to different examiners to mark. This ensures that if there was an oversight it gets rectified.

Mr Theron said he would support the suggestion that the examination be taken over a longer period of time instead of the one-day period allocated. However, he added that it could increase the costs of an already expensive exercise. He said that he would like to put claims – that the pass rate of the examinations is limited to white legal practitioners – to rest. He added that in Gauteng there are more previously disadvantaged legal practitioners – identified as non-white people – who pass the examination, and there are more first-time writers who pass the examination than before.

Chief Executive of the Legal Practitioners’ Fidelity Fund (LPFF), Motlatsi Molefe, said legal practitioners are not taking responsibility around issues of conduct.

Future funding of the legal profession by LPAFF

Chief Executive Officer of the Legal Practitioners’ Fidelity Fund (LPFF), Motlatsi Molefe, said legal practitioners are not taking responsibility around issues of conduct. He pointed out that for the past 12 years the LPFF has paid out R 1,2 billion in Professional Indemnity Cover Insurance. He added that the amount would not have reached that amount, if legal practitioners had been careful and adhered to standards. He said a question must be asked on what would happen when the LPFF was unable to afford amounts required for the purposes of regulation by the regulator. He said this would mean practicing law will become more expensive.

Second Pius Langa Memorial Lecture

Minister of Energy, Jeff Radebe, noted: ‘We meet in conversation over the sterling role of one of the shining stars of our times, the late Chief Justice Pius Langa. In him we celebrate a patriot, a member of the African National Congress in good standing, an underground political activist who directly interacted with the highest levels of our leadership in the liberation movement. [On] a personal note he was my boss in the period he was the president of NADEL … furthermore, I worked with him closely following my appointment as the Minister of Justice and Constitutional Development in 2009. Therefore, this evening I am here to participate in the public conversation about his life as a friend, as a colleague and as a comrade. In recognition of his outstanding service, to our people and our country, former President Thabo Mbeki bestowed him with the highest honor, the [Supreme Counsellor of the Boabab] for his excellent service in law, constitutional jurisprudence, and human rights.’

Mr Radebe said that it was appropriate that on the occasion of the conversation around the life of the late Chief Justice Langa that he focuses on the healing of the divisions of the past as amplified in the preamble of the Constitution. He added: ‘This was one of the foremost priorities with which Chief Justice Langa was preoccupied. I will argue as I believe many will also concur that this healing is not about the emotions of anger and grief but also the material conditions that in the first instance brought about the pains that the majority of our people suffered under the system of Apartheid.’

Minister of Energy, Jeff Radebe, presented the second Pius Langa Memorial Lecture.

Mr Radebe noted: ‘In his contribution to the book: A Transformative Justice: Essays in Honour of Pius Langan Tim Fish Hodgson writes: “These challenges do fall squarely within Chief Justice Pius Langa’s emphasis on the need for social transformation which is described as indispensable in our society because in South Africa, it is synonymous with constitutionalism, reconciliation and within the broad definition of transformative constitutionalism.” Hodgson further says, “if people do not properly understand the radical transformative nature of a constitutional revolution they cannot possibly commit to being a part of realising the vision of a society based on the values of human dignity, equality and freedom. A crucial task in ensuring this occurs is ensuring the people have an interest in knowing about and engaging with the law in general and the Constitution in particular. The discourse in transformative constitutionalism is therefore in need of transformation so as to redirect its days from the law and the legal system of the people of South Africa.”’

Mr Radebe added: ‘None other than Pius Langa who understood the enormous task of healing the divisions of the past. The country entrusted him with the highest responsibility at the helm of our judiciary. His task was to ensure that justice was at the center of our national transformation agenda. As a Chief Justice he opened his Constitution booklet as the text that guided him in all the work that he did.’

Mapula Sedutla NDip Journ (DUT) BTech (Journ) (TUT) is the editor of De Rebus and Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

 

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