Towards a unified independent legal profession

June 1st, 2016
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By Mapula Thebe

The Law Society of South Africa (LSSA) held its annual general meeting (AGM) on 1 and 2 April in Johannesburg. Topics discussed at the AGM included –

  • the Legal Practice Act 28 of 2014 (LPA);
  • regional engagement;
  • economic impact of professionals;
  • the technology revolution: Advantages for smaller firms, impact on methods of service delivery and client management;
  • a better deal for women in practice;
  • alternative dispute resolution, court-annexed mediation and family arbitration; and
  • human trafficking.
Former Co-chairperson of the Law Society of South Africa, Richard Scott, welcomed delegates to the annual general meeting.

Former Co-chairperson of the Law Society of South Africa, Richard Scott, welcomed delegates to the annual general meeting.

The outgoing Co-chairperson of the LSSA, Richard Scott, welcomed delegates to the AGM, while President of the Law Society of the Northern Provinces, Anthony Millar, welcomed attendants to Gauteng.

Outgoing Co-chairperson of the LSSA, Busani Mabunda, presented the LSSA’s annual report, which can be accessed at www.LSSA.org.za.

A word from the Attorneys Fidelity Fund

Chairperson of the Attorneys Fidelity Fund (AFF), Nonduduzo Khanyile-Kheswa said that there was a need for the AFF to seek new ways of doing business and redesigning its operating model in order to meet the obligations of the LPA. She added: ‘As the process unfolds we will ensure that we engage all stakeholders in this regard who will be affected by the process. The AFF is party to the National Forum process and is represented by Abe Mathebula, as the board closely watches and monitors the developments.’

Speaking about the finances of the AFF, Ms Khanyile-Kheswa said that at the end of 2015 the fund’s reserves stood at R 4,2 billion. She added that the fund saw an escalation of claims in 2015 as the claims lodged last year amounted to R 271 million. ‘This trend needs to be curbed as soon as possible,’ she said.

Chairperson of the Attorneys Fidelity Fund, Nonduduzo Khanyile-Kheswa said that there was a need for the Attorneys Fidelity Fund to seek new ways of doing business and redesigning its operating model in order to meet the obligations of the Legal Practice Act.

Chairperson of the Attorneys Fidelity Fund, Nonduduzo Khanyile-Kheswa said that there was a need for the Attorneys Fidelity Fund to seek new ways of doing business and redesigning its operating model in order to meet the obligations of the Legal Practice Act.

Ms Khanyile-Kheswa noted that last year the AFF brought about a change with the online application of Fidelity Certificates. ‘There were concerns from the profession of its user friendliness. We continue to improve the system as it will provide credible and reliable information, going forward,’ she added.

In closing Ms Khanyile-Kheswa said that providing bursaries for legal education is one of the key risk mitigating factors that the fund continues to engage in.

  • See below.

Discussions on the LPA

Member of the National Forum on the Legal Profession (NF), Jan Stemmett began his presentation by stating that as from 1 March new uniform rules for the attorneys’ profession (GenN2 GG39740/26-2-2016) were put in place. The new rules consolidated all the rules of the four provincial law societies. He added: ‘The main reason why we had to do that is to modernise the old rules that became updated with the new Constitution and the Competition Act, etcetera. It took us seven years to consolidate all the law society rules and they were promulgated in the Government Gazette. These rules also serve as a basis for the new rules that we are designing in terms of the Legal Practice Act. The aim of that is to have a set of rules that will not only apply to attorneys but also to advocates and to that extent we also have to incorporate the existing Codes of Conduct, etcetera, of the various advocates structures.’

Commenting on the envisaged new structure that will regulate the profession Mr Stemmett said: ‘The new governing structure of the profession will look quite different from the four provincial law societies that we have at the moment, partly because we have to take the advocates on board and regulate them all as legal practitioners. At the moment we have four statutory law societies where all the powers are centered, in future we will have one unitary structure, which is the Legal Practice Council, that will come into operation on the targeted date of February 2018. It is by that time the existing law societies will be converted into the new structures. The existing Bar Councils, will not disappear but will be stripped of their regulatory powers and these will be taken up by the new Legal Practice Council. Of course the Legal Practice Council will have regional structures and the recommendation at this stage from the Governance Committee of the National Forum is that there should be nine provincial councils in line with what the Act ultimately envisages. These substructures, the provincial councils, will also have their own substructures in the form of various committees.’

Mr Stemmett said that the Legal Services Ombuds office will also play a role in the regulation of the profession as it will have an oversight role as far as disciplinary matters are concerned. He added that the AFF will become the Legal Practitioners’ Fidelity Fund because it will also have to cater for advocates who want to take direct briefs from the public and will have trust accounts. ‘The Legal Practitioners’ Fidelity Fund will also have an administrative role in the sense that they will conduct compliance inspections among the other functions they will be performing,’ he said.

Deputy Chairperson of the National Forum, Max Boqwana, informed attendees that the Law Society of South Africa took a strategic decision to take a leadership role in the process of transforming the legal profession.

Deputy Chairperson of the National Forum, Max Boqwana, informed attendees that the Law Society of South Africa took a strategic decision to take a leadership role in the process of transforming the legal profession.

Deputy Chairperson of the NF, Max Boqwana, informed attendees that the LSSA took a strategic decision to take a leadership role in the process of transforming the legal profession. ‘We will take leadership because we have some experience as the organised attorneys’ profession that we needed to share with the rest of the legal practitioners. When eventually the LSSA was formed in 1998, it was formed after a very long concerted effort trying to bring together the statutory component [National Association of Democratic Lawyers] and [Black Lawyers Association]. With great difficulties and tribulations, we were scared to come together but low and behold when we came together, the skies did not fall. And that is why we are here today, as this unit. We needed to extend the same message to the advocates in South Africa that if we find ourselves in the same room; the skies are not going to fall. In actual fact this country is facing a number of challenges that requires the collective wisdom of all of us,’ he said.

Speaking about the work the NF has done thus far, Mr Boqwana said: ‘Because we are enjoined by legislation to provide six month reports to the Minister of Justice, we have presented the first report [and second] to the Minister of Justice and we [met] with the Minister of Justice in May to take him through that report. All I need to say is that we are on course but there are a number of dangers that [the profession] has to look at’ (see ‘First Recommendations emerge from National Forum deliberations’ (2016 (June) DR 22)).

He added: ‘If you look at the Act it has absolutely nothing to do with the transformation of the legal profession. Secondly, if you look at the Act, it has come with something that we were very scared of in all those other drafts that were done, that the Act will thoroughly divide the profession. Many of us are still looking at this Act as if we are creating a new law society, in actual fact it means the end of law societies, it means only the existence of a regulator. We have to find a way as to how are we going to proceed forward as a united, strong, independent profession. This you will not find in the Act.’

Mr Boqwana noted that all four provincial law societies play a dual role. ‘That is the role of representing, which talks about things that are in the interest of the practitioners but at the same time they play a role of the regulator … . The Act only deals with the latter part, which is regulation. The LSSA is not formed in terms of statute, it is a voluntary body. This means that when all of these law societies come to an end, when their role is taken over by the regulator. There will be nothing left in terms of dealing with the members’ interest. … We have to create a Bar Association that combines all of us,’ Mr Boqwana said.

Answering a question from the floor, Mr Stemmett said the existing reserved work will remain as they are in the new legislation and the forms of legal practice will remain as they are. ‘If you are an attorney you can practice for your account, you can practice in a partnership, or in an incorporated company. There is no provision at this stage for companies, which are not owned or consisting of lawyers to form entities that can do reserved work, but that only applies to reserved work and the challenge is for us to compete effectively, with those areas of practice which are not reserved work and which we have been battling with up to now,’ Mr Stemmett added.

Mr Boqwana noted: ‘In the current Act there is an enabling provision for the creation of multi-disciplinary practices. … There is still going to be a long process, even after the coming into effect of the Legal Practice Council, to investigate the feasibility of the multi-disciplinary practices. We may remain with the conservative approach that we have or we may have the hybrid approach that the United Kingdom Law Society, for instance, has where there is a diluted ownership of the law firms or with the extreme example of Australia where you can even have public offerings in the ownership of a law firm.’

Regional engagement

From left: President of the Law Society of Swaziland, José Rodrigues, President of the Southern African Development Community Lawyers Association, Gilberto Caldeira Correia, and President of the Law Society of Namibia, Wouter Rossouw.

From left: President of the Law Society of Swaziland, José Rodrigues, President of the Southern African Development Community Lawyers Association, Gilberto Caldeira Correia, and President of the Law Society of Namibia, Wouter Rossouw.

The second session of the LSSA AGM was on the topic of regional engagement. President of the Law Society of Namibia (LSN), Wouter Rossouw, spoke on the current situation of the LSN. Mr Rossouw said: ‘The biggest project that we envisage at this stage is called the “changed project” looking at the fact that as an organised legal profession in Namibia we have come to realise that we are not serving the requirements of the profession any longer. … As legal practitioners, as we are called in Namibia, we can no longer afford to be seen only as these high powered individuals sitting behind expensive desks dishing out advice to people, we have to engage with the community, with the society that we serve. … We have a duty towards the Namibian people, we must try to provide them with the best legal services that we can. Truly to champion their cause in courts and at all administrative forums that exists.’

Speaking about the challenges Namibian legal practitioners face, Mr Rossouw said that they were looking into the question of reserved work. He added: ‘It is a ruling of the competition commission, to make allowances for sharing of fees between legal practitioners and persons from outside, coupled with the fact that they have said that we will be forced to allow multi-disciplinary practices in future. We will have to look at the framework that we put into place and we must make provision for the regulations of these aspects. … The plan is to really go and interrogate our rules, to look [at] our rules [in] our current Legal Practitioners’ Act and to rethink the whole system. There are some risks involved but we prefer to see it as an opportunity to expand and to create solutions and to add value to the product that we as legal practitioners are going to be able to give to our stakeholders.’

President of the Southern African Development Community Lawyers Association, Gilberto Caldeira Correia, said that the legal profession has been under increasing political pressure in the region. He added: ‘Our quest to promote human rights and defend the rule of law, the independence of the legal profession and the judiciary has seen many of our colleagues in the region face various forms of harassment, intimidation, and persecution. … I believe that as the legal profession in the region we must stand up against such violations of the rights of our members and generally of the citizenry in the region.’

President of the Law Society of Swaziland (LSS), José Rodrigues gave a brief update on the affairs of the legal profession in Swaziland. He said: ‘Sadly the legal profession insofar as the judiciary is concerned is not a healthy one. … We face a unique situation in the sense that the attack on the rule of law and the independence of the judiciary came from the executive and within the judiciary. … The chief propagator of this attack came from the chief custodian of the law, the independence of the judiciary, and access to justice in the name of our then Chief Justice, Michael Ramodibedi. It [is] the role of every law society to … maintain and uphold the rule of law [and] to ensure the freedom of representation and access to justice of all its citizens. To do so, we require a sound and independent judiciary.’

Mr Rodrigues highlighted the fact that the situation in Swaziland was so bad that at some point there was a standoff between the judiciary and the LSS resulting in a complete boycott of the courts, whereby attorneys resolved not to litigate at all, for a period of over four months, in the courts at great personal cost to themselves. He added: ‘The operation of the courts literally came to a standstill. The administration of justice did not function despite court rolls being set, attorneys did not attend court. The attorneys took to the streets, marched in their full regalia to sensitise the nation about the infringement of the rule of law and rights to justice, despite some assurances by then Chief Justice of Swaziland that attorneys should return to practice on condition that there would be further engagement on these matters of all stakeholders in the administration of justice and the law. This unfortunately was not to happen.’

Lessons from SAICA

Chief Executive Officer of the South African Institute of Chartered Accountants (SAICA), Dr Terence Nombembe, delivered the keynote address under the heading ‘Economic impact of professionals’. Dr Nombembe said that SAICA has realised that in order to meaningfully transform South Africa, they should not take shortcuts on the issue of education. He added: ‘When I speak of education, I mean education that seeks to emphasise one fundamental principle, the principle of professionalism, so that whatever we do we can put absolute confidence and trust that our members and our professionals will always be standing us in good stead in everything that they do.  … A quality education model can never be taken for granted, because the moment you take shortcuts it is going to catch up with you. … It takes seven to ten years to develop a chartered accountant so that when they get to the other end of the chain they will be good enough for what they are meant to be, and that is why globally every country is looking for our South African chartered accountants.’

Chief Executive Officer of the South African Institute of Chartered Accountants, Dr Terence Nombembe, delivered the keynote address under the heading ‘Economic impact of professionals’.

Chief Executive Officer of the South African Institute of Chartered Accountants,
Dr Terence Nombembe, delivered the keynote address under the heading ‘Economic impact of professionals’.

Commenting on professionals competing in the same market space, Dr Nombembe said: ‘We have realised that within SAICA, if we within ourselves as the leadership of SAICA, are fragmented in our thinking, some of us are thinking in a competitive kind of language, where you do not want anything working and touching us and coming close to us because they are going to taint our brand, or taint our supremacy. We are saying, take away that kind of logic it does not make sense; we can never succeed. South Africa needs more collaboration than competition, … I have no doubt that all these issues, equally applied to the law society, to the engineers, to the medical colleagues, architects, you name it, for us to have that mind-set that says, how do we build South Africa together and collectively without competing and wanting to outshine one another. And that’s the culture we are working on building within SAICA, because if it is not there within our institute it will never be there to persuade the rest of our membership, which is about 40 000.’

Dr Nombembe said one project that SAICA is looking to collaborate with lawyers on is the question of how to deal with issues of fraud and corruption in South Africa. ‘The only two professions that have the ability, capacity and insight of how to break the camel’s back when it comes to the issues of fraud and corruption, are accountants and lawyers. Our idea is to commission a moving and an ongoing intervention that says, how do we look into not only thought leadership in this issue but coordinated action that brings together our collective intellect to deal with this issue. Because it can look at any case and any situation of fraud and corruption, a lawyer and an accountant is always involved, but how do we then work together in favour of our society, to protect our society from being taken deeper and deeper into the challenges of fraud and corruption,’ he said.

Living embodiment of the Constitution

Deputy President, Cyril Ramaphosa, was unable to attend the LSSA AGM, in his absence Mr Mabunda presented his speech at the gala dinner held on the night of 1 April. The speech read:

‘I am honoured and pleased to address this important gathering of the Law Society of South Africa. This respected body is an integral part of our constitutional democracy and a worthy partner in our efforts to ensure access to justice for all. We look to members of the Law Society of South Africa to be the living embodiment of our Constitution. We look to the legal profession to champion the values of our Constitution and to advance human dignity and equality. We will not achieve a better life for all our people without the legal fraternity adopting an activist demeanour and paying attention to the cries of the impoverished and marginalised in our society. …

 Deputy President, Cyril Ramaphosa, was unable to attend the Law Society of South Africa’s annual general meeting, in his absence outgoing Co-chairperson of the LSSA, Busani Mabunda, presented his speech at the gala dinner held on the night of 1 April.


Deputy President, Cyril Ramaphosa, was unable to attend the Law Society of South Africa’s annual general meeting, in his absence outgoing Co-chairperson of the LSSA, Busani Mabunda, presented his speech at the gala dinner held on the night of 1 April.

Lawyers representing the poor and vulnerable in our society need to be committed to their role as agents of social transformation. This role is reflected in efforts made at increasing pro bono work and the institutionalisation of community service in the Legal Practice Act. It requires the inculcation among young aspiring lawyers – whether during their articles, pupillage or other forms of training – of the basic values in our Constitution. These are the values that as officers of the Court, it is their responsibility to apply in all that they do and to infuse into the administration of justice itself.

Since 1994, we have done much to restructure the judiciary, making sure that our independent courts apply the law impartially and without favour. Working together we have transformed the administration of justice to meet the constitutional obligations of human dignity, equality, human rights and freedom. The role of the Judicial Service Commission in appointing judges continues to contribute to the evolution of a judiciary that is increasingly representative of South African society. The courts, in particular the Constitutional Court, have played a central role in the emergence of a developmental jurisprudence. This is in line with the imperative contained in the National Development Plan to create a capable developmental state. …

As we commemorate 20 years of our Constitution, we must recognise that legal practitioners have a critical role to play in efforts to bring about change. There is a special onus on the legal profession to support and empower ordinary citizens to enforce the rights contained in the Constitution. Legal practitioners must fulfil their special role in building, enhancing and protecting our democratic values.

As government, we recognise our responsibility to promote the transformation of the profession. As a significant consumer of legal services, government has the means to ensure that black and women legal practitioners get the opportunities that continue to be denied them. This will also have an impact on the transformation of our judiciary. By ensuring that more black and women practitioners gain access to meaningful, diverse and properly remunerated work, we will be more successful in expanding the pool of suitably qualified candidates for judicial appointments.

Closer interaction between government and the legal profession must be encouraged. A healthy relationship between government and the profession contributes to the delivery of quality services to the community. The legal system, in particular an independent judiciary and legal profession, contributes to a favourable landscape for economic growth. Investors and trade partners need to be assured of a well-founded system for the enforcement of their rights and the efficient settlement of claims.’

  • The full speech can be accessed at: lssa.org.za, accessed 20-5-2016.

A better deal for women in practice

On the second day of the AGM a panel discussion was held under the topic ‘A better deal for women in practice’.

Speaking from the perspective of a practitioner from a large and established law firm, attorney at Webber Wentzel Pulane Kingston said: ‘Insofar as ensuring that a better deal for women in practice becomes more of a reality, every firm above a certain size is compelled by law to develop an employment equity plan, whose objective is to secure employment equity and fair treatment in the workplace. From my perspective, employment equity is what lies at the very heart of transformation. The entire process by which barriers to employment are identified, through to the deployment or the development of barrier removal action plans, present the ideal opportunity for women to ensure that firm policies and practices work for and serve us well as women.

In our case, when we went through the process of consultation, and analysis of our policies and workplace procedures, from a Webber Wentzel perspective, we identified the need to develop an extremely robust gender strategy, as a retention mechanism for women in the firm. The strategy covers a number of initiatives, which are designed to support our careers in a manner that is empowering and rather than in a manner that ends up stereotyping us in a negative way and as women with special needs. One issue of overwhelming significance for us pertains to when a woman is at the prime of her career, but also chooses start thinking about a family. In this regard, we realised that while our policy was and remains best practice, we needed to develop a maternity programme that will serve two purposes. First of all, to afford women who are pregnant, much greater support throughout that life cycle of her pregnancy to when she returns to work, and secondly, to empower her team in a manner that ensures an ease of transition back into the firm at the end of maternity leave. I am sure those of you who have gone through this exercise, have experienced the situation where you leave for maternity leave and when you get back you have to start your practice from scratch, because your clients have gone to your other colleagues and there is no way of making sure that you, necessarily, can get those back.’

Attorney Beverly Clark noted that it is time women practitioners ask themselves two important questions. ‘One, what are we as women not doing that our male colleagues are doing, or are doing better than we are? And two, what do we as women bring to the table that through our powerful leadership could change the profession for the better? In answer to the first question, I think that many women lack the hard skills, the business skills; management and finance skills, which men seem somehow to acquire while we are not looking. …  I do not want to generalise, but for whatever reason, the statistics show that many women come out of law school with few, if any, business skills. We then rush into practice, often snapped-up for articles before men … but we are so busy fulfilling multiple roles of professional, mother, partner, home maker that the little free time we have is not likely to be spent on brushing up on our financial acumen,’ Ms Clark said.

Mapula Thebe NDip Journ (DUT) BTech (Journ) (TUT) editor of De Rebus.

 

Court-annexed mediation

By Nomfundo Manyathi-Jele

One of the breakaway sessions at the AGM was on court-annexed mediation. This session gave an update on the process. Developments in family arbitration was also discussed.

On the panel was Acting Judge, Cassim Sardiwalla; LSSA alternative dispute resolution committee member, Ebrahim Patelia, as well as LSSA family law committee members, Susan Abro and Zenobia du Toit.

The facilitator of the session, Co-chairperson of the LSSA, Jan van Rensburg, said that over the last couple of years, South Africa has been criticised for its civil procedure and litigation process in court. ‘We are too slow, we are too expensive, we are too technical, and a lot of other criticisms were raised against the system. Now, one of the solutions that we are looking at is the court-annexed mediation,’ he said.

Judge Sardiwalla said that court-annexed mediation was a very important topic that has raised many eyebrows, and had received tremendous support and just as much criticism.

Judge Sardiwalla gave some background on court-annexed mediation. He said that the project was launched in Mafikeng in 2015 and that it is a project that was initiated by the former Minister of Justice and Constitutional Development, Jeff Radebe he added that the process of drafting rules commenced almost three years prior to the actual launch of the project. ‘It was in 2014 that the Minister appointed an Advisory Committee to advise him on the project and its roll-out and I… have been heading that project,’ he said.

Judge Sardiwalla explained what court-annexed mediation is. ‘It is a mediation process that is linked to the courts, not controlled by the courts, not a function of the courts, not a function of anyone within the court system, but an independent facility that is housed, for convenience, at courts,’ he said.

He added that the background behind the court-annexed mediation was that litigation has become far too expensive and that the majority of the people in this country cannot afford to resolve their disputes in a formal manner. ‘And many a families and many individuals have been totally destroyed because of disputes that could have been resolved. They just did not have the capacity and the support to have these disputes resolved,’ he said.

Judge Sardiwalla said that the process of court-annexed mediation was accessible to everyone, although, targeted for the less fortunate. He added that in the two years since the launch of the 12 sites in Gauteng and North West, 1 500 disputes had been resolved.

Judge Sardiwalla said that there has been consultation with the universities where deans of all the faculties of law were addressed about this mediation. He added that his committee had received an overwhelming nod for the project and the deans are planning to introduce mediation as a course in the LLB degree.

Judge Sardiwalla also said that there has been great interest by state organisations. The State Attorneys have met with them on several occasions, they would like to use the court-annexed mediation process to try and have a first bite at resolving disputes in a semi-formal way, without the court process.

Mr Patelia said the most important things when we look at any new system, is that it needs to be user focused and accessible.

Speaking on family arbitration, Ms Abro said that it was going to happen and that it was going to happen very soon. ‘We are already training. We already have the draft rules. We are already discussing with the government and with the Rules Board about amending the Act to remove the prohibition. However, because family lawyers are so progressive, we are going to start anyway,’ she said.

Explaining what family arbitration was and how it would work, Ms Abro said: ‘An arbitrator will be allocated, you can choose your own arbitrator or you can get assistance in choosing one, and then the parties will agree, in advance, that the award will be made an order of court. So, it is along the same basis as the settlement agreement, except you are now going to have an objective third party making the decision, upon which you have agreed.’

Ms Abro said that the Family Law Arbitration Forum of South Africa was already on the way. She explained that people from the United Kingdom came to South Africa to assist in family arbitration training.

Ms du Toit said arbitration identifies issues, reduces obstacles to communication between parties, limits time, is cost effective, maximises the exploration of alternatives and assists the parties in reaching agreements.

She added that s 2 of the Arbitration Act 42 of 1965 (the Act) prohibits family law arbitrations, but in many cases family law arbitration has been allowed where there are specific agreements in court orders that the financial aspects of divorce be arbitrated post-divorce. She added that in 2001, the law commissioner recommended that the Act should be amended to permit arbitration, but ‘very sadly that derailed and went onto the back burner’. ‘We envisage that the Arbitration Act will be amended so as to provide for arbitration in family law,’ she concluded.

Nomfundo Manyathi-Jele NDip Journ (DUT) BTech Journ (TUT) is the news editor at De Rebus.

 

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This article was first published in De Rebus in 2016 (June) DR 9.

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