Was De Rebus used as an electioneering instrument?

November 1st, 2018
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By Lutendo Sigogo

It is not an everyday thing that a person will be granted an opportunity to write a guest editorial for a journal. If you are given two such opportunities in successive months your contribution must be extraordinary. This opportunity presented itself to Jan Stemmett who wrote two guest editorials for De Rebus (‘Is the profession ready for the full implementation of the LPA?’ (2018 (Sept) DR 3) and ‘Realistic timelines needed for the full implementation of the LPA’ (2018 (Oct) DR 3)). In my view the contents of the articles concerned are not of such a nature that qualify them to occupy the editorial space.

The editorial committee of De Rebus must convince members of the legal profession that it was a coincidence that Mr Stemmett wrote these editorials on the eve and during the Legal Practice Council (LPC) elections when he was also a contender in such elections. One cannot help but only observe that De Rebus was used to promote Mr Stemmett in the LPC elections above all other candidates. Mr Stemmett – as a member of the National Forum on the Legal Profession (NF) – is reasonably expected to have known when the elections were scheduled to take place. The choice of allowing him to write editorials when he could have done an ordinary article or opinion on the Legal Practice Act 28 of 2014 (the LPA) was well-orchestrated. As a former member of the De Rebus editorial committee I am aware that the editorial is one of the highly read parts of the journal.

The two articles read together convey one consistent message, that Mr Stemmett’s narrative is that the coming into operation of the LPC must be delayed. The September editorial seems to be suggesting that he welcomes the full implementation of the LPA by the 1 November. However, in the conclusion of the September editorial he said the following:

‘In my view, the profession is ready for the full implementation of the Act, provided that all role-players continue to cooperate as they have been doing until now and problems are dealt with in a constructive manner. If the regulations can be promulgated timeously to enable the NF to conduct the election of the first LPC before the NF ceases to exist on 31 October, the transitional arrangements remaining at that stage can be finalised by the LPC in co-operation with the law societies, Bar Councils and associations.’

It is clear in this conclusion that when he said that, ‘the profession is ready for the full implementation of the Act’, it was just lip service. He put a condition therein, his conclusion was based on the condition that: ‘If the regulations can be promulgated timeously to enable the NF to conduct the election of the first LPC before the NF ceases to exist on 31 October’. At the time he wrote the guest editorial Parliament was in recess, however, the regulations were to be published in terms of s 109(1) on 31 August, a day before the September guest editorial was published.

Faced with what he did not anticipate in the September guest editorial, the publication of the regulations, in October he sought a second bite of the cherry. In so doing he changed his tune to say the LPC timelines ‘imposed’ on the NF were not realistic. It is worth noting that these timelines existed when he wrote the September editorial. Maybe he owes an explanation to the readers of De Rebus as to when did he realise that the timelines ‘imposed’ were unrealistic. To justify his new thinking the introduction of the October editorial reads as follows:

‘In the September guest editorial (“Is the profession ready for the full implementation of the LPA” (2018 (Sept) DR 3)), I expressed the view that if the first Legal Practice Council (LPC) can be elected before the National Forum on the Legal Profession (NF) ceases to exist on 31 October, the transitional arrangements remaining at that stage, including the election of the Provincial Councils (PCs), can then be finalised by the LPC in cooperation with the law societies, Bar councils and associations. If all role players cooperate, a fairly smooth transfer can be achieved by the end of the year.’

What is obvious in the above paragraph is that Mr Stemmett is shifting the goal post. In September he said that if the regulations can be promulgated timeously and the LPC elected before the 31 October, the profession would be ready for the full implementation of the Act. In October he added other requirements, such as the election of the Provincial Councils (PCs), and that a fairly smooth transfer by the end of the year could be achieved.

In the October guest editorial he said, ‘[i]n contrast to this [being his September conclusion] the timelines ‘imposed’ on the NF by the Department of Justice and Constitutional Development provide for the full implementation of the Legal Practice Act 28 of 2014 (LPA) by 31 October’. This does not make sense because in September he had concluded that the full implementation would occur on 31 October. This is nothing but misrepresentation of facts. Further, there was no need for him to do the second editorial, because between his September editorial and the one of October no changes or developments warranting same had occurred, including the list of tasks he mentioned. These tasks were known when he did the September editorial. It is my understanding that such tasks, being operational, do not prevent the LPC from taking effect and the outstanding tasks, if any, will be dealt with as a work in progress.

Having noted the above, Mr Stemmett’s approach presents several practical challenges. For instance, Mr Stemmett is a member of the NF and was responsible for no less than three committees of the NF. One of Mr Stemmett’s committees was responsible for drawing up the timelines. The Department of Justice and Constitutional Development when amending the LPA in order to, among others, extend the life of the NF from 1 February to 31 October relied on these said timelines. These are the same timelines which Mr Stemmett preached about at every opportunity he got. The second challenge is that the date of 1 November was agreed on, in terms of the amended s 97(6) of the LPA, by the NF and the four provincial law societies as the date on which the Council would become operational. Mr Stemmett, in the October editorial cannot be correct to suggest that the timelines were ‘imposed’ on the NF by the Department of Justice and Constitutional Development. Actually, the department only implemented the NF’s suggested timelines.

I am convinced that if the full implementation of the LPA was to be entirely left in the hands of Mr Stemmett and those whom he represents when he says ‘[s]ome members of the NF regard these timelines as unrealistic’, the LPC will never see the light of the day. Had the Act not been amended ch 2 would have become operational on 1 February. Mr Stemmett and one of his committees in convincing the Department of Justice and Constitutional Development to amend the LPA indicated that the NF will require a period of six months to complete all of its tasks. The department acceded to their request. Now he propagates for a further extension. This makes one pause and ponder, was it perhaps not his intention to frustrate the full implementation of the LPA when he took responsibility as the chairperson of the three crucial committees of the NF.

In my view the editorial is not meant to give opinions or subjective views but facts, for facts do not change. Unfortunately, Mr Stemmett was afforded free electioneering airtime exposing himself to the electorates. I cannot help but conclude that this golden opportunity befell him because he was on the list of the non-Black Lawyers Association/National Association of Democratic Lawyers ‘preferred candidates’ in the elections in question and De Rebus was used as an electioneering instrument of Mr Stemmett. Now that it seems Mr Stemmett has become a ‘resident’ editorial writer, my question is, will the editorial committee of De Rebus give Mr Stemmett another opportunity to write another editorial to develop his thesis against the full implementation of the LPA or to respond to this article?

Lutendo Sigogo BProc LLB (University of Venda) LLM (University of Limpopo) is an attorney at Mathobo Rambau and Sigogo Incorporated in Thohoyandou. He is also the President of the Black Lawyers Association, council member of the Law Society for the Northern Provinces and a member of the recently elected Legal Practice Council. Mr Sigogo writes herein in his personal capacity.

 

Response from the De Rebus Editorial Committee

Both the editorials referred to in Mr Sigogo’s article were written by Jan Stemmett at the request of the De Rebus Editorial Committee. The editorials were not in any way shape or form intended to be used as electioneering instruments. The Editorial Committee prides itself with the hard work involved in putting together a prestigious and trusted journal, such as De Rebus. That being the case, this means that objectivity and editorial independence are of the utmost importance to ensure that articles published in the journal do not depict any agenda. The Editorial Committee comprises of five attorneys who represent the constituent members of the Law Society of South Africa to ensure that articles are discussed and approved in a manner that is not skewed to a particular view.

With the looming date of the full implementation of the Legal Practice Act 28 of 2014 (LPA), the Editorial Committee saw it fit to publish an article about the readiness of the profession for the full implementation of the LPA as a guest editorial as that page is widely read and, therefore, the article would receive the much-needed focus by the profession. Mr Stemmett was chosen as author because of his involvement in the National Forum on the Legal Profession (NF). The hard work he did during his tenure as a member of the NF made him the ideal candidate to write a guest editorial on the readiness of the profession for the full implementation of the LPA.

 

Response from Jan Stemmett

Lutendo Sigogo’s criticism against me and the De Rebus Editorial Committee is both uncalled for and not founded on facts. I never sought to promote myself by agreeing to write the guest editorials, but to inform the readers of crucial issues, including the hurdles, the profession faces in the implementation of the Legal Practice Act 28 of 2014. On reading the guest editorials it is clear that this is all it does.

Criticism is welcomed when it is constructive and it promotes the development of solutions, but it will serve no purpose to respond to Mr Sigogo’s article when it is clear that his opinions and conclusion are based on incomplete information.

Mr Sigogo and I served on the National Forum on the Legal Profession before he left to become the President of the Law Society of the Northern Provinces, we enjoyed a good working relationship. I can only hope that now that we are serving on the new Legal Practice Council, we can again cooperate constructively, in the best interest of the profession and the public.

Jan Stemmett is a member of the recently elected Legal Practice Council.

 

This article was first published in De Rebus in 2018 (Nov) DR 51.

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