By Kgomotso Ramotsho
Clarks Attorneys held its eighth Annual Johannesburg Family Law Conference in October 2021. The conference featured several presenters who presented on topics that focused on family law, such as ‘New Developments and Challenges in Parenting Coordination in South Africa’ and ‘The Sorry Plight of South African Antenuptial Contracts: Implications in our Jurisdiction and in Foreign Jurisdictions’, among others. Keynote speaker, Judge Sharise Weiner, spoke about ‘Advocacy Skills Training for Advocates and Attorneys’. She said that advocacy is the art of persuasion, a skill that legal practitioners should utilise in their practice. She added that legal practitioners would not have become lawyers if they did not believe in the power of good advocacy to change for the better.
Judge Weiner pointed out that the strong independent judiciary together with the strong and robust Bar and side Bar are fundamental to the rule of law and strength of any nation. She noted that South Africa (SA) is going through challenges regarding the rule of law. She added that SA is a part of the International Advocacy Training Council (IATC). Other member countries, who share SA’s problems include: Malaysia; Australia; England; New Zealand; Hong Kong; Singapore; Scotland; and Ireland. ‘Each of these countries have also suffered attacks on the rule of law in recent time, and such still continue suffer such attacks. South Africa is not alone,’ Judge Weiner said.
Judge Weiner added that the question is often asked whether advocacy skills can be learned or are they innate? She said there are people who have an innate talent and have an instinct for advocacy, comparable to the innate talent of great musicians, actors, sportsmen and women. She added that when legal practitioners see these talented people with the talent of advocacy, they must watch, listen, and learn. She pointed out that there are several good reasons for implementing advocacy training programmes, noting that the least of the reasons is the social stigma that is often attached to the legal profession, which is exacerbated by the incompetence within the profession.
Judge Weiner pointed out that legal practitioners are already being perceived, among others, as money grabbing, and incompetent and persons who lack advocacy skills only to serve themselves, which furthers this perception. She said in the paper ‘The Special Skills of Advocacy’ are specialised training and certification of advocates essential to the system of justice. Written in the 70s by Justice Warren Burger who was the 15th Chief Justice of the Supreme Court in the United States (US), it is a historic insistence that we treat every person admitted to the Bar as qualified to give assistance to every kind of legal problem that arises in life, including trials and criminal cases in which liberty is at stake and civil right cases in which human rights are at stake, and ordinary cases dealing with important private and personal interest. Judge Weiner pointed out that it requires a moment of reflection to see that this assumption is no more justified than one postulating that every holder of a medical degree is competent to perform surgery on aliments that affect human lives. That there is no other parallel area in our lives, which have such serious consequences, it is a naive assumption that every graduate of the law school is by virtue of that fact qualified for the ultimate confrontation in the courtroom, she said.
Judge Weiner said the law school fails to provide adequate programmes by which students can focus on elementary skills of advocacy. She added that training must be provided and supervised by professional advocates cooperating with professional teachers, for both are needed. The schools of advocacy are not taught in law schools in SA, legal practitioners appear in court without any form of skills through training. She pointed out that an advocacy training programme’s primary objective is to improve the standard of advocacy and to produce better advocates. The basic programme aims to teach advocacy to legal practitioners in the first year and third year of practice, to effectively identify and correct basic mistakes in advocacy and to offer guidance to new legal practitioners and demonstrate the correct way to present their arguments in the court room. She pointed out that the essence of advocacy training is learning by doing, the focus is on pupils and their skills and not on their teachers and expertise.
Judge Weiner said that this approach is especially needed because most of the students and legal practitioners have more than one tertiary degree and have now become professionals. She pointed out that the involvement of judges in the advocacy training is critically important in that the judiciary have in the past put forward their fair share of complaints on the quality of the advocacy that was presented to them. Judge Weiner said that at the IATC they have a substantive number of judges who have trained as advocacy trainers and volunteered to teach the workshops. The basic premise that they aim to expel when teaching ethics is that integrity and honesty are not on a sliding scale when it comes to professional conduct and that one needs to understand that the privilege of representing others carries with it the duty of carrying out the work with utmost respect, dignity, and honesty.
Legal practitioner, Janet McCurdie SC, spoke about antenuptial contracts. She said that the standard in overseas natural contracts, prenups and financial agreements, is that there are generally strict requirements in respect of the drafting of them and advice that is given to parties. She added that the solicitors as they are referred to in other countries give advice or are required to provide the party with a certificate not with the content of the advice they gave, but just to confirm that they had in fact been given individual advice on the consequences of entering that contract.
Ms McCurdie pointed out that in the United Kingdom (UK), historically they would not enter natural contracts or financial agreements, but they have become recognised. However, there is still a very strong view that the court retains. She added that if the outcome at the time of divorce is particularly prejudicial to one or other party, then the court intervenes. She said that the courts in the UK have been described as overly interventionist, but she thinks what there is in the UK is a certainty regarding the entering into a prenuptial agreement and the changing of circumstances from the time of entering the agreement. Ms McCurdie added regarding a financial agreement to the end of the marriage, a court can exercise its discretion and there can be an equitable outcome for both parties.
Ms McCurdie added that in Europe, there are some who recognise natural contracts and others who enforce them more regularly than others. She said this is an overarching aspect of the overseas approach, excluding the US. She pointed out that in the US where there is not going to be an equitable outcome, a court can interfere. There is more of the approach on a prenuptial agreement, as they are generally enforced, however, she pointed out that although in some states there is a provision for the court to intervene if it is not an equitable outcome. She said, overseas jurisdictions will recognise a foreign antenuptial contract, even a South African antenuptial contract may be recognised. She added that if it is a South African antenuptial contract with the accrual system, which has an inequitable outcome, then the court is going to intervene.
Ms McCurdie said in SA parties need to be educated during the marriage that even though they married with the accrual system, that does not make it acceptable for everything to be registered in one or the other party’s name, because then you have no claim to an individual asset, and you only have a claim in terms of the accrual at the end of the marriage. She pointed out that those kinds of discussions generally do not take place, and when there is a divorce and legal practitioners end up saying to the client, ‘I did not advise you on this antenuptial contract. I am terribly sorry and there is nothing we can do about it’. She pointed out that legal practitioners have a duty to explain to clients. Ms McCurdie explained the matrimonial property regime is a regime that governs the marriage, and one must protect oneself in the event of something going wrong, to be prepared for the worst and look for the best.
University of the Witwatersrand, Professor Elsje Bonthuys, discussed ‘The Constitutionality of the Limitation of Judicial Discretion in terms of s 7(3)(a) of the Divorce Act’. She said that the discussion is only available for marriages concluded before 1984, however, she also referred to 1988 because the discussion was extended to African civil marriage. She added that if one looks at different kinds of marriages to which the description applies, the dates to which they apply are completely different, and sometimes even the factors, which are taken into account in considering whether they should be a judicial discretion, are different. She added that is clearly a direct discrimination based on marital status.
Prof Bonthuys pointed out that in a paper she was a part of compiling, which was sent off for publication, were specifically looking at the gender discrimination. She added that the limitation of the redistribution discretion to marriages before 1984, and 1988, constitutes indirect gender discrimination. She said the first argument is that women have this ability to protect themselves from detrimental matrimonial property regimes before they get married because of a lot of social factors. So even before the marriage, women are less likely to be able to insist on antenuptial contracts or matrimonial property regimes, which favour them.
Prof Bonthuys secondly pointed out that when the marriage ends, the lack of the discretion as a result of how people lived during the marriage as a result of social norm, impacts most severely on women. She added that argument is the contention that the judicial discretion to redistribute assets is a benefit to the spouse is in a sense that it enables a court to deviate from the agreed on matrimonial property regime where the normal operation of the regime would be inequitable. She said the benefit of the discretion is to the benefit of both parties. She added that the lack of the discretion because of social and contextual factors are detrimental to women rather than men, and the reason for this is found in the social contexts and historical context.
Prof Bonthuys pointed out that looking at the roots of gender discrimination in family law, it has always been there, if one thinks back to a 100 years ago. She pointed out that historically, family law was based on two pillars, namely racial discrimination, and discrimination based on gender. She said it was based on the idea of allowing some poor women, mostly black African women to work, but for very little money while preventing middle class white women really from working outside the home, so most labour within the home was regarded as the responsibility of women. This is childcare, labour, and domestic labour in general.
Prof Bonthuys added that in the case of middle-class white women, generally they were often assisted by poor black women, particularly who were under paid for this work, but it was regarded as women’s work. But it was not ever really seen as work. There were and still are all kinds of excuses about why women do all this work. She said there are historical reasons, cultural reasons, religious reasons, all these reasons, given for why women should be doing all this work. She added that this work was never recognised as work and the economic value of this work was also never recognised. And at the end of the marriage, the economic value of this work was never recognised and the consequence of this was that women were rendered because they could not work outside the home.
Prof Bonthuys pointed out that women have less bargaining power than men, so that was the original motivation creating the judicial discretion. She said the judicial discretion was created at the same time as the accrual system was created, they created the accrual system in the Matrimonial Property Act 88 of 1984, and the argument at that time was that there was a need for judicial discretion for women who were married at a time before 1984 because they did not have the benefit of the accrual system. She said that, therefore, women must be assisted, that if they were married after 1984 because accrual was to see if women can be empowered to bargain for either the accrual system or a marriage in community of property.
Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
