By Kathleen Kriel
The Free State Law Society (FSLS) held its annual general meeting (AGM) at the Windmill Sun Casino in Bloemfontein.
Judge President of the Free State Division, Mahube Molemela, was the guest speaker at the gala dinner held on 29 October 2015.
Judge Molemela said that the focus of her speech was divided into three parts, namely –
A brief history
Judge Molemela referred to an article written by Henriette Murray (‘Free State High Court, Bloemfontein – A brief history’ April 2010 Advocate 45). She said the article sets out a very fascinating history of a court practitioners know and serve in various ways. She added: ‘A superior court of the independent Orange Free State, consisting of only three judges, was established in 1875. The establishment of this court was vehemently opposed by some members of Parliament who questioned the government’s ability to afford the Chief Justice’s annual salary of which was an amount of £ 2 400 and the two puisne judges’ salaries of £ 2 000 each’.
By 1910, the court was known as the Orange Free State Provincial Division of the Supreme Court of South Africa. ‘Its Chief Justice became known as the Judge President,’ Judge Molemela said, adding that with the advent of democracy, the court became known as the Free State High Court and gradually started the process of transforming into a court that was more representative of the South African population. On 21 June 1999 Judge Hendrick Musi, was welcomed as the first black judge to the Bench in the division. ‘He went on to become the first black Judge President of this division in 2008. Seven years later the Bloemfontein High Court welcomed myself, as its first female Judge President. Since then, steps have been taken to ensure that the compliment of permanent judges matches the compliment designated in the institutions establishment. This, I believe, will go a long way towards ensuring that the division has enough human resources to dispose of the division’s increasing case load promptly,’ she said.
Judge Molemela told guests that the division, currently had 15 permanent judges and the number included two judges designate who were recently recommended for appointment by the Judicial Services Commission. ‘The confirmation of the appointments of these two judges designate will mean that in a space of 12 years the division shall have moved from 0% representation of female judges to almost 50%. A testimony of great strides that have been made to achieve a transformed judiciary … and I am so glad to see that there are so many female practitioners present here tonight. It really bodes well for the future,’ she said.
Judge Molemela said the courts are seen as much needed beacons of hope for society and it is in the interest of the stability of our county that the confidence and trust shown in the judiciary by the society be preserved. ‘An independent judiciary is integral to a stable economically viable society in the global arena and this independence should be jealously guarded,’ she said.
Judge President of the Free State Division, Mahube Molemela, was the guest speaker at the gala dinner of the Free State Law Society on Thursday 29 October 2015 at the Windmill Casino in Bloemfontein.
Access to justice and technology
Judge Molemela continued by saying that South African courts face a number of challenges, which impact on the primary roles of dispensing justice and these challenges have evolved over the years. ‘Access to justice remains a challenge in many ways and this is one area where no utopia has been reached. In the face of new technology, like the Internet, which has had serious impact on economic activity, the society is in a state of constant change. Tweets and Facebook posts are all fascinating, the downside is the increase of defamation law suits and cybercrime, but then again, this opens up new areas of work for practitioners. This area is breaking new ground for legal practitioners and judges and the interaction between evidence and technology will, no doubt, be more complex. … Courts have to adapt to the use of technologies that have been successful in other jurisdictions. … Otherwise there will be a disparity between the public’s expectations on the speed of litigation and the pace delivered by the judicial system,’ she said.
Judge Molemela said a limited budget unfortunately means that some of these technologies are not yet available in our courts. ‘Notwithstanding budgetary constraints, courts must still evolve to serve the public and to serve it in more effective and efficient ways, as quicker resolution of legal disputes will bring quicker certainty and will be continued to the advancement of the economy,’ she said.
The judge added that efficiency, effectiveness and the consequent access to justice are hampered when litigants are forced by circumstances to resort to self-representation in complex matters. ‘Many [litigants] become discouraged and end up abandoning their litigation due to lack of expertise. … Given the limited public resources, it is quite understandable, that although Legal Aid generally increases access to courts, by affording indigent litigants legal representation, it cannot do so in respect of every case and every litigant. This is where attorneys … can play a significant role in promoting access to justice by
accepting pro bono instructions in respect of cases that Legal Aid does not cover,’ she said.
The judge urged attorneys to get involved with pro bono cases even if it was a sacrifice. ‘We need to awaken the spirit of volunteerism shown by the likes of Nelson Mandela and Oliver Tambo … attorneys who sacrificed their own freedom and comfort in pursuit in the kind of justice that would be enjoyed by all,’ she said.
Judge Molemela said courts cannot undertake the journey of attaining justice for all on their own, because judicial function is often limited to specific cases with a peculiar set of facts. ‘Therefore courts can only make progressive decisions where legal disputes have been brought to them for resolution. Attorneys as litigation initiators in several matters, play a central role in this regard. Attorneys, therefore, should never display a cavalier attitude towards injustice. … Attorneys as initiators of litigation, must realise that it is their responsibility to lay the existence of injustice bare, by bringing it to the courts so that courts can deal decisively with it and this they must be prepared to do, even when they do not stand to benefit financially from it,’ she said.
Case flow management
Judge Molemela said another challenge that impacts on access to justice is case backlogs and the attorneys’ profession has an important role to play, as they control the pace of litigation. ‘The significant reduction to case backlogs, in our division, is attributable to the implementation of case flow management in this country. … Case flow management is a tool that has been used successfully by first world jurisdictions for decades it is a collaborative process requiring engagement with other institutions concerned with criminal justice. For the courts effective communication with the various stakeholders they serve is central to the efficient administration of justice. It is thus important for case flow management to be embraced by all. … It is clear that case flow management can only be successful when all stakeholders synergise,’ she said.
From left: Co-chairperson of the Law Society of South Africa, Busani Mabunda; Judge President of the Free State Division, Mahube Molemela; new Free State Law Society President, Deidre Milton and outgoing Free State Law Society President, Vuyo Morobane, at the Free State Law Society AGM on 30 October 2015.
Briefing patterns
Judge Molemela also touched on an area, which calls for urgent improvement, namely, briefing patterns, an issue, which had been very topical in the recent past. ‘The historic skewed briefing patterns are well documented and need no further elaboration from me. The challenges pertaining to briefing patterns are real and not perceived. Having acted at the Competition Appeal Court and the Constitutional Court respectively, and seeing counsel appearing in those courts, all I will say, is that the statistics of their racial and gender profile speak for themselves and they are not good. These are challenges that need to be addressed. Here too attorneys play a significant role, for they are, at this stage still, largely responsible for making a decision as to which advocate has to be briefed. Attorneys who are committed to transformation, thus have an ability to play an important role in the transformation of the Bar. A transformed Bar and side Bar will in turn result in a transformed judiciary, because it is from this pool that appointments to the Bench are made. A transformed judiciary will in turn result in an equally transformed society, which we all need,’ she said.
Judge Molemela closed off by saying that for every challenge there is a solution and some of the solutions are firmly in the hands of the attorneys and she asked attorneys to play their part in the solution process. ‘I implore you to collaborate with all justice sector stakeholders and organisations that represent communities in seeking other innovative ways of improving access to justice,’ she said.
Association for legal practitioners discussed
On Friday, 30 October 2015, the outgoing President of the Free State Law Society, Vuyo Morobane, welcomed delegates to the AGM.
Co-chairperson of the Law Society of South Africa (LSSA), Busani Mabunda, presented the mid-term report. The report can be found on the LSSA website at www.LSSA.org.za.
After his report, Mr Mabunda told delegates that they should be alive to the contents of the Legal Practice Act 28 of 2014 (the LPA) and said that it is regulatory in nature, its purpose is largely to make sure that members are subject to the discipline within the profession and that members pay their subscription fees. He said that practitioners needed to formulate an organisation to deal with, inter alia, building a relationship with various Bar associations globally. ‘That voice is not there and we obviously need to endorse and accept that there is a need for that particular society, which has to represent the aspirations of the profession. There is a lot which has been done, there has been circulars which were sent … what we need is understanding and endorsement by practitioners, but not largely as a matter of choice but as a matter of necessity, given that law societies, as you know them today, including this one, will be collapsing,’ Mr Mabunda said.
Ed Southey, consultant partner from Webber Wentzel, was asked by the LSSA to assist with some issues arising from the LPA. Mr Southey said Mr Mabunda had made a crisp and all-encompassing comment about the LPA and added that he would fill in the necessary detail and in his discussion he would –
Mr Southey said all attorneys are familiar with the current position, namely, that attorneys are regulated by the Attorneys Act 53 of 1979. There are four autonomous law societies who regulate attorneys, attorneys are a self-regulated profession and are regulated through councils. The law societies perform a dual function, namely, regulation and representative function to look after the profession and the public. ‘That method of regulation for professions has fallen out of favour, not only in South Africa but all over the world. … Nowadays it is very seldom that [professions] are self-regulating. The new regime under the LPA is going to change that,’ Mr Southey said.
Ed Southey discussed the association for legal practitioners at the Free State Law Society’s
annual general meeting.
Mr Southey gave a brief history of the LPA, which was passed in 2014. Only ch 10 is in force, which relates to the National Forum (NF) and the transitional provisions. The NF has a number of duties, including drafting a code of conduct and making recommendations for adoption by the Legal Practice Council (LPC) and the NF only has 24 months to do that in. ‘There will be considerable changes of governance when the LPA comes fully into force. There is only going to be one council, not four, and that is the LPC. It will have jurisdiction over all legal practitioners throughout South Africa, advocates and attorneys. … The function of the LPC is purely regulatory. There is no trade union function, no representative function. … The LPC is not a law society as we know it, it will have no members. So you, who are now members of the Free State Law Society, will not be members of any law society in the future,’ Mr Southey said.
Mr Southey added that the LPC ‘is not a representative body and it does not represent the interests of practitioners. There is no entity within the coming structure that will do the representative function. … The law societies and the LSSA, as you heard and well-know, do a great deal to represent the attorneys’ profession in the public interest. … Who is going to represent the legal profession in the future on issues relating to the profession? In the Co-chairperson’s mid-term report, Mr Mabunda referred to legislation and that we are expected to make comments on legislation. The LPC is not going to do that. Who is going to make representation on fees, court process, court rules, competition law
issues, the rule of law? There are a whole host of issues, close to the heart of every practitioner, which will not be dealt with by the LPC. We cannot allow that to go by default. … As Mr Mabunda pointed out, we need a structure or an entity within the legal profession structure to represent the interests, which are currently represented by the law society’.
Mr Southey said that the answer lies within a voluntary association. He added that there was no legislation in the current Attorneys Act or the LPA to prevent attorneys or advocates from forming voluntary associations. Mr Southey noted that current voluntary associations’ scope and reach is limited and they will not be able to represent all the members of the profession. ‘The LSSA believe the solution lies in a National Bar association. … Attorneys have no countrywide national structure to represent our interests, and what the LSSA has in mind is that there should be a Bar association to perform the trade union and representative function. … Who will be members of that association has not been decided yet. … This is a matter which will have to be determined,’ Mr Southey said.
Model for the association
Mr Southey said that he proposed to the LSSA that a model, similar to the South African Institute of Chartered Accountants (SAICA) model should be followed. Mr Southey said that the accounts’ regulator is Independent Regulatory Board for Auditors (IRBA), which never performs any kind of trade union function. ‘The accountants recognised this shortcoming in their profession many years ago and in 1980 they established SAICA to do their trade union function. It has been hugely successful. … SAICA represents all the interests of accountants who qualify to be auditors. It is a voluntary association, but it has 35 000 members, it does a great deal of work for the members of the profession and provides a wide range of services, namely, accountancy advice, auditing advice, tax advice, conducting examinations, etcetera. … To be able to do that they have to charge a subscription. … If you want to establish an association like that you have to believe that you are getting value and the members of SAICA believe that they get value. The real value to be a member of SAICA is the CA(SA) designation. … If you have the CA(SA) designation, your earnings will be 50% more than if you do not have that designation,’ Mr Southey said.
Mr Southey told delegates at the AGM that the LSSA had a similar entity to SAICA in mind. A voluntary association that provides services to its members, which will not be provided by the LPC and possibly also functions which could be delegated to it, like education, continuing professional training, and to be the mouth piece of the profession, to be what people will regard as being the representative body of the legal profession. ‘It could be the LSSA, which would have to be adapted, or it may have to be a new entity, but what it must certainly be is a voluntary association. … Fundamental to the success of such an entity is that members believe they are going to get value for their money. … That is the background to what the Bar association is about. The LSSA is of the firm opinion that it is in the interest of the profession and in the interest of the public that there should be a strong vibrant and independent profession and that can be facilitated greatly by an act of a voluntary association to promote the interest of the profession. The SAICA model has been shown to work and it has made the accounting profession highly respected throughout the world, so the legal profession must get itself organised and it is our firm belief that that form of organisation must be through the Bar association for legal practitioners,’ Mr Southey concluded.
In the questions and answer section after the presentation, Mr Mabunda said: ‘We have taken into account those issues regarding the issue of representatively in that when we look at the structure, it must be a structure which enjoys legitimacy and it does not entrench a particular hegemony or else the retention of what may be understood as the status quo, hence there is a circulated document, which clearly deals with the fact that the representation must align itself with the provisions of the LPA, as well as the Constitution of the Republic and to that end, it also talks about the electoral college, the manner of voting and equally dealing with those particular issues, so that document is there, … it is a principle document.’
Mr Southey added that Mr Mabunda’s comment was crucial and said: ‘If this entity does not have legitimacy or recognition, then it is not going to get anywhere.’
Other speakers at the AGM included: Manager of the Attorneys Development Fund, MacKenzie Mukansi; Chairperson of the Minister’s Advisory Committee on Mediation, Judge Cassim Sardiwalla; Chief Librarian of the KwaZulu-Natal Law Society Law Library, Thembikosi Ngcobo; and Legal Risk Manager of the Attorneys Insurance Indemnity Fund, Ann Bertelsmann.
The new council of the FSLS
At the time of going to print, the FSLS council still had one Black Lawyers Association member and two National Association of Democratic Lawyers members to deploy, which would be finalised at their Council meeting on 29 January. The council is as follows:
Kathleen Kriel BTech (Journ) (TUT) is the production editor at De Rebus.
This article was first published in De Rebus in 2016 (Jan/Feb) DR 6.
