By Mapula Thebe
Outgoing President of the Black Lawyers Association and Co-chairperson of the Law Society of South Africa, Busani Mabunda, welcoming delegates to the 38th elective conference.
The Black Lawyers Association (BLA) held a two day annual general meeting (AGM) and conference from 23 – 24 October in Johannesburg. Issues discussed at the elective 38th conference included, transformation, briefing patterns and the Legal Practice Act 28 of 2014 (LPA).
Opening proceedings, on the first day of the conference, immediate past President of the BLA and Co-chairperson of the Law Society of South Africa (LSSA), Busani Mabunda, said that practitioners should be aware of the unfolding developments that are flowing from the provisions of the LPA. One such development, he mentioned, was the National Forum (NF). He said that this was an opportunity for legal practitioners to brainstorm and come up with ideas on how certain mandates, the NF are charged with, should be handled. ‘The ultimate consumer of whatever the NF agrees on is practitioners, this will have a bearing and effect on practitioners,’ he said.
Unpacking the LPA from a NF perspective
Incoming President of the BLA and member of the NF, Lutendo Sigogo, gave an address on the overview of the LPA from a NF perspective. Mr Sigogo stressed that the Legal Practice Council (LPC), in the LPA dispensation, will not be equivalent or perform the same duties as the LSSA. ‘The Legal Practice Council will not entertain our interests. The council will not only have legal practitioners, the minister will have a representative in the council; as well as, law deans, a representative from Legal Aid South Africa and the Attorneys Fidelity Fund,’ he added.
In terms of the changes brought about by the LPA, Mr Sigogo said that currently the Rules Board has set fee regulations for litigious work. However, the LPA, in terms of s 35(1), empowers the Rules Board – for the time being while the South African Law Reform Commission conducts its investigation on fees (s 35(4)) – to come up with rules for litigious work and non-litigious work. ‘If this happens it will affect legal practitioners as lawyers’ prices will be capped. Also, practitioners will have to let their clients know that they have a right to a discount on the fee, this must appear on the agreement letter. Another thing to note is that section 35(11) provides that if a client lodges a dispute on the fee with the LPC, the person does not have to pay the fee until the dispute is resolved,’ he said.
Commenting on the Council members that will form part of the LPC, Mr Sigogo stressed the need for the Council to correctly reflect the demographics of the country in terms of gender and race. ‘Women make approximately 51% of the country’s demographics, so this means that the Council of the LPC should have more women than men,’ he said.
Incoming President of the Black Lawyers Association and member of the National Forum, Lutendo Sigogo, addressing delegates on the overview of the Legal Practice Act from the perspective of the National Forum.
Mr Sigogo said that the LPA does not make provision for the protection of legal practitioners. ‘If we do not have a body such as the LSSA all the rights and privileges we enjoy will be taken away. The LSSA participates in commenting on Bills brought about by government, if we do not have that forum, this will be taken away. As the LPC stands, attorneys will have the same relationship as taxpayers and the tax collector. We will be forced to pay subscriptions towards the council, but in actual fact we will not be its members. For example, the LSSA can propose amendments to Acts; the LPC will not be bothered by such. Even if the LPC proposes amendments to Acts, where will it get its mandate from? Essentially the LPC will be a body of 21 people who will think for us, decide issues about us while doing all this without us,’ he said.
He added that the LPC does not have to hold AGMs and, therefore, practitioners will not have a vehicle to discuss issues of interest to them. ‘The solution is to establish a voluntary body, irrespective of name, that will be open to all legal practitioners and must be independent. The body can be funded by members, through subscriptions. Currently the LSSA is subsidised by the Attorneys Fidelity Fund, in future this subsidy will not be guaranteed. The formation of the voluntary body will not come cheap if it is not subsidised,’ he said.
Speaking about the role of the NF, Mr Sigogo said that the NF ‘is a midwife trying to give birth to the LPC’. He said that the LPA does not spell out the issue of handing over of the current duties of the law societies to the LPC. According to Mr Sigogo, the LPC should have a meeting with the NF before it is dissolved. ‘Perhaps for a period of a month the LSSA, provincial law societies, NF and LPC should co-exist to ensure a smooth transition,’ he added.
Gala dinner
On the evening of 23 October, the BLA held a gala dinner, among the dignitaries who attended the occasion were Judge President of both the South and North Gauteng Division of the High Court, Dunstan Mlambo, Judge President of the Limpopo High Court, Mampuru Makgoba, as well as the Tax Ombud, Judge Bernard Ngoepe, and other members of the judiciary.
The BLA’s international associate, the National Bar Association (NBA), representative, Leroy Wilson, was the keynote speaker for the evening. Mr Wilson opened his address by saying that the history of the three decade long relationship between the NBA and the BLA can be read on the BLA’s website (www.blaonline.org.za).
Speaking about the remarks made by Richard Spoor, an attorney, Mr Wilson said that Mr Spoor compared briefing black advocates as charity. ‘Mr Spoor implied that there is a certain amount of sophistication that black lawyers cannot handle. Black lawyers are not inferior to white lawyers,’ he said.
BLA’s rightful place
On the second day of the proceedings, Judge President Mlambo delivered the keynote address. He reminded the BLA that it should take its rightful place in the national discourse about issues that focus on the country. ‘The BLA has a massive responsibility to ensure that the ideas that come before the organisation remain on track. The organisation has a role to play in the transformation agenda of South Africa. … I see a dominance of white male lawyers in the courts ever since I took over as Judge President and this remains a continuing trend. I see the same trend at the Supreme Court of Appeal. In the past five years, I remember only two black lawyers who came before me. … Black lawyers are usually given “look down work” such as judicare work and criminal matters,’ he said.
Judge President Dunstan Mlambo reminded the Black Lawyers Association to take its rightful place in society.
Speaking about the global position of South Africa, Judge President Mlambo said that the country has a Constitution that is hailed worldwide as the best, he then asked why Apartheid trends continue to define the country? Why is the country still the same? ‘The preamble of the constitution of the BLA sets out its objectives and what the BLA stands for. The BLA is a critical voice in the transformation of the legal society. It is time to take off your suits and wear overalls and tackle the trend that is happening. We rely too much on the goodwill of those who control the capital to bring about change for the better. Have legal consumers, corporates and government, told the BLA why they are not briefing black lawyers,’ he asked.
‘When asked about their briefing patterns, corporates might site the principle of free choice and state that they have freedom to choose who they want to brief. Deputy Chief Justice Moseneke spelled it out in his Pitje Memorial Lecture, the fight that was started by GM Pitje and others, many years ago, is far from over. There are still prevalent stereotypes of black lawyers that imply that black lawyers are inadequate and not worthy of attention. Black people still have barriers to conduct their work. Black people are called historically disadvantaged individuals; part of the problem is that we allow these tags. We are South Africans,’ Judge President Mlambo reminded delegates.
Speaking about the future of the BLA, Judge President Mlambo said: ‘As you continue to go on to 39 years, it is about time that these AGMs are a true transformation portal and do not become circuses. Your mission should be taken serious. All of us have a duty to ensure that young people realise their dreams. Someone said the BLA is no longer relevant. … The BLA is here to address mediocrity. Do not believe what they say when they say that a black person cannot decipher complex matters. We have proof in this country and other jurisdiction that indeed black lawyers can handle complex matters. The BLA should lead by example in this regard, and ignore, with contempt, these perceptions,’ he concluded.
Executive Committee
The two-day conference ended with the election of the new National Executive Committee. The following are the newly elected National Executive Committee members –
Mapula Thebe NDip Journ (DUT) BTech (Journ) (TUT) editor of De Rebus.
This article was first published in De Rebus in 2015 (Dec) DR 6.
