Attorney Thokwane ‘TP’ Moloto delivered the Godfrey Pitje Memorial Lecture.
By Mapula Sedutla
The Black Lawyers Association (BLA) held its 41st annual general meeting (AGM) in October 2018 in Cape Town under the theme: ‘Access to legal profession: Fusion is the way to go’. On the evening preceding the AGM, a gala dinner was held which incorporated the Fourth Annual Godfrey Pitje Memorial Lecture.
Attorney Thokwane ‘TP’ Moloto delivered the memorial lecture. Mr Moloto began his address by stating that the administration of justice should be viewed from the global village perspective with respect to the principle of separation of powers in accordance with the theory advanced by Montesquieu on ‘trias politica’, meaning that there are three categories of politicians in any democratic scenario of governance, namely, the legislator, the executive and the judiciary. He added: ‘There are checks and balances to avoid the three arms to interfere with one another. The aforesaid separation of powers, of relevance today is the role of judiciary as one of them which is also separated into three sub-divisions, being the presiding, prosecuting and defending arms to maintain the balance of the administration of justice, for justice to be seen to be done.’
Mr Moloto went on further to say: ‘I find it suitable to start with the basic principles to be applied to the judiciary in accordance with “Basic Principles on the Independence of the Judiciary” as adopted by the Seventh United Nations Congress on the Prevention of Crime and Treatment of Offenders at Milan on 26 August 1985. Among other provisions are Articles 1 and 2, which state: “1. The independence of the judiciary shall be guaranteed by the state and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
Mr Moloto noted that the relevant section that pertains to lawyers as legal representatives, as far as the basic guidelines are concerned is provided in the ‘Basic Principles on the Role of Lawyers’, adopted by the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, at Havana on 27 August 1990. The following principles were adopted:
‘[Article] 1. All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.
[Article] 2. Governments shall ensure that efficient procedures and responsive mechanisms for effective and equal access to lawyers are provided for all persons within their territory and subject to their jurisdiction, without distinction of any kind, such as discrimination based on race, colour, ethnic origin, sex, language, religion, political or other opinion, national or social origin, property, birth, economic or other status’.
Speaking about Godfrey Mokgonane Pitje, Mr Moloto took delegates down memory lane and said: ‘“As a result of all the difficulties I have discussed relating to practice of law and as our numbers picked up, I called the black lawyers together to make common representations to the authorities to be allowed to have offices in town and to be freed from influx control, pass laws, the lot. The lawyers used to meet in my office. Sometimes there would be three or four or five. The number gradually increased so that by 1978, when Dikgang Moseneke was admitted there were more than ten of us”. These words were uttered by the late GM Pitje in an interview with one of the friends of BLA from the United States of America before he passed on in 1997. Basically, GM Pitje was our mentor and father figure in the legal fraternity and African community and his spirit is still living in the circles of BLA till today. May his soul rest in peace.’
Mr Moloto noted that the struggle to access the legal profession is as old as time and is continuing. He said that others are going to take some time to reach the destination as the pace of the transformation process is very slow because it is not revolutionary but evolutionary.
A panel discussion was held to discuss the topic of the day. From left: Attorney Anthony Millar; advocate Fezile Memani; and Legal Practice Council member, Noxolo Maduba-Silevu.
He added: ‘There was a hope that the new Act [Legal Practice Act 28 of 2014 (LPA)] for administration of the legal profession will get rid of the unnecessary and uneconomic division between attorneys and advocates in which the poor, who are incidentally blacks, cannot easily get access to justice because of the double payment to lawyers for the same service. There is still separate rolls of attorneys and advocates in terms of sections 24 and 25 of the [LPA] and further classification of advocates as senior counsel and junior counsel. There is still a long way to travel in order to reach the destination and distance where our neighbours like Zimbabwe and Namibia are at the moment. However, since every situation which is created by the legislation is amenable to be amended by the same as time goes on, we hope that the BLA will pull its socks up and see to it that the coming [LPA] is being amended from time to time till it reaches the stage where it will be acceptable to the demographic majority of our population, without confusion but with fusion as the only way to go. I wish the new Legal Practice Council good luck.’
Fusion: Is the profession ready?
On the day of the AGM, President of the BLA, Lutendo Sigogo, was first on the podium to open the proceedings of the day. Mr Sigogo noted that 2018 marked the year of the 41st anniversary of the BLA and the centenary of the lives of two democratic icons, namely Albertina Sisulu and Nelson Mandela. He added: ‘In commemoration of the work Mandela and Sisulu have done, as the legal profession, we need to provide tangible answers facing our society and contribute towards building and offer opportunity for growth.’
President of the BLA, Lutendo Sigogo, noted that 2018 marked the year of the 41st anniversary of the BLA and the centenary of the lives of two democratic icons, namely Albertina Sisulu and Nelson Mandela.
Speaking about the theme of the conference, Mr Sigogo said that the notion of fusion is not a new topic in the profession. He asked: ‘Is the profession ready for fusion, can fusion be used as a tool to transform the profession?’
A panel discussion was held to discuss the topic of the day. Legal Practice Council (LPC) member, Noxolo Maduba-Silevu, noted that the notion of fusion has been around for many years and that there are countries where there are no distinctions in the legal profession. Ms Maduba-
Silevu said in South Africa the legal profession has been moving in the direction of fusion for a number of years.
Attorney Anthony Millar noted that fusion would bring advocates closer to clients, which is necessary. Mr Millar said that the direct consequence of fusion would be greater access to justice for the public. He added that fusion would also lead towards a unified legal profession. ‘The name advocate is a job description and does not mean that advocates are better than attorneys. When cases are presented in court, the public sees advocates as the face of the profession while attorneys are viewed as the poor cousins. We need to change this,’ he said.
Chief Executive Officer of the Legal Practitioners Fidelity Fund (the Fund), Motlatsi Molefe, presented a report on the Fund.
Advocate Fezile Memani said that in his perspective, there is no difference between advocates and attorneys as they have the same qualification. Mr Memani noted that advocates are a necessary evil in the profession. ‘It is a misconception that advocates charge exorbitant amounts, in fact attorneys charge more than us. If there is fusion, I hope that there will be some sort of magic that changes that scenario. There are no separate professions, we are all the same. We do not differ on matters of substance, we only differ on issues that are commercial in nature,’ he added.
Report from the Legal Practitioners Fidelity Fund
Chief Executive Officer of the Legal Practitioners Fidelity Fund (the Fund), Motlatsi Molefe, presented a report on the Fund. Mr Molefe said that the current value of the Fund sits at R 468 billion nett of withdrawals of R 175 million. Mr Molefe noted that this amount is geared towards the settlement of claims, payments of professional indemnity (PI) cover on behalf of attorneys as well as the subvention of regulatory activities. He added that the payment of the PI premium remains within the discretion of the Board of the Fund.
Chairperson of the Attorneys Development Fund (ADF), Nomahlubi Khwinana, gave a report on the ADF.
The Fund, which was previously named the Attorneys Fidelity Fund, will continue to exist as a juristic entity. Mr Molefe said there is a six-month period for the new Board of Control to be elected in terms of the LPA. He highlighted the fact that exclusive control by attorneys of the Fund will cease with the election of the new Board. ‘The board will shrink to nine members with only four attorneys and one advocate with a Fidelity Fund Certificate (FFC). The other four members will be two auditors nominated by Independent Regulatory Board for Auditors via the LPC and two ministerial representatives, which clearly says that the focus of the Fund will now be in many ways multi-dimensional and clearly emphasise public protection more than professional interest,’ he added.
Speaking about contribution towards PI insurance, Mr Molefe said that the implementation of contributions towards PI insurance by legal practitioners is envisaged to come into effect in 2019 and will form part of the FFC application process for 2020. He added: ‘The issuing of a Fidelity Fund Certificate by the LPC is dependent on the payment of the contribution for PI insurance to the Fund. This is perhaps the single most important development within the LPC that will affect all practitioners. At this point the premium for PI stands at R 212 million inclusive of VAT. This is a figure way above our core function payments that we make annually for misappropriation of trust funds. However, the contribution regime, which the Fund has introduced, will have an element of subsidisation for a period of five years beginning this year wherein the Fund will be responsible for half of the premium and the profession the rest. The Fund will gradually reduce this subsidy over a period of five years until the full premium becomes the responsibility of the profession although the operational costs of running the scheme will be borne by the Fund in perpetuity. It must be added that to avoid creating barriers of entry, new entrants into the profession will be subsidised for a period of two years.’
Chairperson of the Attorneys Development Fund (ADF), Nomahlubi Khwinana, gave a report on the ADF, see 2018 (Dec) DR 7.
Mapula Sedutla NDip Journ (DUT) BTech (Journ) (TUT) is the editor of De Rebus.
This article was first published in De Rebus in 2019 (Jan/Feb) DR 5.
