By Mapula Sedutla
The Cape Law Society (CLS) held its annual general meeting in November 2016. The conference was held under the theme ‘20 years of the Constitution – a time for reflection’. The keynote address was delivered by Chief Justice Mogoeng Mogoeng.
Chief Justice Mogoeng Mogoeng delivered the keynote address at the Cape Law Society annual general meeting held in October.
Chief Justice Mogoeng began his address by saying that the invitation to address the CLS presented an opportunity for him to participate in reshaping matters of importance in the legal profession and the nation. Commenting on the 20 year anniversary of the Constitution, Chief Justice Mogoeng said: ‘We should rather say 22 years because we did not become a constitutional democracy when the 1996 Constitution came into being. We were already a constitutional democracy since 1994. It is a very difficult and challenging topic to reflect on. Twenty years or 22 years afterward because until we make an effort to reconnect with what it is that necessitated the crafting of the Constitution that we now have, we can only have but half a picture. … South Africans got tired, South Africans black and white got tired. … Once upon a time some smart people led us to believe that there was “a magic” in the fact of your skin colour being black or white. And somehow that your destiny ought to be tied up with nothing more but the colouration of your skin. And that unfortunate misconception got so internalised and taken so seriously that it culminated into the creation of a system that the United Nations declared a crime against humanity. … Reflect on how difficult it was those years ago, we could not have gathered in a manner that we are gathered here. … We need to remind ourselves of our shameful past so that we can do everything in our collective power as South Africans black and white to run away from what we used to be associated with.’
Chief Justice Mogoeng noted that during the Apartheid era some South Africans did not define themselves according to their skin colour. He added: ‘One South African who saw himself as a South African not as a white man, met Judge John Hlophe as a small boy. John regularly cleaned up his vehicle. In his engagement with young Hlophe he identified the hidden potential within. That man was an attorney. … He decided to fund the studies of John Hlophe from the beginning all the way through to university. John Hlophe ended up being a PHD graduate from the university of Cambridge. … How many of us as lawyers think of others in line with the spirit of our Constitution? How many of us have embraced the ethos of our Constitution and the preamble to our Constitution?’
Chief Justice Mogoeng said that South Africans must always bear in mind those things that were fundamental to the divisions of the past that now needs to be healed. He asked: ‘Why were we so divided? Because if we do not deal with that we are allowing those things that kept us divided to stay as strong as they were before 1994. And for as long as they are strong, the prejudices, the stereotypes the anger the frustration one-way or the other, change will not happen. We have been favoured with incidents that are pointers to what the inability to change and change more meaningfully will give rise to. When things like fees must fall, Rhodes must fall begin to happen in the manner that they did, they remind me of 1976, they remind me of what happened in the 80s. I do not know who of us would know what to do should those developments blow out fully nationwide and in a sustained way. What has that got to do with 22 years as a constitutional democracy? What has that got to do with the reflections that we need to make. When people are dissatisfied, they look for who appears to have what they don’t have and they rise against those people.’
Speaking on unconscious bias, Chief Justice Mogoeng said: ‘One can be gender biased or racially biased without realising it. This is the most dangerous form of bias because when you do not know that you are bias then there is nothing to correct. An example of this is that some time back I was with people and we got into a lift there were one or two people with a white pigmentation and others with a black pigmentation. Guess what happened? I only greeted black people. And when we left the lift my conscious was struck so deep. Why did I only greet black people? It means I have unconscious bias against white people and this is not right, it is something that I must deal with. … The danger of unconscious bias is that you will discriminate against others without realising that what you are doing is in fact discrimination. That will be dangerous for the realisation of the constitutional dream.’
Chief Justice Mogoeng pointed out that the manner in which big companies give work to attorneys or how briefs are conducted is a form of unconscious bias. ‘One of our former Chief Justices, Ismail Mohamed said, that an excellent lawyer that he was, never once did he receive a brief from a big company or a white law firm. The same applies to Pius Langa, Sandile Ngcobo and Dikgang Moseneke. I choose to attribute that not to conscious bias but to unconscious bias. It gets worse, this I say to the Law Society of the Northern Provinces, there can be a deserving woman or black person but they will not get the brief. No, it is a thing of honour to take the brief elsewhere. What am I saying, must they only give black people briefs? I am saying once we accept that we are one big family and that there is enough on the plate for all of us and that we have to embrace our collective and individual constitutional responsibility to help transform South Africa.
This is a time not just for reflections but for deep reflections. We need to transform ourselves, as a law society, as a society of advocates, as the judiciary and we need to transform ourselves as a nation. If there is any country in this continent that has all the potential to turn the fortunes of Africa around, it is South Africa. So we need to differentiate between where criticism needs to be leveled and how and where our collective fortunes need to be nurtured so that we do not destroy as we criticise. We need to be very careful not to be drawn into any self-distractive narratives. … We are not politicians but politicians also need to be appealed to know that this is the only country we have, a country with immeasurable potential to become not only the economic powerhouse of Africa but of the world.’
Outgoing President of the Cape Law Society, Ashraf Mahomed, spoke about the Legal Practice Act during conference.
The Legal Practice Act
Speaking about the changes that will be brought about by the Legal Practice Act 28 of 2014 (LPA), the outgoing president of the CLS, Ashraf Mahomed, said that the primary aim of the LPA is the creation of a unified body to regulate the affairs of legal practitioners, transform the legal profession and regulate the legal profession in the interest of the public. He added: ‘Once we fully understand these aims you will finally understand the state of which we are compelled to embrace the eminent changes. We are currently seeing the demise of the current governance structures of the legal profession that has evolved over three centuries in South Africa. The Cape Law Society, as we know it, will cease to exist and most of our assets will be transferred to the new unified body that will be established in its place. The body we refer to in the LPA is the Legal Practice Council and will include attorneys, advocates and representatives of government. The stakeholders of the Legal Practice Council will not enjoy parity in membership in terms of the number of seats that they will occupy.’
Speaking about the jurisdiction of the CLS, Mr Mahomed said: ‘Three regional councils will be established, that is one for each province within our current jurisdiction and it is conceivable that there will be a measure of representativity in terms of race, gender and demographic targets both national and regional. … The legal profession will remain independent, albeit the various key stakeholders, including government and lay people involved in the governance structures. The way we practice law will remain the same. Existing reserved work and forms of legal practice, as we know it will remain the same. … We will see a legal services ombudsman established that would have a role in disciplinary matters. The profession of advocates will continue working as an independent specialists but an additional category of legal practitioner has been created, namely, advocates with trust accounts. That might mean that there will be some competition for us as practitioners going forward. The admission and removal of legal practitioners will still be the sole reserve of our courts.’
Mr Mahomed noted that the LPA does not provide for the establishment of a voluntary association to represent the interest of the legal profession. ‘At the same time, there is nothing in the LPA that prevents us from recognising a voluntary association with a code of conduct. The current debates are focused on building consensus on the need to form a voluntary association its scope and ambit, the financial base will potentially come from some of the assets of the existing statutory law societies. I am pleased to report, from our extensive consultation with members and the constituencies’ circles within our jurisdiction and more recently during the panel discussions. … We received significant support amongst our members for the concept of a voluntary association and importantly the fact that such representative body does not need to start from scratch. There is even talk that the existing Law Society of South Africa will serve as a vehicle for the establishment of this new body,’ he added.
Judge President of the Western Cape Division, John Hlophe, gave a presentation on how legal practitioners can become judges.
How to become a judge
Judge President of the Western Cape Division, John Hlophe, began his address by quoting s 174 of the Constitution. He noted that two years ago, the heads of courts sat and considered what it is that they are looking for in lawyers, for purposes of acting positions. He added: ‘The decision that we took was the following: Any woman or man who is not appointable as a permanent judge should not be appointed to act. … People that have been before the Judicial Service Commission on numerous occasions and were not successful, that ruling applies to them as well. So you will not be considered for an acting position if you have tried on numerous occasions to secure a permanent position without success. In general, apart from that we also look at relevant experience for purposes of acting the cut off point is ten years. You must be at least in the profession for ten years as an attorney, advocate or academic.’
Judge Hlophe went on further to state: ‘To those of you who would like to be considered to act, I also want someone whose practice is big and diverse. So clearly if your role in this world is conveyancing, …. judging is not about being a conveyancer. We need relevant experience, you must be active, we want to see you in the courts everyday, and someone whose practice is diverse ranging from matrimonial matters, criminal law and commercial law. With specific reference to attorneys, we want to see attorneys in the High Court, the practice of the law in the lower court, with all due respect, is not the same as the practice of law in the High Court. We all know that magistrates are creators of statutes, whereas in the High Court that is where law is exciting.’
Judge Hlophe noted that he has had instances where criminal attorneys have approached him for an acting position for a criminal case. ‘No one is going to be appointed to come to the Western Cape High Court just to come and preside on criminal cases. Criminal law is 35% of work in this division. 65% is civil work, its commercial law, matrimonial law it is different areas of the law. So clearly then diversity is called for. … If you want to be considered for an acting position you have to diversify your practice, you have to make sure you have access to other kinds of work, including, constitutional law, administrative law and commercial law. Judges at the end of the day must be real and scholarly.’
Co-chairpersons of the Law Society of South Africa Mvuzo Notyesi and Jan van Rensburg were part of a panel that discussed the changing legal landscape during the conference.
Changing legal landscape
Co-chairperson of the Law Society of South Africa (LSSA) Jan van Rensburg noted that the LSSA has discussed the problems that it foresees with the implementation of the LPA. He added: ‘From 1 February 2018, the legal profession will enter into a new era. When the LPC comes into existence all the existing structures will cease to exist. We will then sit with the LPC and provincial councils. The provincial councils will not be as the current provincial law society as they will be nine in terms of the Act. They will not have the powers that the current provincial law societies have. In the new dispensation the provincial councils will have delegated powers from the LPC. Because of financing, it is not clear if all nine provincial councils will be fully fledged, the possibility is still being discussed to have, in the smaller provinces, not all the functions.’
Mr Van Rensburg said the LPA, as it stands, does not provide for the professional interests of lawyers. ‘If we look at the implementation journey, the LSSA as far back as in 2015 went back to its constituencies and asked them to consider the possibility of creating such an organisation and there was a resolution to establish an independent association, which will represent, add value to practitioners and speak on behalf of the profession. Now we are in the process of considering how to build this body. We must understand there is no obligation in the LPA to belong to this body so if we want to convince you, our members, to partake in this we must have your full buy in. It is voluntary and there must be some value in it before we will be able to sell it to you,’ he added.
Co-chairperson of the LSSA, Mvuzo Notyesi, noted that when the new council comes in, it will perform regulatory functions. ‘Here we are talking about the issues of upholding the rule of law, the issues of the interest of the profession, building our capacity, we want to talk about the issues of human rights, we want to ensure that we capacitate our own members. We will remain an organised profession, so that things that have happened in the past never happen again. We need to be an organised profession to ensure that we preserve our profession. We want lawyers who speak with one voice, we are not interested whether you are an advocate, whether you are an attorney, we say people in the profession must come together.’
New CLS council
Mapula Sedutla NDip Journ (DUT) BTech (Journ) (TUT) is the editor of De Rebus.
This article was first published in De Rebus in 2017 (Jan/Feb) DR 5.
