A changing profession in a changing environment

May 1st, 2014

By Mapula Thebe

The Law Society of South Africa (LSSA) held its annual general meeting (AGM) on 28 and 29 March in Bloemfontein. Presenters and delegates debated issues of importance in the law profession under the heading: ‘A changing profession in a changing environment’. Topics discussed included the impending Legal Practice Bill, the relationship between Southern African Democratic Community Lawyers Association (SADC LA) and the law societies of the SADC region, speedy delivery of justice, attorneys making a profit, judicial independence, the Office of the Public Protector and the use of information technology (IT) in law firms.

AFF matters

Chairperson of the Attorneys Fidelity Fund (AFF), CP Fourie, while giving a report from the fund, said that the 2013 LSSA AGM had been held amidst tension and conflict between the organised profession and the AFF. He said the tension and conflict was due to positions taken on the Legal Practice Bill, the Judicial Matters Amendment Bill as well as the Attorneys Amendment Bill. He added that, fortunately the tension could be defused and the conflict resolved resulting in healthy relations being restored without compromising the independence of the AFF to carry out its fiduciary functions.

Mr Fourie commented that: ‘The AFF and the organised profession are closely intertwined with a commonality of interests as, after all, the fund was created at the initiative of the organised profession and in many instances the fund and the organised profession need to act in collaboration in order to promote and protect the public at large without straying into the terrain that each of these entities had been given through legislation.’

Speaking on the Legal Practice Bill, Mr Fourie said that only s 10 of the Bill will come into operation once the Bill is assented. He said that this section, dealing with the National Forum and Transitional Provisions, will come into operation on a date determined by the President in the Government Gazette. Adding that s 2 of the Bill, which provides for the establishment, powers and functions of the South African Legal Practice Council and its operations will only come into operation three years after the commencement of s 10.

SADC LA and its regions’ law societies

Chief Executive Officer of the SADC LA, Makanatsa Makonese, made a presentation on the relationship between SADC LA and the law societies in the SADC region. She made the presentation on behalf of the President of SADC LA, Kondwa Sakala-Chibiya, who could not make it to the AGM. Giving a brief history of the organisation, Ms Makonese said that in her view the association is a product of the law societies and the Bar associations in the region, and that the association owes its success or failure to the law societies and Bar associations in the region.

Ms Makonese said that it was important for lawyers in the region to understand the link between their associations, the link between themselves as individuals and the SADC LA. She said that the association was formed in 1999 in Maputo and that currently law societies from 12 of the countries in the SADC region were institutional members of the association. Adding that, the three countries that are not currently members are Madagascar, Seychelles and Mauritius. ‘The SADC Lawyers’ Association works in such a way that each law society that is an institutional member is represented on the Council of the SADC Lawyers Association by two members and currently your representatives are the Law Society of South Africa’s, Ms Thoba Poyo-Dlwati, the immediate past President, and Mr Max Boqwana,’ she said.

According to Ms Makonese SADC LA’s current main focus is on human rights and rule of law issues in the SADC region. She said that the reason behind the establishment of the association was the promotion of interest of lawyers in the development of the legal profession. However, she said, currently human rights and rule of law work dominate the operations of the SADC LA mainly because the work is donor funded.

The association has identified other means of acquiring funding such as selling advertising space in its magazine published twice a year and holding an AGM. The 2014 SADC LA AGM will be held from 21 to 24 August in Victoria Falls; visit www.sadcla.org for more information.

Speedy delivery of justice

The keynote address of the first day of the AGM was delivered by Acting Judge President of the Free State High Court, Judge Nathan Erasmus. Judge Erasmus spoke in his capacity as the convener of the National Operations Committee of the National Efficiency Enhancement Committee. Giving background on the reason behind the formation of the committee, Judge Erasmus said that the Chief Justice has the responsibility over the performance of all courts in the Republic and that it was a known fact that courts in South Africa are still underperforming.

‘Our public is entitled to the speedy delivery of justice, which includes having their cases finalised before our courts as quickly as possible. It is absolutely no justification for the delays and in some instances the lack of quality of justice that we deliver. … It is unfortunate that we have come to the point where the public perception is that we, and when I say we I include all the people in this room, as practitioners, judicial officers and other stakeholders are not doing what we’re supposed to do. That’s the background to the national efficiency structure. The structure is aimed at ensuring that we deliver qualify justice as speedily as possible.’

Making a profit: What about the public interest?

A panel discussion was held to discuss the question of attorneys making a profit while taking into account the public’s interests. Speakers during the session were attorney at Phatshoane Henney Attorneys in Bloemfontein, Alet Lubbe, and President of the Black Lawyers Association, Busani Mabunda.

Speaking on legal costs, Ms Lubbe said that legal costs were a complex field that was not explained in one reference guide, which made it difficult to understand and therefore created grey areas. She said that there has been a growing concern regarding overcharging and unfair practices by attorneys. She added that the Legal Practice Bill will address such issues and that while it is a practitioner’s right to make a profit on the one hand, the public has a right to access to justice on the other hand. She said that because the public do not understand legal fees, some practitioners go beyond the scope of reasonable guidelines and overcharge clients creating a misconception that attorney fees are unaffordable.

Ms Lubbe said that most attorneys were scared of the Legal Practice Bill because they believed it will change the way they recover fees from clients. She said the Bill states that practitioners must supply clients with a cost estimate in writing. ‘This estimate must include details of likely financial implications in respect of fees and disbursements, the hourly rate, attorney and advocate costs and an outline of the work they anticipate. In other words, a detailed written mandate,’ she said.

Mr Mabunda asked why do the poor in South Africa not see the courts as an avenue for the resolution of their grievances. He said the answer to that question is complex and is rooted in the country’s history, but he also suggested that the reality is that the poor cannot afford the cost of civil litigation. Adding that the essence of being in business, including the practice of law, is to make a profit. However, he reminded delegates that the practice of law is not only about making a profit but it was also to serve the public’s interest in order to advance democracy.

Quoting s 34 of the Constitution, Mr Mabunda said: ‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum’. Mr Mabunda pointed out that the word ‘everyone’ in the section included the poor.

Mr Mabunda noted that s 35 of the Legal Practice Bill endeavors to regulate fees in respect of legal services. He said that the provisions of the section are aimed at working towards accessibility to courts as envisaged in s 34 of the Constitution, which goes against the ingrained value of many attorneys who push for profit above public interests. He added that the challenge for practitioners is to find a balance between the two interests.

In conclusion, Mr Mabunda said that practitioners should ask themselves how further should the profession make a sacrifice for the needy to ensure that legal services are affordable, therefor increasing access to justice. He added that if legal costs are not made affordable to the poor, the profession risks being resented by the majority of society.

Independence of the judiciary

During the evening proceedings of the first day of the AGM, President of the Supreme Court of Appeal, Justice Lex Mpati, delivered the keynote address. In his speech he spoke about the independence of the judiciary.

Judge Mpati said that while the judiciary, through the Chief Justice and the heads of the superior courts, is making endeavors to achieve independence it must, in the meantime, appear to be independent and maintain its integrity. He added that independence and integrity are essential requirements for a judge.

Justice Mpati said that the Chief Justice has taken on the task unfinished by his predecessor of ensuring that the judiciary gains and maintains the respect of society. He said to earn the respect and confidence of the public, the judiciary must ensure that when litigants leave the courtroom at the end of their case, whatever the outcome, they individually received a fair hearing before competent, independent and impartial judicial officers, ‘in the sense that they each had a fair opportunity to present their case and that they were afforded equal treatment’.

‘But in addition, judges must endeavour to ensure that cases that come before them are dealt with expeditiously and that justice in any case is swift. It is with these ideals in mind, that the Chief Justice, with the concurrence of the leadership of the judiciary, issued the norms and standards that have been the subject of some discontent and, possibly, resentment, ’ Justice Mpati said.

In conclusion, Justice Mpati submitted that for the judiciary to gain and maintain the respect and confidence of the populace, it needs to move in earnest with implementing case management strategies that would ensure that cases are dealt with expeditiously.

Importance of the Office of the Public Protector

The second day’s proceedings of the AGM were opened by a keynote address by the Public Protector, Advocate Thuli Madonsela. Her speech focused on the importance of the work done by the Office of the Public Protector in democratic South Africa.

Ms Madonsela said that  she and her team were encouraged by the LSSA’s unwavering interest and support to her office’s work. She then spoke about a matter she recently investigated and publicly reported on that dealt with government administration. She said that the report also touched on the uncomfortable issue of improper allocation of public resources. She added that never before has the Office of the Public Protector had such a reaction because of a report. The report gained her much criticism even from the legal profession, ‘I must indicate, at the outset, that fair criticism delivered with civility is more than welcome,’ she said.

Giving background to the Office of the Public Protector, Ms Madonsela said that her office entered the constitutional democracy architecture in 1995 with the basis been laid in the interim Constitution of 1993. She said the Public Protector is established by s 181 of the Constitution to strengthen constitutional democracy.  She added – ‘we can agree that the Public Protector helps the people exact accountability on those they’ve entrusted with public power and control over public resources. For the majority of the thousands of cases, being 40 000 this year and over 33 thousand last year, we pursue our mandate through a quiet conversation with relevant organs of state. You can refer to it as “whispering truth to power”’.

Ms Madonsela said that there is a prospect of partnership between her office and the legal profession. ‘Prospects for the future include sharing training experiences with my team, participating in selected investigations, pro bono work when a matter goes on review and referrals to the law society of matters involving alleged improper conduct by lawyers. Lawyers can also report wrongdoing if not in breach of client attorney privilege.’

The law firm of the future

After the keynote address, a panel discussed developments and trends in IT and the electronic environment. The panelists included Fred Baumhardt from Microsoft and member of the LSSA’s E-Law Committee, Brendan Hughes. The panel discussion emphasised the importance of having the best available software and hardware to run a profitable law firm that can render services faster and therefore help curb exorbitant legal fees.

Mr Baumhardt said that in the future technology will be determined by the user, adding that the effectiveness of any attorney will depend on their IT literacy. Speaking on the direction IT will take he said: ‘Cloud computing is going to be a transformational element in terms of what you are going to be able to expect. You are going to subscribe to a technology that you need, just in time, you are going to get it in seconds, and you need to get it in seconds, and once you have  finished with it you can take the app off or you can take the discussion off.’

Mr Hughes spoke about one of the project that the LSSA has initiated, which is the E-signature project. He said: ‘The E-signature project is basically a project that is designed to assist attorneys in getting digital signatures that they can apply to documents electronically that can identify who that document was signed by; can identify whether that person is a practising attorney, a notary or a conveyancer; can identify whether that document had since the time the signature was applied been altered or edited in any way. And can also encrypt the communications within that document during the course of transmission, so that if intercepted, they cannot actually be viewed if necessary.’

Mapula Thebe, mapula@derebus.org.za

This article was first published in De Rebus in 2014 (May) DR 7.

De Rebus