From left: Co-chairperson of the Law Society of South Africa, Mvuzo Notyesi; Chief Justice, Mogoeng Mogoeng; Co-chairperson of the Law Society of South Africa, Jan van Rensburg; and outgoing President of the SADC LA, Gilberto Correia, during the opening ceremony of the conference.
By Mapula Thebe
The Southern African Development Community Lawyers’ Association (SADC LA) held its 17th annual conference and general meeting in Cape Town on 17 to 19 August. The well attended conference tackled issues such as –
The proceedings began with a welcome function where Judge of the High Court of the Western Cape Division (Cape Town) and past president of the SADC LA, Vincent Saldanha, delivered the keynote address. Judge Saldanha noted that looking back at the past 17 years, the challenges in the region have remained the same, if not, become more urgent and increasingly complex. ‘… Over the next three days you will be required to deal with those challenges, head on and with the characteristic robustness and seriousness that this association is known for,’ he added.
Judge Saldanha went on further to say: ‘In the light of the changing international landscape and in particular the developments in Europe with the Brexit vote, the ongoing international financial crisis, the challenging political and economic instability in many parts of the world and not least of all, right here in some parts of Africa. All of this has impacted on the difficult and challenging questions of regional integration especially in the global South. As the Sustainable Development Goals of the United Nations are implemented, much closer attention and assessment is needed of the successes and failures of development in Africa. The global financial crisis has, as African commentators and academics correctly raise, brought with it new theoretical and practical concerns about the value of economic integration. They pose the question “if integration is not a panacea for weaker economies and can expose those economies to greater economic loss (an issue seen both in Africa and in Europe) new attention must be focused on the questions of when, whether, and how to pursue regional integration?”’
Harmonising trade and investment in the region
On the second day of the conference, Chief Justice Mogoeng Mogoeng delivered the opening address under the topic ‘Promoting the harmonisation of trade and investment laws and legal practice standards for regional development and effective integration in SADC’.
Chief Justice Mogoeng noted that the world is confronted by profound challenges, some of which include underdevelopment, lack of peace and stability, poor governance corruption and discrimination. ‘So many problems that one would be excused for feeling helpless in the normalcy, but that should not be allowed for peaceful existence to become a reality,’ he added.
Chief Justice Mogoeng said that in his view what complicates the situation that has resulted in the challenges in the world is the human uncontrollable desire to take advantage of others so that they can manipulate and maintain an underserved position of wealth, control, power and privilege. ‘When a person manipulates society to stay in power, human beings are not fools, spin doctoring can only last a while.’
Chief Justice Mogoeng went on to speak about cross-border practice and said that before it can take place the quality of the law degree should be looked at. ‘We owe it to the future lawyers, judges and the respective nations to ensure that our law degree is of a high standard. We should interact with academia to ensure the quality is of a high standard. We also need to look at South Africa’s basic education because students struggle when they reach university,’ he added.
Commenting on corruption in the legal profession, Chief Justice Mogoeng said: ‘Because the legal profession consists of the pool judges and magistrates are appointed some corruption from the profession finds its way to the judiciary. I challenge the organised profession to do whatever possible to ensure that those that bring the profession into disrepute are dealt with firmly, we know each other. We should not allow a person in wrongdoing to go on and on practicing. Let us be vigilant … it is an honour to be a lawyer.’
From left: International Delay and Quantum Expert and Managing Director of Navigant’s Global Construction Practice in the United Kingdom, Dr Tony Farrow; incoming Deputy President of SADC LA, Max Boqwana; and advocate at the Cape Bar, Johan Beyers at
the ‘Construction law: Claims for delay on international construction projects’ session.
Construction law: Claims for delay on international construction projects
Advocate of the Cape Bar, Johan Beyers, opened his address by referencing a quote by the World Bank which sates: ‘The cost of redressing Africa’s infrastructure deficit is estimated at US$ 38 billion of investment per year, a further US$ 37 billion per year in operations and maintenance; an overall price tag of US$ 75 billion. The total required spending translates into 12% of Africa’s GDP.’
Mr Beyers added that construction law expertise is vital to allow Africa to realise its infrastructure needs and yet, construction law courses are hard to come by in Africa, most construction lawyers in Africa are qualified by experience so this creates a significant barrier to entry for African lawyers who wish to specialise in this field.
Mr Beyers noted that infrastructure projects are notorious for overrunning on time and cost, with serious economic and political consequences. He said: ‘The PWC November 2014 report key finding was that there is a need for better planning, procurement, project management and controls to reduce number of delays and size of cost overruns. It is an international problem, which has major costs implications on large projects and has national economic and political effect.’
International delay and quantum expert and Managing Director of Navigant’s Global Construction Practice in United Kingdom, Dr Tony Farrow, said that in construction contracts, the focus on the penalty clause is to identify the circumstances the company owner is late in delivering the information, which will lead to the contractor being entitled to the extension of time on the construction project, to tell the parties how to calculate the extension of time and receive a reasonable extension time. However, what may be reasonable time extension could be unreasonable to one party, which then leads to disputes.
Dr Farrow’s prepared a comprehensive presentation, which can be found at www.lssa.org.za.
From left: Legal counsel at the Network Information Center in Tanzania, Sarah Mhamilawa; Director Dispute Resolution/International Trade at ENSafrica, Grant Herholdt; SADC LA Executive Committee Member from Botswana, Binta Tobedza; and Legal Services Manager at AHL Group in Malawi, Tadala Chinkwezule, during the ‘Development in commercial arbitration’ session.
Developments in commercial arbitration
‘Developments in commercial arbitration’ was one of the topics discussed towards the end of the first day of the conference. Speakers during this session were: Legal Counsel at the Network Information Centre in Tanzania, Sarah Mhamilawa; Legal Services Manager at AHL Group in Malawi, Tadala Chinkwezule; and director, Dispute Resolution/International Trade at ENSafrica, Grant Herholdt.
Ms Mhamilawa noted that when clients need arbitrators, they tend to go online and Google for arbitrators. She added that arbitrators that are most accessible online are the ones from South Africa. According to Ms Mhamilawa, SADC countries need to set down the features that attract arbitration procedures in their countries since the region still has challenges of embracing this area. ‘Lawyers need to look at what consumers of arbitration look for when they are looking forward to starting a proceeding. … We also need to look at the issue of cost of arbitration.’ she said.
Ms Chinkwezule covered the topic ‘Examining the benefits of commercial arbitration in Southern Africa’ in her presentation. She noted that commercial arbitration is a process for resolving business disputes between two parties outside the conventional court system. She added: ‘According to a PWC 2013 survey, the industries that prefer arbitration are the energy – power and construction industry; 73% Energy, Construction 84% and 69% Financial Sector.’
Ms Chinkwezule noted that arbitration is vital to attract foreign investment in southern Africa and that the benefits in complex commercial arrangements such as being cost effective and neutrality outweigh the benefits of litigation. ‘We all have a role to promote the use and knowledge of commercial arbitration, mostly in centers within Africa and not far afield,’ she said.
Mr Herholdt spoke on ‘International arbitration for African lawyers’. He said that the overwhelming majority of the average South African lawyer’s practice is limited to domestic arbitration and domestic court proceedings and that only a handful of lawyers have experience in international arbitrations. He added: ‘Arbitration in SA is currently governed by outdated legislation from 1965. The International Arbitration Bill has only very recently been presented to Parliament. In the meantime, the other African jurisdictions have taken significant strides towards establishing a presence in international arbitration. However, these efforts are still far behind those of the established centers such as Paris, London, Singapore, etcetera.’
Mr Herholdt said that the negative perception that African lawyers are not as capable as lawyers from the bigger legal jurisdictions is due to relative lack of experience, not ability. ‘Doubt in one’s own ability as an African lawyer also adds to the negative perception, this can be improved with experience,’ he added.
Mr Herholdt noted that many African jurisdictions have realised that it is necessary to take advantage of the boom in investment into Africa to expand the legal market by introducing arbitration centers. ‘Africa is now part of a global legal village. Multinational law firms are expanding into Africa in various ways. This is slowly exposing African lawyers to international arbitration, which will bring experience. The quality of legal skills in Africa is improving with the exposure to the international market. Large corporates are becoming more comfortable with working directly with African lawyers.
Mr Herholdt said that although there is a global resistance to change, African lawyers need to compete at the international level as this is necessary to match or surpass the standard set by international competition. ‘This would mean that African lawyers have to improve their turnaround time, quality of work, commitment, and sacrifice personal time. Matching international standards does not mean matching international charge out r
From left: Consultant at Gumbi, Dechambenoit & Associates, advocate Mojanku Gumbi; and Country Representative – Zambia/Regional Policy Lead – Food/Trade Eastern and Southern Africa, Development Alternatives Incorporated, (previously economist at COMESA), Daniel Njiwa
ates. Larger, more complicated matters may allow for a reasonable premium, but do not be greedy,’ he said.
Speaking on statistics of arbitration matters, Mr Herholdt said that the average costs for claims are in the region of 5 million dollars per arbitration. ‘The longest arbitration took just over ten years and the average case takes two to three years,’ he added.
Economic protection and the role of African multilateral institution
On the second day of the conference, a plenary session was held to discuss ‘Economic protection and the role of African multilateral institution.’ One of the speakers of the session was Country Representative – Zambia/Regional Policy Lead – Food/Trade Eastern and Southern Africa, Development Alternatives Incorporated, (previously economist at COMESA), Daniel Njiwa. Mr Njiwa said that Africa has made substantial economic growth in the past few years despite the fact that the growth does not translate to the results African’s want.
‘Africa is now the destination of choice for many multinational companies; however, we still have some challenges. We need to do something to ensure that these benefits go down to the majority poor Africans. Half a billion Africans live below the poverty line. We have to look into the issue of inclusiveness, less than 10% of the wealth in Africa is held by Africans,’ Mr Njiwa said.
Africa to harmonise
Minister in the Presidency for Planning, Performance, Monitoring, Evaluation and Administration, Jeff Radebe, delivered the closing address at the conference. Mr Radebe said that at no point in recent history have calls for Africa to harmonise been stronger than they have been lately and the importance of the conference and general meeting cannot be overstated.
Mr Radebe added that across Africa, regional integration and industrialisation is arguably the most talked about subject among policymakers. Mr Radebe said that through his position, he has come into close contact and proximity to the challenges faced by the SADC region. ‘These are challenges in relation to building, and implementing transformative transboundary infrastructure projects in the region, and more overarchingly, in leading the continental charge for a better Africa, at the highest African Union level,’ he said.
Even though Africa is faced with many challenges, Mr Radebe said that the narrative of a rising Africa is now widely recognised. ‘This has replaced the discourse of “the hopeless continent”. Africa’s economic fortunes have become more hopeful as the global trade architecture has changed dramatically in the new millennium,’ he said.
Speaking on harmonising trade, Mr Radebe said: ‘It goes without saying that harmonising trade, investment and legal practise laws is important for economic development not just across the world, but perhaps more importantly, for us in Africa, more generally, and in SADC more particularly. The same applies what lawyers often refer to as “pari passu” (side by side) to our regional integration efforts. These are primary and fundamentally instruments of economic development. … There is a need to better harmonise the trade, investment and legal practise dispensation across the SADC region. This need must be positioned in such a way that it will take account of, and ensure, that we tackle impediments to more prodigious inter and intra Africa trade, which includes the stated problem of diversity of laws. We all know the numbers, 12% intra Africa trade is simply an intolerable statistic in this day and age.’
In closing, Mr Radebe gave the following recommendations to address the issues in the SADC region:
‘One: An amendment to the SADC Treaty – this in order to make the harmonisation of laws one of the critical objectives.
Two: Provide for the procedures and mechanisms to adopt harmonised community laws that are directly applicable in the SADC region.
Three: Consider a regional legislative body, which can enact laws that are directly applicable in the SADC region.
Four: The SADC Tribunal could be adequately capacitated to ensure effective application and implementation of the harmonised law.
In this way, the legal profession would help unleash the full potentials of the sub region, to meet its growth needs in respect of skills development, employment creation and a better life for all the region’s people. It is important that governments, businesses and all the related stakeholders join hands and collaborate with that of the legal profession, as we advance on our roadmap – Agenda 2063.’
From left: Co-chairperson of the Law Society of South Africa, Mvuzo Notyesi; President of the South African Women Lawyers Association and South African Council Member of SADC LA, Noxolo Maduba; incoming President of SADC LA, James Banda; Minister in the Presidency for Planning, Performance, Monitoring, Evaluation and Administration, Jeff Radebe; outgoing President of the SADC LA, Gilberto Correia; and Co-chairperson of the Law Society of South Africa, Jan van Rensburg, pictured during the closing ceremony of the conference.
Executive Committee:
2016 – 2018
Council
Mapula Thebe NDip Journ (DUT) BTech (Journ) (TUT) is the editor of De Rebus.
This article was first published in De Rebus in 2016 (Oct) DR 6.
