Future of the legal profession discussed at BLA NGM

July 1st, 2017

The Black Lawyers Association National Executive Council pictured with the family of Godfrey Pitje.

By Mapula Sedutla

In May, the Black Lawyers Association (BLA) held its national general meeting (NGM) in East London under the theme ‘Determination of the future of the legal profession post the Legal Practice Act – our responsibility and priority’. The NGM was preceded by the Third Godfrey Pitje Annual Memorial Lecture, which was delivered by advocate Dumisa Ntsebeza SC.

Black Lawyers Association President, Lutendo Sigogo, speaking at the Third Godfrey Pitje Annual Memorial Lecture.

President of the BLA, Lutendo Sigogo, began the proceedings of the memorial lecture by saying that Godfrey Pitje, the founding father of the BLA, is a true example of what being a black lawyer means. Mr Sigogo went on further to inform the attendees that the BLA will be celebrating 40 years of its existence in October, therefore, it will be launching the first official history book of the BLA.

Speaking about the effects of Apartheid, Mr Ntsebeza said the fact that Mr Pitje was convicted and sentenced for refusing to sit, as a candidate attorney, in a place in court that was decreed for black practitioners, is testimony to the moral bankruptcy of a period South Africa should never return to. Mr Ntsebeza added: ‘The indignity of the racism of the past and the way that racism was felt by those who were subjected negatively to it, could not have been expressed better than by Rolihlahla Mandela, who at one stage was, with OR Tambo, Pitje’s boss. He once said the following about justice in those dark days of Apartheid: “Why is it that in this courtroom I face a white magistrate, am confronted by a white prosecutor and escorted into the dock by a white orderly? Can anyone honestly and seriously suggest that in this type of atmosphere the scales of justice are evenly balanced?” It is, therefore, not amazing that Mandela, Tambo and Pitje, among others, became involved in revolutionary politics as a matter of course.’

History of the formation of NADEL

Mr Ntsebeza found it necessary to spend a bit of time on the history of the formation of the National Democratic Lawyers Association (NADEL) during the memorial lecture. He said:

‘I can testify that I, in 1986, with Ms Linda Zama, Selby Baqwa (now Judge) and Bernard Ngoepe (now retired Judge President) were flown to Geneva, ostensibly to meet with the World Council of Churches (WCC) representatives, and report to them on the situation at home, and indicate in what way the WCC could assist, especially in the raising of funds, for the representation of those who were increasingly swelling the Apartheid jails as detainees. …

During this visit, there were hints that it was important to have lawyers or a body of lawyers who would be the leaders of a new outlook, lawyers who would begin to articulate and brainstorm the kinds of values that would inform a post-Apartheid society and its constitutional architecture. …

At that time, I was not even in the BLA. I was in a structure called the Eastern Cape Democratic Lawyers Association (ECDLA), to which the Umtata Democratic Lawyers Association had affiliated. What we had discussed in Geneva and London was obviously something that had been communicated to others in the country, though this was not known to me. Organisations like the Democratic Lawyers Organisation from the Western Cape, the Democratic Lawyers Association from the then Natal, the [Mathole] Motshekga-led Democratic Lawyers Congress, from the then Transvaal, emerged throughout the country.

The BLA leadership must have heard that the ECDLA, which was led by the late stalwart, attorney Templeton Mdalana, was fairly active in advancing the idea of the formation of a brand new organisation that would commit itself to a transformation agenda. The BLA sent a delegation that included Keith Kunene and retired Deputy Chief Justice [Dikgang] Moseneke, and from that moment the BLA, for its part, articulated the basis on which it would be part of the proposed new body.

I was in the Constitution Drafting Committee. [In] the Constitution Conference of the new body in Durban on the 1 – 3 May 1987, the ECDLA – led Drafting Committee took a reasonably well drafted Constitution that proposed the name: South African Association of Democratic Lawyers (SAADEL).

At the very beginning of conference, the recently departed advocate, Comrade Imran Moosa, strongly objected to the use of the name “South African”, and proposed that the name “Azanian” be substituted for “South African” in the title of what the organisation should be called.

Advocate Dumisa Ntsebeza SC delivered the Third Godfrey Pitje Annual Memorial Lecture.

I was in the Chair. I realised that there was an ideological conflict emerging. To avoid a protraction of debate on that issue, I quickly proposed that the meeting should accept neither “South African” nor “Azanian” but settle for “National”, a proposal that was accepted, happily ever after, by everybody, hence the National Association of Democratic Lawyers.

The late Chief Justice Pius Langa was one of the candidates for Presidency. He was not successful. The BLA overwhelmingly supported its own candidate, [myself], who became the first President of NADEL, elected by popular vote on the 3rd of May 1987.’

Remembering Mr Pitje

In conclusion, Mr Ntsebeza, remembering Mr Pitje, said: ‘As we remember him today, and as we remember what he stood for we must also begin to reflect [on] the sickness of our own society today. I have no doubt that if he was alive today, he would be dead against the present day scourges that will destroy our democracy, eventually. If we as legal practitioners, like Madiba and GM [Pitje], want to be leaders in the campaign against corruption, we need to remember to write history as it happened and not as we would have wished it should have happened. It is important that we become truly introspective, and think seriously what our role is in society.’

The now and tomorrow of lawyers

On the second day of the proceedings, the keynote address was delivered by the Chief Executive Officer (CEO) of the Attorneys Fidelity Fund (AFF), Motlatsi Molefe. Mr Molefe began his address by thanking the BLA for the support and succour he has always received since his incumbency of the office of the CEO of the AFF.

Mr Molefe noted that the theme of the NGM was about the now and the tomorrow. He added: ‘The now and tomorrow of lawyers – individually and collectively – and one might add that for black lawyers who have always been at the periphery of the real economics that drive wealth and power within the profession, [is] so much more important and pertinent. This theme is about setting objectives for tomorrow but thereof germination lies in the seeds that we plant today. William Jennings Bryan, a populist American Democrat who lived in the latter part of the 1800’s could not have put it any better when he said, and I quote, “Destiny is not a matter of chance, it is a matter of choice, it is not a thing to be waited for, it is a thing to be achieved”. The Legal Practice Act 28 of 2014 (LPA) actually sets the basis for the journey that all lawyers have to undergo but within that journey are the objectives that will inform what our priorities and responsibilities will be in the future. Interestingly, I believe that the objectives that one alluded to are clearly spelt out in the preamble to this Act. … ’

Mr Molefe went on further to state that lawyers need to action the points set out in the preamble of the LPA. ‘I would add that for the BLA and any lawyer in particular it does not matter what the colour of their skin is, these principles enunciated [in the preamble of the LPA] should form their beacon and be the guiding light in answer to what their responsibilities and priorities should be when they plot the future post the implementation of the Legal Practice Act. For black lawyers in particular, this calls for a much closer examination of conscience and moral values for it has not just been us as professionals who have been downtrodden in the past, but in particular, the vast majority of the black population and yet in many instances and forms we have either tacitly or implicitly acquiesced in acts and behaviour that left them even more vulnerable because of our own accumulation of power or having been co-opted into the previously hallow walls of power we never imagined we could access.’

Chief Executive Officer of the Attorneys Fidelity Fund, Motlatsi Molefe, delivered the keynote address at the Black Lawyers Association national general meeting.

Speaking about the points raised by the preamble of the LPA, Mr Molefe said the first point raised in the preamble is about providing a legislative framework for transforming and restructuring the legal profession into a profession that is broadly representative of the country’s demographics under a single regulatory body. He asked: ‘So what are our responsibilities and priorities in this regard? Firstly, it is to ensure that whosoever leads this profession reflects the demographics of the country … in all facets. That does not mean and certainly excludes predestined quotas like prescribing that the regulator must consist of six black males, four black females, two white men or women for that matter. It merely requires that the majority lead, be they male or female, and majority here does not refer to the majority in the profession, but the majority in the country. Reality dictates that those who are the majority be in the leadership irrespective of colour or gender even if they are the minority within the profession. This might be uncomfortable for some but that is the only and simple interpretation that one can ascribe to it.’

Mr Molefe went on further to say: ‘A basic challenge we face and always skirt around, which I actually wish to point out is that whilst still talking the language of transformation in terms of demographics, it is not the real deal when during transformation leaders – be they male or female – continue to be recycled or continue to make themselves available for leadership ostensibly because there is a dearth in leadership in the profession particularly females. Nothing could be further from the truth. We know for a fact that in this profession there a very few women in real positions of power and influence and we generally pay lip service to gender issues yet, we do not find it strange when men are recycled as leaders who continue old habits that go against the grain of the transformation agenda in the country. The real reason for this is simply megalomania and the taste of power amongst some of us men. … There is yet another element to this transformation agenda that poses a challenge and requires being prioritised in the future. It is not about people but about structures in which the profession operates. The structures we operate in as black lawyers have a particularly negative history and are dripping with colonial links that have particular asymmetry with the concept of flexibility.’

Mr Molefe explained that: ‘Flexibility fundamentally evinces itself in empathy towards your fellow man because you look at him or her as a distinct individual with individualistic strengths and their own quirks. Put simply flexibility allows for what we Africans refer to as Ubuntu. However, if one looks at legal structures as they currently exist, not only are they rigid, they also tend to lend themselves towards the most extreme of positions in any matter particularly on conduct and discipline. The rules of the societies, for instance, remain rigid and inflexible and do not accommodate peculiarities that are brought into any situation by variables that are introduced by different facts in different circumstances. Two simple examples are glaring: We still treat every attorney, when dealing with compliance or non-compliance to the rules, with a one size fits all approach.  If you are guilty of theft be it a small quantum or even a disproportionately high one, the only answer is [to] strike off and that is it. Yet, society recognises that punishment can and ought to differ based on the peculiar circumstances of each case. The question is, what have black lawyers done to change structural rigidities like these in the rules, which we now so vigorously enforce together with those that excluded us in the past and dare I also add formulated them without ours, let alone society’s input? Very little would be my answer to this question.’

Mr Molefe said that the second structural rigidity pointing to a lack of transformation is rigidity to embracing fundamental principles of business and continuing to treat issues such as touting as anathema. ‘Touting is a buzz word that evokes strong emotive reactions within our profession yet quite honestly we live in a hyper competitive world that seeks to entrench competition all the more. Talk in business is always about what one’s competitive edge is yet, amongst lawyers we still cling to old archaic approaches that tend to suggest that to tout for work is in itself an evil. According to the Merriam-Webster dictionary, “touting” means no more than “an attempt to sell (something) typically by a direct or persistent approach” or at worst “to offer tips for a share for any resultant winnings”. This is no different than ordinary marketing in business and if money is exchanged and disclosed in the normal course within accounting books, as well as absence of disparaging your opposition it certainly can neither be illegal nor unethical. Where is the creative thinking that is being embraced in other jurisdictions that promote transformation in the legal profession when we cannot even think about change in how we approach as basic as the matters I allude to herein? How are we going to compete with international jurisdictions that allow for free marketing of legal services when we have not even began to ingest the need for such at a reasonable pace? Mind you, these firms are going to invade our space at some point and we need to be ready to compete even in the marketing of our services to guarantee viability and success.’

Mr Molefe noted that the LPA also called for the embracing of the values underpinning the Constitution and support for the rule of law. He added: ‘Embracing the values of our constitution is about healing the divisions of the past and establishing a society based on democratic value, social justice and fundamental human rights. More importantly, it is about promoting a society in which government is based on the will of the people and every citizen being equally protected by the law. A third and key value as enshrined in our constitution is about the improvement of the quality of life all citizens and the freeing up of the potential of each person.’

Mr Molefe said that in the legal profession, it is important to note that substantial effort has been made in both learning and teaching in order to enhance the potential of law students, as well as lawyers over the years. ‘Has that obligation changed? I dare say not but complications brought about by the LPA need to be addressed otherwise the resources required to enable us to prioritise the unlocking of the potential of each law graduate and lawyer will be stunted. In this respect, I want to refer you to the provisions of section 46(b) of the current Attorneys Act [53 of 1979] and contrast it with the provisions of section 57(1)(i) of the Legal Practice Act.

Section 46(b) authorises the Board of Control of the AFF to enter into relationships of agency with any third party to perform functions that can be carried out in terms of this Act. On the other hand section 57(1)(i) of the Legal Practice Act restricts agency only to between the AFF and the Legal Practice Council or any of its sub-structures. This has huge implications to the question of learning and teaching insofar as structures that do not belong to the Council are concerned. That entire freedom of making resources available to voluntary organisations like the BLA, NADEL and any other is taken away completely by this section. … What is our response to this is the question and I submit post the LPA we need to target an amendment in the Act that will essentially restore the status ante quo for without that organisations such as the BLA will struggle to run with their own programmes that are intended for learning and teaching and in that way fail to fulfil its obligation to free up the potential of young and old lawyers,’ said Mr Molefe.

In conclusion, Mr Molefe said: ‘The last element I would like to address that imposes obligations on us post-LPA is accountability to the public. We need to accept and concede that our image within the society we operate in is horrendous, but also be graceful enough to know that we are responsible for it. In many instances we find ourselves being the butt of bad jokes that leave a lot of distaste in the mouth. It is [not] uncommon in fact that even amongst ourselves we tell jokes that are disparaging about lawyers. …

Accountability is not only about being seen to discipline those amongst us for miscreant behaviour. It is far wider than that. It is about inclusiveness, transparency and empathy outside of the obvious need to fulfil our mandates diligently. It is also about ensuring that our clients are appraised of their rights vis-á-vis ourselves in relation to the mandates they give us. It is about the trust and respect we should show to them before they can even begin to imagine we are human after all and reciprocate same.

We need to foster a new culture of trust in us by our clients and that can only happen if we truly embrace the values I have alluded to already. The days of in camera hearings and dilatory behaviour in dealing with ourselves must and truly be a thing of the past and transparency and the free flow of information be the order of the day. In this can we hope to recapture the lost trust and respect that ordinary citizens had in this noble profession.’

Mapula Sedutla NDip Journ (DUT) BTech (Journ) (TUT) is the editor of De Rebus.

This article was first published in De Rebus in 2017 (July) DR 9.

De Rebus