By Kim Hawkey
The Cape Law Society (CLS) held its annual general meeting in Kimberley on 9 and 10 November. On the agenda was a keynote address by the late former Chief Justice Arthur Chaskalson, a plenary session by scenario planning expert Clem Sunter and a panel discussion chaired by judge in the Office of the Chief Justice and former Constitutional Court judge, Justice Yvonne Mokgoro.
Justice Chaskalson on the Legal Practice Bill
In his last public engagement prior to his passing, Justice Chaskalson spoke on the topic ‘The rule of law: The importance of independent courts and legal professions’, in which he discussed the Legal Practice Bill (B20 of 2012) (LPB) and related topics.
As a prelude to his discussion on the Bill, Justice Chaskalson said that ‘dramatic’ changes had taken place in the world in the 60 years since he started his career in the legal profession.
‘When I started there were no computers, no e-mails or faxes, and photocopiers were just coming in. There were no cellphones, no Twitter, no Facebook. The world was a very different place.’ Now, he said, it was ‘not surprising that we should be thinking of changes in the profession and we must take into account changes in the world’, however he added that this did not mean that ‘everything must be changed’. He said that the question to be asked was whether the legal profession was properly prepared for the changes in society.
In respect of the LPB, Justice Chaskalson urged the two branches of the legal profession to reach agreement with the government on the provisions of the Bill that affect their existing structures.
He emphasised the importance of careful consideration of the Bill by the profession due to its anticipated impact:
‘In its present form the Bill will have a profound impact on the structure and functioning of the attorneys’ and advocates’ professions. … Like the curate’s egg, though it has some redeeming features, it also contains provisions that seem to me to pose a potential threat to the independence of the legal profession.’
As a precursor to a more detailed discussion on the Bill, Justice Chaskalson spoke on the supremacy of the Constitution and the respective independence of the judiciary and the legal profession, which were ‘central pillars of South Africa’s constitutional democracy’ and which ‘we should be astute to ensure that there is no erosion’ thereof.
Independence of the judiciary
In respect of judicial review of legislation and executive action, Justice Chaskalson said that this was not only sanctioned by the Constitution, but ‘courts are told that they must declare legislation or conduct that is inconsistent with the Constitution to be invalid’.
‘The primary role of the judiciary, as guardian of the Constitution, is to ensure that everybody, including the other arms of government, acts lawfully,’ he said, adding that the independence of the judiciary was thus essential:
‘The judiciary cannot be expected to discharge its duty to judge the legality of laws and conduct of other arms of government if it is subject to control, direct or indirect, by the legislature, the executive or other powerful institutions. It is essential and indispensable for the discharge of this duty, and the exercise of the powers vested in it, that the judiciary should be, and should be seen to be, independent.’
Justice Chaskalson emphasised that this was in the public interest:
‘Judicial independence is a requirement demanded by the Constitution, not in the personal interests of the judiciary, but in the public interest, for without that protection judges may not be, or be seen by the public to be, able to perform their duties without fear or favour. This is necessary in the best of times, and crucial at times of stress.’
Independence of the legal profession
Linked to the independence of the judiciary, Justice Chaskalson highlighted the role of an independent legal profession as an essential component of a constitutional democracy. He said:
‘Although not specifically mentioned in the Constitution, the judiciary depends on an independent legal profession to enable it to perform its constitutional duty. This is an incident of the rule of law which is entrenched in our Constitution. … Without the assistance of lawyers, judges would not be able to discharge their constitutional duty to uphold the law without fear or favour.’
He said it was in the public interest that the culture of the legal profession should be rooted in its independence, and that lawyers should not be subject to outside influences nor be concerned that if they take on a case for a particular client they will incur the hostility of the government or other powerful institutions.
However, he said that the profession had an obligation to conduct its affairs in a manner consistent with the public interest. ‘The duties owed to clients to act without fear or favour, to the court to act honourably, and generally to observe high professional standards, are important parts of the profession’s responsibility to the public,’ he said, adding: ‘However, that is not all. The public must have access to the profession, which would have no right to assert that it serves the public interest if it were to serve only the elite in our society. What is important is that legal services should be available to all who need them and, in particular, to those who look to the profession as an institution that will uphold and protect the rights of everyone, and not only the rich.’ This ‘burden’ should not, however, be carried by the profession on its own and must be done in cooperation with government and civil society.
He added that the focus of the profession’s rules should be the public interest, ‘not self-interest’, and while much had been done by the profession in this regard, there were ‘serious contentions that must be addressed and responded to by the profession’, including assertions made in the LPB that access to affordable legal services is not a reality for most South Africans; entry into the profession is, in some respects, dependent on compliance with outdated, unnecessary and overly restrictive prescripts; and the profession is not representative of the country’s demographics.
The LPB
Justice Chaskalson highlighted aspects of the Bill he believed should be considered carefully, including provisions dealing with the controlling bodies of the advocates’ and attorneys’ professions.
‘My concern is not with the detail of particular provisions, but with the impact that the Bill in its present form is likely to have on the independence of the legal profession,’ he said.
After acknowledging that both branches of the profession had taken steps to change rules and practices in order to move into the 21st century, he said that it was ‘not inappropriate’ for the legislature and the professions to consider whether the present structures of the professions are ‘consistent with our constitutional democracy’.
Some of his concerns included:
Justice Chaskalson also raised a number of concerns in respect of the legal services ombud to be established in terms of the new legislation.
‘An independent institution to review and make recommendations to governing bodies of the profession in relation to disputed claims is a reasonable measure. It offers a check against self-regulation being driven by self-interest, or a perception that this is what has happened. … However, the Bill provides that the objects of the ombud include the protection and promotion of the public interest in relation to the rendering of legal services, the promotion of high standards of integrity in the legal profession, and the promotion of the independence of the legal profession.’
Justice Chaskalson said that the ombud, whose appointment and term of office are determined by the President, will be vested with ‘extensive powers’, including to review decisions of an investigation by the council, a regional council and a disciplinary committee. The ombud also has powers of investigation and may compel persons to appear before him to be questioned and to produce documents.
The ombud is required to report what he considers to be failures by disciplinary committees to the council, which has to report to the ombud on steps taken to remedy these. If dissatisfied with the outcome, the ombud may make recommendations and report the council or regional council to the Minister.
Further, Justice Chaskalson noted that the ombud will be given the power to review decisions of the board of the Attorneys Fidelity Fund in respect of a rejection of a claim arising out of theft of trust money.
In addition to these wide powers, Justice Chaskalson highlighted the ombud’s lack of financial independence, as the remuneration of the ombud’s staff is to be determined by the Justice Minister. The director of the ombud’s office also has to report quarterly to the director-general of the department.
Justice Chaskalson said that there was room for abuse of such wide powers:
‘The ombud and the Minister are both appointed by the President, which means that members of the executive have significant powers to control important aspects of the functioning of the legal profession. There is no reason to believe that these powers will be abused. But that is not the point. We do not know what might happen in the future. A structure is being proposed which opens the door to important aspects of the profession being controlled by the executive, and that is inconsistent with an independent legal profession.’
Justice Chaskalson highlighted the importance of checks and balances:
‘Constitutions are written for the future. One of the lessons of history is that rights are vulnerable and when governments come under stress there is a temptation for them to brush rights aside in order to secure their goals and entrench their power. That is why democratic legal orders have checks and balances to guard against this. We cannot foresee the future. It is important that we should protect the checks and balances we have, so that they are there should they be needed in the future to protect our democracy. An independent judiciary and an independent legal profession are vital parts of these checks and balances.’
Further on this topic, he said:
‘On other occasions I have warned against the erosion of rights and checks and balances. The first steps to that end, even if they may seem at the time not to pose immediate threats, are particularly dangerous, for if allowed to pass without objection, they open the way for a political culture in which this is treated as acceptable. There are signs that this is what is happening in our country. The proposal initially made, but since revised, for a review of the powers of the Constitutional Court; the proposal once advanced, but subsequently put on hold, that there be a media tribunal to exercise some form of control over the media; the recent opposition by the Minister of State Security to proposed changes to the Protection of State Information Bill [B9B of 2009] … show that this possibility cannot be excluded.’
In conclusion, Justice Chaskalson said to lawyers:
‘The legal profession has a duty … to do all that it can to protect its independence. That involves ensuring that its rules and practices are in the public interest and facilitate access to courts by the public …, by promoting the culture of independence and professionalism in practitioners, by explaining to the general public the role of an independent legal profession in protecting democracy, and by raising its voice against measures calculated to erode that independence. The Legal Practice Bill in its present form is such a measure.’
Update from the LSSA
Law Society of South Africa (LSSA) co-chairperson Krish Govender provided an update on the LPB in his presentation at the AGM. He noted that the present draft of the Bill contained ‘numerous improvements’ and he did not believe that the independence of the profession was ‘in any way undermined by the Bill’.
Mr Govender also spoke on the future of the profession and what it held for black lawyers in particular.
He referred to a 2004 editorial in De Rebus that he had penned, titled ‘The legal profession after ten years of democracy – The future of the black lawyer’ (2004 (May) DR 2), which he said was relevant today.
Mr Govender said that there were questions that needed to be asked at a micro level in the context of a constitutional democracy, adding that issues to be ‘grappled with’ included ‘the unequal status of our communities, race and gender components’, as well as issues of the ethics of lawyers and leaders ‘that are eroding our ability to be a good constitutional democracy’.
Mr Govender lamented the lack of lawyers playing a positive role in society such as that formerly played by legal heavyweights like Oliver Tambo, Joe Slovo, Braam Fisher, former President Nelson Mandela, Mahatma Gandhi and Victoria and Griffiths Mxenge.
‘Who are the lawyers alive trying to give direction?’ he asked, adding: ‘A lot of lawyers have given up due to the perception that, as South Africa has a good Constitution and Bill of Rights, why should they not concern themselves with making a good living?’
Mr Govender said that today there were only a few visionaries similar to those mentioned above, including former Chief Justice Pius Langa and advocate George Bizos.
He said that the fruits of democracy had not ‘gone far enough’ and attorneys should be asking what future there would be for black lawyers in particular.
In conclusion, he said: ‘The question we should ask today is: “Where are we going?”’
Human rights advances and challenges
Justice Mokgoro moderated a panel discussion with the theme: ‘Advances we have made in realising the promises contained in the Constitution and the human rights challenges we are likely to face in the future’.
The panelists were advocates Adila Hassim and Michael Osborne and journalist and author Carmel Rickard.
Justice Mokgoro introduced the discussion by saying: ‘Our legal actions need to be more constitutionally minded. Every legal process, thought and legal practice has to start with the Constitution. … I know that South Africa is said to have probably the most progressive Constitution in the world. We know, too, as South Africans, that there are challenges, in terms of implementation mostly.’
Each of the panelists spoke on a specific topic within the broader theme.
Legitimacy
Mr Osborne spoke on the topic of legitimacy. He referred to the appointment of judges in the United States (US) and noted that it was said that the most important power of the US President was the potential to change legal history by amending the composition of the judiciary.
‘What is important for South Africans is how astonishingly politicised the process is. It is pretty unthinkable that the [US] President will appoint anyone who is not broadly identified as a Democrat,’ Mr Osborne said.
‘This is one of several respects that our system is at least preferable. The manner that the Judicial Service Commission (JSC) appoints judges has been subject to a great deal of justified criticism; however, despite all the difficult problems the JSC has to deal with, unlike in the US, party political affiliation does not play an overwhelming role. We can be grateful for this,’ he said.
Mr Osborne alluded to the unhappiness of some regarding the appointment of Chief Justice Mogoeng Mogoeng.
‘I think thus far many of the criticisers have been pleasantly surprised by his performance. If you have sat in or argued at the Constitutional Court, you will see that the Chief Justice has taken firm control of the court and has shown none of the inclinations of favouring the executive that some thought he would.’
Mr Osborne said that the institutional basis of the independence of the judiciary was that the voice of the voiceless was heard ‘vigorously and uncompromisingly’ in the courts.
In respect of the independence of the attorneys’ and advocates’ professions, he said that this was not a one-way street. ‘They must continually reaffirm their own legitimacy,’ he said.
‘Our professions, let us face it, are an elite calling. In order to bolster the independence of our professions, we need to earn our legitimacy in the eyes of people.’ He added that there were two ways through which legal practitioners needed to ‘uncompromisingly’ defend their legitimacy:
He concluded by saying:
‘The single most outrageous abuse of human rights in the country is that every year tens of thousands of mostly poor, largely African defendants are sent to jail without adequate legal representation. This is an affront to our society and an insult to our Constitution. This is something we can all do something about – to bring access to justice and make it real. It is the Constitutional Court’s function to make socio-economic rights real. Our function is to assist the court in a practical way that uses our skill to assist mostly undefended litigants.’
Independence
Ms Rickard said that there had been ‘great changes’ in South Africa that were mostly brought about by representatives in parliament, however some had been effected by lawyers and judges. In this regard, she referred to the seminal case of Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) and other cases that had improved lives in South Africa.
Ms Rickard said that some of the human rights challenges for the future were ‘obvious’, and that among the difficulties faced by the courts were problems with compliance with court orders by some national departments.
‘There is more than enough work for lawyers who want the Constitution to be real,’ Ms Rickard said. However, she added that the legal profession had its own problems, which affected the rights of ordinary people.
Against this background, Ms Rickard said that occasionally she was of the view that South Africans were ‘let down by the system of judicial appointments’.
‘Ordinary people should feel confident that we have ethical and independent judges who can deal with the problems of big business, but who are also empathetic to ordinary people,’ she said.
Ms Rickard added that she was ‘not confident’ that these were the criteria the JSC was taking into account when making recommendations for judicial appointment.
She said that there were similar concerns about the legal profession: ‘There needs to be an overwhelming concern about ethics, independence, excellence and empathy in respect of human rights and ordinary people. The legal profession needs to safeguard its independence; not only for its own sake, but also to be a guardian for the poor.’
Ms Rickard questioned what the legal profession had done to support Swazi colleagues. ‘I do not know what has been done from a united legal profession in South Africa. … Did they say anything when the SADC Tribunal closed and, if not, why not? Do you have what it takes to act on Justice Chaskalson’s analysis in respect of the Legal Practice Bill?’ she asked.
In response, she said: ‘I have a sense that there are problems in the legal profession and the constituent parts are not working particularly well and are not speaking with a united voice. That is a very sad thing and feeds into public perception that lawyers’ personal issues come before they act out in respect of human rights abuses.’
In conclusion, Ms Rickard urged practitioners to speak out on human rights issues.
The right to education
Ms Hassim spoke about education in the light of the promise of the Constitution, which she said was ‘nothing less than to free the potential of every person’.
In her discussion she considered how far South Africa had come in achieving this promise to date.
Ms Hassim said that while there had been advancement in South Africa in many respects, this belied the ‘gap of inequality’.
Ms Hassim said that education was a human right and an indispensable means of achieving other rights. ‘It is the primary vehicle by which people can be uplifted out of poverty,’ she said.
Ms Hassim said that those who had been working in education for many years had seen ‘a very dangerous brew of problems’, including poor textbook delivery and pregnancy among pupils.
She said that, unfortunately, in South Africa the extent of a person’s freedom depended on how much money he had: ‘You can have access to a good education in South Africa, but you have to pay for it.’
Ms Hassim cited the court challenge in respect of textbook delivery in Limpopo as an example of the problems in respect of education, while she said that learner pregnancies was another problematic area, especially in light of the fact that these were recorded upwards from grade 3.
‘This is not good enough. As a country we can do better and we must do better. We cannot afford not to or we will fail to meet the promise of the Constitution,’ she said in conclusion.
Justice Mokgoro concluded the session by suggesting that practitioners ‘be creative’ in terms of the court orders they request so as to deal with recalcitrant litigants and ensure they receive effective orders.
‘The judgments are as good as the arguments. It is important for legal representatives to contribute towards the creation of an order. If you are dealing with a recalcitrant respondent, urge the court to make a particular order. Courts have an obligation to make effective orders. You have to be as creative as can be,’ she said.
President’s report
In his report, outgoing CLS President Lulama Lobi spoke on the LPB and the rule of law. In respect of the latter, Mr Lobi said: ‘No part of our society is exempt from observing the rule of law. Politicians and their parties must offer true and honest leadership in respecting the rule of law,’ adding: ‘Every other day we hear people … announcing that South Africa will be rendered ungovernable. We appeal to our law enforcement agencies to deal with the scourge that threatens the stability of our democracy.’
Mr Lobi also spoke on a number of topics related to education, including non-attendance at schools by some children during protest action. ‘In some communities, the illegal preventing of children attending school when people protest is becoming commonplace. This state of affairs condemns many people to a life of delayed dreams and future prospects. Such conduct amounts to mass child abuse either perpetrated by our communities or by our teachers. We must raise our voice as a profession, as society looks up to us to represent their interests in matters that affect them as a society,’ he said.
Mr Lobi noted that new universities would be established in the Northern Cape and Mpumalanga. He added that, despite having four universities, the Eastern Cape was the most underdeveloped province.
‘The question is whether the new universities will follow the same old, tired model that shows them to be ivory towers whose value is vaguely justifiable. I say, let us get a university that will provide research and answers to the pressing and important questions that face our society,’ he said, adding that lawyers had a role in establishing ethical institutions rather than ones ‘enslaved to commercial interests’.
Mr Lobi also spoke on the high school public education system, which he said was failing society. He urged lawyers to get involved at an early stage to mould future lawyers:
‘My call is for the legal profession to play a meaningful role in moulding future lawyers. It is really below us to criticise the limitations our young people come with after graduating. We know that most of our public high school education is compromised. We must take all necessary steps to stop the devastation caused to our young people by this unacceptable state of affairs. … We must do all within our power … to establish schools where ethics, accounting, legal research and ethos will be taught at elementary level in such a manner as to imbue the graduates with a drive to excel. … We must concern ourselves with those who are at the formative stages of their education. Let us catch them young.’
2013 fees
Membership fees will increase to R 2 000 (excl VAT) from 1 July 2013.
New CLS council
President – Koos Alberts
Vice-president – Percy Maseti
Vice-president – Ashraf Mahomed
Vice-president – Perino Pama
Vice-president – Ettiene Barnard
Graham Bellairs
William Booth
André de Lange
David Geard
Peter Horn
Mbulelo Jolwana
Nolita Kose
Lulama Lobi
Pumzile Majeke
Roland Meyer
Janine Myburgh
Bulelwa Ndzondo
Ben Niehaus
Mvuzo Notyesi
Lister Nuku
Kim Hawkey, kim.hawkey@derebus.org.za
This article was first published in De Rebus in 2013 (Jan/Feb) DR 13.
