Justice Minister focuses on transformation at Cape Law Society AGM

November 27th, 2015

By Barbara Whittle

Cape Law Society council members with Justice Minister Michael Masutha (front, second from left) who was the keynote speaker at the Cape Law Society annual general meeting in Kimberley on 30 October.

Cape Law Society council members with Justice Minister Michael Masutha (front, second from left) who was the keynote speaker at the Cape Law Society annual general meeting in Kimberley on 30 October.

Justice Minister, advocate Michael Masutha, was the keynote speaker at the Cape Law Society annual general meeting (AGM) in Kimberley on 30 October, and he deviated from his written address to deal with the debate around skewed briefing patterns that had dominated the media during the month (see also LSSA news of this issue). He noted: ‘Going forward, when I appear as litigant in court proceedings, I shall be represented by black female lawyers who are available and capable of doing so.’ He added: ‘I believe that white females are still experiencing gender stereotypes and prejudices that marginalise them, and significant social exclusion in various fields of human endeavour, including in this profession. We need to address the challenge of discrimination as it presents itself, whether that be race or gender.’

The Minister questioned whether, in attempting to transform the judiciary as a priority, the pool of transformation candidates with the requisite experience had been depleted in the profession. This was a particular problem in the advocates’ profession, but the attorneys’ profession was not excluded. He cited the example of only five black female silks at the Bar, and said the situation called for ‘extraordinary measures’.

He called on the profession to partner with the Department: ‘I seek your advice and support in rekindling the momentum and restoring the drive and push in the attainment of transformation in our profession.’

Referring to the role of the state as the biggest consumer of legal services with a litigation account running into billions of rands annually, Minister Masutha said a decision had been taken to further amend the State Attorney Act 56 of 1957 to give the incumbent of the office of the Solicitor-General sufficient authority to champion the desired transformation. ‘Often government comes with progressive policies that suit every element of the National Development Plan, but the devil lies in its implementation. I have since commissioned the Department to prepare the desired policy and a comprehensive plan for its implementation,’ he said. He added that this issue would be discussed at a colloquium later this year. The Minister undertook to engage with the legal profession regarding the colloquium.

As regards the Legal Practice Act 28 of 2014, Minister Masutha indicated that he had received the first report from and interacted with the leadership of the National Forum on the Legal Profession, which had come into effect in February (see 2015 (Nov) DR 16). He emphasised the need to focus on two aspects:

  • The regulation of the fee structure in the profession to bring an element of fairness and improve accessibility. ‘The idea is not to starve lawyers, but to make sure that the cost of litigation, which makes the profession inaccessible to the majority of people, is corrected,’ he said.
  • The need to regulate and regularise the paralegal profession to ensure its sustainability, given its critical contribution and role in access to justice.

The Minister also referred to a number of reforms being considered to the criminal justice system and the focus on the place of the victim in the overall justice system. ‘Not enough attention has been given to the way in which the chain of our criminal justice system was designed to function. To what extent does the police ensure that victims of crime play an effective role and are given due consideration in investigating crime? To what extent does the prosecuting authority ensure that victims are kept informed and given the necessary support as their matter progresses through the criminal justice process? To what extent does correctional services, upon committal of an offender to serve with a correctional facility, ensure that as we implement corrective focus, the circumstances of the victim are taken into account, and not 20 years down the line when consideration for parole comes up and they start looking for the victim?’ The Minister noted: ‘I believe that we are at a point when we need to reflect whether the criminal justice system still enjoys the full confidence of our people. That the system is capable of delivering justice. Because if we do not ensure public confidence in the system, one of the undesirable outcomes is for people to resort to other forms of attaining justice outside the system. And we will end up penalising the victims of crime and letting the perpetrators off the hook.’


South Africa and the ICC: Stay or go?

Attorneys William Booth and Egon Oswald, as well as attorney and member of the African National Congress Krish Naidoo discussing the International Criminal Court and the recent calls for South Africa to withdraw from the Rome Statute at the Cape Law Society annual general meeting in Kimberley at the end of October.

Attorneys William Booth and Egon Oswald, as well as attorney and member of the African National Congress Krish Naidoo discussing the International Criminal Court and the recent calls for South Africa to withdraw from the Rome Statute at the Cape Law Society annual general meeting in Kimberley at the end of October.


Attorneys William Booth and Egon Oswald, as well as attorney and member of the African National Congress (ANC) Legal Research Group, Krish Naidoo, debated the thorny issue of South Africa’s position vis-à-vis the International Criminal Court (ICC) and our country’s commitments made in terms of the Rome Statute and its domestication through the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, particularly as these relate to the debacle earlier this year with the presence of Sudanese President Omar Al-Bashir for the African Union (AU) Summit in Johannesburg. The session was facilitated by Cape Law Society (CLS) president, Ashraf Mahomed.

Mr Booth decried the fact that the profession did not get involved in the Al-Bashir matter but left it to a non-governmental organisation (NGO), the Southern African Litigation Centre, to challenge government’s position in the Gauteng Division. He noted that President Al-Bashir had not yet been found guilty by the ICC, but that warrants for his arrest pursuant to investigations had been issued and that South Africa was obligated to honour these, as was found by the Gauteng Division: Pretoria, in June this year. As regards the debates around withdrawing from the Rome Statute, he said: ‘You do not solve a problem by withdrawing. You try to sort out the problem.’ He reminded attorneys that there is a role for them in representing the victims of crimes against humanity before the ICC. ‘As lawyers, we have a duty to the people and children of Africa,’ he stressed.

Mr Oswald said that with regard to the obligation to prosecute, it is clear that there is a moral and legal imperative to do so. He said as South Africans we talk a lot, but we are not always good at implementation. However, Mr Oswald said the ICC was one example that went contrary to that. He noted that South Africa had been seminal in setting up the ICC. He noted: ‘In those days we walked the walk and talked the talk. Then human rights was big on our agenda as a nation.’ In considering how it reflect on us internationally if our government were to withdraw from the ICC, Mr Oswald said: ‘It reflects on us poorly. I think it is a shame. We should all be embarrassed about it. I would urge the ANC to reconsider. It is gratifying to hear that the fighting talk has alleviated to some extent and there is talk of reconstituting some aspects of the ICC and how it runs. This is a good message.’

After giving the background to the establishment of the ICC and to explain the ANC’s view that the ICC needs to reconstruct and reconstitute itself, Mr Naidoo pointed out two ambiguities: The first is the perceived conflict between arts 27 and 98 in the Rome Statute. He noted: ‘On the one hand art 27 takes away all immunity attaching to Heads of State and other government officials such as foreign ministers and diplomats. Article 98, on the other, provides that courts cannot proceed with a request for surrender, which will require the requested State to act inconsistently with its international obligations. The African Union pointed out this contradiction to the ICC. Our government also referred to this ambiguity in relation to the court proceedings in the Gauteng High Court.’

Mr Naidoo added that the United States (US) has been able to exploit the loophole in art 98(2) to protect its service members stationed in different parts of the world. After the Rome Statute came into operation, the US passed a law which allowed it to withdraw military assistance from a number of non-North Atlantic Treaty Organisation (NATO) states and only restore this aid after those states signed bilateral immunity agreements with the US in terms of art 98(2) that they would not hand over any US national to the ICC without US consent.

This law also empowered the US President to use military force to free American soldiers held by the ICC.

The second ambiguity, according to Mr Naidoo, arises from the dichotomy between peace and justice in the Rome Statute. He explained that the primary objective of the Rome Statute was to maintain peace and security. Article 53 gives the ICC the discretion to make decisions ‘in the interest of justice’. ‘Some commentators link this phrase to the article dealing with the preservation of peace. In other words, they maintain that in order to close the impunity gap, the ICC can decide to waive the investigation of certain situations if it would be in the interest of justice to do so,’ he explained.

Mr Naidoo noted that former South African President, Thabo Mbeki, had set in motion an irreversible peace process in Sudan. By June, when the application to surrender President Al-Bashir was heard in the High Court, Sudan was divided into two states – Sudan and South Sudan. ‘If the objective of the Rome Statute is to preserve peace, one could hypothetically ask whether the peace in Sudan was so fragile in June 2015 that the justice element in the peace/justice dichotomy prevailed and warranted the arrest of Al-Bashir for the sake of humanity,’ he said.

Mr Naidoo stressed that the inconsistency of member states and the way the ICC functions has also contributed to its loss of legitimacy. Among a number of examples he cited the atrocities perpetrated in Gaza in 2014 as being one ICC situation that required minimal effort to investigate, but which the ICC had not moved on. ‘In each case, politics trumped human rights,’ he said.

Mr Naidoo explained that the South African government was of the view that the ICC acted in bad faith in the Al-Bashir saga. ‘Our government has stated publicly that on 28 May 2015 the ICC invited South Africa to hold consultations with it regarding the execution of the warrant of arrest. South Africa accepted the invitation to consult with the ICC in terms of art 97 and hoped for a constructive discussion on the difficulties experienced in executing the warrant of arrest. The first meeting between South Africa and the ICC took place on 12 June 2015 and a second meeting was scheduled for 15 June 2015. The ICC sought an earlier meeting and that was arranged for Sunday, 14 June 2015. However, late on Saturday night, that is, 13 June, the ICC Prosecutor made an urgent application to the ICC in the following terms: “Prosecutor’s Urgent Request for an Order clarifying whether Article 97 consultations with South Africa have concluded and that South Africa is under an obligation to immediately arrest and surrender Omar Al-Bashir”.’

Mr Naidoo said the prosecutor made the urgent request to the ICC without giving any notice whatsoever to South Africa. The ICC heard the matter immediately and decided that the art 97 consultations with South Africa had ended and that South Africa was under an obligation to arrest and surrender President Al-Bashir.

‘Politics will always be part of the ICC’s functioning. Moreover, the interplay between perception and reality is very narrow. It becomes even more pronounced when one is dealing with political actors who guard their state sovereignty jealously. The ICC lost its way when it failed to manage the collision between law and politics thereby allowing perceptions to reinforce the view that it was established and functions for purposes other than the primary purpose of preserving international peace, justice and security,’ said Mr Naidoo.

He stressed: ‘The ANC has no intention to detract from the country’s prioritisation of human rights. In fact, by withdrawing, South Africa would be holding up a mirror to the ICC to give it an opportunity to confront its shortcomings.’

Mr Naidoo listed steps that the ANC believes would restore the legitimacy of the ICC and afford South Africa an opportunity to reconsider its decision to withdraw:

  • The ambiguities in the Rome Statute need to be removed and the opportunity for some states to blatantly use the ICC for political purposes must end.
  • A transparent and objective regulatory framework should be introduced to determine the criteria for the referral of cases for investigation, the ranking of crimes and the establishment of gravity thresholds acceptable to all member states.
  • The wide discretion given to the ICC prosecutor should be curtailed.
  • The ICC should make a conscious effort to get all states to accept and ratify the Rome Statute.
  • Permanent members of the United Nations Security Council, many of whom are not members of the ICC, should either join the ICC or not have the power to refer cases to the ICC for investigation.
  • Certainty should be given to the relationship between the functioning and legal framework of the ICC and legal concepts such as customary international law, the immunity of Heads of State, what legal duties are owed to party states and the legal position of non-states vis-à-vis the ICC.


Background to the ICC Al-Bashir issue

Krish Naidoo gave the background relating to the International Criminal Court (ICC), the non-arrest of President Al-Bashir and the issue of immunity:

South Africa signed and ratified the Rome Statute in July 1998 and subsequently domesticated the obligations in the Rome Statute into South African law by passing the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002.

The ICC acts in a complementary relationship with domestic states that are party to the Rome Statute. The principle of complementarity ensures that the ICC operates as a buttress in support of the criminal justice systems of States Parties at a national level and as part of a broader system of international criminal justice.

In terms of the Rome Statute, State Parties are legally obliged to comply with the court such as arresting and transferring indicted persons or providing access to evidence or witnesses. It is only where a State Party is unwilling or unable to investigate and prosecute international crimes committed by its nationals or on its territory, that the ICC is then seized with jurisdiction.

From inception, the ICC was dogged by the challenge of universal jurisdiction. Major countries such as the United States (US), Russia, China and India did not ratify the Rome Statute and join the ICC. The Peoples Republic of China opposed the ICC on the basis that it goes against the sovereignty of nation-states and the court may be open to political influence. India objected to the broad definition given to crimes against humanity. The US did not trust the neutrality of the Party States to deal with its nationals in a fair manner.

When the ICC was established, many commentators were of the view that the Palestine/Israeli situation could present a major challenge. This scenario is fast becoming a reality after the ICC admitted the Palestinian Authority as a member in April this year. So contentious is the situation that the US and Israel not only challenged the ICC for admitting a non-State member, but the US went further and threatened that it would withdraw its financial support for the Palestinian Authority – estimated to be $ 400 million per annum – if Palestine instituted war crime allegations against Israel.

The Al-Bashir situation is just as contentious. Before the Gauteng Division, Pretoria ruling in June this year, there were seven cases of non-cooperation by African States to arrest President Al-Bashir.

On 4 March 2009 the ICC issued a warrant of arrest for Omar Al-Bashir for war crimes and crimes against humanity. In the same month the Organisation of Islamic Conference labelled the ICC’s pursuit of Al-Bashir as ‘void and lacking sound reasoning’ and suggested that the ICC activities were a threat to the sovereignty, independence and territorial integrity of Sudan.

On 3 July 2009 the African Union (AU) put forward a proposal that all member states should withdraw from the ICC or refuse to co-operate on the Al-Bashir indictment.

On 12 July 2010 the ICC issued a second warrant for Al-Bashir’s arrest for genocide.

At the ICC’s First Review Conference in 2010, Malawi, speaking in its capacity as the Chair of the AU, stated that in terms of art 98(1) of the Rome Statute, the indictment of Heads of State could jeopardise Africa’s co-operation with the ICC. In 2012, the AU stated publicly that art 98(1) of the Rome Statute provided immunity to Al-Bashir.

These decisions placed African states in the unenviable position of having to choose between their obligations as member states of the AU, on the one hand, and their obligations as States Party to the Rome Statute on the other. It also raised a number of critical questions about the direction of international law and international law-making from both a normative and an institutional perspective.

From an institutional perspective the decision raised questions about the relationship between the AU and the UN, the relationship between the AU and its member states vis-à-vis broader international issues, and the relationship between international organisations and their African member states vis-à-vis AU decisions.

From a normative perspective the decision raised questions about the reality of a new value-based international law centred on the protection of humanity and human rights and whether such a new international law could escape accusations of neo-imperialism.

The AU position also raised questions about the respective roles of peace and justice. It forced us to confront the question of whether the ICC’s pursuit of Al-Bashir threatened the peace process in Sudan. The AU requested the UN Security Council to defer the Al-Bashir indictment for 12 months so as not to undermine the delicate peace process in Sudan and to combat impunity.

In considering why Malawi did not arrest Al-Bashir, the ICC decided that the issue of President Al-Bashir’s immunity was separate from Malawi’s failure to arrest and surrender President Al-Bashir. The ICC ducked the issue of immunity.


Other CLS AGM news

Minimum salary of R 3 000 agreed for Cape candidate attorneys, unless agreement for less

Attorneys attending the Cape Law Society AGM voted in favour of minimum remuneration for candidate attorneys in terms of the following motion:

‘That candidate attorneys be paid a minimum remuneration of R 3 000 per month or such lesser amount as may be agreed between the parties and approved by Council prior to the registration of the contract of articles. Any contravention of this resolution may be regarded as bringing the profession into disrepute and a contravention of CLS r 14.3.14 (new uniform r 40.10).’

In posing the motion, CLS council member and chairperson of its Candidate Attorney Committee, David Geard, noted that candidate attorneys were not always treated as professionals and were often abused by being used as messengers, to attend court for postponements and were, at times, subject to sexual harassment. He noted that, on conducting a survey, the committee had found great disparities in the salaries of candidate attorneys. At the larger, national firms, first-year candidate attorneys were paid between R 18 000 to R 25 000 a month. In cities the salaries ranged from R 9 000 to R 15 000, whereas in the rural areas the range was between R 1 500 and R 4 000. There were also instances of candidate attorneys not receiving any remuneration at all.

In coming to the amount of R 3 000 the Council did not want to make it impossible for some firms to appoint candidate attorneys and thus reducing the number of positions available. Mr Geard noted that in the rural areas, law graduates were desperate to obtain articles and practitioners could not afford to employ them. The resolution left it open for the attorney and candidate attorney to reach an agreement for a lower salary.

Seminars and workshops

As part of its conference programme, the CLS presented the following seminars and workshops on 31 October:

  • The power relations between the arms of government, particularly the apparent tensions between the judiciary and the executive. Panellists included Daryl Burman, Egon Oswald, Krish Naidoo, Alison Tilley and Paul Hoffman SC.
  • Televised and media run trials with presenters William Booth, and journalists John Webb and Karyn Maughan.
  • The Legal Practice Act – what are the future implications for attorneys/legal professionals particularly in relation to fees/costs of legal services presented by Ettienne Barnard and Graham Bellairs.
  • Arbitration: Matrimonial matters presented by Susan Abro, Zenobia du Toit and Sandra van Staden.

Barbara Whittle, communication manager, Law Society of South Africa, barbara@lssa.org.za

This article was first published in De Rebus in 2015 (Dec) DR 8.