By Isabel Joubert
The launch of the Office of the Legal Services Ombud (OLSO) was held on 2 June 2022 in Pretoria. At the launch, opening remarks were given by the OLSO Director, Matsie Litheko, and Director-General of the Department of Justice and Constitutional Development, Doctor Mashabane.
Legal Practice Council (LPC) Chairperson, Janine Myburgh, said that everyone represented at the launch has a responsibility, including the LPC, to ensure that there is transformation happening within the legal profession, as well as access to the profession. She said that the objective of the LPC and the OLSO is closely aligned, as the Ombud has to –
Ms Myburgh said: ‘We pledge, as the LPC council, to work narrowly with the Ombud.’ She added that the profession has been waiting for the launch with bated breath and it is very happy this day has finally arrived. Ms Myburgh told the Ombud that the LPC will continue to help and assist where possible and she added that she is happy that the LPC now has a guardian. Ms Myburgh said: ‘We believe in your integrity; we believe in the process and as the LPC we are committed to working with you to ensure we have a better South Africa.’
Justice Siraj Desai, the first Legal Ombud of South Africa at the launch of the Office of the Legal Services Ombud in Pretoria on 2 June 2022.
Justice Siraj Desai welcomed all to the momentous occasion as he said the road to the launch of the OLSO has been a long and difficult one. Justice Desai said ‘the right of access to justice is a fundamental right and is embodied in section 34 of the Constitution.’ He said that the legal profession does not reflect the demographics of the country and the poor and marginalised have very little hope of their legal issues being favourably resolved because they do not know what their rights are. Justice Desai said that the LPA ushered in a new era of regulation for legal practitioners, it abolished the previous provincial law societies, which were responsible for the disciplining of attorneys, and was replaced by the LPC as the regulatory body of the legal profession.
‘The self-regulatory function of the legal profession is often the subject of fierce criticism,’ Justice Desai said. He explained that legal practitioners are the guardians of the law and one of the custodians of democracy in South Africa (SA), the people in the country need to have faith that those in charge of the law are trustworthy and reference was made to the cases of corruption and lack of integrity of late. Justice Desai pointed out that legal practitioners themselves are often the reason for why the public views the legal profession in a bad light. ‘A dysfunctional legal profession has the potential to undermine the stability of the entire justice system, the rule of law and democracy,’ said Justice Desai.
Justice Desai explained, due to the long-standing distrust and the profession doing its own policing, the OLSO has been introduced to the profession. The mandate of the OLSO specifically relates to the consumers of legal services and the conduct of legal practitioners. The Ombud also has an overarching mandate to protect, promote and enhance the integrity and independence of the legal profession, as well as striving to improve the public confidence in the legal profession. Justice Desai said ‘the independence of this office is integral to the restoration of public confidence in the legal profession.’
Justice Desai explained that he intends to publish a series of papers on their website to inform and educate the public, as well as embarking on roadshows to increase communication with the media and raise awareness. These papers and roadshows will help inform and educate the public of their rights.
The Ombud explained that the OLSO will improve public confidence through:
Justice Desai said the efficacy of the OLSO depends on stakeholder participation and one of the OLSO goals is to strengthen the processes of the LPC itself, to collaborate and share good practices with the stakeholders. The legal profession will be held to account in cases of malfeasance and wrongdoing, which will help restore public trust. Justice Desai explained that the Ombud, if utilised properly, will prevent future violations, and enable the Ombud to examine systemic or structural problems in the dispute resolution mechanisms. He carried on by saying, the Ombud has the power to participate in legal proceedings or launch its own litigation and by selecting strategic cases for maximum impact. ‘The Ombud has the long-term objective of improving the overall well-being of society, this objective can be achieved if the Ombud performs his watch dog role with diligence and tenacity,’ said Justice Desai. Justice Desai said the Ombud must deliver justice in a manner that is fair, impartial, and confidential, which he aims to do and will be assisted in the task by a legal team. ‘The goal is to see ethical justice for all,’ he said.
Minister of Justice and Correctional Services, Ronald Lamola, addressing the attendees of the official launch of the Office of the Legal Services Ombud in Pretoria on 2 June 2022.
Minister of Justice and Correctional Services, Ronald Lamola, welcomed attendees to the launch and said it is simply a historic moment. He explained that the implementation of the Ombud started when there was no financial backing or resources and the department had to do everything within its power to find some resources to enable the OLSO to start. Mr Lamola said the Department of Justice is glad that the OLSO has become a reality and will continue to support the work of the Ombud so that the public can find a place where they know that they can find accountability for the legal profession. Mr Lamola said legal services are probably something everyone will come across in their lifetime. Those who use legal services often use them in the most difficult or significant times in their lives, whether it is buying a home, terminating a contract, or terminating a romantic relationship, it is, therefore, significant and important that the legal service one obtains at that moment should be of high standard, ethical and responsive to ones needs. Mr Lamola said it is further difficult providing these services in a distressed society, with the increased cost of living, the increasing cost of petrol, the electricity crisis and inflation all affecting the cost of access to legal services.
Mr Lamola made mention of the South African Law Reform Commission’s report released on the cost of legal services (Project 142: Investigation into legal fees, including access to justice and other interventions (the Report)). He said that it is the finding of the Report that legal costs are unsustainable in SA and asked that everyone attending, as well as the public give their comment and input on the Report.
Mr Lamola said President Cyril Ramaphosa appointed Justice Desai as the first South African Ombud for legal services in terms of s 47 of the LPA. Justice Desai is empowered to investigate complaints, alleged maladministration, malfeasance within the ambit of the Act and actions, which may affect the integrity of the legal profession. Mr Lamola stressed that integrity of the profession would only be restored if investigations are done in a manner that is transparent, sufficient, and in a manner that brings to book whoever has been found violating the ethics of the legal profession. He said this is a shift from the self-regulation that the profession was accustomed to. It is aimed to be transparent and accountable.
Mr Lamola explained that the OLSO is an important office to serve the future of the profession. The public will be assured through the work done that the Ombud is going to be successful because respect and confidence is earned. He told Justice Desai: ‘It will be while you deal with their complaints decisively and when they find justice through the processes of the Legal [Services] Ombud that the public will trust you. That the public will continue to knock on your door. I want to encourage the Ombud to raise awareness, which we will also do, and I hope everyone here in the room and across the country, even people in deep rural South Africa, must know that they are able to phone, e-mail, WhatsApp … to the Ombud in order to be able to get the services that they need.’ He reiterated that people from rural areas must know that they have someone who will protect them in the legal spectrum.
The Minister said the LPA empowers the public to lodge complaints with the Ombud, as well as report acts of misconduct by legal professionals. ‘It is important that professionals are people of high moral standard and standing, of unblemished integrity because it is within the rights of legal practitioners that Ombuds of the future are going to emerge, future judges are going to emerge, future leaders of various professional bodies of our county,’ said Mr Lamola. He warned that if a legal practitioner is found wanting in issues of maladministration, misconduct, or dishonesty there is no future for them in the profession and that an Ombuds would not be appointed if there were no issues of integrity.
Mr Lamola said it is expected that the Ombud will act independently and not sweep complaints under the carpet, as well as investigate without fear or favour. Mr Lamola said he encourages South Africans to report all acts of misconduct by practitioners from any corner of the country. He explained this Ombud is the people’s Ombud here to protect the people’s interests. Mr Lamola said: ‘As citizens we have a duty to hold government accountable, practitioners themselves accountable, as well as the Ombuds accountable. It is common cause that lawyers must exemplify the highest form of professionalism, they must devote themselves, defending the rights of their clients.’
Minister Lamola mentioned the report from the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State (Zondo Commission) and how it brought to light the grand scheme of corruption. He said ‘the moral standards have to be restored, and I believe the Ombud will play a big role to restore those standards.’ He said the profession must frown on such unscrupulous practices or practitioners and deal with them decisively. The profession must disassociate itself from such corrupt practitioners, he said. ‘The legal professions’ ethics and standards must be beyond the one of an ordinary citizen. The conduct of a lawyer in terms of ethical standards or of any professional cannot be the same as that of any other person, it must be different, it must be seen from the actions, it must be seen from wherever you are,’ said Mr Lamola.
‘I am raising this as a challenge to all of us as legal practitioners that here we do not have to wait to be called by the Ombud to behave in an ethical way, the Ombud must come as an element of last resort,’ said Mr Lamola. He said the Ombud should raise awareness among practitioners to prevent things from happening instead of having to deal with them when they have already happened, as the after-effects are very bad. Mr Lamola suggested, when there are resources, to spend them on preventing misconduct and hopefully this can be done with courses. Legal practitioners should be reminded of the ethics because after law school the only time legal practitioners are reminded of ethics is when there is a problem with the trust account. There should be a lifelong engagement with the profession regarding ethics. Mr Lamola said ethical justice for all is the motto of the Ombud.
Mr Lamola ended his address by announcing the official opening of the OLSO on 15 June 2022.
Deputy Minister of Justice and Constitutional Development, John Jeffery, closing off the launch of the Office of the Legal Services Ombud in Pretoria on 2 June 2022.
Deputy Minister of Justice and Constitutional Development, John Jeffery, thanked everyone who had contributed to this process of making the OLSO possible, from the drafters of the legislation and the rules to those who assisted in sharing the office is capacitated and operational, members of Parliament, Minister Lamola for his assistance and support, and finally, and most importantly, Justice Desai for accepting the position and for the leadership he has shown for which he is known and respected.
Mr Jeffery said he thought it significant that when launching the Office of the Ombud that it was being done in the month of June, which is Youth Month, as Justice Desai started his career in June of 1976. He said that some of Justice Desai’s cases were defending young activists of the Soweto uprising.
On Justice Desai’s retirement at the end of 2020, Mr Jeffrey said he remembered reading an article in the Daily Maverick where Judge Desai, said he was going to miss ‘the ability to affect justice on a day-to-day basis’.
Mr Jeffrey said he thinks all in attendance and the members of the legal profession are extremely pleased that Justice Desai will continue to be able to affect justice on a day-to-day basis in this new and very important role that he will be playing as our first Legal Services Ombud and thus ensuring the integrity of the legal profession.
‘Judge Desai, we wish you and the office all the very best. Please be assured of our continued support to both yourself and your office as you can continue to ensure access to justice for all,’ said Mr Jeffery.
Isabel Joubert BIS Publishing (Hons) (UP) is the sub-editor at De Rebus.
This article was first published in De Rebus in 2022 (July) DR 6.
