The law – 20 years into democracy – discussed at BLA AGM

December 1st, 2014

By Nomfundo Manyathi-Jele

The Black Lawyers Association (BLA) held its 37th annual general meeting (AGM) in Milnerton, Cape Town on 17 to 18 October. The theme of the AGM was: ‘The right to legal representation – 20 years into democracy – where are we?’ Guests at the gala dinner and AGM included Justice Minister Michael Masutha; Judge President of the North and South Gauteng High Courts, Dunstan Mlambo; Deputy Justice Minister, John Jeffery; National Director of Public Prosecutions, Mxolisi Nxasana; Western Cape Premiere, Helen Zille; Tax Ombudsman and retired Judge Bernard Ngoepe; chief executive officer of the Attorneys Fidelity Fund, Motlatsi Molefe and senior judges from various divisions of the courts.

Topics discussed included the impact of the Legal Practice Act 28 of 2014 (LPA), the relevance of the BLA 20 years into democracy and the right to legal representation.

Ms Zille, who spoke at the gala dinner on the night preceding the AGM, welcomed delegates to Cape Town. She said that South Africa is well on its way to shortcutting history as achievements have been remarkable in the 20 years of post-democracy. ‘… [A]ll of the literature I have read agrees on three things; for democracy to be sustainable you have to have constitutionalism of the rule of law, we have to have an inbuilt culture of accountability and you have to have a competent state. Those three things, when they work together are good for sustainability,’ she said.

Ms Zille added that nothing is more important than constitutionalism and the rule of law. She said that South Africa knows of the work the BLA has done in battling for the right to practice and for black lawyers to procure articles of clerkship and securing finance to set up law practices.

Should the BLA still exist?

Judge Bernard Ngoepe who is one of the founding member of the BLA spoke on why the BLA still exists after 20 years of democracy.

He said that he was admitted as an attorney on 16 June 1976. Thereafter he encountered a number of problems such as not being able to find premises to practice as he was kicked out of properties because he was black.

‘A number of black lawyers came together and we decided to approach the law society and tell them that we want to meet with the justice minister. It was agreed and we were told to go to Cape Town to meet the then Justice Minister [James] Kruger. A few days before our meeting we were told that Justice Kruger could not see us because we were a multi-racial delegation. His suggestion was that members of the executive of the law society, who were all white go see him. The law society said to tell them our grievances, which they will take to Cape Town. We refused and instead formed the BLA,’ he said.

Looking at the question of whether there was still a need for the BLA to exist, Justice Ngoepe said that when a common past is shared between people, a common past of poverty, hunger, illiteracy, then by virtue of a deep understanding of the poor people’s position, the BLA is better placed to understand their needs. He added that it was important to understand the present in order to understand the past, while at the same time, it is important to prepare for and to look into the future.

Justice Ngoepe said that he has had the privilege to be appointed chair of a number of institutions since his retirement. He has noticed that in all those institutions where he chairs, there are very few black practitioners that appear before those bodies. ‘I am beginning to notice that with regards to tax issues, there are very few black practitioners involved in those. When is this tendency going to end? I hope that tax law will become one of those fields, which more black lawyers embark in,’ he said.

Justice Ngoepe believes that members of the BLA are well poised to ensure that there is legal representation for the poorer people. He said that there is a need for the BLA to ensure that justice is done adding that BLA members are better qualified than anyone else to understand the challenges because they share a common past with many people who are in dire need of legal representation but cannot afford to pay for lawyers from their own pockets.

‘Is it, therefore, not the reason why the BLA should continue to exist? Not just to exist for the purpose of existing, but exist for the purpose of seeing to it that the imperfections of the past are corrected,’ he said.

Justice Ngoepe said that there was always an issue of briefing patterns, adding that the constant issue is that previously disadvantaged individuals are left out when it comes to proper meaningful briefing. ‘Shouldn’t you continue to exist so that you can tackle head on some of these issues? I think as long as we have these kind of issues, so indeed, even 20 years into democracy, people still hear about the BLA,’ he said.

Justice Ngoepe said that people from previously disadvantaged backgrounds should be given the opportunity to be briefed. He highlighted the fact that they too must also work just as hard to earn their stripes. Justice Ngoepe said that it is not fair to say that since you come from a previously disadvantaged background, you are entitled to briefs. He said: ‘The issue of entitlement is important. I have a problem with an unwarranted and unhealthy culture of entitlement from people from previously disadvantaged backgrounds. We need to cut against that because we may end up not delivering the kind of quality service that we need to deliver. South African citizens deserve better and they are entitled to get good service from you as members of the BLA.’

According to Justice Ngoepe, no organisation can out-live its need to exist.

In conclusion, Justice Ngoepe urged members of the BLA to bear in mind that at the end of the day the people that they seek to serve need to receive good service because they deserve nothing less.

The impact of the Legal Practice Act on the Attorneys Fidelity Fund

Mr Molefe spoke on the impact of the LPA that the Attorneys Fidelity Fund (AFF) has envisioned on the profession and in particular on the fund.

Mr Molefe first spoke about claims against the fund. He said that some attorneys have painted the rest of the profession with a black brush that has negative connotations and that says attorneys are not good people as legal professionals. He said that what bothers him is that it does not stop there. ‘We even find these negative connotations even in our own meetings. When we meet, people make jokes about sharks, we laugh at these jokes but what we do not understand in all of that is that it is an insult in reference to how people perceive the profession and it is purely because of those few individuals that we are seen in a negative sense. That is something we have to arrest and deal with robustly in order to restore the profession to the kind of respect and status it had previously in the public eye,’ he said.

Looking at the LPA, Mr Molefe gave a synopsis of the 2014 claims and explained why the ‘shark jokes’ must stop. He said that the AFF currently has claims sitting at just under R 427 million, which are claims that people have indicated that is money that could have been misappropriated by attorneys. Mr Molefe added that 53% of the almost R 430 million represents conveyancing claims, 14% deals with estate claims, which is misappropriation from widows and orphans, 12% are commercial claims and 10% deals with road accident fund misappropriation.

He said that this year alone, the AFF has paid R 77,7 million, adding that R 61,3 million, which is 80%, deals with conveyancing claims. ‘The picture has always been the same over the years, conveyancing has been the biggest area of risk for the fund and the profession,’ he said.

Mr Molefe said that these figures were alarming because looking at the numbers in terms of the people that default on trust monies, the numbers remain fairly constant but the quantum of theft is increasing drastically, which he says indicates that people do not misappropriate purely as a matter of accident, or need, but do so out of greed.

Mr Molefe said that the fund does not seek and has never sought to be a regulator, which he says is one thing that attorneys do not understand. He added that the fund is the risk taker so it has to take the necessary action required. Mr Molefe said that the control of the trust accounts, in terms of the LPA, is nothing more than ensuring that there is a curator appointed who will continue to look after the trust account.

Mr Molefe said that s 22(1)(b) of the LPA makes provision for an annual appropriation that the fund will make to the legal practice council. He said that this section, which never existed in any form in the Attorneys Act 53 of 1979 is for the first time guaranteeing the fact that the profession will receive support from the fund.

Mr Molefe said that one element that concerns him regarding the LPA and that he believes the profession and the fund need to work together to address in order to find a solution, is the absence of a provision that is similar to s 46(b) of the Attorneys Act. This section allows the fund to provide for support for legal education in the country. Mr Molefe said that this is important especially to previously disadvantaged communities. Mr Molefe said that in terms of the training of lawyers going forward, if this issue is not addressed, it is going to become difficult to practice as a lawyer let alone to access the profession if the fund is not there to support that element. ‘So we have a duty together to go back to the legislators and say this is where we see a specific problem. I also see it as a risk management issue for the fund and not just as a problem aimed at previously disadvantaged individuals and access to justice. If there is not sufficient resources to be able to train lawyers into capable and able practitioners that will not place members of the public in jeopardy, then the fund is at risk and the profession’s reputation will suffer as a result,’ he said.

According to Mr Molefe, another important element that the fund has been looking at in the past few years is the provision of professional indemnity insurance by the Attorneys Insurance Indemnity Fund (AIIF), which is wholly funded by the AFF. Mr Molefe said that in the four years that he has been at the fund, when he first arrived, the premium that the fund was paying was R 40 million per annum. In the past two years the premium has been deliberately capped at R 94,7 million. Mr Molefe highlighted that the premium had doubled in a matter of four years. ‘It would even be higher had we not capped it. This tells us that that model of the AIIF is not sustainable because each year we would actually give more. The reality of why it is unstainable is because of a lack of accountability and training of practitioners,’ he said.

Mr Molefe added that accountability did not exist. He said: ‘We see instances where professionals in the office leave professional work to do unprofessional work and when they get sued they use this cover because they know that it is for free.’

Mr Molefe said that sooner or later practitioners will have to raise money as part as personal indemnity cover. ‘It will become part of your compliance for the need to practice in the future. In terms of the LPA, the Legal Practice Council will not issue you with a fidelity fund certificate unless you have paid the determined amount by the board of trustees of the AFF. That is two or three years down the line. So it will be a bit more expensive to practice so you need to start preparing yourself for that,’ he said.

Mr Molefe warned members of the BLA that personal indemnity cover is very expensive adding that members must not make the mistake of believing that it is not. He also stressed its importance and added: ‘If you ask a gynaecologist how much he is paying he could tell you as much as R 40 000 a month, so you must start thinking about that.’

Mr Molefe said that it was not all gloom and doom. He said that the AFF will set up a unit called the Compliance Support Unit, which will assist newly admitted entrants into the profession who are setting up practice in terms of supplying them with information around what it is that they need to be compliant with. This unit will kick off in the beginning of January 2015.

He concluded by urging practitioners not to be scared by change. ‘Change is difficult for people to accept but do not go looking for a tiger where there is no forest’, he said.

The right to legal representation

Speaking on legal representation Deputy Minister Jeffery said that most people in our country still cannot afford the services of a private legal practitioner. He added that this, however, does not mean that we have not made significant inroads since 1994.

According to Deputy Minister Jeffery, while the Legal Aid Board was established in 1969, legal services and the legal aid offered to the majority of our people were either non-existing or completely inadequate. For example, in criminal matters, in 1992, two years before the dawn of our democracy, 150 890 convicted persons were sentenced to imprisonment without any legal representation.

Deputy Minister Jeffery said legal aid only encompasses one aspect of legal representation. He noted that far more people require the services of private legal practitioners and queried whether they can afford it.

‘It is no secret that the costs of private legal services are out of reach of most South Africans. Our country may have enough legal practitioners to meet the demand, but the costs involved put it out of reach of most,’ he said.

Deputy Minister Jeffery made reference to Professor at the University of KwaZulu-Natal, David McQuoid-Mason who wrote that the South African legal profession consists of approximately 20 000 practising attorneys and 2 000 practising advocates who serve about 50 million people. This yields a ratio of lawyers to the general population of one lawyer for every 2 273 people. Professor McQuoid-Mason notes that this is a high ratio of lawyers to ordinary people for an African country.

‘But, he argues, it is most unlikely that more than 30% of the population, or about 15 million people, can afford the services of lawyers. This then means that for the affordable part of our society there is a ratio of one lawyer for approximately 682 people. This ratio of people to lawyers – in respect of those estimated to be able to afford lawyers – is higher than that in several European countries as well as the United States, Brazil and New Zealand.

‘So although it appears that there are enough lawyers to provide legal services, this is only the case for those who can afford it,’ he said.

Speaking on legal costs, Deputy Minister Jeffery said that while the very poor and indigent fall within the means test of Legal Aid SA and therefore qualify for legal aid, the working and middle classes are effectively falling through the cracks when it comes to legal representation. He added that this was one of the main considerations behind the LPA. ‘At the very heart of the Legal Practice Act lies the desire to ensure that all our people have access to affordable legal services of a high standard,’ he enthused.

Deputy Minister Jeffery highlighted a few aspects of the LPA. He spoke about the Legal Practice Council, as well as about the Legal Services Ombud who will be a retired judge appointed by the President. Deputy Minister Jeffery noted that under the LPA, disciplinary proceedings will now be open to public scrutiny and a non-lawyer has to be part of a disciplinary panel.

Black lawyers as agents of change

Human rights lawyer, theologian and rector of the College of the Transfiguration in Grahamstown, Barney Pityana, spoke on black lawyers as agents of change. He said that the Constitution sets a value system as glue that holds society together on the basis of those shared values. It is a framework of a life with a glorious purpose.

Mr Pityana said that lawyers are there to regulate human affairs, to prepare for when frictions occur and more importantly to place human affairs in a sound footing. He added that at its best the law comes to the defence of the powerless, protects the weak and corrects the wrongs of society. By doing so the law helps to bring society back to its highest ideals as a self-correcting mechanism.

Mr Pityana reminisced about Bram Fischer Memorial Lecture he presented last year at University of Free State. He said that quoted scholars were of the view that we need to understand that our human rights culture is a double-edged sword. It may inspire us to uphold values that are necessary for peace, and human dignity, but also may lead many into a state of expectation and entitlement, waiting for something to happen to correct what is wrong.

He said: ‘Having studied to be a lawyer during the worst times of the apartheid system, I remain perhaps with what may be considered a romantic view that at its best lawyers are those who stand in defence of the poor, weak, vulnerable and powerless against the power of the state and the hegemony of the class society. Law is never neutral. It takes sides with justice even against all odds. As a lawyer I am instinctively uncomfortable with lawyers who make it their business to be apologists of wrongdoing in society, or to use their skills to defend the indefensible or to aid in the dismantling of the fabric of society. Yes, whatever William Shakespeare may tell us in Merchant of Venice there does remain a compelling ethical creed in being a lawyer that we ought never to compromise.’

Mr Pityana concluded by saying that lawyers need to recognise their historic duty of being the voice of the silent, weak, powerless, vulnerable and oppressed.

Speaking about black lawyers, Mr Masutha said that black lawyers should not strive to be as good as their white counterparts, but should focus on being the best lawyers in the world. He said that the legal profession is one of the most pivotal fraternities to work in.

He encouraged practitioners to think global and act local and added that there was no room for mediocrity. ‘You cannot target to get a 50% pass, your target must be 100%. We must become globally competitive, collectively, both black and white. But within that we must tackle the challenges that are faced that are stopping us from reaching that higher level,’ he said. He said that transformation remains a challenge in the South African legal profession.

Nomfundo Manyathi-Jele,

This article was first published in De Rebus in 2014 (Dec) DR 5.