Letters to the editor – May 2021

May 1st, 2021
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PO Box 36626, Menlo Park 0102

Docex 82, Pretoria

E-mail: derebus@derebus.org.za

Fax: (012) 362 0969

Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses
known to the editor may be considered for publication anonymously.

Gender-based violence amendment laws in South Africa

With International Women’s Day being commemorated on 8 March 2021, it is pertinent that we are once again reminded of the amendments to South African laws set to tighten gender-based violence (GBV) aimed at protecting women and children.

The amendment Bills include the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, Domestic Violence Act 116 of 1998 and Criminal and Related Matters Amendment Bill B17 of 2020. These amendments are aimed to fill in the gaps where perpetrators evade consequences for their criminal acts. The ripple effect is that justice for women and children cannot prevail when perpetrators evade such consequences.

President Cyril Ramaphosa at the 2020 State of the Nation Address stated that the Domestic Violence Act shall be amended to offer better protection to domestic violence victims, the Sexual Offences Act will broaden the categories of sex offenders, whose particulars must be included in the National Register for Sex Offenders, and he further stated that GBV case laws will be passed to tighten bail and sentencing conditions. The President implemented an Emergency Action Plan aimed at:

  • improving access to justice for survivors of violence;
  • strengthening the criminal justice process;
  • prioritising the creation of economic opportunities for women; and
  • changing attitudes and behaviour by using prevention campaigns (see South African Government News Agency ‘Domestic Violence Amendment Act to better protect GBV victims’ (www.sanews.gov.za, accessed 7-3-2021)).

The Criminal Law (Sexual and Related Matters) Amendment Act creates a new offence of sexual intimidation. The amendments to this Act will further protect persons from the offence of incest. Further amendments include a public register of sex offenders containing all particulars and for instances of suspicion of sexual offences being committed against a child, the duties on reporting these offences are allowed for on a greater component. The amendment of the definition of ‘domestic violence’, in the Domestic Violence Act, includes those who are dating, engaged, ‘in customary relationships, and actual or perceived romantic, intimate or sexual relationships’. This amendment Bill further, ‘extends the definition of “domestic violence” to include the protection of older persons against abuse by family members’ (see Hassan Isilow ‘S.Africa announces gender based violence law’ (www.aa.com.tr, accessed 7-3-2021)).

The Criminal Matters Amendment Bill allows for regulations relating to the granting of bail will be tightened for perpetrators of GBV and femicide. Offences requiring a minimum sentence are to be imposed and will be expanded.

Law enforcement officials and courts will be imposed with new obligations as per these new amendments. The above amendments are intended to give women and children the full effect of their rights.

 

Sandipa Ramkissoon LLB (UKZN) LLM (Unisa) is a
legal practitioner at SSR Attorneys in Durban.

 

Complaint against the Eastern Cape LPC

We confirm that we represent our client, X.

It was encouraging to read the editorial by Mapula Sedutla ‘What is the relevance of the LSSA?’ 2021 (March) DR 3. At various points in the article, it would appear that the Law Society of South Africa (LSSA) assists attorneys and particularly supports ‘the efficient administration of the justice system’. Reference is also made to the LSSA ‘[speaking] nationally on behalf of the attorneys’ profession’. The LSSA also plays ‘an advocacy role for the profession’ and so on.

We address you in our frustration with a total lack of concern and attention in respect of our client.

During September 2016, our client consulted the writer who addressed a letter of complaint to the Cape Law Society (as it was then known). I do not intend to bore the LSSA with the correspondence, which followed after the complaint, as it will make this letter totally verbose. In essence, we were assured by the Cape Law Society that disciplinary action was being pursued against the attorney in question. In later correspondence we received a letter from the Legal Practice Council (LPC) on 19 June 2019 saying that the complaint would be attended to ‘in terms of the new procedure’. Reference was also made to our client pursuing her civil remedies. This has been concluded. Our client still requires the attorney to answer to her complaint.

To put it bluntly, we were shoved from ‘pillar to post’ by numerous employees of the LPC Eastern Cape Provincial Office. Then on 28 January 2021, we were advised by a representative of the LPC, by way of ‘automatic reply’ that our e-mail of 26 January 2021 had been acknowledged. We are certain that the LPC will have a file, which you can call for in as far as our ongoing correspondence to that office is concerned.

That it has taken a total of five years to know that ‘zero’ has happened in respect of our client’s complaint. This is certainly an absolute failure and embarrassment in respect of ‘the efficient administration of the justice system’. You will note our sense of frustration, as well as our client’s frustration. Should our client be the victim of an obvious failure in the ‘inefficient’ administration of the justice system? We reasonably assume that the LPC has control over its members and its procedures and that it is part of the ‘efficient administration of justice’.

It is unacceptable that a person who is compelled to answer a valid complaint enjoys indemnification due to the poor administration of justice. If our client’s complaint cannot be dealt with or has not been dealt with, our client deserves to be given a reason. If the matter is to be dealt with and investigated to finality then the client should, in our humble view, be given a communication to that effect, as well as the outcome of whatever the process dictates.

 

Matthew Yazbek BProc (Unisa) is a legal practitioner
at Stirk Yazbek Attorneys in East London.

 

Response to the complaint by Mr Matthew Yazbek

We refer to the letter by legal practitioner Mr Yazbek and thank De Rebus for affording the Eastern Cape Provincial Office of the Legal Practice Council (LPC) the opportunity to respond to the complaint.

In summary, and if our understanding is correct, it appears that the subject matter of the complaint is about the alleged delay in the finalisation of a complaint, which Mr Yazbek submitted on behalf of his client, as well as the lack of feedback/progress report to him and/or his client. However, the details of the complainant and the nature of the complaint have, and understandably so, not been mentioned in the letter.

On receipt of the complaint, I immediately conducted an internal investigation and sought and obtained feedback from the legal officers who are dealing with complaints lodged/submitted against the legal practitioners.  In addition, thereto I also reviewed the relevant complaint files involving the clients of Mr Yazbek.

According to our records, there are two complaints in which Mr Yazbek is involved in as representative capacity on behalf of the complainants. The respective complaints are against two different legal practitioners who are enrolled with the LPC as attorneys. The one complaint was lodged with the former Cape Law Society in November 2015, and the other in February 2019. The relevant complaint files were subsequently transferred from the Western Cape Provincial Office of the LPC to the Eastern Cape Provincial Office of the LPC.

The Investigation Committees that have been constituted are seized with the investigation of both the complaints. The investigation of both the complaints by the Investigating Committees have not yet been finalised. Mr Yazbek has been kept informed of the status of the investigation of the complaints. The said complaints, like all the complaints that are submitted to our offices, are being attended to and all the parties involved shall be advised of the outcome on completion of the investigation.

In terms of the Legal Practice Act 28 of 2014, we have an obligation to regulate the legal profession in South Africa in the public interest. This objective cannot be achieved if the finalisation of the investigation of complaints against the legal practitioners is unreasonably delayed. We also recognise that, in the regulation of the legal profession in the public interest, accountability, transparency and responsiveness are also critical values to which we subscribe. In that regard, it is important that all the parties involved in the subject of the complaint being investigated are furnished with regular progress reports, which, according to our records, has been done in respect of the complaints that were submitted by Mr Yazbek on behalf of his clients.

I have since instructed the legal officers to ensure that the Investigation Committees expedite the finalisation of the investigation of the complaints and to advise thereafter all the parties involved of the outcome of the investigation.

I remain accessible and available to address all the concerns in regard to the investigation of complaints. It is only when issues and constructive feedback are brought to my attention that we can strive to improve our internal processes in regard to the investigation of complaints against the legal practitioners. In that regard, I sincerely wish to convey my gratitude to Mr Yazbek for raising the issues, and hereby give an assurance that all the complaints are being attended to, and that he shall be kept informed of the progress as well as the outcome of the investigation.

 

Alfred Hona is the Director of the Eastern Cape
Provincial Office of the Legal Practice Council.

 

‘Fit and proper’ standard

I inquire whether it is possible for law graduates with past criminal convictions to submit applications for a determination as to whether they are ‘fit and proper’ to enter the legal profession prior to applying for articles/immediately on completion of the degree.

The reason for this is that law firms very often, and understandably so, shy away from applications of law graduates with past criminal convictions because they are uncertain whether the articles are registrable.

It has been a standard practice to submit such applications with the application for registration of the practical vocational training contract, which places a burden on law firms to satisfy the Legal Practice Council (LPC) that a person is ‘fit and proper’, whereas this is outside their remit or ultra vires (ie, beyond the scope of their powers).

Consideration of this matter by the relevant decision-making body of the LPC would be appreciated.

The crux of the matter is what option/recourse does a prospective candidate legal practitioner have in the circumstances as mentioned above, regarding the fact that a past criminal conviction is not an absolute bar to being allowed to do articles or to be admitted to the legal profession.

 

Saul Nthite LLB (Unisa) is a graduate in Pretoria.

 

Response from the LPC

When candidates/graduates with prior criminal convictions apply for a practical vocational training (PVT) contract, those applications are referred to the Legal Practice Council’s (LPC’s) Provincial Professional Affairs Committees. In instances where the PVT contract is registered, letters are addressed to the applicants to make them aware of the final decision as to whether the candidate/applicant can be considered as a ‘fit and proper person’ and be admitted as a legal practitioner lies with court and will not be bound by the position of the LPC.

 

Legal Practice Council National Office, Midrand

 

This article was first published in De Rebus in 2021 (May) DR 4.

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