By Mapula Sedutla

The Law Society of the Northern Provinces held its annual general meeting (AGM) in November 2016 at Sun City. Speakers at the AGM included former Deputy Chief Justice Dikgang Moseneke and Judge Eberhard Bertelsmann.

From left: Former Deputy Chief Justice Dikgang Moseneke; outgoing President of the Law Society of the Northern Provinces, Anthony Millar and Judge Eberhard Bertelsmann.

Justice Moseneke noted that he was excited to see the diversity of the people present at the conference. He added: ‘We come from a difficult past where people wrongly thought that race matters. Race does not matter it is totally irrelevant how one looks. All that matters is your values, the excellence that you exude and showing compassion to others. … We need to celebrate our differences and find cohesiveness. We come from a history of conflict caused by Apartheid and exclusion. We are a post conflict nation. This informs the way we behave while we seek to transform society, we want to move forward from the past to a better society. This is also a legitimate goal of our Constitution.’

Justice Moseneke went on further to state that: ‘What we committed to in 1994 is that we will not be ruled by law. Apartheid oppressed South Africans by law and ruled by law on the grounds of race, gender, religion, sexual orientation, etcetera. There is a standard of what is good law in our Constitution, it answers to the requirements that we all agreed to. Lawyers sit in the middle of the lives of the nation through mediation, the courts and arbitration. All power is regulated and policed through the law. This process deepens our democracy.

Speaking about the role of lawyers in society, Justice Moseneke said that lawyers are high priests that observe the law. ‘You are the pastors of society; you have to be good for the job. You cannot be a pastor and a sinner at the same time or be a rabbi and not keep to the scriptures. Good lawyers and judges must have high respect for the Constitution. You cannot be a racist and a lawyer and think that you are a good lawyer. There are certain requirements that are imposed on you as a practitioner. … There are no shortcuts. Lawyers must be hard working and display excellence to those who pay us and those who cannot afford to pay us. We are high priests of excellence. As a judge I owed you the duty of writing excellent judgments that our nation demands,’ he added.

On the matter of fees, Justice Moseneke said that the legal profession needs to be gentle to its clients. He added: ‘I am not suggesting that they should underpay you, rather we should show compassion as we are an honorable profession. It is a calling to be a lawyer; we cannot be seen as fleecing the nation. The nation trusts that from you they will get judges. You are the reservoir from which judges of the nation will be derived from; the nation must continue to trust in those who will decide on their matters.’

Land Claims Court

Judge Bertelsmann’s address was centered on the Land Claims Court (LCC). He narrated a prime example of a case the LCC deals with typically: ‘There is a farm in northern KwaZulu-Natal, the farm is run by the Van Der Merwes and it is as beautiful as the Union Buildings. The son of the farm worker went to the Land Claims Court and claimed part of the farm. The son of the farm worker and Mr Van Der Merwe came eye to eye at the court. The veneer of social interaction was reduced to daggers in both men’s eyes, in one moment one saw both the blessing and the tremendous challenge South Africa is at. Both men love the land, one has the land that his grandfather gave to him, neither was prepared to compromise.’

Judge Bertelsmann went on further to state that the LCC has been created as part of the Restitution of Land Rights Act 22 of 1994. ‘In the constitution we promised one another that we would redress the wrongs of the past and the restitution of land that was taken by racial oppression. … Thousands of claims were filed before the court before December 1998. The claims had to processed by the Commission and some are still being processed to see if the claims are valid. The cases are referred to the Land Claims Court and there we deal with claims none of which are younger than 18 years. … Many thousands of the claimants have gone to the grave without seeing their land. … The adversarial nature of our court system turns adversaries into enemies. … The court will receive a further 300 000 claims and they are to follow the same process that we have followed so far.’

Co-chairperson of the Law Society of South Africa (LSSA), Jan van Rensburg, gave a presentation on the LSSA Mid-term report see ‘“I-generation” law student discussed at FSLS AGM’ (2016 (Dec) DR 12).

The Legal Practice Act and the National Forum

President of the Black Lawyers Association and member of the National Forum on the Legal Profession (NF), Lutendo Sigogo, addressed the AGM on the Legal Practice Act 28 of 2014 (LPA) and the NF. Giving an introduction, Mr Sigogo said that ch 10 of the LPA came into operation on 1 February 2015. He added: ‘Section 96 of the Legal Practice Act established the National Forum on the Legal Profession. This is a structure meant to facilitate the transitional period from the current law society era to the new era of the unified regulation of the legal profession. The National Forum has a life span of three years from 1 February 2015. The Forum is composed of 21 members (8 attorneys, 8 advocates, 1 representative of the Attorneys Fidelity Fund, 1 representative of law teachers, 1 representative of Legal Aid South Africa and 2 members designated by the Minister of Justice). As the LPA currently stands the NF will cease to exist on 1 February 2018.’

Speaking about the terms of reference of the NF, Mr Sigogo said the terms of reference of the NF are provided for under s 97 of the LPA. He added: ‘The NF is required to complete the following tasks within a period of two years:

Make recommendations to the minister on the following issues, namely –

• an election procedure for purposes of constituting the council;
• the establishment of the provincial councils and their areas of jurisdiction;
• the composition, powers and functions of the provincial councils;
• the manner in which the provincial councils must be elected;
• all the practical vocational training requirements that candidate attorneys or pupils must comply with before they can be admitted by the court as legal practitioners;
• the right of appearance of a candidate legal practitioner in court or any other institution; and
• a mechanism to wind up the affairs of the National Forum.

The National Forum must conduct a cost analysis of the operation of the council and provincial councils and make recommendations to the minister for consideration by Parliament.’

President of the Black Lawyers Association and member of the National Forum on the Legal Profession, Lutendo Sigogo, presented on the workings of the National Forum.

Mr Sigogo went on further to state that: ‘Apart from the recommendations to the minister the National Forum must also do the following –

• prepare and publish a code of conduct for legal practitioners, candidate legal practitioners and juristic entities;
• make rules, as provided for in section 109(2);
• negotiate with and reach an agreement with the law societies and may negotiate with any non-statutory bodies or voluntary associations which are involved in the regulation of legal practitioners or matters dealt with in the LPA, in respect of the transfer of their assets, rights, liabilities, obligations and staff, to the Council or Provincial Councils.’

Mr Sigogo noted that the NF has also realised that there could be difficulties in the smooth transition to the Legal Practice Council (LPC) and requested the minister to consider amendment of the Act in order for the following to happen:

Council member of the Law Society of the Northern Provinces, Dave Bennett, gave a presentation on the formation of a voluntary association for legal practitioners. See ‘Role of lawyers in a democratic society discussed at KwaZulu-Natal Law Society AGM’ (2016 (Dec) DR 6); ‘Activism with a purpose discussed at BLA AGM’ (2016 (Dec) DR 9); and ‘A new home for legal practitioners: What’s in it for you?’ (2016 (Nov) DR 3).

• Section 120(3) to come into effect six months earlier so that the LPC should be able to put its systems in place before the full act becomes operational on 1 February 2018 (currently we only know that ch 2 of the Act will come into operation on 1 February 2018, but we do not know when the remainder of the chapters of the Act will come into operation). The NF has been advised that the request has been accepted. If these requested amendments are done then ch 2 of the LPA will come into force on the 1 August 2017 and the remainder chapters will be operational with effect from 1 February 2018.
• Other implications of the requested amendments are that the NF must also do the rules in terms of s 95 of the LPA and recommend to the minister on the regulations provided for under s 94 of the LPA. This only means more work on the same limited space of time.

Mapula Sedutla NDip Journ (DUT) BTech (Journ) (TUT) is the editor of De Rebus.

This article was first published in De Rebus in 2017 (Jan/Feb) DR 8.