By Nomfundo Manyathi-Jele

The Law Society of the Northern Provinces (LSNP) has rescinded the suspension of r 30.2 and 31 to 43, which relate to the election of councillors. This decision came about after the LSNP convened a special meeting to deal with a number of proposed resolutions. The meeting was held on 26 February in Sandton.

Johannesburg attorney, Anthony Millar, brought three motions for adoption before members of the LSNP.

Motion one

The first motion was a motion to rescind the suspension of rs 30.2 and 31 to 43 and that the LSNP strictly adhere to the rules relating to the elections of councillors and in order to give effect to this motion, that the following consequential amendments are made to the rules –

(a)(i) The deletion of the post-amble to r 20.1.6.2 being the sentence, ‘the effect of Rules 31 up to and including Rule 42 is suspended indefinitely’;

(ii) the deletion of the reference to the phrase ‘Rule 30.1’ wherever it appears in rs 31 to 42 (both inclusive) and r 47.3 and its replacement with a reference to ‘Rule 30A.1’; and

(iii) the amendment of the word ‘fourteen’ wherever it appears in rs 31 to 42 (both inclusive) to ‘twenty-four’.

(b)  That the present r 30.2 be amended to substitute the expression – ‘[An election shall be held in the manner in these rules prescribed] in the year first following upon the year in which these  rules are promulgated and in every third year after the year in which the first such election is held provided however that such elections relate only to the 12 council members appointed in terms of Rules 30A.1.1 to 30A1.4 (both inclusive) specifically excluding the Black Lawyers Association and the National Association of Democratic Lawyers council members’.

With the expression: ‘[B]y no later than 30 May 2015, in the third year following such general election and thereafter in every third year.’

Mr Millar motivated this motion by saying that the statutory constituent of the LSNP, unlike the Black Lawyers Association (BLA) the National Association of Democratic Lawyers (NADEL) constituents, has had approximately one election in the last 20 years. He added that this was not democratic and did not allow new ideas and a more energetic approach by the council to its affairs. ‘It cannot be said that in the absence of regular elections, that the views of the council represent those of the members’, he said.

Motion two

That the LSNP –

(i) removes the indefinite suspension of the existing r 47.3; and

(ii) adopts the following new r 47.4:

‘47.4 In the event of a vacancy arising in the Council on the statutory component of the Society, the position shall be filled firstly with reference to the election results of unsuccessful candidates during the election immediately preceding such vacancy who are then still available and eligible in descending order of votes obtained. In the absence of such candidates, the statutory component of the Council, sitting as a caucus, shall fill such vacancy in consultation with any active attorneys association in the area, in the manner determined by it’.

To motivate this motion Mr Millar said that the current rule provides that the council may select replacements. He said that this was undemocratic as it ignores the will of the LSNP members. Mr Millar said that he saw this way as the most appropriate one to deal with this matter.

Motion three

That the following rules be amended as stated below:

(i) Rule 30A.1.1 by replacing the word ‘three’ with the word ‘five’.

(ii) Rule 30A.1.2 by replacing the word ‘two’ with the word ‘three’.

(iii) Rule 30A.1.4 by replacing the word ‘two’ with the word ‘one’.

And in order to give effect to this motion, as well as the motions 3(i) and 3(ii), that the following consequential amendments are made to the rules:

3.1 by amending the word ‘eight’ in r 33.5.1 to ‘nine’.

3.2 by amending the word ‘six’ in r 33.5.1 to ‘seven’.

3.3 by amending the words ‘two names’ in r 33.5.1 to ‘one name’.

3.4 by amending the word ‘eight’ in r 33.5.7 to ‘nine’.

3.5 by amending the word ‘six’ in r 33.5.7 to ‘seven’.

3.6 by amending the word ‘two’ in r 33.5.7 to ‘one’.

3.7 by amending the word ‘eight’ in r 38.1 to ‘nine’.

3.8 by amending the word ‘two’ in r 38.2 to ‘one’.

3.9 by amending the word ‘eight’ in r 38.4 to ‘nine’.

3.10 by amending the word ‘four’ in r 38.4 to ‘three’.

To motivate this motion, Mr Millar said that the biggest number of non-BLA and non-NADEL members forming the statutory component of the LSNP practice in Johannesburg and Pretoria. He said that in terms of the current dispensation, councillors practicing in these areas effectively represent approximately 1 000 attorneys each, whereas statutory component attorneys practicing in the three smaller provinces represent approximately five attorneys each. ‘This skewing of law society representation is not democratic and accordingly we propose that the figures must be adapted to more accurately reflect the demographics of the profession and to allow those areas, with a far greater concentration of attorneys, more representation and input in the affairs of the LSNP,’ he said.

Although most of the members were for the motions, Mr Millar was faced with some strong opposition. Some members said that the motion could not go through because one could not just change the rules of the law society while others argued that bringing back elections was going against the rules of the LSNP. One of the council members said that members had no right to just summon up members and demand for rules to be changed.

The president of the LSNP, Strike Madiba said that council cannot just shun its members. He said that council had a duty to comply and listen to its members.

Mr Millar said that BLA and NADEL choose their representatives on a regular basis, and questioned why other members could not do so as well. ‘What about those members who joined the profession after this agreement was made? They did not agree to this,’ he said. ‘The composition of the profession has changed significantly since 1994 and at least half of the members who are currently practicing were admitted after that date. This means that at least 50% of the members have never had the privilege of participating in a vote … It is a shame that none of them can claim to represent or to have been chosen to represent the members who are practicing today,’ he said.

One member said that the decision to suspend elections was never meant to be a position for life. He said that it is time to move on, the law changes, practice changes. ‘The statutory members must have a voice and must elect those people that they feel will best represent them, it is called democracy. It has been accommodated before, in 2003 elections took place, a vote against elections shames us,’ he said.

BLA president, Busani Mabunda said that LSNP members are being denied a right to voice out their views. He said that there is currently a lack of internal democracy. ‘The decision to do away with elections was for political reasons. The KwaZulu-Natal Law Society, Law Society of the Free State and the Cape Law Society all have elections. The LSNP is the only law society without. Council members are supposed to represent the aspirations and will of the people and LSNP members are being aggrieved by not being heard,’ he said.

One member argued that the reason why elections were suspended was so that the current council members stay in power to negotiate the Legal Practice Act 28 of 2014 (LPA). He argued that the LPA had now been passed so the basis of the council members staying as is, has fallen away. This was met with a counter argument as another member said that the LPA negotiations are still ongoing and that this warranted that the council stays the same.

One of the younger attorneys urged members not to make an emotional decision but to think it through. He said that if members are allowed to vote for all council members including the statutory members, there would be no black attorneys on council. ‘There are 12 711 attorneys of which 8 000 and something are white. The white votes will overpower the vote for black council members,’ he said.

Another member said that this council took a decision 20 years ago to suspend the rules. So, this council can take a decision to uplift that suspension. ‘We are not asking for anything that is not provided for in the rules or that has not happened before or has not been accommodated before,’ he said.

The final results were as follows:

Nomfundo Manyathi-Jele NDip Journ (DUT) BTech Journ (TUT) is the news editor at De Rebus.

This article was first published in De Rebus in 2015 (April) DR 9.