LSSA makes history at its annual conference

May 1st, 2022
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The Law Society of South Africa (LSSA) held its Annual Conference and Annual General Meeting (AGM) under the theme ‘The rule of law and the role of legal practitioners in combating corruption,’ on 23 March 2022 in Johannesburg. Keynote speaker, political analyst and author, Professor William Gumede, told the delegates at the conference that almost the entire legal value chain is systemically corrupt. Among the examples he gave, Prof Gumede mentioned the police, investigators, crime intelligence and the Department of Public Prosecutions. He added that criminal justice procurement systems are captured.

Keynote speaker, political analyst and author, Professor William Gumede, told the delegates at the conference that almost the entire legal value chain is systemically corrupt.

Prof Gumede also spoke about the rise in corruption by ‘trusted professionals’ and he pointed out that professional associations, auditors, and medical professions, have spectacularly failed to uphold ethical, professional and behaviour standards of their members. He stated that while these organisations argue that government and everyone else behave corruptly, these organisations think they should do the same; or face losing out on lucrative government contracts. He added that given the very corrupt state of government, the regulations made by government of certain professions is unlikely to better the situation.

Prof Gumede gave a few points on how associations can tackle corruption, namely –

  • by setting basic principles of behaviour for their members;
  • professional associations, generally have codes of ethics, which provide a set of standards for conduct for members of the professions that issues the codes;
  • professional associations must play a bigger role in holding their individual members and firm, accountable for corrupt behaviour;
  • professional associations must play a stronger role in ensuring the corporate cultures of professional firms are more ethical, the clients they take on are more balanced and caring; and
  • there has to be a change in professional firms’ focus on profits at all costs, towards more balanced, ethical and sustainable profit targets.

Democracy should not be suffocated by corruption

Department of Justice and Constitutional Development, Minister Ronald Lamola, said that AGMs are gatherings where accountability is practised, where interested parties gather to review the work entrusted to their leadership. He pointed out that the question of what the role legal practitioners play in combating corruption is very important, especially where South Africa’s (SA) constitutional democracy is concerned. ‘We are at a point where our democracy is being suffocated by corruption,’ Mr Lamola said.

Mr Lamola said that the AGM was held at the time when SA had commemorated the 62nd anniversary of the Sharpeville Massacre, as well as the International Day for the Elimination of Racial Discrimination. ‘South Africa as we experience it today, is fundamentally different from the South Africa where 69 people were brutally killed for protesting pass laws,’ Mr Lamola said adding that the celebration of human rights and the eradication of racism are intertwined. He pointed out that one thing has become increasingly clear in post-Apartheid SA, is that corruption has disrupted government’s ability to implement the structural reforms, which are required to move SA away from the two nations, based on race which were orchestrated by the Apartheid regime.

Department of Justice and Constitutional Development, Minister Ronald Lamola, said that AGMs are gatherings where accountability is practised.

Mr Lamola said that a document published by the Department of Planning, Monitoring and Evaluation, which reviews the 25 years of SA’s democracy, makes some of the following observations:

  • The state has not adequately utilised the levers at its disposal to fundamentally entrench the economic rights of the historically disadvantaged and reverse the Apartheid legacy.
  • SA remains one of the most unequal societies in the world in terms of income levels and asset ownership, with a Gini coefficient of 0,68%. Over the past 25 years, Apartheid spatial planning has not been reversed through integrated development on and densification of well-located land.
  • Poor service delivery, lack of consequence management for misconduct and poor governance of state-owned companies remains weak, as is evidenced by regression in audit outcome, allegations of wide-scale corruption, and their extremely precarious financial situations. Corruption, real and perceived, has hampered the country’s capacity to deliver services, despite the comprehensive architecture in place to prevent and combat it.
  • The Judicial Commission of Inquiry into allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State, chaired by Chief Justice Raymond Zondo, was established.

Having said that, Mr Lamola added that ‘as a nation we found a way of viewing corruption as a predominantly government phenomenon, we seem to be tolerant of those who brag about paying a bribe to an officer who caught them speeding’. Regarding the role of legal practitioners, Mr Lamola said legal practitioners play an imminent role to eliminate the collusion on medical negligence cases. He said that it should go without saying that legal practitioners should not perform illegal acts.

Mr Lamola spoke on the findings of the Financial Intelligence Centre (FIC) report on the Assessment of the Inherent Money Laundering and Terrorist Financing Risks of Legal Practitioners in SA. He pointed out that some of the findings of that report include:

  • The legal profession is internationally recognised as potentially vulnerable to being abused by criminals to launder their proceed crimes.
  • The use of legal practitioners to recover fictitious debts has also been identified as a method to possibly move funds from one entity to another, thereby giving criminal proceeds an appearance of legitimacy.
  • The number of regulatory reports received from legal practitioners is very low.
  • During the five years from April 2016 to March 2021, legal practitioners filed a total of 11 966 cash threshold reports at an average of 2 393 per year. He said one must bear in mind that these transactions exceed R 25 000.
  • During the same period, the profession filed a total of 1 160 suspicious and unusual transaction reports at an average of 232 per year.

Mr Lamola said the question that arises is how it is possible that there were 16 059 legal practitioners, including branches, registered with FIC as of March 2021 yet there are such low numbers regarding reporting. He added that another question that arises is how legal practitioners implement s 7 of the Prevention of Organised Crime Act 121 of 1998, which criminalises the failure to report suspicion regarding proceeds of unlawful activities. Mr Lamola pointed out that legal practitioners know very well the role they should be playing.

Helping beyond one’s boarders and giving back to the profession

During his virtual address at the AGM, the President of the Commonwealth Lawyers Association (CLA), Brian Speers commended the LSSA on having a dialogue on corruption. He said the CLA is a growing organisation of legal practitioners who sees the benefit of looking at jurisdictions beyond their own and who sees the benefit in giving back to the profession. He added that the CLA is still to have legal practitioners who give their time to share their experiences and to learn from the experience elsewhere. He pointed out that rule of law is at the heart of the CLA, he said that the CLA continues to give support to the legal profession and expressed concern against attacks or the challenges to the independence of the legal profession. Adding on the issue of corruption, Mr Speers said in his jurisdiction they have had legal practitioners killed because they were mixed up in corrupt matters.

Outgoing presidential report

In his presidential report, outgoing President of the LSSA, Jan van Rensburg, said that during his term he had hoped that the LSSA’s provincial associations would be fully established and functional, he however, said not all the provincial associations are running yet. He pointed out that the matter of the sustainability of the LSSA is a matter of concern, however, he added that the COVID-19 pandemic brought some sort of relief in terms of saving the LSSA money, as there were not many expenses, such as the travelling of committee members and holding physical meetings.

Outgoing President of the Law Society of South Africa, Jan van Rensburg, during his presidential report said that during his term he had hoped that the LSSA’s provincial associations would be fully established and functional.

Mr van Rensburg, said that one of the reasons that there are financial issues at the LSSA is that the provincial associations are not fully functional yet. Regarding submissions that the LSSA has made, Mr van Rensburg said that the LSSA made submissions on –

  • the matter of s 35 of the Legal Practice Act 28 of 2004, regarding legal fees, the proposed financial conduct of the fees/institution bill; as well as
  • a submission to the Legal Practice Council (LPC) on the draft of conferment of senior counsel and senior attorneys’ stages.

Mr van Rensburg, thanked the chairperson of the LPC, Janine Myburgh and her council for the work that they are doing, and for having an open door so that the LSSA can engage and work together with the LPC. He added that he hoped that the two organisations will work together to serve the interests of the legal profession.

Mr van Rensburg said the LSSA has engaged with the Legal Practitioners’ Fidelity Fund (LPFF) to enhance avenues to develop the skills of legal practitioners in order to maintain high standards as they practise. Mr van Rensburg said the AGM is also a platform to address issues, such as a lack of ethics in the legal profession, as far as corruption is concerned, he also pointed out that through the LPFF they are trying to assist to enhance the legal profession. He added that the submission on the Legal Sector Code is still with the Minister of Justice and the profession is waiting on feedback.

From left: Outgoing President of the Law Society of South Africa (LSSA), Jan van Rensburg; Department of Justice and Constitutional Development, Minister Ronald Lamola; incoming President of the LSSA, Mabaeng Lenyai; and outgoing Vice-President of the LSSA, Mvuzo Notyesi.

During the questions and answers on Mr van Rensburg’s report, legal practitioner William Booth, raised two issues, one regarding the senior counsel (SC) status for attorneys. Mr Booth said that the LSSA put up a proposal on the SC status for attorneys, however, he pointed out that the matter is still not resolved. He proposed that the LSSA be more proactive at meetings with the LPC and address the issue, so that the legal profession can move on from such aspects.

Mr Booth also spoke about the positions of acting judges at High Courts and magistrates in the regional magistrates’ courts. He noted that he was aware that the LSSA also made a submission on this matter. He said that it is a matter of concern to some legal practitioners on how some of those who act are appointed. He added that there have been instances, specifically at magistrates’ courts, where chief magistrates get frustrated about acting magistrates not attending to the finalisation of cases. He suggested that there should be a policy on how acting judges and magistrates are appointed and who appoints them.

Legal practitioner from Gauteng, Chris Mamathuntsha, also commented on the matter of awarding of SC status to attorneys, he pointed that he was also aware of the submission the LSSA has made on the matter. He, however, suggested that that the document that the LSSA drafted and submitted to the Minister of Justice be circulated to the constituent members of the LSSA, so that those who have not seen the document can honestly say what is in the document and that it carries the members views, that the inputs that are in the final draft are the true reflection of the constituent members.

Mr van Rensburg in his closing remarks announced that he will be resigning from the House of Constituents (HoC) of the LSSA. He thanked the staff and HoC members of the LSSA for having worked well with him. Mr van Rensburg served as a Co-Chairperson of the LSSA in 2016 and as the Vice-President of the LSSA in 2019 and the President of the LSSA in 2021.

House of Constituents member of the LSSA, Ettienne Barnard, thanked Mr van Rensburg for his contribution to the legal profession and the role he has played in the LSSA. Mr Barnard added that Mr van Rensburg gave himself in a way a leader should. He pointed that Mr van Rensburg’s input, selfless service and leadership is appreciated.

LSSA remains the voice for legal practitioners

Incoming President of the LSSA, Mabaeng Lenyai, began by thanking the Black Lawyers Association for having confidence in her and nominating her for the position of President. She also thanked the National Association of Democratic Lawyers and the Independent Attorneys Associations for also nominating women, namely, Eunice Masipa and Joanne Anthony-Gooden for the positions of Vice-President. She pointed out that she has worked with both ladies before and that she has no doubt that they will do a good job. She also thanked the HoC of the LSSA for the guidance and encouragement. She further thanked the staff members of the LSSA, she said without the staff the LSSA would close down, and she assured the staff that the LSSA would continue on.

Incoming President of the Law Society of South Africa, Mabaeng Lenyai, thanked the Black Lawyers Association for having confidence in her and nominating her for the position of President.

Ms Lenyai pointed out that her term as the President of the LSSA comes at the time the LSSA and the country at large is facing many challenges. Ms Lenyai spoke about sustainability issues of the LSSA. She said that the LSSA as an organisation will need to develop innovative ways to make sure that it remains sustainable and once all the provisional law associations are in place, there must be a consistency plan on funding them and to make sure that the LSSA can be better.

Ms Lenyai promised that she will immerse herself in the work that she was given by the legal profession of doing her utmost best and ensure that, the LSSA goes to greater heights, that it retains its objectives and to make sure that the LSSA remains the relevant voice for legal practitioners, domestically and internationally. ‘We will continue to speak for the attorney’s profession nationally, we will undertake advocacy issues and comment on legislation in the interest of the legal profession and the public. We will provide leadership not just leadership, but exceptional and excellent leadership and support the profession, through policy development,’ Ms Lenyai said.

Ms Lenyai said that the LSSA will continue to interrogate legislation and look at what the government is doing to make sure that the rule of law is always maintained. ‘If it means we must take government to court to make sure that they do not offend the Constitution, we will do that with no fear or favour. This also talks to the issues of briefing patterns, the time for talking is coming to an end,’ Ms Lenyai said. She pointed out that the profession will talk one last time and if nobody listens then litigation will have to take place. She said this will be discussed with constituencies, because the issue of briefing patterns or women legal practitioners being left behind has to come to an end. She added that regarding issues of the youth, it will be addressed.

A panel discussion was had regarding the functions of the LPC and the LSSA. These differences are discussed in Mapula Oliphant’s editorial entitled ‘About the LPC’ 2022 (JanFeb) DR 3.

The incoming President and Vice-Presidents of LSSA are:

  • President – Mabaeng Denise Lenyai
  • Vice-President – Eunice Masipa
  • Vice-President – Joanne Anthony-Gooden

From left: Vice-President of the Law Society of South Africa (LSSA) Joanne Anthony-Gooden; incoming President of the LSSA, Mabaeng Lenyai; and Vice-President of the LSSA, Eunice Masipa.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2022 (May) DR 6.

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