NADEL AGM highlights law as a tool to achieve democracy

April 1st, 2013
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By Mapula Sedutla

The National Association of Democratic Lawyers (NADEL) held its annual general meeting in Port Elizabeth from 22 to 23 February. The theme for the AGM was ‘Quo vadis NADEL? Where is South Africa heading?’ Speakers at the conference included Deputy Minister of Justice and Constitutional Development, Andries Nel; former Constitutional Court Justice Zak Yacoob; Judge Vincent Saldanha of the Western Cape High Court and the Justice Department’s acting deputy-director of legislative development and secretary of the Rules Board for Courts of Law, Raj Daya.

Where is South Africa heading?

Deputy Minister Nel, in his keynote address, said that the NADEL conference was taking place at a sombre time when the country was facing a scourge of sexual and gender-based violence. He added that the profession had to stand together with civil society and ‘harness its energy to fight this scourge’.

Mr Nel said that the theme of the conference posed an important value-laden question, which ‘underscores the vital contribution NADEL has made to the struggle against apartheid’ and the construction of a non-racial democratic South Africa, adding that the question signified how NADEL understood that the profession and civil society are intrinsically linked.

Deputy Minister Nel highlighted various achievements of the Justice Department and said that, after 18 years of democracy, over 143 Bills were introduced, which have been ‘enacted with the view to give effect to the values embodied in the Constitution’. He said that ‘enacting legislation serves no purpose if the public, especially the poor and vulnerable, are not aware of it, do not understand it or do not have the financial means to access the fruits and benefit of it’. He added that the legal fraternity and the Justice Department had an important role to play in ensuring that justice was accessible to all. He also thanked the legal profession for endeavouring to make the rights of South Africans real.

Mr Nel said that one of the Bills aimed at transforming the legal profession and making it accessible to aspirant lawyers, as well as assisting the poor to access justice, was the Legal Practice Bill (B20 of 2012). He said that the Bill contained numerous transformative factors, such as community service by the law profession, fee structuring, the establishment of a legal services ombud and the obligation of the envisaged South African Legal Practice Council to provide a mechanism to create appropriate and transformative legal education. He said that a united legal profession that serves the interests of the public was ‘long overdue’. He added that current discussions on the Bill should alleviate any fears that government seeks to control the legal profession through the Bill.

Legal education under the Legal Practice Bill

The future of legal education was discussed at the conference, with an address by Justice Yacoob, followed by a panel discussion by President of the South African Law Deans Association, Professor Vivienne Lawack; chief executive officer of the Law Society of South Africa (LSSA) and director of the Legal Education and Development arm of the LSSA, Nic Swart; member of the Cape Bar, Joey Moses; and NADEL representative on the LSSA Standing Committee on Legal Education, Raj Badal.

In his opening address, Justice Yacoob highlighted the importance of legal education as it enabled legal practitioners to effectively deal with problems and resolve their clients’ issues. He added that a legal practitioner should understand the law in such a manner that he also understands the purpose of the law, its context and how it can contribute towards achieving democracy. He noted that in the past law was used as a weapon to bring about democratic change, whereas currently legal practitioners needed to use the law to achieve equality as ‘a contribution to a greater South Africa’.

Justice Yacoob said that the commercial and non-commercial elements of the law complemented each other and legal practitioners needed to understand how the commercial and democratic practices can work hand in hand in society. He added that legal education should enable a legal practitioner to understand the independence of the profession and that the LLB degree should be designed in a way that produces democratic lawyers, as democracy in South Africa has not yet been fully achieved. He added that society and the country were much more complex than they were 20 years ago and legal education should prepare attorneys for practising in such an environment.

Justice Yacoob commented that the legal profession was conservative and ‘the more money they make, the more conservative they become’, which affected the entire legal system, noting that this should change. He suggested that the legal profession required an organisation to assess competency at a broad-based level, regardless of the legal field a practitioner chooses. He indicated that none of the available vocational training programmes had a transformation element.

Professor Lawack said that the current LLB degree curriculum, as well as the costs of the modules and the duration of the degree, were decided in 1998 in a bid to make the LLB degree accessible to previously disadvantaged individuals. However, she added that ‘what was right in 1998 is no longer right in 2013’. Professor Lawack said that statistics revealed that only 13% of students achieve the LLB degree in the prescribed period.

Further, as law is not considered a scarce profession, government spends less money financing law faculties compared to other faculties such as engineering, said Professor Lawack. Law is also considered cheap to teach; therefore a university can place more students in class for less funding, which causes overcrowding in classrooms, she said.

Professor Lawack added that it would take 12 years to rectify the effects of the dysfunctional outcome-based education schooling system, noting that some students at university level were unable to read with comprehension and also lacked numeracy skills. Despite this, she said the law profession continues to place high expectations on university departments to produce skilled and competent lawyers.

She invited NADEL to take part in an upcoming LLB degree summit and urged the association not to hold on to original decisions made in 1998, as NADEL was part of the decision-making process to design the current LLB curriculum. She added that the current context of the LLB degree had changed from the 1998 context and students could no longer be taught in the same way as in the past – a new approach and mindset was needed to teach law students.

Professor Lawack said that legal education was a shared responsibility between the profession and universities.

Responding to a question from the floor on why students were not offered the opportunity to decide which stream of legal practice they wish to follow during their degrees, Professor Lawack said that the LLB degree did not currently cover all streams of the legal field. She added that exposure to social sciences was missing from the degree.

In conclusion, she noted that the LLB had a high dropout rate and, to combat this, universities identified students at risk for dropping out and placed them in development programmes, which were costly. She urged the profession to team up with universities and volunteer at law clinics, and to mentor law graduates who work there, as part of their pro bono work.

Mr Swart said that through legal education lawyers could serve the public better. He said that legal education had to be discussed and unpacked in its entirety and questions legal practitioners needed to ask – which must be addressed by the Legal Practice Bill – were:

  • Do we need structured training or is workplace training more appropriate?
  • Can we accommodate the Bar in vocational training?
  • How will legal education be funded?
  • What format will be used for vocational training?
  • What other forms of training can we have? (Eg, candidate attorneys could be trained at courts or government departments.)
  • Will legal education be downscaled or outsourced?
  • What qualifications do foreign practitioners need to practise in South Africa?

Answering a question from the floor, Mr Swart said that it was important for universities to instil a culture of service in law students, even if via projects such as raising money for their community, as this prepares them for rendering much-needed pro bono services in the future.

Mr Moses said that currently advocates could be admitted to practice after graduating from their LLB degree, and only those who wish to belong to a certain Bar need to undergo a period of pupillage. He said that the content of the pupillage programme was largely practical and covered topics such as legal writing, ethics, rules of the Bar, rules of conduct, criminal procedure and preparation for civil trials. He questioned whether the content of the programme was appropriate and sufficient or whether it should be amended to accommodate changes that will be brought by the Legal Practice Bill. He also asked what content or form the vocational training should take and if the state would be able to sustain legal education under the Legal Practice Bill.

Mr Moses noted that the Bar limited entrants based on the number of those who can be enrolled for pupillage and queried the fate of those not accepted for pupillage. To address the problem of access to the profession, he queried whether the state would have mechanisms to assist those who could not enrol for pupillage and provide them with vocational training.

Responding to a question from the floor, Mr Moses said that it was in the public interest to have proper legal education and effective vocational training. He added that the profession needed to investigate what was needed to enhance the LLB degree so that universities produced better candidates.

Mr Badal said that, in the narrow sense, legal education was about enabling students to become better lawyers. He said that the difference between a NADEL lawyer and any other lawyer was that a NADEL lawyer served the poor. He added that a NADEL lawyer needed to be seen to influence and participate in human rights issues in the country. He urged senior attorneys to mentor new entrants to the profession. He said that the Legal Practice Bill would aid with improving access to the profession and transforming the profession through legal education. He emphasised that NADEL could play a ‘leading role’ in legal education. Answering a question from the floor, Mr Badal suggested that the LLB should revert to its previous five-year model and that pro bono work should be made mandatory.

Update from the Justice Department

Mr Daya said that the mediation pilot project, which provides for an option of mediation in civil court matters, was linked to the Justice Review Programme. He said that the Justice Department, in conjunction with the heads of courts, were currently discussing the case flow management process and the need for rules to strengthen the e-filing process. He said that the object of the reform programme was to align the justice system with the Constitution. He added that the department was looking at the current rules to determine if they passed constitutional muster.

Mr Daya noted that the rules do not exist in isolation; they have to take into account the Bill of Rights and the rest of the Constitution. He added that the Justice Department realised the need to harmonise, align and simplify the rules. He also cited discrepancies in the processes and rules of the magistrates’ courts and the High Courts.

Mr Daya said that the Justice Department would also consider the cost of litigation.

To enhance access to justice, the department will –

  • identify gaps in the alignment of rules;
  • review the effectiveness of courts and affordability;
  • simplify court rules;
  • look at how alternative dispute resolution can aid in lessening the numbers of matters on court rolls;
  • modernise information technology;
  • have effective case flow management;
  • review the impact of delayed judgments;
  • have a separate roll for Road Accident Fund matters; and
  • identify legislation that required reform.

Mr Daya highlighted the need for access to legal services for those who earn above the prescribed threshold to qualify for legal aid but who still could not afford to consult with an attorney. He suggested that assisting such people could be an area of pro bono services.

On mediation, Mr Daya said that there was a need to promote restorative justice. Presently, a number of statutes included mediation as an alternative dispute resolution tool and that one of the spin-offs of mediation was that litigants had an opportunity to save litigation costs. He added that if an attorney decided to follow the proposed mediation route, he would not be penalised if the process did not work and he could go back to the mainstream process. However, Mr Daya said that there could be an adverse outcome for those attorneys who did not opt for mediation if it can be proved that the matter could have been resolved through this route.

Dullah Omar Memorial Lecture

NADEL’s Dullah Omar Memorial Lecture and gala dinner in honour of Justice Yacoob were held on the night of 23 February. The lecture was given by Justice Saldanha, while other speakers were Deputy Minister Nel and NADEL founding members Silas Nkanunu and Krish Govender.

Justice Saldanha said that it would be fictitious not to acknowledge that South Africa is still filled with inequality. He also said that South Africans need to be committed in meeting the challenge of sexual and gender-based violence. He added that Dullah Omar would have expected the profession to do something concrete about this challenge. As a gift, Justice Saldanha brought a box used to store forensic evidence collected in sexual offence matters to be used to educate the public on the collection of forensic evidence. As a result of the lecture, NADEL formed the Dullah Omar Memorial Project Against Gender-based Violence. Attendees and NADEL branch members at the dinner pledged donations towards the project.

In his tribute to Justice Yacoob, Deputy Minister Nel thanked the former judge for his continued contribution to transformation and democracy. Mr Nkanunu and Mr Govender spoke about humorous incidents of the past when the former judge was a legal practitioner and a member of the Bench.

Resolutions

On the second day of the conference several resolutions on the discussions that were held on the first day were made. These included:

  • A need to make sure land restitution is effectively and appropriately achieved.
  • Ensuring consistent interaction between NADEL and the Justice Department and other government departments by establishing a standing committee.
  • NADEL supports the formation of a single judiciary with common benefits depending on the level of experience of judicial officers.
  • Issues on the appointment of acting magistrates and their remuneration and employee benefits have to be located within the topic of transformation of the judiciary.
  • That the LLB should revert to a five-year qualification, which should ideally consist of a primary degree and a postgraduate degree.
  • NADEL’s need to give input on the LLB curriculum and to engage with universities to give input on the curricula of law schools, as well as to ensure that the curriculum entails not just substantive law but consciousness of the role of law in society at large.
  • Condemning gender-based violence and committing to providing education on evidentiary tools to ensure better prosecution of related crimes, including the collection of forensic evidence.
  • Confirming NADEL’s position on the Legal Practice Bill as per its submissions to parliament.

The NADEL national executive council:

President – Max Boqwana

Vice-president – Gcina Malindi

General secretary – Faathima Mahomed

Assistant general secretary – Ilan Lax

Treasurer – Asif Essa

Assistant treasurer – Tony Thobane

Publicity secretary – Nokukhanya Jele

Projects officer – Patrick Jaji

Fundraising officer – Mvuzo Notyesi

Gender desk – Sheila Mphahlele

Mapula Sedutla, mapula@derebus.org.za

This article was first published in De Rebus in 2013 (April) DR 10.

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