By Kim Hawkey
President Jacob Zuma was one of the guest speakers at the 70th annual general meeting of the Johannesburg Attorneys Association (JAA), which took place in Johannesburg in September.
President Zuma took the opportunity to speak to practitioners about the Legal Practice Bill (B20 of 2012) (LPB), among other topics.
In addition to the President, the other guest speakers were former Constitutional Court Justice Johann Kriegler and Law Society of South Africa (LSSA) chief executive officer, Nic Swart. LSSA councillor and Past President of the Commonwealth Lawyers Association Mohamed Hussain also addressed delegates on the Commonwealth Law Conference, which South Africa will be hosting for the first time in 2013.
Legal Practice Bill update from the LSSA
Mr Swart provided an update on the latest developments in respect of the LPB, which he said the LSSA had welcomed.
‘The Legal Practice Bill is a reality. Unfortunately there are still people who see this as a threat against the independence of the profession. The LSSA and its constituents have taken a different view. It is about finding a balance between the interests of the public and the interests of the profession. It is aimed at greater access to justice for society and as a tool for unification in the profession. It is also a new tool for the regulation of the profession,’ he said.
Mr Swart added that the Bill would open the door for greater uniformity between the two branches of the profession.
He reported that the Justice Portfolio Committee had not provided a new deadline for submissions on the Bill after extending the original deadline in July; however the two branches of the profession were ‘reaching greater consensus’ in respect of their positions on the Bill and further discussions were planned.
In respect of voluntary professional associations, Mr Swart noted that the Bill does not provide for statutory recognition of these, but it was assumed that they would continue to play an important role.
He said that one of the debates currently taking place was whether there should be a legal practice society in the form of a voluntary association to which members could belong, which would promote and protect the interests of the profession.
Mr Swart concluded by discussing the transitional period provided for in the LPB. He said that while the Bill currently provides for a two-year transitional period, there were discussions about whether, instead of a Transitional Council, the Legal Practice Council should be vested with transitional powers, thereby doing away with the need for a Transitional Council.
‘This is a very important issue. There must be certainty and it must be properly done,’ he said.
Justice Kriegler urges profession to speak out against abuses of power
Justice Kriegler spoke on the rule of law and practising lawyers, as well as the demise of the SADC Tribunal and the Marikana mine tragedy that resulted in the death of over 40 people.
In respect of the latter, Justice Kriegler said:
‘No South African patriot can be as deeply concerned about the state of our land. We are in a bad place at the moment. I do not think we ever thought we would see a number of wounded, bloody bodies shot by South African policemen. We never thought we would see this again. It was frightful to see the scenes of Marikana, especially for those of us who fought to ensure that those days would never return.’
He added that it was ‘most disturbing’ to see the international media ‘awaiting doom’ in South Africa as they had done before. In retort, he said: ‘Watch us. Things are very gloomy. The portents are indeed ominous, but we are South Africans; we have come through worse times. … By dint of common sense and a common commitment to our country, we resolved those issues through consensus building … . We will do it again.’
He said that the Marikana incident had come at a ‘terrible cost’ in terms of loss of lives, limbs and the economy.
‘It has done tremendous damage to the system of collective bargaining we have built up so carefully. I am afraid the message given out is that if you are violent enough and threaten enough, you will get what you are asking for,’ he said, adding: ‘It is the function of those of us who hold the rule of law dear to show that this is not the way to do it. … When a court of law issues an order, it is obeyed. … I live in South Africa – a free country, a democracy. But we are not perfect.’
In respect of the SADC Tribunal, Justice Kriegler said that it was ‘killed off precisely because it had done its duty’ by upholding the rights of the dispossessed.
‘It was too courageous, it was too consistent in its application of the rule of law. We are not perfect; we stumble. Our institutions are much stronger than in comparable jurisdictions, but the rule of law is not beyond harm in this country.’
Justice Kriegler also had harsh words for the legal profession for not speaking out when necessary:
‘I do fault the legal profession for having made it necessary for me to be exposed to vilification in my retirement because you said nothing – you did not condemn when you needed to. I appeal to you; I have confidence in you.’
He urged the legal profession to hold those in power accountable and to speak out when there are abuses of power.
‘I appeal to the legal profession to ensure that the hands of the President and the legislature and the executive are strengthened and that the little foxes that spoil the vineyard are put firmly in their place. If people are abusing state power, it is the function of the law and the rule of law to see they get their comeuppance,’ he concluded.
President Zuma on the Legal Practice Bill and transformation of the legal profession
In addition to his formal address to the association, President Zuma used the opportunity to comment on the Marikana tragedy, which he described as a ‘shock’. ‘No one thought we would have such an incident. This is why from government’s side we thought it was important to create not just a commission of inquiry, but a judicial commission of inquiry. We must remedy what was wrong so that we do not see such a side again. South Africa is the envy of everyone and Marikana raised eyebrows to many. We are sure it will not happen again,’ he said.
However, despite this, President Zuma said he believed it was an ‘exaggeration’ to say that the country was ‘almost back to apartheid’: ‘We are a democratic country. Apartheid was not. This is an incident I believe that we will resolve and we can guarantee that this will not happen again.’
He added that if the police were found to be at fault in relation to the incident, then this must be rectified. Further, he said that the legal profession should not take certain things for granted, for example the culture of people who protect themselves by carrying weapons and who break things, and added that not dealing with this ‘resolutely’ can lead to the deaths of many, such as during the Marikana massacre.
‘We need to deal with this from a legal point of view and ensure that the rule of law is adhered to by all citizens. We will have to work together to reach lasting solutions,’ he said.
In addition to speaking on the Marikana incident and the Legal Practice Bill, President Zuma discussed transformation, access to justice and the role of the legal profession in a constitutional democracy.
He said that while many lawyers had played a pivotal role in the struggle against apartheid and many remained committed to achieving the society they fought for, it was now time to continue the transformation process.
One critical factor, he said, was access to justice.
‘We are all seized with the matter of how to make our courts more accessible to the poor. Simply put, how do we make it easy for people who live far from the cities or who cannot afford to pay for justice, to obtain justice?’
Another factor identified by President Zuma was the need to substitute the ‘old-order legislation that still governs the legal profession in various parts of the country’, including the Admission of Advocates Acts applicable to Bophuthatswana, Transkei and Venda, the Bophuthatswana Attorneys Act 29 of 1984, the Attorneys Act 53 of 1979 and the Admission of Advocates Act 74 of 1964.
He said it was improper for the profession to continue to be governed by old-order legislation in a constitutional democracy, adding that the LPB was aimed at rectifying this.
Linked to this is the ‘Discussion document on the transformation of the judicial system and the role of the judiciary in the developmental South African state’, and Bills aimed at transforming the judicial and legal systems, he said. In addition to the LPB, these include the Constitution Seventeenth Amendment Bill (B6 of 2011) and the Superior Courts Bill (B7 of 2011), which he expected to be passed shortly.
‘All these Bills … have been in the making for the past 15 years or much longer. The fact that these Bills have taken longer than was originally anticipated should not come as a surprise. Deliberations on what the contents of the Bills should be when they are finally placed on the statute book have been robust. With hindsight, it is prudent that their passage to date has been lengthy and even controversial. It is proof of a participatory democracy at work,’ he said, adding: ‘The fact that we debate and debate is what makes South Africans special. The fact that we have discussed these for so long means we are trying to leave no stone unturned so, when finally agreed, the views have been canvassed sufficiently by all of us.’
In respect of the LPB in particular, President Zuma said:
‘I am aware that the introduction of the Legal Practice Bill has elicited robust and fierce public debates within the legal profession. Government has, over the last 15 or more years, been trying to facilitate consensus within the various formations in the legal profession on how a transformed and rationalised legal profession should be regulated.’
President Zuma said that, while government was ‘anxious’ not to be seen to be interfering with the independence of the profession and whereas the Bill of Rights affords every citizen the right to choose his trade, occupation or profession freely, ‘of great significance, it goes on to say that the practise of a trade, occupation or profession may be regulated by law’. He said that the LPB would achieve this in respect of the legal profession.
He urged lawyers who had any problems with the Bill to raise their views now that it had been put forward for comment.
‘If there is a problem with the Bill, it is for you to come and say: “We do not agree with this”, so that the matter is discussed,’ he said.
On the topic of transformation, President Zuma emphasised the role of members of the legal profession in promoting diversity in the profession.
He quoted the following figures from the General Council of the Bar (GCB) and the LSSA:
These statistics are not commensurate with the population demographics of the country in which women are in the majority. These statistics are of particular relevance in that they are a reflection of the shortage of the black and women candidates who make themselves available for judicial office,’ President Zuma said.
In a bid to address this, he added that government planned to ensure that 70% of its legal briefs were allocated to previously disadvantaged practitioners.
President Zuma also called on the legal profession to ‘do everything possible to promote interest in the law’ in the youth in a bid to increase the number of black and female law students.
In conclusion, President Zuma thanked those members of the profession who served on bodies such as the Judicial Service Commission, the Magistrates’ Commission and the Rules Board for Courts of Law, as well as in the small claims courts. He also commended attorneys for their pro bono work, including during National Wills Week. In this regard, he said:
‘Through the pro bono services and small claims courts, many of our people are able to access justice freely and expeditiously, in a country where true justice still remains largely the preserve of the rich and privileged. We are aware that many legal practitioners perform free services far beyond the minimum 24 hours.’
Chairperson’s report highlights concerns about practitioners
In his annual report, chairperson of the JAA, Jacques Tarica, provided an update on previously raised problems with the South Gauteng High Court, as well as those relating to some of the magistrates’ courts in its jurisdiction.
He also reported on the JAA’s priority areas in the upcoming year.
Mr Tarica noted that the JAA was of the view that many of the problems practitioners faced in its jurisdiction were shared by attorneys in other areas and the association hoped to establish a network between other attorneys’ associations.
In respect of the South Gauteng High Court, Mr Tarica reported that some of the outstanding issues that beleaguered the court related to:
In terms of progress made at this court, Mr Tarica reported that the court library was ‘now working well’, adding: ‘We are informed by Deputy Judge President Mojapelo that the move is to centralise all the different judgments in the library. The library would have all judgments delivered by the court … accessible in electronic format.’
In respect of the Johannesburg Magistrate’s Court, Mr Tarica advised that the court’s civil section website contains the civil trial and motion court rolls, as well as practice guidelines and forms, including for debt rescheduling.
He also highlighted some problems associated with this court, such as:
He added that the magistrates intended approaching the Rules Board to reinstate old magistrates’ courts rule 10, ‘due to the fact that, as the rules currently stand, they cannot destroy old court files’.
Mr Tarica said that there was a demand for practitioners to serve as small claims court commissioners in Soweto. He also said that some practitioners were failing to meet their commitments at the small claims court in Johannesburg:
‘There is a serious problem with commissioners who, despite having made a commitment, do not appear at court on their designated day or simply make themselves unavailable.’
The JAA plans to approach the advisory board of the court to urge the Justice Minister to intervene to address this.
Among its aims for the upcoming year, the association plans to increase the involvement of candidate attorneys in the JAA, including by providing mentorship and conducting workshops.
Kim Hawkey, kim.hawkey@derebus.org.za
This article was first published in De Rebus in 2012 (Nov) DR 14.
