National Association of Democratic Lawyers (NADEL) President, Mvuzo Notyesi, welcomed delegates to the NADEL National Young Lawyers Summit and said this was an opportunity to engage in dialogue of the future of the legal profession.
By Kevin O’Reilly
The National Association of Democratic Lawyers (NADEL) held its National Young Lawyers Summit from 26 to 27 January. The purpose of the summit was to engage with young people in the profession regarding to the anticipated changes in the Legal Practice Act 28 of 2014 (LPA).
NADEL President, Mvuzo Notyesi, welcomed delegates to the summit and said this was an opportunity to engage in dialogue of the future of the legal profession. He said the legal profession needs to be looked at from different perspectives, one being the kind of legal education that must be provided.
Mr Notyesi said legal practitioners have a prominent role to play in democracy. ‘The role of lawyers is to ensure the promises made in the Constitution are realised and recognised. It is only when we are a united, organised profession that we will achieve that,’ he said.
Mr Notyesi noted a number of important issues surrounding the profession. He said there were serious discussions on what must happen to the Law Society of South Africa (LSSA). He also commented on the LLB accreditation and highlighted the discussion on uniformed training for advocates and attorneys, noting that the LPA refers to ‘legal practitioners’. The ‘intensity’ of the respective training has cause serious debate, he added.
Mr Notyesi commented on the difficulty in joining the profession today, adding that if an LLB student is unable to secure articles they might have to give up on their aspiration of joining the legal profession.
In concluding, Mr Notyesi announced the launch of NADEL’s constitutional training programme. He said NADEL would like to see students and young lawyers being of assistance at advisory centers, where people may go to receive advice on Constitutional issues.
Unfair discrimination must be stopped
Member of Parliament and General Secretary of the South African Communist Party, Blade Nzimande, gave a message of support and congratulated NADEL on its youth initiative.
Member of Parliament and General Secretary of the South African Communist Party, Blade Nzimande, gave a message of support and congratulated NADEL on its youth initiative.
‘Under the colonial Apartheid regime, black women suffered triple oppression in the form of class exploitation, national oppression and gender discrimination. These realities defined the law and the composition of both the judiciary and various legal bodies such as law societies. South Africa is yet to achieve full transformation of the legal practice landscape. Many old order practices, including discrimination, overt or covert, along the lines of race and gender, remain,’ Mr Nzimande said.
Mr Nzimande noted the Legal Practice Amendment Act 16 of 2017 was gazetted on 18 January. It contains steps that will help enable the transformation of the legal profession. ‘In this regard, the role of young lawyers is to ensure that old order practices associated with the landscape of old order law societies, are not carried forward to the new Legal Practice Council (LPC), both at national and provincial levels. In particular, all forms of racial and gender discrimination, mistreatment and victimisation, or any unfair discrimination, must be stopped and prevented from occurring again,’ he said.
Mr Nzimande said the ‘energy’ of young legal practitioners was needed at the forefront to bring about this change.
Mr Nzimande noted a worrying practice that still continues to this day is the discrimination of black legal practitioners. Most law societies still remain white and predominately male and this creates a negative impact on new entrants to the profession and requires urgent attention and correction, he said.
‘What we need is an enabling environment for the admission and registration of new legal practice entrants, of whom the majority are young lawyers. This must be guided by the principles of non-racialism and non-sexism, and correct the historic imbalances,’ he said.
Mr Nzimande then turned to the role of legal practitioners in defending South Africa’s democracy, fighting poverty and inequality in society. ‘In this regard young lawyers have their cue to take from lawyers such as Joe Slovo, Oliver Tambo, Nelson Mandela and others who dedicated their lives to selflessly serving the people exceptionally,’ he said.
Mr Nzimande noted that in the liberation struggle there was also a struggle for the loyalty of professionals and this was where organisations, such as NADEL, contributed to the defeating of Apartheid by stating that its professionals were not ‘neutral’, but instead took the side of freedom.
Mr Nzimande cautioned that one of the biggest threats facing young professionals and young legal practitioners today is the emergence of what he called a ‘parasitic bourgeoisie’, which manifests itself in the form of corruption and state capture. ‘Any country that has corrupted its professionals has no future,’ he said.
In concluding, he offered young lawyers five points:
Constitutional Court Justice, Mbuyiseli Madlanga, spoke on bringing back honour to the legal profession.
Bring back honour to the profession
Constitutional Court Justice, Mbuyiseli Madlanga, said legal practitioners need to bring back honour to the profession. He said legal practitioners must never be party to cheating and never be tainted by dishonourable conduct. Justice Madlanga said legal practitioners can only properly play their role in the advancement of the rule of law if they conduct themselves honourably with strict adherence to their rules of ethics. ‘It is only then that they can be said to be true to the rule of law,’ he said.
Justice Madlanga urged attorneys to have more than a superficial understanding of the Constitution and added that for far too long legal practitioners have compartmentalised themselves into fields of speciality, such as: Corporate/commercial lawyers, family lawyers, personal injury lawyers, etcetera. ‘They say this as if these practices are distinct from and totally unrelated to Constitutional law and practice. Well that is a fallacy,’ he said.
Justice Madlanga said it is time all legal practitioners took to heart the words of Judge Chaskalson in Pharmaceutical Manufacturers Association of SA and Another: In re Ex Parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC), which held: ‘There is only one system of law. It is shaped by the Constitution, which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.’
Justice Madlanga pointed out that the Constitution permeates all areas of the legal landscape.
Noting the importance of the Constitution in legal education, Justice Madlanga quoted Justice Pius Langa who said: ‘We can no longer teach the lawyers of tomorrow that they must blindly accept legal principles because of the authority. No longer can we responsibly turn out law graduates who are unable to critically engage with the values of the Constitution and who are unwilling to implement those values in all corners of their practices. A truly transformative South Africa requires a new approach that places the Constitutional dream at the very heart of legal education.’
In conclusion, Justice Madlanga said any legal practitioner who practices and does not place the Constitution at the forefront of their practice is failing in the mandate of a legal practitioner.
Transformation in the profession
Deputy Minister of Justice and Constitutional Development, John Jeffery, in a keynote address, spoke on the LPA and said the LPC will transform and improve access to the profession.
Deputy Minister Jeffery said if one looks at the profession from a race and gender perspective one realises much still needs to be done in terms of transformation. ‘I think overall with the profession the higher up you go the less transformed it becomes as far as race and gender,’ he said.
Deputy Minister Jeffery pointed out that more needs to be done to build black law firms and firms headed predominately by women. ‘As young people … you have more space to think freely and come up with innovative ideas,’ he said.
A panel discussion on the LPA, the regulatory aspects of the LPA and the LPC consisted of NADEL National Executive Committee (NEC) member and member of the National Forum on the Legal Profession (NF), Krish Govender, Deputy President of the Black Lawyers Association (BLA) and member of the NF, Mashudu Kutama, and Co-chairperson of the LSSA Walid Brown.
Mr Govender, spoke on some of the issues that the NF had to grapple with and said that the issue of practical vocational training remains unresolved.
Mr Kutama, spoke on the future of the profession and said moving forward it cannot be business as usual. If the legal profession is to continue in the same way, the people in the old structures will be the same people in the new structure.
Co-chairperson of the Law Society of South Africa, Walid Brown, said the coming into effect of the Legal Practice Act and the Legal Practice Council is going to be positive for young Black attorneys.
Mr Brown, said the coming into effect of the LPA and the LPC is only going to be ‘positive news’, particularly for young black attorneys. ‘This is going to be the dawn of a new age for attorneys in the country. For one thing it guarantees that the balance of power in the profession is going to shift forever,’ he said.
Mr Brown said the LPA guarantees that the demographics of the LPC is going to reflect the demographics of the country in terms of both race and gender. ‘This is going to be the era in which the majority of South Africans reclaim the legal profession,’ he said. ‘Do we still need an attorneys association that speaks on behalf of [and] represents attorneys?’ he asked. Noting that both NADEL and the BLA would continue after the LPC comes into operation, and added ‘we still need a body that is going to speak on behalf of everyone with one voice’. He added that there are going to be issues that attorneys will need to be able to speak as one voice whether it be with government, the LPC or the international community.
Mr Brown also spoke on practical legal training and said no agreement was reached on this issue. He said there was a fundamental difference of opinion between attorneys and advocates on this issue so it has been put forward to the minister. Lastly, Mr Brown pointed out that technology will have a huge impact on the way attorneys practice going forward.
Legal practitioner values
Chairperson of the LSSA’s Standing Committee on Legal Education, Raj Badal, quoted Supreme Court of Appeal Judge Ronnie Bosielo, who gave the keynote address at the LLB Summit in 2013, saying: ‘Under South Africa’s constitutional dispensation lawyers are constitutionally mandated to overcome the dark history of Apartheid and its deep rooted legacy and to persist in transforming the country into a constitutional democracy’.
Mr Badal reiterated values raised by Judge Bosielo on playing a meaningful role as members of society, training students to act ethically, instilling an understanding of the Constitution, inculcating a spirit of ubuntu and social consciousness with reference to the poor, marginalised and vulnerable members of society. He said all of these values are part and parcel of what NADEL stands for. Mr Badal asked about the values instilled in legal practitioners today. He added ethics was of great importance.
Mr Badal said ethics should be instilled in every course taught at university. ‘Ethics infuses our very profession. It talks to where we want to be as lawyers,’ he said. He said what is needed is both a humanitarian legal practitioner and a competent legal practitioner. A legal practitioner that is able to achieve justice for their client and also have the skills to run their practice.
LLB degree
Deputy Vice-Chancellor of the University of the Western Cape, Professor Vivienne Lawack, spoke on the topic of the LLB degree. Some areas that have had an impact on the context of the degree was the dispensation of a transformative Constitution, evolving IT and globalisation.
Professor Lawack also said the purpose of the degree has changed. The first purpose being entry into the profession. The second purpose to prepare students for post-graduate studies. Lastly, the LLB should not only be for traditional careers. ‘It should prepare a student to be able to go into a career where law or legal education would be a requirement,’ she said.
Professor Lawack pointed out that an LLB is only one ‘cog in the wheel’ of legal education. She said there is a collective responsibility to ensure there is quality education for those in the legal profession. ‘If we are going to be delivering the greatest lawyers in South Africa we also need to embrace the concept of lifelong learning,’ she said.
Director of the University of Fort Hare Legal Clinic, Nasholan Chetty, said the university introduced compulsory clinic work for all its final year LLB students and this has seen students improve significantly. Mr Chetty noted students often complain of only learning theory and not having anything concrete to work on. However, through the legal clinic work, ‘you are adding a real life person to the mix,’ he said.
Chairperson of the Attorneys Fidelity Fund (AFF), Strike Madiba, spoke on the future of the AFF and Attorneys Insurance Indemnity Fund (NPC) at the NADEL National Youth Summit.
The future of the AFF and AIIF
Chairperson of the Attorneys Fidelity Fund (AFF), Strike Madiba, said in terms of the LPA the AFF will be called the Legal Practitioners Fidelity Fund. The board will consist of five legal practitioners, made up of four attorneys and one advocate. The advocate on the board will have to have a Fidelity Fund Certificate. The Minister of Justice and Constitutional Development and the LPC will each designate two persons to the new board.
The AFF will continue to provide funding for educational needs of the profession, said Mr Madiba.
Mr Madiba said in previous years practicing attorneys received free indemnity insurance from the Attorneys Insurance Indemnity Fund NPC (AIIF). This, however, might not be the case in the future. This might make it very expensive to practice in the future and this may have an impact on those wanting to enter into the profession, he added.
Mr Madiba said the AFF and the AIIF were engaging with members of the profession and other stakeholders on this matter adding this needs to be done to avoid the risk of high cost of practicing acting as gatekeeping to the profession.
Young women in the profession
Director of the Women’s Legal Centre, Seehaam Samaai, spoke on the combatting of normalisation of sexual harassment in the legal profession and the reclaiming of time, space and agency.
Ms Samaai said ‘we all know that law is a profession, which can contribute positively towards society. It has the ability to transform the lives of the most vulnerable and marginalised in the most significant way, but it also has the ability to profoundly impact the lives of people, particularly women, if it fails to take into account issues of intersectionality and how issues of race, gender and class impact on the lived realities of women. This means that the law cannot be neutral when we deal with issues affecting women’.
Ms Samaai stated that the centre’s purpose is to advance the rights of women through strategic litigation, with a commitment to developing black feminist legal practitioners, putting forth feminist jurisprudence and representing women. Sexual violence disproportionally impacts women and sexual violence and harassment are common and major barriers in the work place. The legal profession is not immune to these practices, she said.
Ms Samaai warned that the power dynamics and skewed power structures in the legal profession can be damaging to women. ‘The current legal process lends itself to indirect forms of discrimination and secondary forms of victimisation, which perpetuates and creates systemic discriminatory practices if not addressed in a proper manner by this legal profession,’ she said.
Director of the Women’s Legal Centre, Seehaam Samaai, spoke on the advancement of the rights of women and the development of black feminist legal practitioners.
Ms Samaai noted it is mostly young women entering the profession who are subjected to sexual harassment. She called on all men in the profession to support their female co-workers, students and young women. ‘You must and need to be disrespectful and disloyal to all agents of patriarchy, as well as the rules of patriarchy. We cannot remain complicit in the violence perpetrated against women’s bodies and cannot normalise violence within our structures,’ she said.
Co-founder of Indiba-Africa Group, advocate Michelle Odayan, said the legal profession is ‘not kind to young women,’ particularly, young women candidate legal practitioners. Ms Odayan said young women entering the profession become quickly disillusioned when they come up against a hierarchical structure entrenched in patriarchy and old traditional ways. This is not an encouraging environment for smart ambitions young women when they are faced with ‘yesteryear mentalities’ and cultural norms that do not suit their needs in reality, she said.
Younger women entering the profession also need safety and security, she said. ‘The moment young women try to articulate their needs, a part from being labelled problematic, the narrative is one of “you should just be lucky you have space to do articles,”’ she said. Ms Odayan asked what law practices are doing to make their environment safe and ready made for a new generation of young people to be inspired, thrive and achieve their ambitions?
Recommendations
At the plenary session, LSSA Council Member, Management Committee member and BLA NEC member, Francois Mvundlela; Mr Notyesi; and Deputy Chairperson of the NF, Max Boqwana were presented with the following recommendations:
The LPA
It is resolved that:
It is recommended that:
The AFF and AIIF
It is resolved that:
Non-regulatory matters (creating a professional interest organisation)
– transformation in the legal profession;
– bias briefing patterns; and
– the training of candidate legal practitioners.
LLB and professional vocational training
It is resolved that:
It is recommended that:
Challenges face by young people/women/candidate legal practitioners
It is recommended that:
Kevin O’Reilly MA (NMMU) is a sub-editor at De Rebus.
This article was first published in De Rebus in 2018 (March) DR 9.
