By Nomfundo Manyathi-Jele
Deputy Minister of the Department of Justice and Constitutional Development, John Jeffery took office on 9 July 2013. Deputy Minister Jeffery was born in Mauritius and spent most of his childhood in George. He did not always want to become an attorney as he was interested in nature conservation. However, during high school he decided to study law. De Rebus news editor Nomfundo Manyathi-Jele met up with the deputy minister a month after his appointment to talk to him about life, his career and the Legal Practice Bill.
Nomfundo Manyathi (NM): What is an average day like for you as deputy minister, and how does this differ from your role as Member of Parliament (MP)?
John Jeffery (JJ): My days vary; a day in parliament as an MP meant committee meetings and a series of political or community meetings. As deputy minister I must also attend structured meetings such as cabinet meetings that are relevant to my portfolio.
The difference between being a deputy minister and an MP is that there are far more public engagements now. I also want to put days aside when I will go out and visit the courts and see for myself how things are working.
NM: What is your office responsible for?
JJ: I have specific delegations from the Justice Minister and those include the sheriffs, magistrates and the Magistrates’ Commission. I appoint acting magistrates and the minister makes the permanent appointments. I am also responsible for the small claims courts; I appoint the commissioners. I also look at and comment on most memoranda going to the minister. Legal Aid South Africa and the Law Commission are also part of my responsibilities and so are the two Chapter Nine institutions, the Office of the Public Protector and the South African Human Rights Commission.
NM: What is your ambition for the office of deputy minister and personally?
JJ: It is a short appointment until the next elections in April/May 2014. I want to do my best to ensure that the administration of justice is improved.
NM: Can you tell me a little bit about yourself: Who are you, where were you born, where did you grow up, etcetera – something that is not outlined in your CV?
JJ: I did not always want to be a lawyer, I was quite interested in nature conservation but, when I was in grade 10, I decided that I would rather study law. I went to the University of Natal in Pietermaritzburg, everyone that was in high school in George was either going to the universities of Cape Town, Rhodes or Stellenbosch and I wanted to be different and also wanted to see more of the country. Because I was from a small town, Johannesburg and Durban were a little scary so I chose something a bit smaller.
I matriculated in 1981. My parents were not political, but growing up as a white South African in the country in the late 70s and seeing all the things that were banned, made me want to know more about the liberation struggle. It was not logical to me that people who were not white were treated differently. I became more actively engaged in politics when I started university.
NM: Did you practise as an attorney?
JJ: I practised, but briefly.
NM: Why did you not remain an attorney for longer?
JJ: I did not practise longer because I was in the provincial legislature in KwaZulu-Natal and I liked litigation. I would have loved to have done a trial a month but things were a bit chaotic in the legislature in those days.
I would agree to a matter being set for trial and then there would be a meeting I had to go to. The magistrates were all supportive and sympathetic, but I reckoned I cannot keep doing this; it is not fair on the court or my clients, so I stopped practising.
NM: How can reporting on legal issues/court matters be improved to assist the public to understand the legal system better?
JJ: I think part of the problem with the law is that lawyers like trying to make things as complicated as possible. I suspect it is because they want members of the public to feel that this thing is so complicated they cannot handle it themselves, they need to pay for lawyers. A lot of what goes on in court, I think, is unnecessarily complicated and it could be simplified.
The use of Latin complicates things further. Why do you have to go around throwing the term ‘sui generis’ when you can just use the word ‘unique’?
I think more access to the courts and live coverage would be useful. I think there is also a need for the training of journalists because often you read an account about a trial in the media and what the journalist finds interesting and relevant is not necessarily what the court finds relevant. The public therefore often has the wrong understanding of what is happening in a trial and people are then shocked when the person is acquitted or found guilty. The problem with trials is that you have to sit there for the whole duration of the hearing. You cannot just pop in to see what is happening, and that is when journalists miss out on a lot of things.
Another question is whether judges or magistrates should be involved more in explaining their judgments. At this stage, a judgment is like what ‘God gave to Moses on the top of Mount Sinai’, this is it, the ten commandments, take it and use it. If court judgments were explained a little bit better, that might make things easier.
NM: You waited to do your articles for five years with a specific firm. Readers who read your CV in De Rebus may have asked why you did not do your articles under a different principal?
JJ: Basically, the work I was doing was important at that point. It was during the time of vigilante groups killing people and the justice system was doing nothing. The police were not doing anything either. What the law firm I was working at was doing, at the request of the Congress of South African Trade Unions, was to try and look at ways of getting the law to work.
If I had chosen to do articles with a different principal I would have had to do normal articles of commercial work, whereas this was cutting-edge stuff that was affecting people’s lives at that time.
NM: What inspired you to choose a career in law?
JJ: Law is very empowering. In the context of an apartheid South Africa, I studied it to learn how I could use of all the rules and laws to improve people’s lives.
NM: You come from parliament where there is a substantial representation of women. What do you think are the most common challenges faced by women in the legal profession?
JJ: One of the challenges is attitude. Lawyers are basically ‘hired guns’ as they take on a case because they have been instructed and are paid to do it. They do not necessarily feel any particular relationship with the client. Male attorneys and advocates tend to be quite macho, aggressive and assertive. So I think that could be one problem – the culture.
There is also the preconceived idea that men and women cannot equally raise a child. The assumption is that the woman will do it and that it would be her primary responsibility.
I think there is also the attitude from men that if you employ a younger woman she will get pregnant, she will go on maternity leave and will have to look after the baby. These are the challenges that women face in the legal profession, I do not know how conducive to child care the legal profession is.
NM: How do these differ from challenges in the past?
JJ: It has obviously improved and there are far more women in the legal profession. When I was at university there were very few women law students. I think now, at some universities, more than half the law students are women, so there are far more women going into the profession. Also, when I was at law school there was one white woman judge. This has changed significantly. There is a lot of improvement but there is a long way to go.
NM: How far is South Africa from reaching the ideal of gender transformation in the legal profession?
JJ: It is on the way, but it has a long way to go.
NM: What still needs to happen to achieve this?
JJ: There will be gender transformation when the number of women on the Bench proportionally is around 50% or more as I think, statistically, there are more women than men, and when it is reflective of the demographics of the population. It would be when the majority or at least half of the senior managers of a big law firm are women and when senior positions in law firms are also occupied by women and where women feel that they are not discriminated against. The lack of gender transformation also relates to the attitudes of clients. There are some clients who do not want to be represented by women and that is not correct.
NM: You served on the Justice and Constitutional Development Portfolio Committee. What were some of the interesting trends that you observed in your discussions on various pieces of important legislation?
JJ: The Bills I found most rewarding were the Child Justice Act [75 of 2008], the Prevention and Combating of Trafficking in Persons Act [7 of 2013], the Protection from Harassment Act [17 of 2011], the Superior Courts Act [10 of 2013] and the Protection of Personal Information Bill [B9B of 2009]. The challenges were basically to ensure that we pass legislation that was implementable by government, rather than having a whole lot of grand ideals. I enjoyed working on legislation that made a difference, that improved the rights of people and addressed needs in society.
NM: What challenges are there for the rule of law in a country with huge economic disparities and where access to the courts or the legal system is still difficult for the majority? What role can your office play in easing the situation?
JJ: We have two justice systems in the country, one for the rich and one for the poor. One of the challenges is trying to ensure that poor people can get access to justice, primarily through Legal Aid South Africa and their extension of work. That is also where the small claims courts come in, as well as trying to get systems in place so that you do not need a lawyer.
Another challenge is how to use the law to address the problems of disadvantaged people and that is where socio-economic rights are also important.
NM: How do you think the public’s perception of the justice system being mainly for the rich can be changed?
JJ: By ensuring that poor people have access to justice in whatever form, for example, if a poor person is accused in a criminal matter, that he or she has access to good quality lawyers. We must also ensure that they are able to approach the courts for civil relief.
At one point it seemed that a large number of the Constitutional Court judgments were about the rights of the privileged rather than the underprivileged, but I think that has changed to some extent.
So the perception can be changed by ensuring that disadvantaged people, poorer people, have access to courts.
NM: Do you think that there is enough information to inform people that there is help for them at the courts?
JJ: No, there is a lot more that needs to be done.
NM: How do you think that will happen? Is it through the media?
JJ: It would be in a variety of ways, such as through moot court competitions, human rights day, communication from the Justice Department and community radio talk shows. Soap operas on television also sometimes pick on some issues – although some of the ones that I have seen have mangled the court processes quite substantially and had people being sued when they actually should have been charged criminally, for example.
NM: Do you feel that the role of courts through their jurisprudence is to help shape society or vice versa?
JJ: Both. The courts, in their judgments, change the common law and interpret the meaning of statutes. They are influenced by sections in society. If you look at the whole issue of the evidence of rape and the cautionary rule, it was societal changes and attitudes to women that resulted in the Supreme Court of Appeal abolishing the cautionary rule.
Coming from a more patriarchal society made the cautionary rule necessary because women could not be trusted. A woman victim of rape could not be trusted if she was the sole witness, but the changing attitude to the position and role of women led to that judgment.
If you look at the death penalty, which was specifically outlawed, that was the courts saying, in terms of society, or in terms of the Constitution, that the death penalty is unconstitutional. That is an example of the law having an impact on society.
Regarding same-sex marriages in terms of the Bill of Rights and the equality clause, it is discriminatory for same-sex couples not to be allowed to form a union to get married, but we live in a society that is quite conservative on those issues so, that is why I am saying, it is both.
NM: What are your views about government’s plan to regulate both branches of the practising profession by means of the Legal Practice Bill?
JJ: The profession will regulate itself through the legal practice council, but we will have one council representing both attorneys and advocates. There is a lot of transformation that needs to take place in the legal profession. There are issues around government’s duty to ensure that people have access to quality legal services. It is a very important Bill.
NM: Why has it taken so long to get the Bill passed?
JJ: It has taken long because lawyers are so argumentative and disagree with one another. Government was waiting for, and trying to get the lawyers to agree.
There has been a fair amount of hysteria over the Bill from certain quarters, but if you look at reform in other countries, I think the question that should be asked is if we can afford, in a country where so many people are poor, to have this split profession of attorneys and advocates.
It is interesting that Namibia, on independence, abolished the split Bar; Zimbabwe and Nigeria did the same, I think New Zealand is abolishing it too. South Africa is not doing that now, but what we are providing for is for the branches of the profession to get closer; for advocates to take briefs direct from the public but subject to certain conditions, and for attorneys to appear in the higher courts, again subject to certain conditions.
One of my issues with advocates is the process of pupilage, which I think is appalling. Advocates have to do pupilage for a year during which time they are not paid. Once they are admitted as an advocate they then have to set up their practices, which also takes time and money. I do not know how any person who is not from a rich family or already has money can go into that profession. It is quite shocking that the profession has not looked at that issue.
I was even more shocked to find that pupils in England are paid. Why was this issue never brought up in all our transformation discussions. It basically would have been affecting black people and women and people from poorer backgrounds. It is shocking that 19 years into democracy, the advocates’ profession was not dealing with that. Some of the independent counsel brought it up, but the General Council of the Bar never did, and that is something that the Bill is trying to address.
NM: What are the implications of unifying the two professions? Should we have gone for fusion?
JJ: I think the whole unification thing is a non-argument. I think that even if the profession were unified that you would have court specialists and general practitioners and that is generally what has happened in the countries that have gone for fusion. So you will de facto still have people known as ‘advocates’.
We did not have fusion this time because there was too much opposition to it. I think having one statutory council for both advocates and attorneys will be a good start.
I do not support the two-chamber argument [separate chambers for attorneys and advocates]. I think if advocates want to form their own non-statutory grouping, if they want to continue with the Bar council, it is up to them. But the statutory functions of the profession would be exercised by the council.
NM: How has the Bill generally been received by the advocates, attorneys, the General Council of the Bar, law societies and the public?
JJ: I will put it as to when I was on the committee. We are trying to be as inclusive as possible through the coverage of the committee’s deliberations and the Parliamentary Monitoring Group minutes, which can be accessed online. There seems to be quite a large number of people following the debates and the arguments.
The problem is that there are vested interests in the profession and I think this is where some of the opposition comes from. But generally, because of the inclusive process, I would hope that there is a lot less opposition than there was before.
NM: Where was the most opposition coming from?
JJ: Opposition was coming mostly from the profession. Public involvement was not really that much. The Competition Commission was involved over the whole issue of fees, but there was actually disturbingly little input from members of the public.
NM: Do you think the National Council of Provinces will allow public hearings on the Legal Practice Bill as they did for the Protection of State Information Bill?
JJ: It is currently a s 76 Bill and if it remains a s 76 Bill, which looks like it will have to, then there will have to be public hearings if people want them.
The council will have to advertise for public comment and if people come forward and say they would like to make a submission to the provincial legislature then they will have to have a hearing.
NM: What message do you have at this point for the attorneys’ profession in particular?
JJ: Do not see it just as a job with your main goal being that of making money. You are officers of the court. You have ethics, you have duties to uphold. Think of the people that are being affected by the work that you do.
NM: Can you give me an update on the courts? How is the construction of the Limpopo High Court going? Has the construction of the Mpumalanga High Court commenced?
JJ: With regard the Limpopo High Court, the completion date of the building is August/September 2014. The anticipated commencement date of the operation of the court is October/November 2014.
The construction of the Mpumalanga High Court is expected to commence in January 2014 with completion targeted for March 2016.
NM: Do you think having a seat of the High Court in these two provinces will encourage practitioners to practise there, rather than move to the more densely populated provinces?
JJ: Yes. There was a big debate on moving the seat of the Eastern Cape High Court from Grahamstown to Bhisho. People in Grahamstown were extremely worried that, if the court was moved, lawyers would leave and it would damage the economy of the area. So, obviously if you have a High Court in Polokwane and in Nelspruit, you are going to have more lawyers there.
It is an issue of access to justice. Why must people in Limpopo travel all the way to Pretoria to have a case heard? The same with people in Mpumalanga. The two High Courts currently being built are crucial in terms of ensuring better geographical access to justice.
Nomfundo Manyathi-Jele, nomfundo@derebus.org.za
This article was first published in De Rebus in 2013 (Oct) DR 6.
