SCA President calls for increased pro bono in civil matters and the infusion of constitutional values into daily practice

February 1st, 2015
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By Barbara Whittle

Supreme Court of Appeal President, Justice Lex Mpati, chose to focus closely on two aspects of the Constitution that impact on the daily work of attorneys in his address to Cape practitioners at the annual general meeting (AGM) of the Cape Law Society in Port Elizabeth in November last year these were:

• A professional disposition that takes into account the Constitution on the one hand.

• The need for practitioners to provide pro bono assistance in civil matters on the other.

As regards pro bono work, Justice Mpati called on older, more experienced and retired attorneys to make their services available pro bono for civil matters. He stated: ‘I am due to retire in mid-2016. I have indicated to the public interest institution to which I was attached before my appointment to the Bench, that I will assist in their work after my retirement. Maybe retired attorneys could consider giving up a few hours of their time to assist with pro bono work.’

He also noted that, in his view, there was no rational reason for the exemption from pro bono work of attorneys with 40 or more years of experience or over 60 years of age. ‘These attorneys, who are still sufficiently proficient to work for commercial firms, are an available resource of experience.’

Acknowledging the pro bono work done by practitioners, Justice Mpati commended the Cape Law Society for instituting mandatory pro bono for attorneys. ‘It gives practical effect to the constitutional right to access to courts and the concomitant right to have civil disputes resolved fairly as envisaged in s 34, particular for the indigent and vulnerable groups of society,’ he noted. He commended many of the large and medium-sized law firms that have departments or practice areas solely dedicated to pro bono work and the large number of attorneys – even sole practitioners – who undertake pro bono work.

However, Justice Mpati noted that 24 hours of pro bono work a year is relatively modest, and that although he is aware that attorneys are expected to conduct their businesses profitably and professionally, there may be deserving cases that should not be turned away because the client is short of funds.

He pointed out that initiatives that provide largely for ‘indirect pro bono’ – which includes supervisory services at university clinics, community advice offices and NGOs – although it should not be undervalued, it does not necessarily contribute to a direct increase in direct legal services, legal representation and litigation for the indigent. ‘An increase in such services could be achieved by requiring attorneys to take unpaid matters on referral from Legal Aid, South Africa’s Justice Centres and the courts. This will require additional administrative machinery and planning,’ he said.

Pro bono assistance in civil matters offers attorneys an opportunity to defend the constitutionally entrenched rights of the indigent and vulnerable groups of our society. Unlike the right to state-funded legal aid in criminal matters protected under s 35 of the Constitution to which practical effect is given by Legal Aid South Africa, the constitutional right to access courts and the concomitant right to have civil disputes resolved fairly under s 34 are not protected sufficiently. Pro bono presents attorneys with the opportunity to meet the immense need for free civil services, thereby discharging part of their duty to protect the Constitution’, said Justice Mpati.

A professional disposition that takes into account the Constitution requires all lawyers proactively to infuse into their professional conduct, their sense of duty and in their general outlook the spirit and purport of the Constitution, said Justice Mpati. He explained that this starts with the oath of office taken by a practitioner on admission: ‘At admission the applicant swears, affirms or declares that he or she will truly and honestly demean [conduct] himself in his or her particular practice according to the best of his or her knowledge and ability, and further that he or she will be faithful to the Republic of South Africa.’

Quoting Mthiyane AJA in the case of Prince v President of the Law Society of the Cape of Good Hope and Others 2000 (7) BCLR 823 (SCA), Justice Mpati said that Acting Justice Mthiyane had pointed out that a candidate attorney at admission is required to take ‘a solemn oath of allegiance’. He explained that this meant that those who wished to be admitted into the honourable profession undertake to be faithful to the Republic founded on the values enshrined in the Constitution and the rule of law. ‘What this means is that when members of the legal profession discharge their duties in the ordinary course of executing their clients’ mandates, they must do so with due deference to the Constitution and its foundational values of human dignity, the achievement of equality and the advancement of human rights and freedoms, among others. This means that the professional ethical standard must be measured against the values of the Constitution with an appreciation of the underlying basis of our Constitution,’ said Justice Mpati. He added: ‘I would like to think that most lawyers live up to these standards.’

Justice Mpati said that in preparing his address for the AGM, he considered aspects of the Constitution which had been under threat or the subject of some discussion. He referred to the Chapter 9 institutions and singled out the Office of the Public Protector, which in terms of s 182(1)(a) of the Constitution has the power to investigate any conduct in state affairs or in the public administration in any sphere of government that is alleged or suspected to be improper or to result in any impropriety or prejudice. ‘That office has been under tremendous strain and pressure,’ he noted.

Justice Mpati mentioned the courts, in which is vested the judicial authority of the Republic in terms of s 165(1) of the Constitution. He said: ‘In the exercise of that authority courts, in certain cases, may have trampled on the toes of other branches of government; which raises the question of the separation of powers. Recently judges of the highest court were labelled as counter-revolutionaries.’ Referring to the call for an investigation of the impact of the judgments of the Constitutional Court and the Supreme Court of Appeal (SCA) on the transformation of society, he pointed out: ‘Whatever the initial idea may have been, it seems to me that an assessment of the impact of the decisions of those two courts on the transformation of society may be a good thing, provided there is good intent in the whole exercise.’

The third aspect he highlighted was s 174(2) of the Constitution, which deals with the appointment of judicial officers and which he noted had been the subject of major disagreement within the Judicial Service Commission (JSC). He explained that some JSC members believe that numbers should be taken into consideration, and because indigenous Africans form the majority of the country that is what the judiciary must reflect. Other members hold the view that the provision rather requires the judiciary to reflect the diversity in our society.

Outgoing CLS President highlights challenges

In his address to members, outgoing CLS President, Koos Alberts, raised a number of issues of concern for the profession.

He urged all practitioners to familiarise themselves with the Legal Practice Act 28 of 2014. ‘I have a suspicion that it will have a more dramatic effect on the way we practise than we think,’ he said.

He pointed out that there appears to be a rift between the larger firms and the law societies. He requested the large firms to make their practitioners available to serve on the committees of the profession and to provide assistance to the members representing the attorneys’ profession on the National Forum on the Legal Profession [the transitional body that will be the first body to come into effect in terms of chap 10 of the Legal Practice Act].

Mr Alberts highlighted the poor public image of the profession. Pointing out that not all criticism is necessarily justified, he added that notice should, however, be taken of the negative publicity around the contingency fees issue in the jurisdiction of the Law Society of the Northern Provinces, the short-lived but public ‘dysfunctional’ state of the KwaZulu-Natal Law Society due to some councillors walking out of the council; and he added ‘The Cape Law Society raised the ire of Eastern Cape and Western Cape judges where we may not have handled matters as professionally as we should have.’

In his written report he noted: ‘When I was first elected to the Council [of the Cape Law Society] I was impressed by the cooperation of the constituents. Regretfully, since then there has been a dramatic erosion of the cooperation, based primarily on the polarisation between the three constituents [Black lawyers Association, National Association of Democratic Lawyers and the so-called ‘statutory’ component]; the differences among constituents flowed over into council meetings and, equally regretfully, time that should have been spent on dealing with these affairs of the Society was spent scrapping about political issues. I need to make it clear that I am not pointing fingers at any particular constituent, as the oversight of the Cape Law Society is in the hands of the entire Council. It is, however, a matter of deep concern that after twenty years of democracy, we are not putting the interest of the profession above political considerations.’

As regards legal practice, Mr Alberts stressed the challenges of changes in information technology (IT) in the profession. He noted that the old model of delivering legal services was at the end of its life cycle. ‘The question is where to now? The Law Society of South Africa is already looking at these issues. We are concerned with the question of survival,’ he said.

Sessions for members at the AGM focused on some of these changes and challenges with social media specialist attorney Emma Sadleir outlining the social media landscape and platforms, as well as focussing on some of the risks for attorneys’ firms. Brendan Hughes, a member of the LSSA e-law committee, focused on the future of law in the IT space, highlighting the rising and potential use of algorithms for legal practice such a predictive coding for e-discovery, digital fee earners, predictive judgments and legal process outsourcing, among others.

Barbara Whittle, communication manager, Law Society of South Africa, barbara@lssa.org.za

This article was first published in De Rebus in 2015 (Jan/Feb) DR 8.