Separation of powers discussed at KZNLS AGM

December 1st, 2017

Deputy Chief Justice of the Constitutional Court, Raymond Zondo, gave the keynote address at the KwaZulu-Natal Law Society annual general meeting in October.

By Kathleen Kriel

The KwaZulu-Natal Law Society (KZNLS) held its annual general meeting (AGM) on 20 October in Umhlanga. The keynote address was delivered by Deputy Chief Justice of the Constitutional Court, Raymond Zondo.

Deputy Chief Justice Zondo started his keynote address by saying that the invitation he received from the KZNLS was special to him, as he registered his articles of clerkship in 1985 under the late Victoria Mxenge and after being admitted as an attorney, he became a full member of the KZNLS for a number of years. He added though, that this was not the only reason why the invitation extended to him was special. ‘When I was nominated for appointment as a judge of the Labour Court in 1997, this law society supported my nomination and gave me unconditional support. … This law society has given me support throughout my judicial career over the past 20 years. It is, therefore, appropriate that after my elevation to the position of Deputy Chief Justice of the Republic, I should thank this council and all previous councils, over the past 20 years, and members of this society for their unconditional and unwavering support.’

Deputy Chief Justice Zondo’s keynote address was entitled: ‘The separation of powers, the South African Model’. Deputy Chief Justice Zondo said that the doctrine of the separation of powers is a common feature in many modern democracies and in its simplest form it means there should be a division of power between the legislative, the executive and judicial branches of government. He said that each of the three branches of government are required to perform their functions independently from one another. He went on to explain that in the United States (US) there is a strict separation in the functions and personnel between congress and the senate (legislative powers) on the one hand and the president and members of the executive on the other hand.

Deputy Chief Justice Zondo referred to checks and balances and said: ‘We will remember that prior to the [Convention for a Democratic South Africa] negotiations, President FW de Klerk had on numerous occasions and public platforms advocated that a negotiated settlement for the country should incorporate checks and balances … the negotiating parties agreed … the final Constitution should conform to principle 6, which concerned the separations of powers. It read: “There should be a separation of powers between the legislature, the executive and judiciary with appropriate checks and balances to ensure accountability, responsiveness and openness,”’ he said.

Deputy Chief Justice Zondo said that from the text of the quoted principle, the drafters of the Constitution were not given much detail in order to enable them to decide on a model for the separation of powers, which they had to incorporate into the final Constitution. The final Constitution does not contain any express reference to the separation of powers, nevertheless, the Constitutional Court did not think when it dealt with the certification of the Constitution that because the Constitution made no express mention of the doctrine of separation of powers that meant that our Constitution did not comply with principle 6. ‘The court took the view that the doctrine of the separation of powers could be deduced from the structure of the Constitution. … The legislative authority of the Republic vests in Parliament. … The executive power of the Republic vests in the president who must exercise that power together with members of the cabinet. The judiciary authority of the Republic vests in our courts,’ he said.

Deputy Chief Justice Zondo said the model of separation of powers in this country – unlike the US model, where there is strict separation between members of the legislature and members of the executive – does not have such strict separation between the legislative arm and executive arms of government. He added: ‘Our model of the separation of power has certain features that other people from other jurisdictions might find offensive to the doctrine of separation of powers. How can a member of the executive at the same time be a member of the legislature?’

Deputy Chief Justice Zondo said that there is no single model that applies to all countries. All countries have different histories and political ideologies that have influenced them to make a choice for their own country. ‘The drafters of our Constitution chose the model that we have, because they believed that with our history and our circumstances that is the model that would work. … It works quite well in our country,’ he added.

Deputy Chief Justice Zondo said that there are a number of bodies where you will find that members of different branches of government come together to perform a certain function. He used the example of the Judicial Services Commission, who make recommendations to the president regarding the appointment of candidates to be judges.

Deputy Chief Justice Zondo referred to the extensive powers of the Constitution that are given to the courts. He said it was a huge responsibility of the judiciary, particularly on members of the Constitutional Court. He added that members of the judiciary should not be ‘drunk’ with power. ‘We have to exercise these powers responsibly and we must not exercise them in a way that makes the other branches of government believe that we are exercising them in a manner that is not founded on integrity and the oath of office that we take when we commence our judicial functions. We must exercise these powers in a way that even when the other branches of government are unhappy with our decisions, when they read our judgments and reflect on them they will not be able to say … judges are abusing these powers,’ he said.

Deputy Chief Justice Zondo concluded by saying: ‘The judiciary are called upon to make sure that … we must at all times, in performing our functions, follow the promise that we made to this nation when we were appointed, which is that we will administer justice to all without fear, without favour and without prejudice.’

Law Society of South Africa Co-chairperson, David Bekker, discussed the mid-term report at the AGM.

LSSA mid-term report

The Law Society of South Africa (LSSA) Co-chairperson, David Bekker, said that the LSSA consisting of the four provincial law societies (the Cape Law Society, the KwaZulu-Natal Law Society, the Law Society of the Free State, the Law Society of the Northern Provinces), the Black Lawyers Association (BLA) and the National Association of Democratic Lawyers (NADEL), is a voluntary association and not a body of individual members looking after the interests of attorneys. ‘That is going to change next year. It is a fact. You must accept it,’ he said.

Mr Bekker added that it was most concerning that when asking members attending the AGM who has read the Legal Practice Act 28 of 2014 (LPA), seven people out of 70 raised their hands. He urged members to get involved to ensure that as an association ‘we are well organised’.

Mr Bekker referred to the 2016 KZNLS AGM, where Richard Scott spoke about a professional interest body. He said that many things had happened since then and added ‘I daresay, unfortunately, the make-up of the LSSA is sometimes politically driven and we need to get away from that.’ Mr Bekker added that since the LSSA was established in 1996, the co-operation between colleagues who were separated from each other, because of Apartheid, have moved closer and colleagues were working together and trusting each other, but sometimes differences were still experienced. ‘But the main focus is that we must tackle the differences, speak out about them and resolve them. It is possible. We are lawyers, we do adversarial work every day, and we do arbitration and mediation. We can solve that problem as well,’ he said.

Mr Bekker referred to litigation that the LSSA has been involved in and highlighted the Proxi Smart matter (Proxi Smart Services (Pty) Ltd v Law Society of South Africa and Others), which will be heard in the Gauteng Division of the High Court from 6 to 8 February 2018. Mr Bekker said that Proxi Smart intends taking over certain functions that conveyancers are responsible for and it would impact the income of the Attorneys Fidelity Fund (AFF).

Mr Bekker said the Management Committee (Manco) of the LSSA met on 19 October and it was decided that Manco will go around South Africa (SA) to start talks with members. ‘We cannot start a new organisation if we do not have your inputs,’ he said.

Mr Bekker said that there was a need to identify the core functions of this association. He added that the association will have to look at the member’s needs, membership to the organisation, budget requirements and how the association will deal with government and international relations. ‘We need an independent association that can look after our interest, but also bearing in mind public interests, rule of law and other issues,’ Mr Bekker said.

Chairperson of the Board of Control of the Attorneys Fidelity Fund (AFF), Strike Madiba said in the past financial year, the AFF experienced a 3,3% growth, and is currently valued at an amount of R 4,4 billion.

A word from the AFF

Giving the AFF report, Chairperson of the Board of Control of the AFF, Strike Madiba said in the past financial year, the AFF experienced a 3,3% growth, and is currently valued at an amount of R 4,4 billion. According to Mr Madiba, this amount, which on the face of it is huge, must be seen in the context of the Fund’s expenditure obligations, which for the past three years have grown at a rate that exceeds the growth in the income stream.

Mr Madiba said that the primary source of the AFF’s income is trust interest. He added that the low interest rate environment for the past number of years is unlikely to change in the foreseeable future. He added that in the past three years, it was necessary for the AFF to use investment income to cover operational expenses.

Mr Madiba said that during the past year the AFF spent R 400 million on funding activities for the benefit of the profession – that is beyond its primary mandate – which is to provide theft protection to clients of attorneys.

With regard to the implications of the implementation of the LPA, Mr Madiba said that in the current environment, the provincial law societies have the power to carry out functions, for example, the inspections of books of accounts and applications for the appointment of curators, etcetera. The LPA vests these powers in the AFF and because of this, the AFF has had to adapt its business model so that when the Act comes into operation in 2018, the AFF will be ready.

Mr Madiba referred to professional indemnity (PI) cover and said that it is provided to all practitioners for free via the Attorneys Insurance Indemnity Fund NPC (AIIF). However, in the past seven years it has become clear that the sole funding by the AFF is not sustainable. The premium has risen from an approximate R 55 million in 2011 to R 185 million at present. Mr Madiba said that this has made the possibility of practitioners contributing annually towards the premium a real requirement going forward.

A word from the AIIF

Managing Director of the AIIF, Sipho Mbelle, said that the AIIF was formed in 1993 by the AFF and the main purpose of the AIIF is to service the profession as a PI provider. In the 24 years of existence, the AIIF has paid out claims to the value of R 1 billion, which is an average of R 40 million per year. Mr Mbelle said that it is interesting to note the distribution curve of the payments. ‘While the average remains at R 40 million, when you look at the average payments in the last five to six years they are bordering and tendering in the R 100 million mark per year and that is something we would like you to be aware of as the profession.’

Mr Mbelle said because the AIIF is a claims incurred policy, the AIIF have ongoing claims going into past years, he added: ‘At this point it does look like 2011 was probably one of the worst years that we had. But the most important point that I wanted to make to you is the fact that it is increasing at a compound annual growth rate of over 9%.’

Mr Mbelle added that claims are a result of the behaviour and practice in the profession. ‘We have more and more claims to be paid out because of the growth in the profession, but when you compare the growth in the profession at the compound annual growth rate of 4% against a compound annual growth rate of just under 9%. It cannot be explained just by the growth in the profession. … It is important that we look at the aspect of how we practise, we look at issues of risk management and we make sure that as we get into our practices we bear in mind the impact of the PI provision that we have.’

Mr Mbelle said that the legal profession needs to be proud of itself in terms of having created the scheme from a PI perspective. He added that when you compare the PI cost at a base level and the structure of PI cover in SA, PI cover for attorneys is still the cheapest when compared to other professions in the country. ‘As much as the costs are increasing, we have an opportunity, as a society, to keep it at the level it is from a cost perspective,’ he said.

Mr Mbelle spoke about the decision that the board of the AIIF took in November 2016, where it was decided that the profession would have to pay a contribution towards PI cover. He added that it will be included with the 2018 Fidelity Fund Certificate (FFC) applications. Mr Mbelle said that the AFF will for the first five years assist in subsidising PI cover, but in year six, practitioners will be expected to pay the full amount.

Chief Executive Officer of the Attorneys Development Fund (ADF), Mackenzie Mukansi, said that much was achieved by the ADF through the assistance of the KZNLS.

A word from ADF

Chief Executive Officer of the Attorneys Development Fund (ADF), Mackenzie Mukansi, said that a lot was achieved by the ADF through the assistance of the KZNLS. He said that the theme for the year was ‘Support for practitioners through risk management’. Mr Mukansi said the ADF had been visiting legal practitioners in provinces around SA speaking about the services they offer and, in conjunction with the AFF and AIIF, they have been making practitioners aware of various scams and the LPA (see news ‘Legal practitioners taught risk management at SAWLA’s exhibition and seminar’  2017 (Nov) DR 8).

Mr Mukansi said that in the coming year the ADF will continue in a robust way as there is a need for information. ‘Look out for our new outlook, because we have heeded the call through the LSSA and council, we need to align ourselves with the changes in the profession,’ he said.

The current number of beneficiaries that were assisted by the ADF totalled 72 at June. The number of declined applications were 7. The total repayable amount loaned to date, to the 72 firms amounted, to R 1,6 million.

Outgoing President of the KZNLS, Umesh Jivan, with incoming President of the KZNLS, Asif Essa.

President’s report

Outgoing President of the KZNLS, Umesh Jivan, said that it had been his honour to serve as President. He said that the position gave him the opportunity to serve both members of the attorneys’ profession and the public and added that the highlight of his term was addressing the Pan African Lawyers Union in July (see ‘The legal profession re-capturing its place in society discussed at PALU conference’ 2017 (Sept) DR 6).

Mr Jivan made reference to the LPA and said that it introduces the concept of advocates who will have FFC and offer their services directly to the public. ‘I suggest that attorneys re-engineer their practices in order to be prepared for the new competition from advocates before the Act comes into place.’

Mr Jivan made reference to the Provincial Efficiency Enhancement Committee, which was an initiative started by Chief Justice Mogoeng Mogoeng, to enable all stakeholders involved in the administration of justice to communicate with each other on a provincial and national basis with a view to improving all round efficiency in the justice system. Mr Jivan said that any issues that attorneys would like to be raised can be sent to the KZNLS.

Subscription increase

The subscriptions for the 2017/8 period has increased with R 150 for practising and non-practising members. Practising members will pay R 2 510 (excluding VAT) and non-practising members will pay R 2 090 (excluding VAT).

2016/7 council members of the KZNLS from left: Vice President, Vernon O’Connell, Praveen Sham, outgoing President Umesh Jivan, Dee Takalo and Richard Scott.

Council members 2017/8

  • Asif Essa (President).
  • John Christie (Vice President).
  • Gavin McLachlan (Vice President).
  • Lunga Peter (BLA) (Vice President).
  • Charmane Pillay (NADEL) (Vice President).
  • Raj Badal (NADEL).
  • Eric Barry.
  • Poobie Govindasamy (NADEL).
  • Saber Jazbhay.
  • Umesh Jivan.
  • Muke Khanyile-Kheswa (BLA).
  • Phila Magwaza.
  • Ebi Moolla.
  • Ugeshnee Naicker (NADEL).
  • Matodzi Neluheni (BLA).
  • Richard Scott.
  • Praveen Sham.
  • Manette Strauss.
  • Dee Takalo (BLA).
  • Eric Zaca (BLA).

Alternate councillors:

  • Russell Sobey.
  • Ilan Lax (NADEL).
  • Sthembiso Kunene (BLA).

Kathleen Kriel BTech (Journ) (TUT) is the production editor at De Rebus.

This article was first published in De Rebus in 2017 (Dec) DR 6.