Significant reforms in pursuit of the ideal justice system

February 1st, 2015

The Law Society of the Northern Provinces (LSNP) held its annual general meeting (AGM) at Sun City late last year. Speakers included Judge President of the Gauteng Division of the High Court, Judge Dunstan Mlambo; Minister of Justice and Correctional Services, Michael Masutha and Political and Policy Analyst, Theo Venter.

In pursuit of the ideal justice system, are we on track?

Speaking at the AGM, Justice Mlambo said that a few years ago, former President Thabo Mbeki labelled South Africa a country of two opposites; one for the rich and the other for the poor. ‘I listen to a number of talk show programmes where members of the public call into the talk shows and air their views, my sense is that the overwhelming majority of the public hold the firm view that the law treats the rich and able with kid gloves, bending over backwards to fast-track their cases and that this category of persons is treated leniently compared to the harsh treatment of those who are poor. The accession is also made very forcefully that cases involving the poor sector of society do not enjoy the same prioritisation,’ he said.

Justice Mlambo illustrated the public opinion of the justice system with an example of the murders of Taegrin Morris and Senzo Meyiwa. He said that in the young Taegrin Morris case, a suspect was only arrested months after the murder, while, in contrast, in the case of the country’s soccer captain, Senzo Meyiwa, a suspect was arrested within two weeks of the murder. He added: ‘What is our take as the judiciary and the profession to the accession that we treat people according to their social standing? I can take a guess that instinctively the reaction from judges is that there is no merit to this accession; I agree that there is no merit to that accession. However much we deny the allegations of discriminating persons according to their social standing, if we are not honest about certain practices that lead to this result we are in danger of losing credibility and the confidence that we require in our justice system.’

Justice Mlambo spoke on another perception by the public that is not true, which is that Legal Aid lawyers are not as capable and committed as lawyers in private practice. He asked members of the legal profession to dispel the perceptions he spoke on, which can be done by actively participating in socio economic litigation and public interest law.

Significant reforms

The keynote speaker, Minister Masutha said that the LSNP AGM took place during a time of significant reforms to the judicial and legal land scape. He said that the signing into law by President Zuma of the Legal Practice Bill was a momentous occasion for the justice sector and the legal profession in particular. Adding that it was not a coincidence that the Legal Practice Act followed after the enactment of two other important Acts, the Constitution Seventeenth Amendment Act, 2012 and the Superior Courts Act, 2013.

Speaking on the legislature that reforms the legal profession Minister Masutha said: ‘The three Acts constitute a troika which defines the space for the reconstruction of the judicial and legal system. The Constitution Seventeenth Amendment Act provides an overarching constitutional framework that lays the basis for the Superior Courts Act. The Superior Court in turn, provides for a legislative framework for the rationalisation of our Superior Courts to be line with the Constitution. The rationalisation mandated by the Act ensures that old features of the judicial system which are still tied to the defunct Homeland, self-governing and RSA-territory give way to a democratic, inclusive and integrated value system founded on equality and human dignity. Furthermore, the Act creates a unified court structure with a single judicial governance framework under the leadership of the Chief Justice. Similarly, the Legal Practice Act provides for a legislative framework for the transformation and restructuring of the legal profession into a profession which is broadly representative of South Africa’s demographics under a single regulatory body. It seeks to free the profession from the bondage of the Homeland and self-governing states and democratise the governance structures of the profession. The Act strengthens the independence of the legal profession and ensures the accountability of the legal profession to the public.’

The next phase of the Legal Practice Act, Mr Masutha said, is for the nominated members of the National Forum to gear themselves for the last round of negotiations that will shape the future legal practice ‘freed from the bondage of our ugly past’. He anticipates that the National Forum will commence its work early at the beginning of 2015. He added: ‘Hard work lies ahead of the National Forum among which is the reform of the articleship and pupilage to address current barriers to the profession. When I perused the recent statistics relating to the membership of the four law societies, the LSNP boast the largest constituency, which is about 12 000 of the 22 500 practitioners. It therefore has the overwhelming majority with a potential to influence the discourse on critical issues that affect the broad constituency. I trust that you will use the advantage to the benefit of the profession and the country at large.’

Speaking on government’s briefing patterns, Minister Masutha said that it is often said that the state is the biggest consumer of legal services in South Africa as its litigation account runs into billions of rands annually. ‘Under normal circumstances the cake should be enough for everyone. However, what is evident is that the cake is not shared equitable among the diverse constituencies of practitioners, with Black and female practitioners being the worst affected,’ he said.

Minister Masutha said that the State Attorney Amendment Act 13 of 2014 seeks to redress the anomaly that exists with state briefing patterns and requires his department to develop policy that will regulate allocation of legal briefs to practitioners. ‘The policy will also include measures that will ensure effective monitoring of the implementation of policy. Often government comes with progressive policies that suit every element of the National Development Plan but the devil lies in its implementation. It is for that reason that we will strengthen the monitoring and evaluation systems to generate accurate and reliable data to measure the impact of the policy. I will engage with the profession once we have produced a draft that allows us to commence with consultations,’ he said.

Reflecting on the Legal Aid South Africa Bill Minister Masutha said: ‘This Bill was approved by the National Assembly on 30 October 2014 and is now being considered by the National Council of Provinces. The provision of legal aid is currently regulated by the Legal Aid Act, 1969 (Act 22 of 1969). The Act is outdated and not in line with current realities and requires revision in its entirety in order to replace it with a new one. The main purpose of the Bill is therefore to establish a statutory entity called Legal Aid South Africa, which is governed by a Board of Directors and define its objects, powers, functions, duties and composition. It is a measure about governance more than anything else. What I would like to address is a concern that was raised during the passage of the Bill in the National Assembly. I am led to believe that the attorneys’ profession questioned the change from the existing provisions in the 1969 Act relating to the composition of the Legal Aid Board. Section 4 of the Act currently requires one practicing advocate and four practicing attorneys nominated by the General Council of the Bar of South Africa and the Law Society of South Africa, respectively, to be members of the Board. The Bill, on the other hand, reduces the size of the Board of Legal Aid South Africa and requires members who have the skills referred to in clause 7 of the Bill. This change was motivated on the grounds that a body of this nature should be composed of experts rather than stakeholders, which is in line with best practice and the King III report which has a bearing on good governance. Nonetheless, clause 7, which sets out the qualifications for membership of the Board, does require experience in and knowledge of the provision of legal services, “including experience as a practicing attorney or advocate”. I cannot imagine the new Board being constituted without a practicing attorney or advocate. I also wish to express my gratitude for the role played by members of the legal profession in the deliberations of the Legal Aid Board to date. Their positive contributions are noted with appreciation.’

Minister Masutha, in conclusion, thanked all legal practitioners, in particular attorneys for the generosity and in the spirit of ploughing back to the community, for their contribution through various community service initiatives. ‘The services you provide as presiding officers in the Small Claims Court and other fora within the justice sector where you provide pro bono services lie at the heart of access to justice. We will always be indebted to you,’ he said.

Work in progress

Mr Venter shared his insights of where South Africa is as a country. He said that there was no handbook written about the political situation or political development as South Africa is a work in progress. ‘This is what makes it so difficult, we are developing a democracy, we are developing a constitutional state, and we are developing a number of things on the go.’

Mapula Thebe NDip Journ (DUT) BTech (Journ) (TUT) is the editor of De Rebus.

This article was first published in De Rebus in 2015 (Jan/Feb) DR 13.