Speaking of transformation and transformative leaders as theory should be avoided says Acting Solicitor-General

July 30th, 2021

By Kgomotso Ramotsho

The Black Lawyers Association (BLA) held its national general meeting (NGM) under the theme ‘BLA modern challenges: Striving for transformed legal profession, judiciary and society since inception,’ on 22 May 2021 in Johannesburg. Judge President of the Gauteng Division of the High Court, Dunstan Mlambo, gave the welcome address at the NGM. In his address, Judge President Mlambo said that of importance to him, was what the BLA meant by transforming the judiciary? Did the BLA refer to the demographics or a numbers game, for example, how many black or white judges are there, and how many of them are women? Or was the BLA referring to a mindset change?

Judge President Mlambo asked whether the BLA is of the view that the judiciary is untransformed? He added that it is key for those in the judiciary to understand this. Judge President Mlambo said that there is a common narrative, wherever this criticism is expressed. Wherever people criticise the judiciary, their starting point is that the judiciary is not transformed. He pointed out that if the BLA is of that view, he said he would imagine that the BLA could find other likeminded organisations to convene national dialogue with the judiciary and thresh this issue out. ‘We as the judiciary would like to know in what respect, we remain untransformed. The clear thing about this criticism about us in the judiciary not being transformed, always arises when some judges prised on highly charged cases and politicised cases,’ Judge President Mlambo added.

Judge President Mlambo pointed out that whichever way the decision goes, the judiciary will always be criticised as being untransformed. He asked if that is the standard being used, to judge whether the judiciary is transformed, and not by looking at its judgments? ‘We as the judiciary look at everything we do through the guidance of the Constitution. The BLA is a heavyweight legal practitioners’ organisation. I do not think I can be contradicted when I say the BLA commands the largest following in terms of the legal practitioners, practising and in the student wings. The BLA is a critical organ in terms of breaking down this burning issue,’ Judge President Mlambo added.

Judge President Mlambo said that there is a growing disrespect for judges among legal professionals. He asked why there was a growing number of legal practitioners openly disregarding and disrespecting judges in court rooms. He pointed out the voice of the BLA is critical in this matter. He said there are a number of incidents involving legal practitioners who disrespect judges they appear before, in different provinces. ‘Is the disrespected institution, such as the judiciary the institution that the BLA wants to see? This disrespect happens in front of the general public, some incidents even trend on social media. What message is being sent to the ordinary man in the streets? What does that do to the confidence in the justice system,’ Judge President Mlambo asked.

Acting Solicitor-General, Fhedzisani Pandelani, was the keynote speaker at the Black Lawyers Association’s national general meeting that was held in Johannesburg on 22 May 2021.

Keynote speaker, Acting Solicitor-General, Fhedzisani Pandelani, said that the BLA must interrogate the issues that Judge President Mlambo raised. He pointed out that those were the issues that cannot easily be swept under the carpet if legal practitioners want to transform the legal profession. He added that there is a legal practitioner who is attacking everybody. And the legal practitioner is not a young legal practitioner, but somebody who should know better.

Mr Pandelani said that the attack was not only directed at him, but also on the judiciary. He pointed out that the North West Division of the High Court has not seen the end of that individual who is attacking them. ‘These are issues that Judge President Mlambo is talking about. We need to look after our own, because there is a possibility that most of us are impacted from the mental point of view. We need to make sure we do not get people disbarred from practising unnecessarily. When you attack the Acting Solicitor-General you are attacking the judiciary, you are attacking the Minister of Justice, you [are] also acting in a manner that is inimical to the ethos and ethics of the legal profession. We should then be worried, because some of these attacks are getting quite a lot of traction in the media,’ Mr Pandelani said. He added that on the issue of transformation, the thing of speaking about transformation and transformative leaders as theory should be avoided.

Mr Pandelani told the BLA that what is intended by the office of the Solicitor-General is what every legal practitioner has been yearning for, adding that there should be some form of breach between the legal practitioners and the state. He pointed out that the state came to the legal profession and said it needed someone who knew about the challenges that legal practitioners have been facing to help guide the state on what legal practitioners want.

Messages of support

The President of the National Association of Democratic Lawyers (NADEL), Mvuzo Notyesi, gave a message of support from NADEL at the Black Lawyers Association’s national general meeting held in Johannesburg.

President of the National Association of Democratic Lawyers (NADEL), Mvuzo Notyesi, said that the BLA is the hope of black legal practitioners in South Africa. He added that the Acting Solicitor-General comes from the home of the BLA and understood the challenges black legal practitioners face. ‘We have been talking transformation for almost 24 years. He agreed to take that office being frustrated himself about the lack of transformation. He went there not to find out what the problem is. I no longer listen to people who say they want to find out what the problem is, I listen to people who go to fix,’ Mr Notyesi said.

Mr Notyesi pointed out that NADEL is sending out a message that black legal practitioners must examine themselves on who they are as black legal practitioners. Are they really black legal practitioners and what is their ideological orientation? He said it was one thing to have black people occupy positions, but it is another to have members of the BLA in these positions. He added that the members of the BLA and NADEL are legal practitioners who have some form of conscience, character of a true comrade and true cadre of the revolution. ‘The revolution is our project, we must rise to protect our project which has been hijacked,’ Mr Notyesi added.

Mr Notyesi said that organisations, such as the BLA and NADEL should know that even when they deploy members to various positions – such as the one of the Solicitor-General – their conscience should be clear with the BLA or NADEL member. ‘We support people to be judges, but once they are judges they have no values. We want to transform this society,’ Mr Notyesi added.

Legal Practice Council (LPC) council member, Noxolo Maduba-Silevu, said that 2020 was a busy year for the LPC in the legal profession. She added that even though 2020 was a difficult year due to the COVID-19 pandemic, the LPC managed to keep on track the schedule of the work that it needed to do for that year. She noted that all the LPC’s provincial offices are fully functional and are capacitated to do the work that they are expected to do, such as the enrolment of legal practitioners, coordinating and managing admissions, conveyancing, and notarial examination.

Ms Maduba-Silevu pointed out that some of the tasks the LPC have done, among other things, was to officiate with regard to making sure the elections for the Legal Practitioners’ Fidelity Fund (LPFF) board takes place. She added that the LPC has also published a Code of Conduct for all legal practitioners and the criteria for the component of silk status, as well as the criteria for institutions to offer legal education. The LPC also established norms of standard for compulsory training for both qualification and professional development for admissions of legal practitioners. She pointed out that the training ensures that a legal practitioner is standardised and that whoever wants to become an advocate or attorney, the training is the same and there is no difference between the two.

Legal Practice Council council member, Noxolo Maduba-Silevu, spoke at the national general meeting hosted by the Black Lawyers Association on 22 May 2021.

Ms Maduba-Silevu also said that the LPC is investigating the curatorship function and other ways to get attorneys firms to be appointed as curators to wind down the practices of legal practitioners who have been struck off the roll, to ensure that there is accountability. She added that this move will make sure that there is speedy resolution in terms of the files that are in the offices of those legal practitioners. ‘We are engaging the LPFF about the future appropriations and private investigations cover that is to be imposed,’ Ms Maduba-Silevu said. She pointed out that the LPC have identified and recommended amendments on the Legal Practice Act 28 of 2014 and regulations, through the Department of Justice to be placed before Parliament.

Ms Maduba-Silevu added that the LPC has made sure that the library services that were mostly utilised by KwaZulu-Natal legal practitioners, is now visible and is a national project to be accessed by all legal practitioners and candidate legal practitioners for free.

Chief Executive Officer of the LPFF, Motlatsi Molefe, said that it is very important that the legal profession remain sustainable not just for legal practitioners. Mr Molefe added that the LPFF is not immune to the economic condition that the country is currently facing, just as legal practitioners themselves are not immune. He pointed out that COVID-19 has brought an anticipated threat to how the world functions and how legal practices have practiced in the past. It has also had economic effects particularly devastating to the legal profession, as well as on legal practitioners individually.

Mr Molefe said the LPFF has also felt the effects of COVID-19. He added that to stimulate the economy the reserve bank changed the repo rate three times. This meant the trust income for the LPFF was reduced by three basic points in the last year and there should not be an expectation of an increase until the 2022 repo rate. Regarding, professional indemnity (PI) cover, Mr Molefe pointed out over the last two years the LPFF has been saying it would like to introduce a contribution regime, where legal practitioners will contribute towards the premium of PI cover, because the model was and still is unsustainable. He, however, made a point that in principle in cannot be ignored that legal practitioners have been affected by COVID-19. He added that management of the LPFF together with the management of the Legal Practitioners’ Indemnity Insurance Fund NPC (LPIIF) looked at it creatively and looked at what the licencing of the LPIIF by the credential authority involves.

Mr Molefe added that the LPFF also has one type of cover, which is the PI cover. The LPFF made an argument to the credential authority that in the calculation of the solvency ratio of the LPIIF, they should excuse the LPIIF from including catastrophe risk and the LPFF will see how it will affect the solvency ratio of the LPIIF going forward. ‘We were successful in getting a two year exemption, which raised their solvency rate, which made it possible when we looked at it that it is important to recommend to the board that we should not actually proceeding with the implementation of the contribution regime at least for these two years that we have been granted an exemption because effectively we would not be taking any money out of the LPFF in order to subsidise the LPIIF premium,’ Mr Molefe said.

Mr Molefe said while this is an issue that is still being discussed, there is no expectation that any legal practitioner should contribute toward PI cover.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

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