By Mapula Sedutla

The Black Lawyers Association (BLA) held its annual general meeting (AGM) late last year in Durban under the theme: ‘Changing the legal landscape to respond to current demands.’ Proceedings began with a gala dinner dedicated to the late former BLA president, Edward Mvuseni Ngubane.

Industrious legal eagle

Opening the gala dinner, President of the BLA, Busani Mabunda welcomed delegates to the event. Paying tribute to Mr Ngubane, he said: ‘The late Mr Ngubane is one the people who showed fierce independence. He added that, when circumstances warranted, Mr Ngubane was able to break ranks with fellow members in institutions which had authority in the country. ‘I am talking of a gentleman who made it … possible for me to sit as one of the commissioners of the Judicial Services Commission. I am talking of a gentleman who exercised his certificate of right of appearance in the High Court fruitfully and effectively. I am talking of a gentleman who handled high profile cases, one of which ended up at the Constitutional Court after he had participated in laying the foundation to it. I am paying tribute to an industrious legal eagle who has traversed the length and breadth of the dynamics within the profession. I pay homage to a man who possessed high legal prowess … I pay homage to a man who has given guidance to the organisation sometimes in the midst of tense atmosphere. I am talking of a breather of sanity … a calmer of waters. I remember a man who worked with commitment, vigor and dedication.’

Current demands

Speaking on the theme of the AGM, retired North Gauteng High Court Judge Ntsikelelo Poswa said that the topic covered a very wide field. He said that he identified three alternative ways in which the legal landscape may be changed.

First option

Speaking on the first alternative to changing the legal landscape, Judge Poswa said: ‘Broadly speaking, changes in the legal system may be necessary in the context of a branch of the law, for example, the law of contract, criminal law or the law of property, requiring change to meet current demands. There is no doubt, for instance, that the law of contract creates serious problems for, in particular, uneducated or poorly educated Africans. It is highly technical and devoid of fairness. … Recognising the need to change some oppressive laws, the government, on its own, or in response to judicial comments in courts, or public outcry, has enacted a number of statutes to try to blunt the sharp edges of the contractual and property laws it inherited from the previous regime. They include the Prevention of Illegal Eviction of Unlawful Occupiers Act 19 of 1998 …, the National Credit Act 34 of 2005 and the Consumer Protection Act 68 of 2008, to mention but a few of them.’

Second option

Judge Poswa said that another way of changing the legal landscape was through legislative enactment in response to popular demand. He added that he believed that the legal profession should be the catalyst to bringing about legal changes and that black lawyers should be in the forefront of such activity.

He added: ‘Black judges, with the same type of social background, equally have a special role in the development of our legal system, just as “white” judges have done for many centuries in helping develop what has come to be known as customary law. There is no doubt that there are differences of interpretation of remedial or any other legislation by different judges. Such differences are based on a myriad of factors – such as racial belonging, political outlook, class and religious beliefs – and they also result in the differences in interpretation of statutes by different judges.’

Judge Poswa further noted that even where government has yielded to pressure from the legal fraternity, there was no guarantee that legislation will be changed speedily. He said the Legal Practice Bill, for instance, was conceived during the late Minister of Justice, Dullah Omar’s period of office, in response to the BLA’s approach for his intervention, when the advocates’ profession was recalcitrant to calls for transformation. It is still being hotly debated today, towards the end of the term of office of the third Minister of Justice after Mr Omar.

Third option

Judge Poswa said that the third alternative would be creating a pool of appointable black candidates for the Bench. He said: ‘I have not checked the statistics, but I believe that, countrywide, there are more black graduates than white produced annually. Yet, the number of qualified black practitioners is evidently much lower than that of their white counterparts. I stand to be corrected in this regard. … [T]he fact remains that black law graduates find it very difficult to qualify as attorneys or advocates. Articles of clerkship are very difficult for African law graduates to [obtain], worse so in large firms of attorneys with a variety of legal services and many partners. Consequently very many black law graduates join the ranks of the unemployed. Many who get articled in small attorneys’ (usually) African law firms do not get a variety of training and experience – apart from inadequate salaries. They are often the main victims of the high failure rate – as far as I know – among candidate attorneys and pupils. …

How is all this, about black, especially African law graduates, fitting into the topic of changing the legal landscape? It relates to the third of the three ways in which I said changes can be effected. It is a long-term option, namely, creating a pool of black lawyers who will have a fair chance of being appointed to the Bench. It is one field in which I believe that black lawyers have a duty and a realistic opportunity to bring about meaningful change.’

BLA’s contribution to the struggle

Speaking on behalf of the KwaZulu-Natal Premier, Senzo Mchunu, the Premier’s special adviser, Cyril Xaba said that the history of the BLA cannot be separated from the history of the struggle of the African people in South Africa. He added that the BLA understood that law cannot be practiced in a vacuum. ‘It is now history that apartheid is behind us … we could not have achieved this without your contribution as lawyers,’ he said.

Mr Xaba said that lawyers have a sacred space in the advancement of democracy and that their role is not limited to simple litigation, but extends to enriching the country’s jurisprudence. He added that the BLA had a history of fighting for the underprivileged and the voiceless and this should continue.

The guest speaker on the second day of the conference, who received a standing ovation from the delegates, was Justice Raymond Zondo of the Constitutional Court. His speech focused on the practical challenges that black lawyers faced and looked at the practical solutions that were available to deal with the challenges faced. He also spoke about the state of the judiciary and the legal profession, the road travelled and the road ahead.

Justice Zondo said: ‘We cannot talk about the state of the judiciary and the legal profession, the road travelled and the road ahead of us without talking about where we come from, without talking about the society of which we are part and without talking about the kind of society that we aspire to be and the kind of society we seek to create … as we do all the things that we do, particularly as black lawyers in order to ensure that our society is a better society than it was before.’

Mapula Sedutla, mapula@derebus.org.za

This article was first published in De Rebus in 2014 (March) DR 6.