Spotlight on law societies’ AGMs – Cape Law Society

February 1st, 2014
The four provincial law societies and the Black Lawyers Association held their annual general meetings (AGMs) towards the end of 2013. The Legal Practice Bill, the uniform rules for the profession, transformation, access to justice and the independence of the judiciary were some of the topics discussed at these meetings. De Rebus’s news editor, Nomfundo Manyathi-Jele attended the AGMs and compiled this report. Reports on the KwaZulu-Natal Law Society and Black Lawyers Association AGMs will be published in the March 2014 issue.

By Nomfundo Manyathi-Jele

The Cape Law Society held its annual general meeting at the V&A Waterfront in Cape Town on 1 and 2 November 2013. For­mer Chief Justice Sandile Ngcobo delivered the keynote address on the first day of the AGM, and on the second day, a constitutional law workshop on the influence of government in the appointment of judges was held.

The panel for the workshop included Johannesburg attorney Mohamed Husain; Judicial Service Commission (JSC) member and spokesperson advocate Dumisa Ntsebeza; constitutional law expert, Professor Pierre de Vos; Professor of Public Law, Hugh Corder and former JSC member advocate Izak Smuts SC.

Justice Ngcobo on the LLB degree

Justice Ngcobo shared his thoughts on the legal education crisis. He said that according to articles he had read after the LLB summit, there are a number of graduates who have been admitted as attorneys despite their lack of essential requisite skills. Justice Ngcobo said that there was a state of unpreparedness among some of the lawyers that appear in court, adding that it was not just in the trial courts but also in the Constitutional Court where one would have thought that practitioners who appear in that court would be thoroughly prepared and know the facts and the law.

‘What is frightening is that it took 15 years to realise that the LLB degree, as presently structured, is not able to produce law graduates who can effectively serve the public … the system has not only failed the public, but it has also failed those law graduates who were admitted as legal practitioners despite their inadequate training’ said Justice Ngcobo.

He added that the harm this has caused to the integrity of the legal profession may not be known, but that it would not be too speculative to suggest that this may well have diminished public confidence in the system of legal education and training. ‘But the real question is where do we go from here?’ he said.

Justice Ngcobo suggested that the legal profession should question whether legal education and training provides law graduates with the knowledge, skills and professional attributes to meet the present and future needs of business consumers and also the private interest needs of society. He added that the crisis has also highlighted other challenges facing the legal profession, such as the need for a rapidly developing economy and the need for transformation that is required by the Constitution.

Justice Ngcobo shared some of his thoughts on ways to remedy the situation. ‘In my view the most appropriate response to these challenges is to conduct a comprehensive review of all systems of legal education and training as well as our continuing legal education and training. This review must be designed to achieve one basic outcome, namely that the lawyers of the future, regardless of where they end up, must be adequately trained to meet the expanding needs of the society and those who conduct this review must represent all the stakeholders who have a direct interest in the education and training of law graduates such as law teachers, the legal profession, the judiciary and the government.’

The role of the law in society

Justice Ngcobo also reflected briefly on the role of the law and lawyers in society. He said that this was an aspect of legal education that was often overlooked and yet it was crucial in understanding and addressing the challenges that were facing the legal profession. ‘Law exists in society in order to solve its social and economic problems and, perhaps more recent, also to solve the kind of political problems that could not be resolved through the ballot box,’ he said.

Justice Ngcobo said that the law must be constantly readjusted to address the changing needs of society. ‘In the advent of technology such as e-mails, Skype, video conferencing and other developments and online facilities, they require that many of our laws be reviewed so as to accommodate these developments for the new crimes it brings with them, such as cybercrime. In the context of our society, the law has a special role to play in facilitating that transition. But the law can only be effective to the hands that use it,’ he added.

Justice Ngcobo said that society has a deep interest in the system that trains lawyers. He added that a lack of confidence in the system may well diminish confidence in the justice system in general.

He highlighted three inter-related challenges namely to –

  • reform legal education in light of an already identified crisis with the LLB degree;
  • respond to globalisation of commerce and legal services; and
  • transform society.

Justice Ngcobo said that the LLB summit was held to address the LLB crisis and to identify the root cause of the problem. There had been consensus that the LLB degree, as presently structured, was inadequate to prepare law graduates to meet the needs of society. ‘The summit also revealed that, contrary to expectation, it did not facilitate access to the legal profession as only 22% of law students completed the degree in four years’, he said.

Delegates identified a number of factors that affected the quality of the LLB degree, which included –

  • the shortage of staff;
  • a lack of resources; and
  • the lack of a uniform standard for the LLB curricula.

He added it had also been noted that students entering universities lacked the requisite knowledge, skills and competencies that are needed for tertiary education, such as language literacy and reading skills. In addition, there were concerns that the LLB degree failed to integrate practice into the academic component of the curriculum.

‘The unfortunate consequence of the deficiency in the skills and competence required for entry has had at least two adverse consequences. First, it meant that no school could offer remedial courses in order to supplement the kind of education received at high school level and secondly, it was revealed that students were spoon-fed and lacked the ability to engage in legal problems independently. Moreover, students lacked know­ledge of basic legal principles and core concepts and were unable to conduct basic research and interpret legal text independently,’ he said.

Justice Ngcobo added that the problems with the LLB degree did not stop at legal education, but it also had an impact in practice since it also affected the judiciary. Justice Ngcobo said: ‘Instead of conducting a trial in the ordinary manner that is expected, you also have to safeguard the interest of parties because they are not in capable hands and this is not acceptable.’

Ways to remedy the situation

According to Justice Ngcobo the LLB summit made two recommendations. The first was that the Council on Higher Education (CHE) would conduct a standard-setting process for the LLB degree, and the second one was the establishment of an LLB national task team that will monitor the work of the CHE.

He noted that these steps were commendable, but added that these alone were insufficient. ‘Our legal education is yearning for reform. It must be redesigned to ensure that lawyers of the future, regardless of where they end up, have the knowledge, skills and professional attributes to meet the present and future needs of society. It needs to be emphasised that what matters is not the years one spends at university but what one is taught at university. The inquiry that will be conducted by the CHE is going to look at the problem from an academic side. However, the academic integrity of the legal qualification can be achieved only with the support and input of the legal profession and stakeholders,’ he said.

According to Justice Ngcobo, the inquiry would have to be followed by a secondary inquiry that must be practical and professional to complement the academic-based report. He stated that a reform process must take into account both professional experience and theoretical aspects of the law.

Justice Ngcobo stated that the reform of legal education should be the product of collaborative work by representatives of the profession, the judiciary, consumers and government as they all have a direct interest in the development of legal education and training. ‘If we are to expand legal services to society, we need a new approach on how we teach law. We must think of law as an everchanging instrument that must be used to solve social and economic problems in South Africa.’

He added that this method would produce people-orientated lawyers who can meet the expanding needs of society. ‘We should not produce graduates who are able to give a lucid dissertation on the refinements of mergers and takeovers but are unable to advise an elderly person on how to apply for a social grant.’

Justice Ngcobo then highlighted matters that he felt required attention. He said that the principle purpose of law school is to prepare individuals to provide law-related services, hence there was a need to pay more attention to skills training, experiental learning, the development of practice-orientated subjects and finding a balance between theory and practice.

‘The law school curriculum must be reconsidered. While there is a need to teach traditional law courses, we should consider introducing contemporary subjects in our legal education. Legal education must reflect the change in rule of law in society, which is no longer restricted to resolving disputes in the court rooms but now involves policy makers, policy planners, business advisors and all other new areas of law,’ he said.

Justice Ngcobo noted that experienced lawyers and judges can be drawn to teaching and working in law faculties at universities: ‘One of the ways legal education can be enriched with professional education is through clinical education. Properly utilised law clinics can be an effective tool to provide law graduates with practical training. Law clinics perform an essential task, as they introduce law students to the practical aspect of the law.’ He added that law clinics must be staffed by experienced practitioners who can guide law students on the intricacies of legal practice in order for the training to be effective.

Justice Ngcobo stated that legal education needed to reflect on how law teachers are trained. Law teachers generally left law school and went into teaching. Some of them had never been to a court. He proposed that it would be useful if law teachers were exposed to the practical aspects of the law, in particular those who taught procedural law such as criminal and civil procedure as well as, to a certain extent, constitutional law.

Justice Ngcobo then outlined essential attributes that he believed a law graduate should strive to achieve. These were –

  • a basic knowledge of the principles and doctrines of major areas of law;
  • a basic knowledge of the way the law is made, interpreted and applied;
  • basic skills enabling law graduates to identify, define and analyse the problem to formulate options for its solution and to advise clients if necessary to use alternative dispute resolution;
  • sensitivity to ethics and professional responsibility;
  • oral and written communication skills;
  • client-relationship management skills;
  • analytical skills;
  • critical judgment and evaluation;
  • autonomy and the ability to learn; and
  • numeracy, information technology and team work.

Justice Ngcobo concluded by saying that legal education was an investment, which, if wisely made, will produce beneficial results for the nation and for the profession, as well as accelerating the pace of development. ‘It is this investment that will determine whether we are able to meet the needs of a developing country with a globalised economy and legal services and the effort we invest in legal education and training will determine whether we as a nation will be able to achieve the goals in the Constitution, namely to create a new society based on democratic values, social justice and fundamental human rights.

Constitutional law workshop:

The influence of government in the appointment of judges

Professor Pierre de Vos said that it was his contention that an extraordinary amount of nonsense was spoken and written about the role of the Judicial Service Commission (JSC) in the appointment of judges in South Africa.

He said that much of the confusion could be blamed on the mistaken understanding of the exact nature of the function performed by the JSC when it appoints judges and the failure to appreciate the political ‘cover’ provided for judges by the JSC. ‘Some critics of the JSC appear to believe that any political influence on its work represents a fundamental attack on the independence and impartiality of the judiciary. On the other hand, some members of the JSC seem to labour under the misconception that any criticism of the JSC is illegitimate and that no court should ever be allowed to review its actions. The truth lies somewhere between these two extremes,’ he said.

Prof de Vos said that society had to accept that judges in a constitutional democracy made decisions with potentially enormous political consequences and that the values, beliefs and political views of judges play some role in how they will decide some of the more difficult and contentious cases.

‘The South African system of appointing judges recognises that there is a need to avoid the appointment of judges who would destroy the legitimacy of the judiciary by blatantly making decisions purely based on their party political commitments, while also accepting the reality that the personal judicial philosophy of a judge may well influence the individual judge’s interpretation and application of the Constitution,’ he said. He added that this was why the JSC consists of both lawyers and judges and politicians and why the interviews with candidates for appointment are conducted in public.

Prof de Vos believes that the involvement of politicians in the JSC appointment process was potentially a good thing, adding that not only did it help in the appointment of judges whose values were not completely anathema to the vast majority of voters, it also protected judges to the extent that politicians cannot say that they were selected by a process in which politicians had no say.

‘If judges make decisions that politicians do not like, well, politicians are partly to blame for the appointment of those judges. The involvement of politicians in the appointment of judges will not stop attacks on it, but it does provide some cover for judges who can point out that politicians had a large say in their appointment,’ he said.

On the issue of ss 174(1) and 174(2) of the Constitution, Prof de Vos said: ‘Section 174(1) of the Constitution states that any appropriately qualified person can be appointed as a judge. Section 174(2) states that the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed. Often in debates about the appointment of judges these two provisions are set up as opposites that are in fundamental conflict with one another: Either you appoint good judges, people of merit who are appropriately qualified, or you appoint black or female judges. I think this reasoning is rather insulting and also damaging to the judiciary. It displays a lack of understanding of the benefits of diversity on the Bench.’

According to Prof de Vos, even some supporters of racial and gender transformation of the judiciary at times make the mistake of contrasting merit with transformation. He said Chief Justice Mogoeng Mogoeng had stated that although the ‘merit’ of applicants did count when considering appointments to the Bench, the considerations of ‘transformation is just as important’. Prof de Vos added that this juxtaposition of ‘merit’ with the need for ‘transformation’ in the judiciary was highly problematic.

Prof de Vos said that the problem with the JSC’s approach to judicial appointments was that it has embraced a narrow and constitutionally problematic idea of what both transformation and merit mean. ‘By stating that there is a tension between the need to appoint judges on merit and the need to appoint more black and female judges (as part of the need to transform the judiciary), the JSC is saying that black and female appointees often do not possess the same ‘merit’ as white candidates. This is highly problematic as it perpetuates the deeply entrenched white male-centric notion that upper middle-class white men are almost always superior in ‘merit’ to black and female candidates,’ he said.

Prof de Vos concluded by saying that there was an urgent need for the JSC to revisit its conceptions of merit and transformation to avoid the unjustified stereotyping of black and female candidates as generally possessing inferior merit.

Mr Ntsebeza opened by stressing the point that what he was about to say were his views and not those of the JSC. He said that as lawyers we tend to say that the JSC must be changed.

Mr Ntsebeza pointed out that two future Chief Justices sat on the ANC Constitutional Committee that drafted the Constitution before 1994 – Arthur Chaskalson and Pius Langa. ‘It was with them in attendance that it was deliberately intended to include a disproportionate number of non-lawyers on the JSC,’ he said. He pointed out that the historical context must be considered when calling for change in the composition of the JSC.

Mr Ntsebeza said that one can understand why those who decided that race and gender must be pivotal in the determination of who should be considered by the JSC for recommendation for judicial appointment did so back in 1994, as in 1994 there were only two female judges and both were white. In that same year, he said, there were three black judges, one Indian, one African and one coloured.

Mr Ntsebeza said that it was the Constitution that decided that out of all the criteria that define equality, that only two should be the imperatives for the appointment of judges, race and gender. However, Mr Ntsebeza noted that if you are black it did not necessarily mean that you were progressive.

Mr Ntsebeza concluded: ‘It is not easy for us to sit and determine whether the appointment of judges or the functioning of the JSC is operating in a meaningful way. The JSC is doing the best it can with imperfect tools to achieve a perfect outcome.’

Professor Corder started his presentation by reminding delegates that the judiciary was part of government. He said that he believed that it was quite legitimate and proper that parliament and the cabinet should play a constitutional review role in the judiciary because this is one of the most effective means of holding the judiciary accountable.

Prof Corder said that the present judiciary is much better than pre-1994 and that there is a clear need for demographic change on the Bench, but that there is also a need for transformation. He reminded delegates that someone who, in the apartheid regime, was regarded as white can be progressive and someone who was regarded as black, can be deeply conservative and anti-transformation.

‘I do not think that we need to tinker with the composition of the JSC. I think that, despite a few mistakes, the JSC did quite well from 1994 to 2009. I do think that the JSC has lost the plot a bit since 2009. The courts think so too as they have found the JSC wanting on a number of occasions since 2009,’ he said.

Prof Corder noted that the process for appointing acting judges must be reviewed. He said that acting judges have been part of our history since 1910 and that acing judgeships can be incredibly important, productive and constructive in both giving people an opportunity to see what it is like to be a judge and how tough it is being a judge. ‘We have unfortunately had a number of cases since 1994 where judges who have been appointed have not been up to the task, have not been able to cope with being a judge and have taken long periods of sick leave. Being an acting judge gives you the opportunity to see what it is like – it is an awesome responsibility that one bears as a judge. It also gives fellow judges an opportunity to see how collegial, productive, hardworking and committed to transformation a particular acting judge is,’ he said.

Prof Corder outlined how acting judges are appointed. He said that the judge president of a division selects someone for recommendation to the justice minister who appoints the person for a month or a term. He added that the judiciary has now been experiencing the phenomenon of ‘serial reappointment’ of acting judges for quite a long time. ‘It takes them out of their practices so they have nothing to go back to and then you sit with someone who has been an acting judge for a year or more. If they do not get appointed, do they just continue being an acting judge without having gone through the processes of the JSC? One of the points we have to think about here is not doing away with acting judgeship but a more accountable, responsible way with the key values of our Constitution in appointing acting judges,’ he concluded.

Mr Smuts said that there was nothing unconstitutional about executive participation in judicial appointment. He said that the first certification judgment (Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC)) makes that clear as it records that the constitutional principles did not create any obligation for the constitutional assembly even to establish the JSC, but it is the assessment of the role of the JSC that the judgment makes the most important observation. Mr Smuts says that, in para 124 of the judgment, the Constitutional Court observes of the JSC that, as an institution, it provides a broadly based selection panel for the appointment to the judiciary and provides a check and balance of the power of the executive to make such appointments. ‘If that is the role of the JSC, we can legitimately find out whether the JSC is playing that role or whether the check-and-balance function of the judiciary is fair,’ he said.

Mr Smuts said that the JSC was established in terms of the Constitution, which is part of a project to create a new and just society founded on the values of human dignity and the achievement of equality. He added that the government structure was designed to achieve these ends and that the design requires that the judiciary be impartial.

However, he asked: ‘How has the government gone about ensuring that we establish a judiciary that will ensure the development and protection of the constitutional values of society?’

Mr Husain said that the process for appointing judicial officers was critical to the independence and legitimacy of the Bench. He outlined the composition of the JSC saying that he believed that there was too much representation by members of parliament. Mr Husain also looked at the appointment process of judges in other countries. He unpacked the vexing question of the proper interpretation ss 174(1) and 174(2) of the Constitution. For more information on his presentation see 2013 (Dec) DR 3.

AFF report: Claims decrease

CP Fourie, Chairperson of the Attorneys’ Fidelity Fund (AFF), gave an overview of the position of the AFF. Speaking on claims, Mr Fourie said that the AFF had received 508 claims totalling an amount of about R 125 million from January to mid-October 2013. He said that in the same period in 2012 and 2011 the AFF received 856 claims totalling R 258 million and 972 claims totalling R 205 million respectively.

Mr Fourie said that conveyancing claims remained one of the AFF’s biggest risk areas with estates second and bridging finance third.

‘Claims paid during 2013 are expected to end in the vicinity of R 100 million as opposed to R 105 million last year. The board has projected claims in the sum of R 38 million as not being valid claims and claims to the amount of R 366 million are still being investigated, he said.

He said that the AFF protects the public against the misappropriation of trust monies and added that fortunately the percentage of errant attorneys was still well under 1%, which was not a bad statistic but that, on the other hand, any attorney who stole was one too many. Mr Fourie, however, said that the trend over the years was that the amounts stolen were increasing.

Mr Fourie said that as of 30 September 2013 a total of R 150 million had been withdrawn from the AFF’s reserves to fund operational issues or expenses. He added that R 94,7 million was used for professional indemnity cover and the payment of claims. ‘The fund is budgeting for an operational deficit of R 250 million in 2014. While the 2014 total income is expected to remain static at 2013 levels, the overall expenditure is expected to increase with more than inflation. The AFF will need to withdraw at least R 250 million from its investment portfolios in 2014 to meet operating requirements,’ he said.

Mr Fourie said that as far as the Legal Practice Bill was concerned there seemed to be a new risk element for the AFF that may be brought about by a third category of practitioners in the making, namely advocates with Fidelity Fund certificates who would be able to take direct instructions from the public.

He added that no one, at that stage, had any idea of what the proposed structure of the profession would cost and whether it would be sustainable going forward once the Bill was passed.

Nomfundo Manyathi-Jele,

This article was first published in De Rebus in 2014 (Jan/Feb) DR 11.