By Nomfundo Manyathi-Jele

The Law Society of the Northern Provinces’ annual general meeting took place on 9 November 2013 at Sun City. Speakers on that day included the Judge President of the North and South Gauteng High Courts, Judge Dunstan Mlambo who delivered the opening address, and the Deputy Minister of the Justice Department, John Jeffery.

Judge Mlambo spoke on the pursuit of meaningful social justice. He said that the adoption of the 1996 Constitution created a society where everyone was equally protected by the law and to improve the quality of life of all citizens. He added that it was the intention of the Constitution to transform society by healing the divisions of the past and to establish a society that was based on democratic values, social justice and fundamental rights for the future.

South Africa’s socio-economic situation

Judge Mlambo said: ‘In 1998 President Mbeki [as he then was] famously described South Africa as a “two–nation” society: As “one of these nations being white, relatively prosperous, regardless of gender or geographical dispersal. The second and larger nation being black and poor, with the worst affected being women in the rural population in general, and the disabled”. These two nations were distinguished by unequal access to infrastructure of all kinds and unequal access to opportunities. While this may have been true at that time, the racial makeup of [South Africa] is no longer the distinguishing feature of the two-nations concept, that feature has become disadvantage and poverty.’

It is thus clear that, while political freedom has been achieved, the historical legacy of apartheid in the realm of equality of opportunity and comparable living standards still presents a challenge.

Democracy and social justice

Judge Mlambo said that the situation South Africa finds itself in as a nation presents a threat to the hard-won democracy that was paid for in the pursuit of social justice.

‘Protecting our democracy by combatting inequality is the task of social justice lawyers. The term “social justice” is a heavily loaded concept. I believe that social justice is the process of remedying oppression, which includes exploitation, marginalisation, powerlessness, cultural imperialism and violence … . Social justice also includes public interest work in its many forms,’ he said.

According to Judge Mlambo social justice lawyers seek to give material meaning to democratic ideals in the daily lives of individuals and communities that are marginalised, subordinated and under-represented. He added that while lawyers are not the complete solution, they remain a key ingredient needed to work with communities struggling to seek a dignified way of life.

Judge Mlambo said that the Constitution has been described and acknowledged in diverse academic publications as being one of the best in the world, yet he thinks that ‘we as lawyers have not done enough to make the Constitution a living reality in the lives of the poor’.

Making the pursuit of social justice relevant

Judge Mlambo said that while there is a lot that can be said of our legal profession, not all of it was good. He said that South African commercial law firms are recognised as among the best in the world. ‘This has been demonstrated by the manner in which the number of overseas commercial law firms have either merged or formed partnerships with their South African counterparts,’ he said.

‘Law students are enrolling in ever increasing numbers to acquire the necessary knowledge and proficiency in commercial matters to the detriment of courses dealing with human rights issues, constitutional law, and laws affecting the rights of women, children and the disabled,’ he added.

Judge Mlambo said that commercial law courses rarely intersect with the everyday world of the poor and the homeless. He said that to reverse this trend one of the intellectual challenges for law schools should be students’ re-assessing their vision of what social justice means to them now and what it will mean to them later as attorneys.

Judge Mlambo stated that it may not be possible for law schools to recapture the passion for challenging injustice and the experience of participating in a struggle for social change that animated legal services and civil rights lawyers in the fight against the apartheid system. He said that law schools should encourage students to pursue a programme of social justice by first creating an atmosphere of compassion where diversity is appreciated and differences between people are recognised and celebrated. Judge Mlambo added that the debate on the curriculum of the undergraduate LLB degree should make it mandatory for students to learn about social justice and community service.

The challenges in litigating socio-economic rights

Judge Mlambo then highlighted the challenges faced in socio-economic litigation. He said that there were gaps in the delivery of civil legal assistance to the indigent and the poor so that they could approach the courts. He said that these challenges included –

• A lack of knowledge about rights.
• The problem of polycentricity. He said that socio-economic cases were considered to be polycentric because of the conception that they have budgetary consequences. For example, a case involving a person’s right to housing would not only impact on that person and the state but also on the interests of other citizens. ‘The interests of other citizens would raise questions such as whether the money should be used to build a crèche, hospital or school,’ he said.
• Limited access to justice.
• Reactionary litigation. Judge Mlambo said that the term ‘rearticulation’ refered to the process and practice of redefining political interest and identities through a process of recombining familiar ideas and values into hitherto unrecognised ways. He added that right wing groups and legal organisations now use the law to block social change and transformation effectively along many fronts. ‘Through this process and practice, the political right has rearticulated public interest law and it now resides in a domain that is hostile to the interests of social justice,’ he said.

The Judge President concluded by saying that the legal profession should not withdraw into a laager where only members of the public who can afford to pay fees will be assisted. ‘We cannot leave it all to the government that is already carrying a huge social security bill to assist the poor. Legal Aid South Africa is straining to meet the demand and on its own it cannot provide the solution. I challenge you as a collective to also consider the role you can play in meaningfully advancing the social justice agenda of our country and in helping engagements such as these bear fruit that will improve the justice and fairness of citizens’ lives … . By undertaking public interest litigation and the pursuit of social justice, the legal profession will take its rightful place in society as the custodians of justice and peace. Encouraging people to have their disputes heard in an open forum will foster a healthy respect for the rule of law and install confidence in the judiciary. These are essential for any fully functioning democracy,’ he said.

Imminent change for the profession

Deputy Minister Jeffery said that the legal profession was facing imminent change with the passing of the Legal Practice Bill in the National Assem­bly in November 2013.

Mr Jeffery said that some may be asking why the legal profession needed to change. ‘Why do we need a new law regulating the profession?  What is wrong that needs to be fixed, you may ask?’.

He replied: ‘[T]he first issue is that of racial and gender transformation. Has the profession really changed over the past two decades? How can it be that 19 years into our democracy our legal profession is still not transformed so as to broadly reflect the diversity and demographics of our country? Nineteen years into our democracy, only nine out of South Africa’s 473 senior counsel are black women. Moreover, only four of these are African. This is less than 1% of the total. White women are also not adequately represented, with only 20 practising as senior counsel in South Africa.’

Transformation in the legal profession

Deputy Minister Jeffery said that the lack of transformation was not only evident in the composition of law firms and in the advocates’ profession, but also in briefing patterns. He queried why there was resistance to change, adding that whatever the underlying reasons for the resistance to change, it was clear that the legal profession had not changed much over the past two decades.

Mr Jeffery said the profile of South African law firms painted a rather disheartening picture. ‘For example, if one looks at some of the firms who constitute the so-called ‘big five’ there is cause for concern about the lack of representivity, especially on the level of directors or partners. My office found that in one of the ‘big five’ firms there are 123 partners, of whom 93 are white and only 30 are black. Of the 30 black practitioners, only 17 are African,’ he said.

Mr Jeffery said that one of the ‘big five’ firms mentions that it is an equal opportunity employer committed to employment equity at all levels. The firm states that some 42% of their legal staff and 60% of their business services staff are persons of colour. But as a professional partnership, the firm is owned by its equity partners, with only 17,5% being owned by previously disadvantaged individuals. The Deputy Minister said that this raised the question: How, in 2013, can a firm with over 150 partners, have only 17,5% black equity?

‘Why is it possible for our smaller law firms to have more majority black ownership, but not our big firms? Why is it that other professions, for example chartered accountants, can have firms like Sizwe Ntsaluba Gobodo (SNG)? SNG is the largest black-owned and black-managed accounting firm and the fifth largest accounting firm in South Africa. It has 55 partners and is nearly completely black owned and black managed,’ he said.

Mr Jeffery noted that another interesting fact one notices when examining some of the firms is a tendency that black people, in general, and Africans in particular, are predominantly to be found at associate level. ‘And what power or influence do associates really have? And how long does it take the average associate to become a senior associate and then a partner?’ he asks.

Statistics

Mr Jeffery then referred to a survey on the demographic composition of corporate law firms by Plus 94 Research (see 2013 (July) DR 10). He said that the profiles of the country’s law firms of being overwhelmingly white and male are in stark contrast to the racial and gender profiles of law students. To this point he said: ‘In 2011 the majority of LLB graduates were African (1 784), 355 were coloured, 404 were Indian and 1 268 white. Also the majority of the graduates were female, with 1 954 females as opposed to 1 622 males.

However, what is more startling is the fact that, despite the majority of LLB graduates being African, it is still the white graduates who are getting articles. The Law Society of South Africa’s figures show that the Law Society of the Northern Provinces (LSNP) has just over 12 000 practising attorneys. Of those the overwhelming majority of 8 207 are white, with 3 165 African. The LSNP registered 1 104 articles of clerkship in 2012, but of these 587 candidate attorneys were white, as opposed to 412 African, 89 Indian and 16 coloured.’

The Deputy Minister asked how committed the profession really was when it came to transformation and what could be done to improve the situation. He said that meaningful transformation must entail more than a simple numbers game, adding that it was about mentorship and the meaningful transfer of skills by exposing graduates to a range of different types of cases and areas of law, so that they can develop expertise in a chosen area.

Mr Jeffrey looked at a few of the initiatives undertaken by some firms that were aimed at advancing black and female professionals. He looked at a particular law firm, saying that it –

• ensures that at least 60% of their annual candidate attorney intake comprises previously disadvantaged persons;
• engages in a number of guidance and advisory arrangements with fledgling law firms owned by previously disadvantaged individuals;
• participates in the Integrated Bar Project, a programme designed to expose previously disadvantaged law students to major commercial law firms;
• seconds previously disadvantaged attorneys to international law firms in Australia, the United Kingdom and the United States of America and runs an English language bridging course to assist attorneys whose first language is not English;
• offers bursaries to previously disadvantaged law students studying at South African universities; and
• invites law students from South African universities to take up internship positions in the firm.

Deputy Minister Jeffery said that another area of concern was that of the cost of litigation. ‘[R]ecent increases in tariffs have been inflation linked, but there were substantial, higher-than-inflation increases in tariffs in the past. By way of international comparison, it is interesting to note recent developments in Germany. In July this year, German lawmakers passed new laws pertaining to court and legal fees. The Act on Modernisation of Cost Rules (Kostenrechtsmodernisierungsgesetz) amends both the German statutory provisions on lawyers’ fees (Rechtsanwaltsvergütungs­gesetz) and on court fees (Gerichtskostengesetz). It consists of both increases of the fee tariffs and structural changes to cost rules. On average, the value-based legal fees have been increased in the order of 12%. It is interesting to note that in discussions on the new tariff increases, it is explained that ‘these increases may sound exorbitant’, but the tariffs had remained unchanged for almost a decade and some fees had not been amended for even longer,’ he said.

Mr Jeffery said that in Germany an increase of 12% is considered to be exorbitant. He added that, in Germany, lawyers’ fees, court fees and additional costs are extremely transparent. Statutory scales exist for lawyers’ fees and court fees. Negotiated hourly rates usually range between € 210 and € 300, according to the complexity of the case.

Mr Jeffery concluded by saying: ‘Attorneys and advocates are officers of the court. They regard themselves as honourable people who are part of a noble profession. But why is it that the public perception of lawyers is not the same and that all the jokes about lawyers is of them being money grabbing and dishonest people? Ultimately it’s about delivering quality services to the public and the protection of the public; something we also aim to address in the new Bill,’ he said.

Lawyers should protect democracy

The dinner on the night of the AGM was in honour of retired Judge President of the North and South Gauteng High Court, Bernard Ngoepe who had also recently been appointed as South Africa’s first tax ombudsman.

In the speech that he delivered, Judge Ngoepe spoke on protecting democracy in South Africa, noting that in a constitutional dispensation like ours, the duty to protect democracy falls even more heavily on the lawyers.

Judge Ngoepe said that the one constitutional institution that needs to be defended by attorneys is the Judicial Service Commission (JSC). He said that this was a body directly relevant to the legal profession and before which some of those present were going to appear.

Judge Ngoepe said that there have been some unjustified attacks on the JSC; its only sin having been not to recommend certain individuals, notably senior counsel (SC), for judicial appointment. ‘After my appointment as Judge President, I deliberately went out of my way to appoint attorneys as acting judges; among them the two current deputy judges president of this division. Yes, I could have continued with the practice of consistently appointing SCs only. But I knew then, as I still know today, that you did not have to be an SC to make for a good judge. In fact, I knew more than that: Throughout my career, both as an attorney and especially as an advocate, and also in my period as judge president and a member of the JSC, I came to realise that not every successful and competent SC would necessarily make for a good judge. The truth of this has been proved many times. I also came to realise that SCs who were not so highly rated, turned out to be very good judges,’ he said.

Judge Ngoepe said that the JSC will occasionally make weak appointments as the members are merely human. He emphasised the fact that nobody’s appearance before the JSC should be a mere formality and that no candidate should be assured of an appointment. Judge Ngoepe said that that kind of attitude discloses a fundamental lack of understanding as to what is required of a judge. ‘Nobody should litigate their way to the Bench, not even by proxy. It is an office of honour; you do not fight for it. There is another reason why one should not litigate one’s way to the Bench: Judges cannot appoint judges; they are too poorly qualified, if at all, to make a good judicial appointment,’ he said.

Judge Ngoepe warned that judges should not try to influence the outcomes of the JSC through their judgments. ‘Should they do that, some of us will openly criticise them. Some of us were there when the 1993 interim Constitution was drafted. One of the priorities was to wrestle the power to appoint judges from the executive; this was done,’ he said.

According to Judge Ngoepe ‘the power was not to be given to parliament or to the judiciary. It was to be given to an independent and representative body of no less than twenty something people; representative of the diversity of our nation’.

‘The executive, parliament or the judiciary, may not usurp this power. There may be a point in saying that the JSC is dominated by politicians; if that is the problem, we should direct our effort towards changing that, instead of making it our pastime to criticise the JSC whenever our own perceived champions are not appointed, or whenever we begin to panic and want to halt the process of representivity,’ he said.

Judge Ngoepe concluded his speech by saying that he was amazed that nearly 20 years down the line, it was only now that society began not to know or understand what the criteria was for the appointment of a judge, or how the criteria was applied. ‘Really? Were these criteria not known and applied during the period of Chief Justices Corbett, Mahomed, Chaskalson and all those who followed? Why is it that, suddenly, they are not known or are vague, or it is not clear how they are being applied?’ He added that society should criticise the JSC when it felt it was necessary, but that it must do so for the right reasons and with the right motive. ‘Care must be taken not to delegitimise constitutional institutions by attacking them for wrong reasons and with nefarious ulterior motives. Well-meaning lawyers would have to speak out and it is encouraging that some have done so and will hopefully continue to do so,’ he said.

Nomfundo Manyathi-Jele, nomfundo@derebus.org.za

This article was first published in De Rebus in 2014 (Jan/Feb) DR 16.