Symptoms of a state in gradual collapse discussed at NADEL conference – Day 1

May 22nd, 2019

By Mapula Sedutla and Kgomotso Ramotsho

On the first day of the National Association of Democratic Lawyers’ (NADEL) policy conference and annual general meeting, Judge President of the Gauteng Division of the High Court in Pretoria, Dunstan Mlambo, delivered the welcoming speech. Commenting on the theme, Judge President Mlambo noted that the theme was a topical issue in the country and wished NADEL well in tackling the subject of corruption at the conference. He added: ‘It is an important subject, daily we hear shocking stories about allegations of how public funds are being misused or being misappropriated. … We have heard all these stories for some time now, South Africans want to see action against corruption.’

Judge President of the Gauteng Division of the High Court in Pretoria, Dunstan Mlambo, delivered the welcoming speech. Commenting on the theme, Judge President Mlambo noted that the theme was a topical issue in the country.

Speaking about the AGM, Judge President Mlambo said that he hoped that at the end of the AGM, NADEL would have adopted implementable resolutions. ‘You should be present in mind to understand where we are as a country and what you should do as an association in the legal profession. The profession should deal with corruption, which has not gone unnoticed by the man in the street,’ he added.

Judge President Mlambo said another issue that he hopes the legal profession will confront is the malfeasants in the courts. He added: ‘There is internal malfeasants at the courts that is orchestrated and encouraged by members of the profession. This has to do with the loss of files and court documents. Someone has said that in Pretoria if you want a file you must pay “airtime” to the court staff. Why should legal practitioners pay someone to do a job that he or she is paid to do? … Because, you have made them get accustomed to getting “airtime” to look for those files.’

Speaking about the Road Accident Fund (RAF), Judge President Mlambo noted that legal practitioners have been on the RAF gravy train for far too long. He added: ‘It is a gravy train in the truest of sense for lawyers, other experts and medical professionals. There are usually about 120 matters on the roll daily of any given court and a 100 of them are RAF matters, of that 100, do not be surprised if 88 or even all 100 end up in draft orders. And what does the draft order say? “The RAF has considered merits, we have agreed to settle quantum.” Lawyers claim for a million and the RAF agrees to settle for that amount because the claimant has claimed for brain damage, when the judge goes into the file they find out there was no brain damage, there was an abrasion of the ankle. When you look at the costs that must be paid, the lawyers, the brain specialists, etcetera. Why are we surprised the RAF is bankrupt? You are members of an honorable profession, bring that honor back to the profession. You are an association of legal professionals, it is always a good start to take stock of what is going wrong.’

Messages of support

During the conference messages of support were conveyed by the following:

  • Ambassador of Venezuela, Mairin Moreno-Merida;
  • Ambassador of Cuba, Rodolfo Benitez Verson;
  • President of the Black Lawyers Association, Lutendo Sigogo;
  • Chairperson of the Legal Practice Council, Kathleen Matolo-Dlepu;
  • Pan African Lawyers Union representative, Gigi Reid-Miles; and
  • on behalf of the Co-chairpersons of the Law Society of South Africa, Mfana Gwala.

Reasons for judgment orders

Guest speaker, advocate Dali Mpofu SC spoke on the topic: ‘Whether judgments or orders must now include leave to appeal in the Constitutional Court and Supreme Court of Appeal, where leave to appeal is refused – a duty to give reasons.’ Opening his address, Mr Mpofu noted: ‘I am a big believer that the current practice where the Supreme Court of Appeals and the Constitutional Court do not have an obligation to give reasons particularly in applications for leave to appeal is something that is wrong, abhorrent, unconstitutional, should be abolished and does not stand constitutional scrutiny.’

Mr Mpofu said that South Africa’s Constitution has been described as bringing a culture of justification. He added: ‘It is self-evident when power of any sort is being exercised in respect of a citizen, at the least that citizen must be entitled to a reason. Particularly if that reason has been exercised adversely against the said citizen. We take this for granted when it comes to administrative power, for example, no one would tell you that you are not entitled to reasons from a licensing body that refuses you a license, that is because it is logically self-evident that you are entitled to those reasons even for such a small thing. How much more can it be more important for you to be given reasons if a decision, which might be life changing or life threatening is being made against you by a court of law of final instance or any instance for that matter. I do not think anyone can debate the fact that you should be given reasons.’

Guest speaker, advocate Dali Mpofu SC said that South Africa’s Constitution has been described as bringing a culture of justification.

Referring to the Constitution, Mr Mpofu noted that s 33(2) of the Constitution guarantees the right to be given reasons in respect of administrative decisions. ‘The question that one must ask is: What is the difference between administrative decision and a judicial one? At least from the point of view of us lawyers we might have all sorts of niceties about how we distinguish those things. But as citizens what is the real difference between an administrative decision in respect of which the rights to be given reasons is guaranteed in the Bill of Rights and the judicial decision, which we all know might have a thousand times more impact.’

Mr Mpofu noted that many legal practitioners have received ‘that punchy one liner that stabs you in the heart, that simply says: Application refused.’ He added: ‘If you are lucky it could say application is refused because there are no prospects of success. Or it could state: Application is refused because it is not in the interest of justice. Another one is: Application is refused because it is not in the interest of justice in this particular case, under these circumstances or at this stage. Again, you are still in the dark but at least you know it is not at this stage. All the justifications that have been given for this practice do not stand logical scrutiny. You might be entitled to be given reasons if the case is a constitutional one. Other justifications for not furnishing reasons are about administrative workload, of which are understandable, but my thesis is that they are not sufficient to justify a complete denial of reason or not even giving a right to ask for those reasons. … The appeal justification is with respect nonsensical if the only reason you have to receive reasons for you to be able to execute your right to appeal. Then the Constitutional Court should never give reasons because the Constitutional Court is a court of last instance. Why then does it give reasons in other instances?’

The president’s report

President of NADEL, Mvuzo Notyesi, in his report said his organisation insists that there must be a single formula for the qualification of persons who are interested in pursuing a career in the legal profession. He pointed out that NADEL is against any form of gatekeeping and a single training formula for all legal practitioners is an appropriate solution. ‘Transformation always brings about changes and new experiences,’ Mr Notyesi said. He added that the barriers created by separate training formulas are not consistent with the ideal for a single profession for which NADEL stands.

President of the National Association of Democratic Lawyers (NADEL), Mvuzo Notyesi, said there must be a review of the conveyancing examination. He was speaking at the NADEL Annual General Meeting held in Johannesburg.

Mr Notyesi pointed out that there is a need to review the relevance of conveyancing training. He said the failing rate of legal practitioners in the conveyancing examination cannot remain at 95% as it has over the past 30 years. ‘It would seem that, there is a deliberate intention to keep this area to a select few, in particular, white males. We need to review the relevance of the conveyancing examination and decide whether it should not be scrapped and replaced with a form of training assessment that will improve access,’ Mr Notyesi added.

Mr Notyesi touched on appointments of judges noting the Judicial Services Commission (JSC) is a body established in accordance with the Constitution and is responsible for the appointment of judges. Through an internal arrangement with the BLA, NADEL is entitled to a two and a half year of the five-year period of participation. ‘We have been represented and our representation is due to be replaced by the BLA representatives for the next period of two-and-a-half-year period. Our participation in the JSC affirms the commitment to ensuring the acceleration of judicial transformation,’ Mr Notyesi said. He added that NADEL understands that the legitimacy of the judiciary shall always be influenced by its acceptance from the people it serves, and the outlook of the Bench is the starting point.

Mr Notyesi said the judicial philosophy and life orientation of those that ascend to the Bench is fundamental. He added that transformation is not a ‘replacement of colours’ in the Bench but a commitment and understanding of values and aspirations set out by the Constitution. ‘We are proud as NADEL to report that [the] JSC has acquitted itself to the mandate of the Constitution and it is a well-balanced structure with divergent views,’ Mr Notyesi added. He pointed out that NADEL is pleased with the interviews at the JSC, which are conducted in a robust and fair manner. ‘We remain in support of the activities and the decisions taken by the JSC. We are still convinced that the JSC is still properly constituted and there is no need for any constitutional amendments in relation to its structure,’ he said.

Deputy Minister of Justice and Constitutional Development, John Jeffery, said the country still faces challenges of poverty, high inequality and unemployment.

Bridging the gap between the rich and the poor

Deputy Minister of Justice and Constitutional Development, John Jeffery, said the country still faces challenges of poverty, high inequality and unemployment. He added that the quality of life that millions of poor South Africans experience, is the direct result of the long history of colonialism and Apartheid. He pointed out that despite progress made by government, poverty remains an issue. He noted that SA is one of the most unequal societies in the world.

Mr Jeffery pointed out that extreme poverty can be the cause of human rights violations, for example the poor are forced to work in environments that are unsafe and unhealthy. He said that the law and jurisprudence of the country’s courts have been used as drivers in narrowing the gap between the rich and the poor. He also highlighted the role the Constitutional Court has had in bridging jurisprudence on social and economic rights and in shaping constitutional values, human dignity, freedom and equality.

Poverty, inequalities and corruption

President of the Supreme Court of Appeal, Justice Mandisa Maya, said gender equality remains a hurdle for transformation in the legal profession and in the judiciary. She asked what had happened to the many bright women who had gone to law school and successfully completed their articles of clerkship, once they enrolled they suddenly disappear? She said that the challenges women face in the legal profession, includes lack of meaningful work, support from litigants, professional bodies to which they belong and the government. She added that women in the judiciary still face challenges even when they are successfully employed to the Bench.

Justice Maya said the country faces a series of seriously man made challenges of human rights and constitutional issues, which include, among others, poverty, unemployment, access to basic services, high crime rates, violence against women and children and other vulnerable groups. She pointed out that on international Human Rights Day, the world acknowledges that human emancipation is a critical goal in the persuit of freedom and equality for all.

President of the Supreme Court of Appeal, Justice Mandisa Maya, said the country faces a series of seriously man made challenges of human rights and constitutional issues.

Justice Maya said SA has achieved many important milestones since 1994. However, she pointed out that it is difficult not to get emotional when thinking about those moments. She said one can ask why there is so much wrong in the country if there are policies, practices, decisions and actions in place to ensure that the social ills, which threaten constitutional values, are eliminated or refused. She added that SA is the only country that suffers from these social ills and it should not lose sight of these challenges as they are because of Apartheid and the oppressive past.

Justice Maya said corruption poses the biggest threat to the constitutional democracy and the rule of law. She added that every legal practitioner and the judiciary have the duty to provide strong critical exemplary, incorruptible and dedicated leadership to protect and promote constitutional order and ensure the culture of transformation that will restore the core moral values – such as respect, services, responsibility, putting others first and accountability.

Vision of the NPA

National Director of Public Prosecutions, Shamila Batohi, spoke about the vision of the National Prosecuting Authority at the National Association of Democratic Lawyers Annual General Meeting held in Johannesburg.

The National Director of Public Prosecutions (NDPP), Shamila Batohi, said during her interview for the NDPP, she understood the gravity of the challenges of the position, and the nature of threats the country faces. However, she admitted that she did not realise the full enormity of it all. She added that SA deserves a prosecution service with the capacity and skills to deliver proper service, and that the National Prosecuting Authority (NPA) must play a leading role to help address the serious challenges facing the country. She said this will require hard work, innovation, perseverance and dedication to the mandate of the NPA. She pointed out that the NPA has committed and skilled professionals, and together they will build an institution in which being a member of the NPA is a matter of pride and professional achievement. ‘Competent staff will be rewarded, and poor performers helped. But persons unwilling to work as professionals with integrity will not have a future in the NPA,’ Ms Batohi said. She added that the NPA needs to be an organisation staffed by people with courage and the capacity to meet the challenges the country faces.

Ms Batohi added that issues of integrity within the NPA must be addressed. ‘The public has lost confidence in the NPA and the prosecutors cannot be legal practitioners for the people while this perception of problems persist. We are working with the Minister of Justice to establish an accountability mechanism whereby members of the public can report any complaint, including allegations of improper conduct by members of the NPA, to a Complaints Directorate, which reports directly to the NDPP,’ Ms Batohi said. ‘The next chapter of the NPA’s history, which will in many ways contribute to defining the trajectory of SA, requires a new vision, new energy, and new leadership, which will lead with courage and integrity and humility,’ Ms Batohi added.

Advocate Nokukhanya Jele and Stellenbosch University Professor in the Faculty of Law, Thuli Madonsela, discussed the topic of a better South Africa at the Annual General Meeting.

A better SA will only be realised once inequalities cease to exist

Advocate Nokukhanya Jele said a better SA will only be realised if inequality ceases to exist. She added that the first step to reduce inequality is to have more legal practitioners, who are taught how their work will affect the most vulnerable and poor. She pointed out that increasing the number of legal practitioners, is increasing soldiers to enable society to access the rights set out in the Constitution. She said this requires access to the profession itself and doing away with the system that limits access to justice.

Ms Jele noted that what will determine whether legal practitioners are equipped to fulfil the responsibility of being the ‘voice’ for the voiceless, is how they are trained, once they make the decision to join the legal profession. She added that there is a role to play for organisations, such as NADEL, in securing sufficient community work, and an obligation for legal practitioners, in the drafting of the rules that govern the legal profession. She pointed out that legal practitioners need to unpack and give their input on s 29 of the Legal Practice Act 28 of 2014.

Stellenbosch University Professor in the Faculty of Law, Thuli Madonsela, added that a better SA cannot be realised when the country is blind to inequality and poverty. She said her focus as a professor of law, is combating poverty and structural inequality by using the Sustainable Development Plan and National Development Goals opportunity to mobilise academic and civil society inputs, including business resource to design and review policies to improve the likely impact on social justice.

Prof Madonsela said structural and systemic inequality is a threat to democracy. She pointed out that if there is injustice somewhere, there cannot be sustainable peace and that is why people gather at the United Nations to try and deal with poverty and inequality. She added that social injustice is the core of many of the problem’s society faces. ‘Inequality sabotages democracy, the rule of law and it is the core of toxic relationships in society,’ Prof Madonsela said.

‘What I learned as the Public Protector, is that if we are going to have an accountable state, we need to deal with social injustice, because corruption is one of the factors against social justice. It undermines equality,’ Prof Madonsela added. She said another interesting thing she learnt as Public Protector is that when issues of social injustice are not addressed, the victims of corruption, and those at the receiving end of social injustice are going to defend the corrupt.

Answering the question on whether there can be a better society, Prof Madonsela said that society is getting better, and that today is better than yesterday. She pointed out that SA has a Constitution that recognises the humanity of every person, a Constitution that defines the vision that society must become, a Constitution that defines the structure of the state and places an accountability mechanism that can make sure that the citizens hold the state and everyone accountable should they be wronged.

Mapula Sedutla NDip Journ (DUT) BTech (Journ) (TUT) is the editor of De Rebus and Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

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