By Mapula Sedutla and Kgomotso Ramotsho
The Law Society of South Africa (LSSA) held a two-day conference in March. The conference, held in Pretoria, discussed topical issues the legal profession is currently grappling with.
Keynote address
National Director of Public Prosecution, Shamila Batohi, delivered the keynote address at the annual conference of the Law Society of South Africa.
National Director of Public Prosecutions, Shamila Batohi, said that she felt honoured to be given the opportunity to lead the National Prosecuting Authority (NPA) and plans to serve the people of South Africa (SA) with humility. She added that the people of SA should feel safe and secure, with a government worthy of trust and a commercial sector operating within the rule of law. ‘These aspirations … undergird our Constitution, as well as the government’s strategic vision in its National Development Plan. They place a really important responsibility on the Justice, Crime Prevention and Security Cluster particular on the NPA,’ Ms Batohi said.
Ms Batohi added that in the constitutional framework of the country, prosecutors play a central role in the machinery of criminal justice, and in maintaining a civic culture of integrity and respect for the rule of law. She said the culture of integrity has been strained to the breaking point, and the rule of law has been tarnished, almost beyond recognition. She added that revelations continue almost daily about the ‘state capture’ and endemic corruption implicating both those in government and business. ‘I have been especially shocked and deeply saddened by the allegations of corruption against persons tasked with prosecuting South Africans, and protecting our public institutions, including the NPA,’ Ms Batohi added.
Ms Batohi said in the 2011 case of Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC) the Constitutional Court pointed out that ‘corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, [and] the rule of law… . When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk’.
Ms Batohi pointed out that corruption has been seen as a victimless crime for far too long. She added that if corruption flourishes unchecked, there can be no economic growth and the social contract fractures. She said if carefully analysed, in the end all South Africans suffer, in some way or another, especially the poor who rely on state services such as health care, education, and security. She noted that the challenges the country face are immense, but it is in meeting these challenges that SA fashions itself as a nation.
Ms Batohi said she knows that everyone is hungry for justice. ‘I share South African’s sense of urgency. However, given the challenges and demands, my colleagues and I will need to prioritise. We commit to moving quickly on a number of priority interventions in the coming months,’ Ms Batohi said. She added that, fixing the rule of law in SA is a long-term endeavour, which needs to be built on a platform of trust, which she hopes to instil through actions rather than words.
National Director of Public Prosecution, Shamila Batohi, with the outgoing Co-Chairpersons of the LSSA, Mvuso Notyesi (left) and Ettienne Barnard (right).
Co-chairpersons report
The outgoing Co-chairperson of the LSSA, Ettienne Barnard delivered the Co-chairpersons report. The report highlighted work done by the LSSA across the legal landscape in 2018, including inputs the LSSA has made to government and other areas. Mr Barnard said the constitution of the LSSA was amended in October 2018. He added that the new constitution has a new governance model to reflect the new dispensation. He noted that the LSSA council will now be referred to as the House of Constituents and the Management Committee will be known as the Executive Committee of the LSSA, which has a one-third composition consisting of the Black Lawyers Association (BLA); the National Association of Democratic Lawyers (NADEL); and independent legal practitioners who do not belong to the BLA or NADEL.
Mr Barnard said nominated members from the three constituents will come from all nine provinces, which means that the House of Constituents will have more than one representative from each province. He added that the LSSA is on a three-year trajectory to transition to a member-based organisation and pointed out that previously the LSSA was included into the structure of the regulator. Mr Barnard spoke about s 35 of the Legal Practice Act 28 of 2014, which had a built-in mechanism for tariffs and legal cost. He noted that research was done regarding s 35. He said that the LSSA appealed to government to suspend certain parts of s 35, which was not ready in its current form.
Outgoing Co-chairperson of the Law Society of South Africa, Ettienne Barnard delivered the Co-chairpersons report at the conference.
Mr Barnard said the Minister of Justice and Correctional Services, Michael Masutha, listened to the input made by the LSSA, and certain parts of s 35 have been suspended and will be reviewed by the Legal Practice Council (LPC), whereafter it will make recommendations on the interim procedure before the South African Law Reform Commission (SALRC), which will submit a report to the Minister of Justice.
Mr Barnard also highlighted successful litigation that the LSSA was involved in. He pointed out that the LSSA was successful in the Constitutional Court with regards to the SADC Tribunal (see Law Society of South Africa and Others v President of the Republic of South Africa and Others (Southern Africa Litigation Centre and Another Amici Curiae) 2019 (3) BCLR 329 (CC)). This was after former President Jacob Zuma’s participation in the decision-making process and his own decision to suspend the operations of the Southern African Development Community Tribunal, to be unconstitutional. The Gauteng Division of the High Court in Pretoria, ruled in favour of the LSSA and declared that the former president’s participation and suspension of the SADC Tribunal and subsequently signing of the 2014 Protocol was unlawful, irrational and unconstitutional (see ‘LSSA welcomes SADC Tribunal judgment as a victory for all South Africans’ 2018 (April) DR 12 and www.LSSA.org.za).
The LSSA was also successful in the Proxi Smart matter (see Proxi Smart Services (Pty) Ltd v Law Society of South Africa and Others 2018 (5) SA 644 (GP)). The Gauteng Division of the High Court in Pretoria held that the applicant had not made out a case for the relief it sought and dismissed the application with costs. However, Mr Barnard said there was an appeal pending, but was confident that the correct judgment would prevail (see ‘Proxi Smart loses conveyancing battle against the LSSA’ 2018 (June) DR 3).
Among other highlights mentioned by Mr Barnard was the V BRICS Legal Forum Conference hosted by the LSSA in Cape Town. Mr Barnard also announced that the School of Legal Education and Development (LEAD) had been approved by the LPC to provide practical vocational training for candidate legal practitioners, for both attorneys and advocates, from July onwards.
Advocate Mawande Mazibuko, legal practitioner Asif Essa and outgoing Co-chairperson of the Law Society of South Africa, Ettienne Barnard, discussed s 35 of the Legal Practice Act.
Getting to grips with the new dispensation
An interactive session on s 35 of the LPA was held at the AGM. The session was facilitated by Executive Committee member of the LSSA, Nkosana Mvundlela and the panel consisted of legal practitioner Asif Essa, Mr Barnard and advocate Mawande Mazibuko.
Mr Barnard said although government had not shown a desire to address the issues in s 35, it was up to the legal profession to be serious about the matter. He pointed out that if and when s 35 fully comes into effect, it will look at how clients will get an estimate of costs from the start to the end of the matter upfront. He said that s 35(7), states that a client is entitled to a written cost estimate and s 35(8) says the legal practitioner must explain the reason of the cost estimate to the client. He pointed out that the LPA states that a cost estimate should be done at the first meeting or soon after the meeting.
Mr Barnard said legal practitioners will have to explain financial implications to their clients, which includes fee charges, investigation and other costs, as well as the hourly rate the legal practitioner charges. However, Mr Barnard pointed out that legal practitioners will then have to explain to the client that they may negotiate the hourly fee rate. He added that legal practitioners will have to divide litigation into various stages and outline the work that will be done in those stages. A breakdown of each stage will have to be given to the client and an explanation will have to be given on how other legal practitioners – who might be engaged in the client’s matter – charge different fees and rates from those of a legal practitioner who is taking instructions straight from the client.
Ms Mazibuko said when one looks at the fee estimation, the legal practitioner who quotes at a higher rate might be forced to reduce their fee, because everyone will be ‘scrambling over a piece of cake’. She added that this might cause problems and impact on productivity. She pointed out that there will come a point where some legal practitioners will have to reduce staff or just close shop. ‘If we try … to develop practitioners who are going to stay and continue to do excellent work, the imposition of a fee estimation might impact on a number of practitioners that stay and a number of practitioners that provide good competitive work,’ Ms Mazibuko said.
Mr Essa said when one looks at the health services in the country, government does not go to private doctors and ask them to reduce their fees. He said what government is asking for is that every legal practitioner reduce their fees based on access to justice. He suggested that instead of reducing the budget for the justice centres, those budgets should be increased and instead of allowing justice centres and legal aid centres to only deal with criminal work, their practice areas should be extended to include civil work, as well.
Mr Essa said the purpose of s 3 of the LPA, is to broaden access to justice. To concentrate on a mechanism to determine the fees charged by legal practitioners for rendering legal services to the citizens of SA. He added that if one looks further, the SALRC must take the following into consideration, namely the best international practice, public interest and the interest of the legal profession.
Mr Essa said the problem with the investigation conducted by the SALRC on legal fees was that the Minister of Justice has an advising committee, which has no representation of legal practitioners – who are important stakeholders. He pointed out that another problem is that fee estimate notice only applies to attorneys and advocates with a trust account, and added that Mr Essa said advocates are not regulated when it comes to fees.
A comment was made from the floor that legal practitioners must respond when asked for comments by the SALRC with regard to s 35 as it is an important issue for the profession. The legal practitioner who commented requested that the LSSA, and the LPC notify and communicate with the legal profession, so that legal practitioners can reply and give reasonable responses before the deadline.
Executive Director at UHAI Africa Group, Brian Kagoro presented a paper on ‘The Intrinsic and Instrumental Value and Role of a Bar Association in Africa’.
Another legal practitioner said it would be an almost impossible task to take clients through a cost estimate. He added that he tried the exercise and it was challenging to have to draft such a lengthy document.
The role of Bar Associations
Executive Director at UHAI Africa Group, Brian Kagoro, presented a paper on ‘The Intrinsic and Instrumental Value and Role of a Bar Association in Africa’. Mr Kagoro noted that Bar Associations in Africa have the role of gate keeper, security guard, preserver of tradition and represent the profession. He cautioned the legal fraternity to learn from the mistakes made in Zimbabwe in terms of the governance of the country. For the full presentation see: www.lssa.org.za.
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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