By Kim Hawkey

Chief Justice Mogoeng Mogoeng gave the opening address at the AGM, in which he called on the attorneys’ and advocates’ professions to work together in order to expedite the Legal Practice Bill (LPB) and transformation of the legal profession. In addition, some of the other topics he spoke on included his concerns in respect of the state of the legal profession, about attorneys playing a more active role in the courts and the duty to facilitate transformation through briefing patterns.

Chief Justice Mogoeng highlighted the importance of the Law Society of South Africa (LSSA) and the role of attorneys in society, without whom parastatals, government departments and the courts would not be able to function, he said.

However, he added, he did have some concerns about the state of the legal profession, especially in terms of the rate of transformation.

‘The last time I checked, which was some time ago, so pardon me if I am mistaken, the unity and formal restructuring that is so important to the proper functioning of the attorneys’ profession had not yet been achieved, particularly in some of your constituent structures.’

To illustrate this, the Chief Justice used the example of the shared oversight responsibilities of the Law Society of Bophuthatswana and the Law Society of the Northern Provinces in the North West, which resulted in one professional body representing predominantly black practitioners and another representing a predominantly white constituency in the same area.

‘Seventeen years into democracy is too long a period for this state of affairs to still be lingering on,’ he said.

The Legal Practice Bill, which seeks to transform the legal profession, ‘has been hanging over our heads for too long’, the Chief Justice added. He urged attorneys and advocates to put aside their differences to ensure that there was progress on the Bill, which has been in the pipeline for more than a decade. He said that the judiciary had decided not to get ‘entangled’ in the issues that caused division, so as not to be seen as ‘taking sides’, and also because it was confident that the two professions were capable of resolving their differences.

‘As I understand it, the critical challenges can only be resolved by the organised professions themselves. If this is correct, then I believe that the collective leadership of the LSSA and the General Council of the Bar (GCB) are possessed of sufficient wisdom to resolve the sticky issues,’ he said.

His advice to both professions was: ‘Focus on and allow yourselves to be driven by what would be in the best interests of the nation, rather than what may be more beneficial to either of the two professions. … Prioritise what is of mutual interest and benefit, what would allow both professional bodies to be more effective, and put aside what divides you for future attention.’

Another issue that the Chief Justice believed was important to raise – one that he described as ‘sensitive’ – was briefing patterns.

‘The transformation of the South African judiciary is our collective responsibility as lawyers, as judicial officers and as a nation. We know that the practices of women and black male lawyers were severely undermined by the economic imbalances brought into being by the apartheid system. The Judicial Service Commission and the President are enjoined by the Constitution to ensure that the judiciary reflects broadly the racial and gender composition of South Africa when judicial appointments are made. This means that if we do not see it as our responsibility too to ensure that, when we brief advocates, women and black people also receive a significant and fair share of the cake and build capacity in that way. The appointing authorities could, in due course, be left with no choice but not to appoint, or appoint whoever is available, in order to comply with the above constitutional imperatives. You and I know what that would do to the confidence that the public ought to have in the judiciary. To avoid that undesirable and yet potentially unavoidable eventuality, please let us change our briefing patterns to some degree.’

The Chief Justice said that at least 90% of the counsel that appeared before the Constitutional Court were white, with ‘an occasional appearance of a white female junior counsel’ joining them. ‘Disturbingly’, he said, those briefing them included some government departments and parastatals.

He called on attorneys to advise their clients to consider ‘roping in black juniors and women in cases where a white senior counsel is appointed, so they can learn from their more experienced colleagues in preparation for the future of our country. … I will not keep quiet about this matter, even if I were to attract the severest of criticisms, until there is a meaningful change in the way our parastatals and big business give work to attorneys and in the briefing patterns in general,’ he said.

Chief Justice Mogoeng also said that he believed that the court system would benefit from engagement with key role players in the justice system, including attorneys.

‘Some concerns have been raised in some provinces that the attorneys’ and advocates’ professions do not always make themselves available and I plead with you, to those coming from areas where this does not happen, to please seriously consider availing yourselves so that the critical contribution that you are able to make is made so that our courts can begin to function as well as they ought to.’

For example, he said that it was important that the attorneys’ profession assist in identifying potential judicial officers.

‘We implore you … to make it your business to identify experienced lawyers whose integrity is beyond reproach, with judicial potential who could be brought into the aspirant judicial officers programmes.’

In addition, he said that a need had been identified to establish a forum to find solutions to case flow management and other problems that had the potential to compromise the court system, which would include the Chief Justice, the National Director of Public Prosecutions, the ministers and directors-general of various government departments, the South African Police Service, Legal Aid South Africa, the LSSA, the GCB and other stakeholders as participants. He asked attorneys to be ready to make a contribution to these discussions when the engagement between role players began.

In his address, the Chief Justice also spoke about the Civil Justice Reform Project and the resolutions of the Access to Justice Conference that took place in July 2011, which he said should be implemented jointly by the judiciary and the Justice Ministry.

‘One of the reasons why courts have not been functioning as well as they ought to is that both the judiciary and the ministry and the department have been operating in silos. … There is a need for the judiciary and the ministry to collaborate on projects that are designed to improve the proper functioning of the courts,’ he said.

Chief Justice Mogoeng also touched on case management, the establishment of the Office of the Chief Justice and the role of traditional courts. In respect of the latter, he said that there was a need to establish such courts, in addition to community courts and small claims courts, in order to make courts accessible to ‘the poorest of the poor’.

He said that there had been some criticism of traditional courts, but he ‘fully embraced’ the move to establish these courts.

‘There can never be any suggestion that any court established anywhere should function in total disregard of the constitutional imperatives,’ he said.

In conclusion, the Chief Justice urged the profession to hold the judiciary accountable.

‘Please keep on cautioning us when you believe that we are falling short of required standards. Our failure is your failure and our success is your success. Monitor the implementation of the programmes we said that we are going to implement and see if we only sought to impress you, we only sought to silence the public, or whether we are committed to what we have undertaken to do. I do not believe in making empty promises or in wonderful plans and strategies that are on paper and never ever benefit the system of those who are supposed to benefit from them. I only make promises which I believe are in our power to implement and it is for this reason that I plead with you to keep an eye on us and see if we are “loud mouths” with no actions to match or whether we are serious in the instituting of our constitutional mandate as we promised we are.’

Kim Hawkey, kim.hawkey@derebus.org.za

This article was first published in De Rebus in 2012 (May) DR 12.