Youth should be activists of transformation and ask about the Legal Sector Codes

August 1st, 2022

National Association of Democratic Lawyers (NADEL) Johannesburg Branch Executive Member, Ntombomzi Ngada; keynote speaker, Christine Qunta; NADEL University of South Africa Student Chapter Chairperson, Busi Zwane; guest speaker, candidate legal practitioner, Masai Buthane; and Chairperson of NADEL University of Johannesburg Student Chapter, Torez Gengiah, at the youth conference hosted by the organisation’s student chapter.

The National Association of Democratic Lawyers (NADEL) Gauteng Student Chapter held a youth conference, under the theme ‘Transformation of the Legal Profession’ on 25 June 2022 in Johannesburg. In his welcoming and opening address, the Deputy President of NADEL, Machini Motloung said NADEL in Gauteng should be commended for initiating a dialogue on the topic of ‘transformation’. He added that in 2015 the NADEL Gauteng branch had a dialogue on gender transformation in the legal profession. He said that it had been seven years since the dialogue took place, and the organisation has had to pause and zoom in on what has happened since that dialogue. He pointed out that NADEL should engage stakeholders and have meaningful input on transformation of the legal profession.

Keynote speaker, legal practitioner Christine Qunta, spoke at the National Association of Democratic Lawyers Gauteng Student Chapter youth event that was held in Johannesburg on 25 June 2022.

Keynote speaker, Christine Qunta, said that the legal profession in South Africa (SA) is essentially a colonial construct. She added that it is a mirror image of that of former colonisers Britain and Holland. Ms Qunta pointed out that SA’s law system is Roman-Dutch, with company law modelled on English law. ‘The structure of the legal profession for example, senior and junior counsel and the colonial era black cloaks for judges and advocates mirroring that of the British. This is not unique to the legal profession but reflects the nature of our transition from colonialism to a democracy after 1994,’ Ms Qunta said.

Ms Qunta added that the transition was not as a result of a victory over the liberation forces and, therefore, is not a clear and decisive rupture with the past and the ushering in of a new country, structurally, culturally and economically. ‘What this means is that at least for the next two generations the burden of giving meaningful content to what the Constitution promises and what the reality is will rest on yourselves and your children,’ Ms Qunta added.

Ms Qunta said that one of the key moments in transforming the legal profession was the formation of the Black Lawyers Association (BLA) in 1977. A group of black lawyers had first come together in 1976 to fight the Group Areas Act 41 of 1950. She added that while black lawyers technically became members of law societies on admission, the attorneys felt that the white-run law societies did not address the problems they experienced and due to oppression, they decided to fight for themselves and formed the BLA. Godfrey Pitje was elected its first president.

Ms Qunta said that the National Association of Democratic Lawyers was formed in 1987 and elected Dumisa Ntsebeza as its first president and eminent legal practitioners and activists such as Pius Langa, Dullah Omar and Mathole Motshekga were the founding members. She pointed out that the key impetus for the formation of NADEL was the mass democratic movement of the 1980s, with the main aims of assisting political activists who needed legal advice and representation and to assist in preparing for a new democratic order.

Ms Qunta added that both the BLA and NADEL were instrumental in advancing changes to the legal system in the early years of 1994. ‘Dullah Omar was the first Minister of Justice and championed significant changes in consultation with NADEL and the BLA. These include removing Afrikaans and Latin as compulsory languages, instituting a single LLB degree as a requirement for admission for all law students regardless of race or institution they were studying at and setting up the Judicial Services Commission. I was part of the BLA and recall these discussions and the satisfaction of removing discriminatory practices,’ Ms Qunta said. She added that previously black law graduates did a BIur, which was regarded as not being the same quality as an LLB, while white law graduates were offered a four-year LLB qualification.

Ms Qunta spoke about the transformation of the Legal Practice Act 28 of 2014 (LPA) and the Legal Practice Council (LPC). She pointed that the LPC amended the LPA to provide that one examination be written by all candidate legal practitioners so that once they wrote such examination, they could choose whether to go to the Bar or the side Bar. She said that this would also make it easier for them to later move between the two branches of the legal profession. She further told the youth of NADEL that the LPC resolved in May 2019 to facilitate the development of a draft Broad-Based Black Economic Empowerment (B-BBEE) Legal Sector Code of Good Practice (the Legal Sector Code).

Ms Qunta pointed out that a process to develop the Legal Sector Code was embarked on and a Legal Sector Code Steering Committee, comprising of major stakeholders in the legal profession was established to drive the process. She added that the Legal Sector Code will serve as the B-BBEE measurement framework for the procurement of legal work by the public sector (government departments and all its arms including public entities), as well as the private sector. Ms Qunta said the two key provisions in the Legal Sector Code worth highlighting are firstly, the establishment of a Legal Sector Transformation Fund (the Fund) for the purpose of receiving and administering contributions made by law firms and advocates. She added that the Fund was aimed at providing financial assistance and support to black legal practitioners, especially black women including financial grants to start up law firms and financial support for black junior advocates.

Ms Qunta said the second aim is setting significant targets for the procurement of legal services from black legal practitioners by both the state and private sector. She pointed out that the current levels of procurement by both the state and the private sector are skewed and unfairly disadvantage black practitioners. She said that once the Legal Sector Code is gazetted, these targets will assist in ensuring black firms and advocates build sustainable practices. She added that key targets are set for law firms given the various categories within firms unlike the ‘Generic Codes’, which are not specific and attuned to the peculiarities of the legal profession.

However, Ms Qunta told the youth that, even though the draft was submitted to the Department of Trade, Industry and Competition (DTIC) in August 2021, to date the Minister of the DTIC has not published it for comment and has not given an explanation for the delay. She said that the Minister of Justice and Correctional Service, Ronald Lamola, is in support of the Legal Sector Code and has publicly stated so. Ms Qunta told attendees that they can become activists of transformation and approach legal practitioners for help regarding the Legal Sector Code, and for those legal practitioners to ask the DTIC why it is sitting on the Legal Sector Code. She pointed out that the DTIC by not communicated with the legal profession is effectively holding back on transformation.

National Association of Democratic Lawyers Secretary General, Nolitha Jali; keynote speaker, Christine Qunta; guest speaker candidate legal practitioner and Legal Practice Council members, Masai Buthane; legal practitioner, Kameshni Pillay SC; and member of the Legal Practice Council, Priyesh Daya.

Legal practitioner and member of the LPC, Priyesh Daya, said that legal practitioners need to be the foot soldiers of transformation. He added that all is not lost, and that transformation is imperative and should happen. Mr Daya touched on the legal framework, he told the students that the reason why there is an LPC, is to have a single statutory body for both advocates and attorneys. He said that things had to change drastically and encouraged students to look at the LPA, and to understand what the Act is about, and more importantly to look at the preamble of the LPA. He said it was important that the legal profession represent the demographics of the country.

Mr Daya added that the LPA seeks to ensure access to justice to all South Africans and that the value of the Constitution is embraced and upheld. He said most importantly the LPA seeks to remove any unnecessary barriers to the entry in the legal profession, which happened in the past. He pointed out that s 4 of the LPA states that the LPC is an established body corporate with full legal capacity, and exercises jurisdiction over all legal practitioners and candidate legal practitioners. Mr Daya noted that s 5 of the LPA looks at the object of the LPC to ­–

  • facilitate the realisation of the goal of a transformed and restructured legal profession that is accountable, efficient and independent;
  • promote and protect the public interest; and
  • regulate all legal practitioners and promote access to the legal profession in pursuit of a legal profession that broadly reflects the demographics of SA.

Mr Daya touched on s 7 of the LPA noting that it aims to drive transformation.

Legal practitioner and member of the LPC, Kameshni Pillay, discussed some of the shortcomings in the legal profession. She said the focus is often on what the LPA envisages, however, what is not being focused on is the fact that the LPA aims to increase access to justice. She pointed out that when one completes their law studies and enters the legal profession, they also enter that space with the obligation to rollout access to justice, because whatever legal practitioners do its meaningless unless they serve with purpose, which is a critical part of transformation. She pointed out that legal practitioners should look at the broader society and once they choose that path, they should be aware that with that choice comes responsibility.

Ms Pillay added that rolling out quality access to justice means being the best legal practitioner. She said that should give one a sense of what they need to do to transform. She told the students that they do not have to wait until they have entered the legal profession to do their best but should start by being the best students and by learning as much as they can, so that when they get to the legal profession, they will be able to start playing the role of a transformative agent. She pointed out that they should not wait for the legal profession to transform, as the legal profession is in a space where there are forces working beyond its control. She encouraged the students to acknowledge that they will enter a highly professional environment, and that even if it is hard, they must not exit the legal profession, but rather work hard, be the best and flourish in that space.

Candidate legal practitioner, Masai Buthane, said that s 3 of the LPA aims to ‘provide a legislative framework for the transformation and restructuring of the legal profession that embraces the values underpinning the Constitution and ensure that the rule of law is upheld’. He then turned to s 26, stating that one of the requirements to qualify to be admitted and enrolled as a legal practitioner, requires passing a ‘competency-based examination or assessment for candidate legal practitioners as may be determined in the rules’. He pointed out that in the LPC there is about 16 legal practitioners and two teachers of law. He added that NADEL is represented at the LPC and, therefore, its policies can be affected in the LPC.

Mr Buthane said that there are three stages to entering the legal profession, namely student, candidate legal practitioner and finally becoming a practicing legal practitioner. He spoke of challenges at university level, he pointed out the biggest challenge is the current curriculum being taught. He said that there is a lack of African thought being taught, such as those of philosopher Julius Nyerere. He said this becomes problematic, as students are taught ‘colonial thoughts.’

Mr Buthane spoke about the previously disadvantaged universities, such as the Walter Sisulu University. He said that such universities are not given proper resources to produce quality legal practitioners, however, universities, such as the University of Pretoria (UP) have all the necessary resources. He noted another concern for candidate legal practitioners, is that if one is not employed at one of the larger law firms, one is not paid properly. He pointed out that R 5 000, which some candidate legal practitioners receive, is not enough in this economy. Mr Buthane said this should be categorised as exploitation.

National Association of Democratic Lawyers Chairperson of the University of South Africa Student Chapter, Busi Zwane at the student chapter event held in Johannesburg.

Mr Bathune said another challenge is the fact that Board Examinations are offered in Afrikaans, noting the absence of other languages, such as isiZulu, isiXhosa and others. Mr Buthane encouraged the youth to have active branches in all provinces. During the interaction with the speakers, students noted among other challenges the view that big law firms preferred candidate legal practitioners who are from universities such as UP, and not the University of South Africa (Unisa). However, Mr Daya assured them that at Webber Wentzel they do not discriminate and students from the previously disadvantaged universities are welcome. Other students said that even if they wanted to speak out about the challenges they face, they fear that they would lose their jobs and will not be able to support their families.

The Chairperson of the NADEL Student Chapter at Unisa, Busi Zwane, told the gathering that the student chapter of NADEL should meet and discuss the issue of the Legal Sector Code with the DTIC.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.