Law Society cautions against uninformed criticism of courts

The Law Society of South Africa (LSSA) in its commitment to the rule of law cautions against uninformed criticisms of our courts, commissions and tribunals held under the authority of judges. This comes after the LSSA has noticed public outcry following the recent Supreme Court of Appeal (SCA) judgment on the ‘Coligny sunflower case’.

Pieter Doorewaard and Phillip Schutte were acquitted on 27 November 2020 when their appeal was upheld in the SCA. The pair had been convicted of the murder of Mathlomola Jonas Mosweu in April 2017 in the North West Division of the High Court, Mahikeng. It was an emotive case that resulted in public violence and was referred to as the ‘sunflower murder’ due to the ill-fated and tragic death of the young boy caught stealing sunflowers, as a country we still mourn and are coming to terms with this.

Some politicians are urging the National Prosecuting Authority (NPA) to appeal the acquittal to the Constitutional Court. Many members of the public are disappointed and angered by the decision of the SCA with some questioning the motive of the three judges who presided over the appeal.

‘Judges do not make decisions on appeal to suit the polemics of the day. They make their decisions on the law and the facts presented to them. This is done via the jurisprudence developed by our courts over many years,’ says LSSA President, Mvuzo Notyesi, adding that ‘when any litigant, like the NPA in this appeal, feels the decision of a court is wrong, such litigant has a right to appeal. The NPA will assess the SCA judgment and decide whether to appeal to the Constitutional Court.’

It is also clear from some comments by members of the public that the appeal process is not readily understood. Judges who deal with appeals do not hear evidence. The evidence is presented at the trial court. The trial court judge determines what evidence is admissible and what is not. Ultimately the trial court judge will make findings on the evidence presented. The appeal court must deal with the evidence contained in the records of appeal and consider the application of law based on those facts.

The trial court judge is bound by the law. As in this case, when the state prosecutor presented evidence of a single witness, the common law requires judges to assess that evidence very carefully.

Often on the application of the law, reasonable disagreements arise between lawyers. Some may recall the SCA disagreed with the trial court judge’s determination on dolus eventualis (legal intent) in the Oscar Pistorius trial and upheld the appeal by the NPA against the ‘lenient sentence’ and increased his jail term to 13-years.

In this case, all three judges of the SCA disagreed with the trial court judge’s assessment of the state’s single witness. One of the judges opined that the state should have sought a conviction on culpable homicide analogous to motor vehicle accidents. Culpable homicide is always a competent verdict on an indictment (charge) of murder. The NPA will assess the SCA judgment with a view to a further and final appeal. The NPA will make its assessment without fear, favour or prejudice as it is bound to do in terms of our law.

‘We support the independence of judges and the rule of law, but as clearly illustrated in this matter, judges are not infallible, but we have mechanisms which allow us to seek redress. As with any legal matter adjudicated by our courts, people are entitled to have differing views. However, attacks on the court’s integrity are unwarranted and we condemn the use of such opportunistic attacks for political gain. We urge everyone, including the public to make use of the correct mechanisms and not take the route of uninformed public criticism of the court process,’ Mr Notyesi concludes.

Click here to read the judgement.

 

ISSUED ON BEHALF OF THE PRESIDENT OF THE LAW SOCIETY OF SOUTH AFRICA, MVUZO NOTYESI   

LSSA Communications:

Nomfundo Jele nomfundom@LSSA.org.za  Tel: (012) 366 8800 or 072 402 6344

Law Society shocked at death of outgoing Auditor-General, Kimi Makwetu

 

The Law Society of South Africa (LSSA) adds its voice on the great loss of the passing of outgoing Auditor-General, Kimi Makwetu on 11 November at the age of 54 after a battle with lung cancer.

‘Mr Makwetu was an exceptional and true civil servant who took his role as South Africa’s auditor-general seriously and filled it with professionalism. He always pursued with the best interest of the country at heart. He served with dignity and embodied the values of integrity, selflessness, humility and hard work,’ says LSSA President, Mvuzo Notyesi.

Mr Makwetu was born in Cape Town and completed a Social Sciences degree at the University of Cape Town in 1989. He received a Bcompt Honours degree from the University of Natal and was a qualified chartered accountant.

Mr Makwetu started his career with Standard Bank and later worked at Nampak. He completed his articles at Deloitte, at worked his way up to senior management, before joining Liberty and Metropolitan Life in Cape Town. He moved to Gauteng in 2003 where he worked at Liberty Life. Mr Makwetu returned to Deloitte as a director in the forensic unit before his appointment as Deputy Auditor-General at the Auditor-General of South Africa (AGSA) in 2007.

On 1 December 2013, former President, Jacob Zuma, appointed Mr Makwetu, as the new Auditor-General of South Africa for a period of seven years.

‘The country has lost one of its most respected and dedicated public servants. Mr Makwetu was the voice against maladministration and corruption. He was also a panel member for the selection of the National Director of Public Prosecutions. He demonstrated independence, fairness and a good understanding of the separation of powers,’ says Mr Notyesi.

We express our deepest condolences to his wife, Miranda, their children, family, friends, and colleagues and hope that they will find solace in the knowledge that the entire country is grieving with them. We wish them strength during this difficult period.

 

ISSUED ON BEHALF OF THE PRESIDENT OF THE LAW SOCIETY OF SOUTH AFRICA, MVUZO NOTYESI 

LSSA Communications:

Nomfundo Jele nomfundom@LSSA.org.za  Tel: (012) 366 8800 or 072 402 6344

 

Law Society horrified at murder of attorney, Gerrit Stander

The Law Society of South Africa (LSSA) is horrified at the reports of the murder of Mbombela attorney, Gerrit Stander. Mr Stander, 38, was shot and killed during a house robbery at his home in the early hours of Monday morning (19 October 2020).

Mr Stander was born in Mbombela. He did his schooling in Mbombela and went to study and consequently work in Cape Town. He then returned to Mbombela a few years ago and was an attorney at Swanepoel & Partners Inc. at the time of his death.

‘We call on the investigators to ensure that every possible avenue is investigated. Authorities must leave no stone unturned. They should not rest until these criminals are arrested and brought to book’, says LSSA President, Mvuzo Notyesi.

Dave Bennett, a Director at Swanepoel & Partners Inc and LSSA House of Constituent Member, described Mr Stander as a very professional attorney who conducted himself with dignity. Mr Bennet adds that he was a pleasure to work with.

Mr Notyesi adds: ‘As legal professionals we must unite to eliminate any criminal threat made against our profession. An injury to one, is an injury to all.’

The LSSA expresses its deepest condolences to his family, friends, and colleagues. May his soul rest in peace.

ISSUED ON BEHALF OF THE PRESIDENT OF THE LAW SOCIETY OF SOUTH AFRICA, MVUZO NOTYESI 

LSSA Communications:

Nomfundo Jele nomfundom@LSSA.org.za  Tel: (012) 366 8800 or 072 402 6344

Law Society saddened at death of former Co-chairperson, Silas Nkanunu

The Law Society of South Africa (LSSA) is saddened at the passing of Port Elizabeth attorney and former LSSA Co-chairperson, Silas Nkanunu, on 6 November 2020 at the age of 87.

Mr Nkanunu was admitted as an attorney in 1977 and practiced at Nkanunu and Loggerenberg. He served as LSSA Co-chairperson in 2001, 2002 and 2004.

‘Silas played a crucial and prominent role in the discussions between 1996 and 1998 which brought the Black Lawyers Association and the National Association of Democratic Lawyers (NADEL) together with the four provincial law societies to embark on the transformation of the profession. He was one of the signatories, on behalf of NADEL, of which he was president, to the LSSA’s constitution and was present at the launch of the LSSA in Parliament in March 1998,’ says LSSA President, Mvuzo Notyesi.

Mr Notyesi adds: ‘His commitment to transformation was also evidenced by his inclusion in the delegation representing the attorneys’ profession in the initial talks with the Justice Minister concerning the Legal Practice Act. Mr Nkanunu also represented the attorneys’ profession on the Judicial Service Commission. He was also one of the founding members of NADEL and is one of NADEL’s longest members.’

Members of the LSSA’s House of Constituents who had the honour of working closely with Mr Nkanunu described him as a committed activist, patriot and a leading light in the community, adding that he always had the best interests of the profession at heart and was a straight forward man of his word. They go on to describe him as a true giant of the profession, a great leader and friend. ‘…his direct, incisive and humorous contributions to our many debates will be fondly remembered,’ they added.

‘He was a wonderful human being with a kind heart and dedicated his life to the profession’, says Mr Notyesi.

Nicknamed as the ‘Mandela of South African rugby’, Mr Nkanunu was the first black president of the South African Rugby Union (SARU), a position he held from September 1998 to the end of 2003.

Mr Notyesi says: ‘The LSSA echoes the words of the current SARU President, Mark Alexander, that Silas was a ‘builder of bridges’. His commitment to transformation was also evidenced by his work as a human rights lawyer. He was also a leading member of the South African Council on Sport which was the non-racial sports body during Apartheid.’

As we acknowledge Mr Nkanunu’s contribution to the profession, we also acknowledge the immense loss to his colleagues, friends and mostly to his wife, Pinkie, his children, and his family. The LSSA expresses its deepest condolences. May his soul rest in peace.

 

ISSUED ON BEHALF OF THE PRESIDENT OF THE LAW SOCIETY OF SOUTH AFRICA, MVUZO NOTYESI 

LSSA Communications:

Nomfundo Jele nomfundom@LSSA.org.za  Tel: (012) 366 8800 or 072 402 6344

Get your basic will drafted for free by an attorney during National Wills Week: 26 to 30 October 2020

Many South Africans do not have wills. The corona virus emphasised why it is important to have an updated will. Many could unfortunately not get their wills done during this critical time due to lockdown restrictions.

With the easing of lockdown restrictions, it is essential to ensure that a legally sound will gets done. This will ensure that there are not competing claims on your estate when you pass away and your intention to your dependents is followed.

The Law Society of South Africa’s (LSSA) National Wills Week campaign presents the ideal opportunity to do so. Members of the public will be able to have a basic will drafted by an attorney free of charge during National Wills Week from 26 to 30 October 2020. Attorneys’ firms throughout the country are participating in the National Wills Week campaign. The contact details and addresses of all participating attorneys can be accessed at https://www.lssa.org.za/our-initiatives/advocacy/national-wills-week/ Once you have located a law firm closest to you, give them a call and set up an appointment directly with them.

‘If you are a parent, a breadwinner, a homeowner and generally want to ensure that your affairs are in order, it is important that you have a valid will drafted by an attorney. A valid will allows you to state your last wishes, who should inherit your assets and property, to appoint an executor of your choice for your estate and also a guardian for your minor children’, says LSSA President, Mvuzo Notyesi.

‘By ensuring that you have a valid will, you as the testator, can protect the interests of your loved ones and ensure that there is no delay in settling your estate after your death. It also ensures that your executor will act according to your wishes as set out in your will,’ adds Mr Notyesi.

During National Wills Week, attorneys participating in the initiative will display posters with their contact details so that members of the public can make appointments with attorneys in their area. In addition, the contact details and addresses of all participating attorneys can be accessed on the LSSA website at www.lssa.org.za.

 

 What you should provide to the attorney for your will to be drafted
• Your ID document.
• A list of what you own (including specific personal items that you wish to bequeath to specific people).

 

Before the consultation with your attorney, think about
• Who must get what?
• Who should be the legal guardians of your minor children (those under 18)?
• Who should be the executor of your will? This could be your attorney or a close family member or friend. If you decide on a family member or friend, it is advisable also to nominate the attorney as co-executor as the attorney will deal with any legal issues. The executor must be approved by the Master of the High Court.

 

 Why should an attorney draft your will?
A practising attorney has the necessary knowledge and expertise to ensure that your will is valid by complying with all the legal requirements in the Wills Act and also that it complies with your wishes. An attorney can also advise you on any problem which may arise with your will and assist your executor. Often a will is not valid because the person who drafts it does not have the necessary legal knowledge to ensure that all the legal requirements of the Wills Act are met. These include the fact that the will must be in writing, it must be signed by the testator in the presence of at least two competent witnesses and signed by the witnesses.

 

What could happen to your estate if you die without a valid will?
If you die without leaving a valid will, your assets will be distributed according to the provisions of the Intestate Succession Act. These provisions are generally fair and ensure that your possessions are transferred to your spouse and children, and where applicable, to siblings, parents, and if required, then to the extended family in terms of degrees of relationships and those that were dependent on you for financial support.

 

The following issues may arise if you die without leaving a will:
• Your assets may not be left to the person of your choice.
• It can take a longer time to have an executor appointed. The executor who is appointed may be somebody you may not have chosen yourself.
• There could be extra and unnecessary costs.
• There could be unhappiness and conflict among members of your family because there are no clear instructions on how to distribute your assets.

 

 Where to find an attorney to draft your will:
The contact details of attorneys participating in the National Wills Week project can be accessed on the LSSA website.

 

ISSUED ON BEHALF OF THE PRESIDENT OF THE LAW SOCIETY OF SOUTH AFRICA, MVUZO NOTYESI
LSSA Communications:
Nomfundo Jele nomfundom@lssa.org.za Tel: (012) 366 8800 or 072 402 6344

Law Society saddened at death of George Bizos

The Law Society of South Africa (LSSA) is saddened at the passing of struggle veteran and human rights lawyer, advocate George Bizos yesterday, 9 September 2020 at the age of 92.

Advocate Bizos died peacefully at home of natural causes, attended to by family.

‘Advocate Bizos who is best revered for his role in representing the Rivonia trialists, Nelson Mandela, Govan Mbeki and Walter Sisulu, was a humble valiant fighter, a moral compass and guiding light in our country. His wisdom and presence will be missed. He was also one of the authors of the South African Constitution’, says LSSA President, Mvuzo Notyesi.

Advocate Bizos was born in 1927 in Greece. He and his father arrived in South Africa in 1941 as World War II refugees.

Advocate Bizos also represented the families of the late former South African Communist Party leader Chris Hani and anti-Apartheid activist Steve Biko at the Truth and Reconciliation hearings in the 90s.

Mr Notyesi added: ‘Advocate Bizos’ activism and general contribution to the legal fraternity in South Africa is immeasurable. He was more than just a lawyer; he was a champion for human rights. His life was well lived. It was a life dedicated towards serving humanity. He did not live for himself, but lived for others, especially the oppressed. His fight for democracy and human rights will not be forgotten.’

Advocate Bizos was a gift to South Africa and the world. He was a man of courage, a man who stood for what was right, no matter what it cost him. His motivation was human rights. He was a brilliant legal mind and a brilliant human being. He is an exemplar of integrity.

We express our deepest condolences to his family, friends, and colleagues. May his soul rest in peace.

 

ISSUED ON BEHALF OF THE PRESIDENT OF THE LAW SOCIETY OF SOUTH AFRICA, MVUZO NOTYESI 

LSSA Communications:

Nomfundo Jele nomfundom@LSSA.org.za  Tel: (012) 366 8800 or 072 402 6344

Law Society welcomes Parliamentary decision on RABS Bill 

The Law Society of South Africa (LSSA) welcomes the decision by the Parliamentary Portfolio Committee on Transport not to proceed with the Road Accident Benefit Scheme (RABS) and to propose to rather amend the Road Accident Fund Act.

This has been a long and difficult road. From the outset, the LSSA vigorously opposed RABS on the basis that it is not in the interest of the public.

When the first version of the RABS Bill was introduced in 2014, the LSSA commented and raised major criticism. The 2017 Bill was introduced to Parliament in 2017 but repeated verbatim much of the previous Bill.

The LSSA also submitted extensive comment on the 2017 Bill and addressed Parliament on various occasions. It also provided recommendations to Parliament in the form of a hybrid Bill.

‘Among the many concerns that the LSSA expressed about the Bill was the abolishment of the common law rights of innocent road accident victims to recover the balance of damages suffered by them, while negligent motorists would have been entitled to exactly the same compensation for damages, irrespective that they were the direct cause of the accident. Further, they would have been absolved of any financial responsibility towards innocent victims. We believe that this offended the public more,’ says LSSA President Mvuzo Notyesi.

‘The LSSA also believes that the exclusion of compensation for pain and suffering for those who are catastrophically injured; as well as the denial of loss of income benefits to those younger than 18 or older than 60; and the limitation of family support benefits to a maximum of 15 years, would have the most impact on the poor and vulnerable members of society, especially when coupled with the denial of any other remedy for compensation, Mr Notyesi adds.

By rejecting the RABS Bill, the Portfolio Committee on Transport of the 6th Parliament, has addressed many of the concerns raised by members of the public and interest groups throughout the public participation process. The LSSA is delighted that the Bill will not be pursued.

 

ISSUED ON BEHALF OF THE PRESIDENT OF THE LAW SOCIETY OF SOUTH AFRICA, MVUZO NOTYESI 

LSSA Communications:

Nomfundo Jele nomfundom@LSSA.org.za  Tel: (012) 366 8800 or 072 402 6344

 

Law Society condemns treatment of lawyers in Zimbabwe

The Law Society of South Africa (LSSA) is deeply concerned about developments in Zimbabwe and it strongly condemns reports of human rights violations in that country.

It is very disturbing that lawyers, who are the people who are supposed to ensure that these rights are upheld, become victimised for representing clients seeking justice such as in situations of the basic right to freedom of expression. Lawyers should be able to practice without fear, favour or prejudice.

‘Lawyers should be given the freedom to represent their clients without the fear of intimation, arrest or being removed from the case. We also strongly support freedom of expression and believe that the arrest of journalists cuts off access to vital information, disrupts the free flow of information and hides human rights abuses from the public,’ says LSSA President Mvuzo Notyesi.

Mr Notyesi adds: ‘We stand with our colleagues in Zimbabwe who are defending the Zimbabwean people’s freedoms throughout the country where people may have been unlawfully arrested.’

The LSSA also calls on the South African government to step in and help restore order in Zimbabwe.

#ZimbabweanLivesMatter

 

ISSUED ON BEHALF OF THE PRESIDENT OF THE LAW SOCIETY OF SOUTH AFRICA, MVUZO NOTYESI 

LSSA Communications:

Nomfundo Jele nomfundom@LSSA.org.za  Tel: (012) 366 8800 or 072 402 6344

Law Society provides clarity on RAF matter

The Law Society of South Africa (LSSA) has noted with concern the press release by the Road Accident Fund (RAF) issued on 17 July 2020, which the LSSA regards as misleading and sensationalist. While the LSSA does not intend to deal with the merits of the cases between the RAF and its panel attorneys, which currently served before the courts, we believe it is important to provide clarity on the matter.

In the press release, the RAF alludes to the judgment of Judge Davis. What the RAF has neglected to say was that there was a later judgment by Judge Hughes. The matters were dealt with in two parts. The first part, which was heard in March 2020 before Judge Davis, was an interim application to amongst others interdict the RAF from implementing its directives to its panel attorneys to hand over their files, pending a decision on the second part of the case.

The second part, which was heard by Judge Hughes in May 2020 was an application to review and set aside the RAF’s instruction to its panel attorneys to hand over their files, as well as the RAF’s decision to cancel a tender for new panel attorneys. Judgment in the second part of the case was granted against the RAF in June 2020 by Judge Hughes who ordered that the status quo should remain for a period of six months. ‘This will enable the RAF to reconsider its position and retain the social responsibility net in place protecting the public,’ Judge Hughes said. She found that the way in which the RAF had changed its operating model was not done in a manner that was lawful and rational. The RAF applied for leave to appeal against the judgment by Judge Hughes, but this application was dismissed. The RAF is now seeking leave to appeal to the Supreme Court of Appeal.

It is disingenuous for the RAF to only refer to the judgment by Judge Davis (which was delivered in March 2020), without referring to the judgment by Judge Hughes. Judge Hughes’ judgement was final and examined the lawfulness of the decisions in detail. Judge Davis’ judgment was given at an interim stage of the proceedings, and only examined the lawfulness of the decisions at a prima facie level, and not at a time when all of the facts had been crystalized as was the position in the main review application. The question before Judge Davis was primarily whether the status quo should be preserved pending the review application which came before Judge Hughes. Judge Davis accordingly did not scrutinize the decisions at the same level of detail as Judge Hughes.

‘The LSSA has no issue with the RAF changing its operating model, as long as it is done rationally, lawfully and in the best interest of the public. However, and as was found by Judge Hughes, it has not done so in any manner which could be labelled rational or lawful, says LSSA President, Mvuzo Notyesi.

The LSSA takes umbrage at the RAF’s slanderous statement that “uncle lawyer wants to bill his R3.8 billion a year. In the 5 years of waiting uncle lawyer would have racked up close to R20 billion in legal fees only to settle the litigated case.” It is true that often matters are settled at the court’s doorstep, but to blame the attorneys for that is misleading. The RAF’s panel attorneys receive their  instructions directly from the RAF’s claims handlers and without an instruction (specifying the mandate of the attorney), a matter cannot proceed.

Mr Notyesi adds: ‘The LSSA agrees with the RAF that the right of the claimant should come first. It is exactly for this reason that the LSSA is concerned that the RAF’s insistence on the handover of files in an irrational fashion will cause the claimants, the courts, and the RAF to suffer through unnecessary postponements, clogging of the court rolls, and delays because the RAF is not adequately represented. The LSSA has from the outset predicted the chaos that we are now seeing. Many of the matters currently with the panel attorneys are already before court on trial. Furthermore, it has consistently been shown in the court proceedings that the RAF does not in fact need its physical files to settle cases direct with plaintiffs’ attorneys while these issues between it and its panel attorneys are being resolved, because panel attorneys are required to upload their files onto the RAF’s online filing system. In fact, settlements have been achieved directly with the RAF whilst their attorneys are still in possession of their files, and there is no reason why this should not continue to happen.’

ISSUED ON BEHALF OF THE PRESIDENT OF THE LAW SOCIETY OF SOUTH AFRICA, MVUZO NOTYESI

LSSA Communications: Nomfundo Jele nomfundom@LSSA.org.za Tel: (012) 366 8800 or 072 402 6344

Cape Bar v Minister of Justice & Others

On 10 June 2020 the Western Cape High Court and the Equality Court of South Africa handed down judgment in the matter between The Cape Bar versus Minister of Justice and Correctional Services and Others (the judgment), which concerns the constitutionality of Regulations and Rules published under the Legal Practice Act (the Act) aimed at regulating the elections and composition of the nine provincial councils of the Legal Practice Council (the LPC).

Given its significance, the Law Society of South Africa (LSSA) participated in proceedings as a friend of the court. Several significant observations emanated from the judgment, which the LSSA hopes will help stakeholders navigate their way towards a transformed and restructured profession, including:

  • The Rules and Regulations are aimed at creating equity within the provincial councils to enable such to regulate the profession.
  • The goals of diversity, inclusivity, and ongoing reconciliation are for the societal good and crucial elements of transformation.
  • Unfortunately, we are yet to reach a stage where we need not have to rely on legislation to ensure representivity, inclusivity and diversity on structures of governance.

In their concluding remark, the judges crucially reminded all that ‘the election of black women to the governing structures of the profession is not in itself sufficient to fulfil the transformation objective of the legal profession. Transformation is an imperative that must extend beyond that, to addressing matters that include briefing patterns, attraction, retention and offering support to black women legal practitioners, among others.’

LSSA President, Mvuzo Notyesi said: ‘The judgment will hopefully inspire a renewed commitment by all role players to pursue the Act’s noble objectives of transforming and restructuring the legal profession in a manner that embraces the values underpinning the Constitution.’

Discussions on the Legal Practice Bill, aimed at transforming the governance structures of the legal profession, commenced as early as 2001. This has been a testing process for the legal profession, but there has been considerable progress. The judgment symbolises another milestone in our journey to a transformed and restructured legal profession as court proceedings offered parties the opportunity to debate and ventilate their views on the elections and composition of the provincial councils. More importantly, it offered the court the opportunity to validate the constitutionality of the underlying Regulations and Rules.

Mr Notyesi adds: ‘In a similar vein, the LSSA together with its constituent members, have already implemented measures aimed at addressing the broader transformational challenges facing the South African legal profession and we are confident that this judgment will inspire renewed impetus on the part of legal professionals and representative bodies.’

Click here to read the judgment.