NADEL press release: South Africa’s urgent need for courageous and determined leaders

South Africa has seen violent protests and looting in the wake of the arrest of Former State President Mr Jacob G Zuma, following a 15 month imprisonment order by the Constitutional Court of South Africa after it found him to have been in contempt of court.

Government’s (local, provincial, national) response has largely been silence, watered down acts of condemnation of violence and a call for respect of the Rule of Law. National Government has since deployed the South African National Defence Force to assist law enforcement to “quell the unrests that have gripped both Provinces in the last few days”.

But how did we get here and what response should one have expected from a responsive and capable government is the question on every ones lips.  Whilst the Zuma arrest may have been the trigger for the unrest that we are currently seeing, it is however not the sole reason behind it. NADEL is of the strong opinion that, coupled with the Zuma arrest, people have been frustrated because of the current socio-economic situation they find themselves in. If it was not #freezuma a few months along the line it could have been something else, perhaps another wave of Xenophobic attacks.

It is not a coincidence that just a few weeks ago, after the release Auditor General’s Municipal Financial Management report, that NADEL had released a media statement warning that the country is burning.  The state of local government in the country is a clear indication of trouble.  We call upon Government as the steering wheel of the country to regain control, listen to the people and deal with the real issues. We can’t maintain peace in society plagued with inequality as ours, poor service delivery and corruption especially at grassroots level perpetuates poverty and inequality especially since it is mainly the municipalities in previously disadvantaged that are most effective.

The President of South Africa, in his address to the country on the 12th of July 2021, rightfully says that “these are opportunistic acts of looting driven by hunger and poverty “. He further calls for restoration of calm and order so that we can get on with the order of building the country and advised the nation of the urgent steps government has taken to meet with business to come up with solutions to restore economic activity.  While we appreciate that these efforts will result in employment, we can’t help but wish that we saw the same urgency in dealing with issues of service delivery, more especially at the local government level.

The people looting lack ideology, what we are seeing are people who have nothing to lose taking opportunity where it arises. Lack of ideology, poverty and lack of understanding of legal system provide fertile ground for misinformation and manipulation.   What we have experienced today may happen again in the not so distant future if government does not take active and more concise steps to improve the livelihood of its people.

We have witnessed how the current state of violence has resulted in racial tension. In areas in KwaZulu-Natal black South Africans are not allowed to enter shops or make purchases while others races feel that they are targets of violence.  Poverty in South Africa has a face and, unfortunately, a race and  it is black. It is not surprising then that people looting are mainly black. It is true that We can never dreams of building Social Cohesion and nation building with this with the high levels of inequality and poverty that disproportionately affect  people on the bases of their race.  The people of South Africa through their common vision have made a clear determination to break free of its racial discriminative past and commit to improving the quality of life of all citizens. We will not labour to write in this article what needs to be done to accelerate the fundamental change needed to realize our constitutional vision as many competent bodies have conducted research and provided solutions to the problems we are facing. We implore upon our democratically elected leaders, those entrusted to lead this country to conjure the political will to implement solutions already provided to them.

NADEL calls for all stakeholders and leaders of society to meet and come up with a national programme of action.

 

ISSUED ON BEHALF OF THE NATIONAL ASSOCIATION OF DEMOCRATIC LAWYERS (NADEL), SOUTH AFRICA.

Contact: NADEL Secretary General – Ms. N Jali

 Cell: 0716893705

 

 

 

Statement of the BLA regarding the looting in various parts of the country

The Black Lawyers Association as part of the civil society movement in South Africa watched the callous and criminal pillaging and destruction of property with dismay and shame.

South Africans of all social and political denominations have worked hard to build a truly non-racial and democratic South Africa. Whilst there, remain deep chasms of economic inequality that ensure the existence of disenchanted members of the populace, the BLA is of the view that the best solution is to build constructively as opposed to the destruction that we are witnessing.

The Black Lawyers Association further condemns the threats and intimidation of the Judges particularly of the Constitutional Court. We would like to remind those that are responsible for these threats to our judiciary that the judiciary is an essential ingredient for the rule of law, without it the society will descend to lawlessness, even the victims of state brutality will have no protection.

The Black Lawyers Association would further like to call upon the government to do more to address youth unemployment. That will give the youth a stake in our social cohesion which in turn will prevent them from being easily mobilised to champion worthless causes.

We extend a hand of endearment and sincere condolences to the families of those who have passed on as a result of the mayhem that has overtaken the country. We call on law enforcement agencies to bring the perpetrators to the ultimate might of the law with speed.

 

Prepared by: Bayethe Maswazi – BLA Deputy President

Law Society expresses its concerns about the current violent protests in the country

The Law Society of South Africa (LSSA) expresses its concerns about the current violence in our country and calls for calm and restraint.

As a constitutional democracy, South Africa recognises and protects the right for citizens to protest. The LSSA fully supports the right of people to protest within the confines of our law.

The loss and destruction of infrastructure and property mainly affect the workers and the poor, and the losses will not be easily nor quickly rectified. The legitimate protests of people must be respected; however, they must be in the confines of the law.

The destruction and looting of businesses and ransacking of liquor outlets also indicate opportunists hiding behind the fears and anxieties of the people protesting and highlighting their grievances and or concerns.

The LSSA’s views and its call for the cessation of violence during protests are informed by the following:

  • The current protests are fueled by a misunderstanding of the law and the role of the courts.
  • The violence that accompanies the protests is a threat to the rule of law, which is the core of and underpins South Africa’s constitutional democracy.

Regarding the above, the following principles of the rule of law must be emphasised:

the supremacy of law, equality of all citizens before the law, and the rights of individuals are enforced by our courts.

People who have concerns about our social fabric and injustices can utilise protests and other ways to express and engage on the issues without violence.

The function of ensuring justice is entrusted to the country’s independent judiciary, whose functioning is outside the government’s control, influence, and purview.

 

ISSUED ON BEHALF OF THE PRESIDENT’S SUBCOMMITTEE OF THE LAW SOCIETY OF SOUTH AFRICA, MR JAN VAN RENSBURG (PRESIDENT), MS MABAENG LENYAI (VP) AND MR MVUZO NOTYESI (VP)

 LSSA Communications:

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

Open letter to Acting Prime Minister of Eswatini and the SADC Troika

The Law Society of South Africa (LSSA) calls on the SADC Troika’s meeting with the Acting Prime Minister of Eswatini, Themba Masuku, to ensure that meaningful engagements are held with the country’s civil society and pro-democracy movements.

The LSSA has engaged with its legal counterparts in Eswatini and is dismayed at the reports emanating from a country that has denied access to information, banned the internet, and threatened lawyers who represent the protestors.

The legal profession has been under continued threat and detention for the past few years, which has now increased under the mass protest movement for democracy.

In this regard, we call on the South African Government, which continues to assist the Monarch King Mswati and the pseudo-Parliament to stay in power to make meaningful changes in South Africa’s foreign policy. We must hold South African businesses in Eswatini who are in partnership with the Monarch’s business interests and others as recently brought to the fore by the banning of the internet by the South African mobile service provider to account.  The company’s statement that this is in line with their human rights policy is, in reality, the opposite.

The LSSA calls for restraint from all parties to ensure that innocent lives are not continued to be lost.

Real peace and stability are found through meaningful change and commitment towards a democratic and equitable society founded on the principles of democracy, with free and fair participation in the economy.

Lawyers in Swaziland cannot freely represent their clients in fear of their lives and detention. The courts are denying bail and are perceived to be dictated to by the Parliament and the Monarch. Lawyers as judicial officers are being persecuted by the same courts that should protect them and the victims of abuse of power.

The central demand of the people is for the democratisation of the country’s economy and polity.

It is shameful that in this day and age (and in support of our brothers in Eswatini and many living in our country), political parties have been banned since 1973.

Two-thirds of the Upper House members of this Parliament and over 10% of the Lower House members are directly appointed by the King, whilst the Chiefs, under the Monarch, contest for the balance of seats in Parliament.

The people of Eswatini have been failed by both the Monarch and Parliament; clearly, the system of government has failed its people.

As upholding the rule of law is a fundamental mission of the LSSA, we have to place some of the tenets of the rule of law on record.

Accountability: All citizens and society, including the government, are accountable under the law.

Just laws: The laws are clear, publicised, stable, evenly applied and protect fundamental rights, especially human rights.  The laws also provide for access to information and the rights to peacefully protests.

Open government: The laws must be administered and enforced to be accessible, fair, and efficient.

Accessible and impartial dispute resolution: Justice is delivered timely by a competent, ethical, and independent judiciary.

Evident failings include:

Freedom of assembly and association.  Fundamental labour rights, due process of the law and rights of the accused are effectively guaranteed.

The public’s right to have access to independent and impartial courts.

The right to information and civic participation.

Failure of fundamental human rights, including everyday experiences of society, including access to primary public services.

The shooting of protestors with live ammunition.

 

Broadly speaking the rule of law is generally defined as:

‘The Effective rule of law reduces corruption, combats poverty and disease, and protects people from injustices large and small. It is the foundation for communities of justice, opportunity, and peace — underpinning development, accountable government, and respect for fundamental rights. Traditionally, the rule of law has been viewed as the domain of lawyers and judges. But everyday issues of safety, rights, justice, and governance affect us all; everyone is a stakeholder in the rule of law.’

The LSSA believes the above should be used as guidelines by the Troika in dealing with their effort to bring peace in Eswatini, protect lives and property, and assist in setting the framework towards achieving the above goals. This is driven by ensuring democracy for the benefit of the people and the country to take their rightful place in Southern Africa and the African continent.

The LSSA will distribute this letter to its international partners, including the International Bar Association (IBA), The Pan African Lawyers Union (PALU) and the Commonwealth Lawyers Association (CLA), to champion the rights of the people and practitioners in Eswatini in the international structures and their respective stakeholders.

Kind regards

Electronically signed 9/7/21

LSSA President’s subcommittee

Mr Jan van Rensburg (President), Ms Mabaeng Lenyai (VP) and Mr Mvuzo Notyesi (VP)

 Email: LSSA@LSSA.org.za Tel: (012) 366 8800

Click here to download letter. 

Law Society elects new President and Vice-Presidents

The Law Society of South Africa (LSSA) has elected Jan van Rensburg as President, and Mabaeng Denise Lenyai and Mvuzo Notyesi as its Vice-Presidents at its conference and AGM in Kempton Park on Friday 9  April 2021.

Mr Notyesi is the previous President of the LSSA and Mr van Rensburg and Ms Lenyai are both previous Vice-Presidents.

Jan van Rensburg is a long-serving member and sits on several committees of the LSSA. He is also a former Co-Chairperson of the LSSA.

Mr Van Rensburg has the BCom (University of Pretoria) and BProc (UNISA) degrees as well as an Advanced Diploma in Labour Law from the University of Johannesburg. He was admitted as an attorney in 1984 and is also a notary and conveyancer. He practises as a sole practitioner at Jan van Rensburg Attorneys in Brits.

Mabaeng Denise Lenyai is an attorney and director at Mabaeng Lenyai Inc in Pretoria. Ms Lenyai holds the BProc and LLB degrees from the University of Limpopo and the University of KwaZulu Natal respectively.

Ms Lenyai is currently acting as a Judge at the Gauteng Division of the High Court in Pretoria. She was admitted as an attorney in 1998 and is also a notary and conveyancer. She has been a council member of the LSSA since 2015. She was also the Chairperson of the BLA, North West branch for six years. Since 2018, she has been a member of the National Executive Council of the Black Lawyers Association, and she is currently the General Secretary. She is also a council member of the Community Education Training Centre in Mmakau and she is a legal adviser for Motsweding FM.

Mvuzo Notyesi is an attorney and director at Mvuzo Notyesi Incorporated in Mthatha. He is President of the National Association of Democratic Lawyers. He holds the BProc and LLB degrees from the University of Transkei and was admitted as an attorney in 1999 after completing his articles and attending the LSSA’s School for Legal Practice in East London. He has practised as director at Mvuzo Notyesi Incorporated since 1999.

Mr Notyesi has acted as judge at the Eastern Cape Division of the High Court in Grahamstown. He has been a member of the House of Constituents and a member of the Executive Committee of the LSSA for five years. He previously represented the LSSA on the Judicial Service Commission and he is currently an alternate. Mr Notyesi has a passion for education and has been a part-time lecturer and an instructor at the LSSA’s School for Legal Practice in East London. He is also an examiner for the Attorneys Admission Examination. Mr Notyesi is Chairperson of the Notyesi Foundation, which awards bursaries to disadvantaged students to attend university.

Key discussions at the LSSA Annual Conference

Newly elected Legal Services Ombuds, Judge Siraj Desai, was the keynote speaker at the LSSA conference, which was held under the theme ‘financial sustainability.’ Judge Desai said that the Legal Services Ombuds Office is separate from the Legal Practice Council (LPC) and that it has different functions all together. He highlighted that he cannot and will not interfere with the functions of the LPC.

Judge Desai added that his office is the highest body of oversight within the legal services environment and that it aims to protect and promote public interest in relation to the rendering legal services and ensuring fair, efficient and effective investigation of allegations of misconduct against legal practitioners. Judge Desai highlighted that his office is not an office of first instance, and that it must be approached if the complainant has tried the regulatory body, the LPC and has a grievance with the outcome of their case.

Judge Desai said that since December, he has received many calls from people with all sorts of complaints. He added that the ball was in the Justice Minister’s court and that the Minister will announce an operational date adding that the date will be announced once the office has been capacitated. Judge Desai urged legal practitioners to make themselves available to do the front-line work.

On his appointment in December 2020, the then LSSA President said in a statement: ‘This appointment is long overdue and should have coincided when the Legal Practice Council came into effect on 30 October 2018. I encourage the Department of Justice to ensure that the Ombud’s office is fully capacitated as soon as possible so that the Ombud can become fully operational. The Ombud in terms of the Legal Practice Act is independent and only answerable to the Constitution and the law’.

The LSSA also committed itself to support the work of the Ombud’s office, in the broader interests of the profession and society.

Also discussed at the conference was the structure, financial sustainability, and governance of the LSSA and the provincial attorneys’ associations. This House of Constituents has referred some of the constitutional and governance aspects to the LSSA constituent members.

ISSUED ON BEHALF OF THE PRESIDENT OF THE LAW SOCIETY OF SOUTH AFRICA, JAN VAN RENSBURG

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

Law Society welcomes the appointment of the Legal Services Ombud 

The Law Society of South Africa (LSSA) welcomes the Legal Services Ombud’s appointment, retired Cape Town High Court Judge Siraj Desai.

‘This appointment is long overdue and should have coincided when the Legal Practice Council came into effect on 30 October 2018. I encourage the Department of Justice to ensure that the Ombud’s office is fully capacitated as soon as possible so that the Ombud can become fully operational. The Ombud in terms of the Legal Practice Act (LPA) is independent and only answerable to the Constitution and the law,’ says LSSA President, Mvuzo Notyesi.

The LSSA commits itself to support the work of the Ombud’s office, in the broader interests of the profession and our society.

The Ombud, in terms of the LPA, has the following key objectives:

  • protect and promote the public interest in relation to the rendering of legal services as contemplated in the LPA;  
  • ensure the fair, efficient and effective investigation of complaints of alleged misconduct against legal practitioners;  
  • promote high standards of integrity in the legal profession; and  
  • promote the independence of the legal profession.  

Besides, other powers, the Ombud is competent to investigate any alleged act or omission that may affect the integrity and the independence of the legal profession and public perceptions in respect thereof.

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 SCA decision on Muslim marriages appeal

The Law Society of South Africa (LSSA) welcomes the decision by the Supreme Court of Appeal (SCA) in the matter:  President of the RSA and Another v Women’s Legal Centre Trust and Others; Minister of Justice and Constitutional Development v Faro and Others; and Minister of Justice and Constitutional Development v Esau and Others (Case no 612/19) [2020] ZASCA 177 (18 December 2020).

In this matter the LSSA made submissions as amicus curiae. This is a judgement to be welcomed by thousands of women and children in the country. Many women and minor children did not benefit from the protection provided in the Marriage Act 25 of 1961 and the Divorce Act 70 of 1979. This legislation did not recognise marriages solemnised in accordance with Muslim marriages as valid marriages for all purposes in South Africa’, says LSSA President, Mvuzo Notyesi.

The decision also provided for the protection and the welfare of minor or dependent children of Muslim marriages at the time of dissolution of a Muslim marriage in the same manner as the Act provides to safeguard the welfare of children of other marriages that are being dissolved.

The SCA quoted from the judgement of Moseneke J in the Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) case as follows:This “persisting invalidity of Muslim marriages” is, of course, a constitutional anachronism. It belongs to our dim past. It originates from deep-rooted prejudice on matters of race, religion and culture. True to their worldview, judges of the past displayed remarkable ethnocentric bias and arrogance at the expense of those they perceived different. They exalted their own and demeaned and excluded everything else. Inherent in this disposition, says Mahomed CJ, is “inequality, arbitrariness, intolerance and inequity”.’  

‘This clearly indicates the serious lack of consideration the state has paid to customary marriages in general and the prejudicial impact on women and children in the dissolution of these marriages. As a constitutional democracy, since 1994, this is a sad indictment of the legislature,’ adds Mr Notyesi.

 

Click here to read a detailed summation of the SCA Judgement by Mr Notyesi.

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 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