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.

Law Society welcomes appointment of Fhedzisani Pandelani as Acting Solicitor-General

The Law Society of South Africa (LSSA) welcomes the appointment of Mr Fhedzisani Pandelani as Acting Solicitor-General. ‘We are confident that Mr Pandelani has the skill, conscientiousness, integrity and independence necessary to provide the control, direction and supervision over all offices of State Attorney. The attorneys’ profession commits to support Mr Pandelani in the interest of justice and the rule of law,’ says LSSA President, Mvuzo Notyesi.

The State Attorney Amendment Act 13 of 2014, which came into effect on 3 February 2020, allows for the establishment of a Solicitor-General to oversee all litigation on behalf of the State.

According to the Justice Department, Mr Pandelani has been in practice for more than 20 years. He was admitted as an attorney in 1996 and has practiced in diverse areas of law, covering High Court, Labour Court and Magistrates Court litigation and is a skilled mediator and arbitrator. He is the current chairperson of the Gauteng Liquor Board and the chairperson of an external panel on appeals in terms of section 43 (5) National Environmental Management Act in Gauteng.

Mr Pandelani holds various qualifications from the University of the Witwatersrand including Baccalaureus Procurationis (B.Proc.) and LLB degrees as well as a Higher Diploma in Company Law. He has also lectured on various law modules through the Unisa Learning Centre and has for several years been an instructor at the Johannesburg School for Legal Practice.

‘Mr Pandelani’s curriculum vitae speaks for itself, we wish him the best in his new role,’ says Mr Notyesi.

Judgement reserved in Cape Bar vs Minister of Justice and Correctional Services and others

In this matter, the Cape Bar brought an application against Justice Minister Ronald Lamola for him to address what the Cape Bar views as ‘an irregularity’ which arose in the election of members of the Western Cape Provincial Council of the Legal Practice Council (LPC). The Cape Bar argued that a black male advocate was elected for the provincial LPC, over one of their members, a black female advocate, who received far more votes than her male counterpart.

In terms of the Legal Practice Act 28 of 2014, every Provincial Council (except Gauteng) comprises 6 attorneys and 4 advocates, of which 4 attorneys must be black and 2 white. Two advocates must be white and two black. Further, the Act provides that 50% of the members must be men, 50% must be women which means that only one black and one white female advocate will be appointed. The Cape Bar sought to have the provisions of the rules and regulations that allowed this, to be declared unlawful and invalid.

The Law Society of South Africa President, Mvuzo Notyesi, says that the LPA aims to promote diversity and transformation of the profession. ‘Without these provisions, the minority of practitioners –  being blacks and women – would not stand a chance of being nominated for such positions,’ he says, adding that: ‘The LPA regulations are not unlawful; they are needed to ensure that the previously disadvantaged are guaranteed a place in the local structures of the LPC and are also needed to make the profession more accessible to the minority.

LSSA legal team: Advocate Zaytoen Cornelissen and Ms Sonja Labuschagne, attorney and director at Barnard Labuschagne Inc t/a Ettienne Barnard Attorneys

 

 

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 of South Africa supports 16 Days of Activism campaign for No Violence Against Women and Children

The Law Society of South Africa (LSSA) supports the 16 Days of Activism for No Violence Against Women and Children. This international campaign runs annually from 25 November to 10 December and it opposes violence against women and children.

The campaign aims to raise awareness of the negative impact that violence and abuse have on women and children and to rid society of such abuse.

South Africa has a history in the oppression of women. The inequality between men and women in their careers is endemic, the legal profession is no different from the patriarchal environment that practices inequality and the LSSA will continue to work on transforming the profession, including the equality of female lawyers.

The country witnesses the most harrowing violent acts of abuse committed on women and children, more so when it is performed by their loved ones, the very people who are supposed to protect them.

The recent campaign against femicide is part of this campaign, and it is apt to use the slogan in this campaign ‘you must be the change that you wish to see in the world’. All members of our society must join to eradicate this culture, which goes against our humanity and our African values.

‘We call on all citizens to commit to a community free of violence against women and children, beyond the 16 days,’ says LSSA President, Mvuzo Notyesi.

Mr Notyesi adds: ‘The LSSA and its gender committee has been engaging with Legal Aid South Africa to facilitate the involvement of legal practitioners at educational and outreach events aimed at raising public awareness of rights and the legal system in the context of domestic violence, children’s rights and related matters.

 

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 veteran radio personality Xolani Gwala

The Law Society of South Africa (LSSA) is saddened at the passing of radio presenter Xolani Gwala on 1 November 2019 at the age of 44.

Xolani succumbed to colon cancer after making his diagnosis public in September 2017.

‘Xolani Gwala was a passionate journalist who executed his duties without fear or favour. His insightful take on topical issues earned him the respect of listeners across the country. He had a brilliant mind that kept him on the cutting edge of the media. Xolani made sure that those who occupy positions of power are held accountable and he had a knack of getting his on-air guests to volunteer crucial information by treating them with respect even as he asked them difficult questions. We will miss his voice and his insight’, says LSSA President, Mvuzo Notyesi.

Xolani Gwala was also one of the few journalists who engaged with the LSSA and was vocal on the legal profession’s briefing patterns.

We express our deepest condolences to his family, friends and colleagues.
 

Unreasonable and unfair increased costs imposed on legal practitioners by regulatory bodies

The Law Society of South Africa (LSSA) is cognisant that the Legal Practice Council (LPC) and the Legal Practitioners Fidelity Fund (LPFF) are the two regulators in South Africa that regulate the legal profession in the public interest.

The LSSA appreciates, understands and respects the statutory functions enjoined to these two bodies in terms of the Legal Practice Act (LPA).

The LSSA’s constitution enshrines the rule of law as one of the key principles which the LSSA is committed to uphold and protect. The LSSA notes the regulatory function is based on the principle of the rule of law and cannot be exercised in a vacuum without consideration of the practitioners which the LPC and the LPFF are enjoined to regulate.

The LSSA is therefore concerned that recent proposals by the regulatory bodies has the potential to negatively impact on legal practitioners and may threaten access to and entry to the legal profession, as an unintended consequence of their proposals, viz.

The LPC in publishing rules that were placed in the recent Government gazette, that set levels of prescribed fees that in the view of the LSSA, as the representative body of the legal profession, is of serious concern in that:
•  The fees were published without engagement with the profession.
•  That the various levels proposed is arbitrary and irrational.
•  That there appears to be no consideration by the LPC of containing its costs or proposed alternative measures, (most law firms are currently implementing stringent cost containment measures, due to the current economic realities in our country).
•  That there is no financial basis provided for the establishment of these exorbitant increases.
•  The punitive amounts proposed for practitioners based on years of service, which is divorced from the economic reality of the practices of these attorneys.
•  That mere establishment of the various proposed levels based on demographics appears to be prejudicial and discriminatory.
•  The increased costs have the potential to negatively impact on some the transformation objectives of the LPA (this responsibility vests on both the regulator and the profession).

The LSSA has resolved to request the LPC not to implement the revised annual levies on law firms and practitioners, subject to engagement and agreed consensus with the LSSA on the levels of annual levies.

The LSSA therefore calls for urgent engagement with the LPC and has been requesting a meeting for some time now, with no commitment from the LPC to meet with the LSSA to deal with serious issues facing the profession.

The LSSA as a key stakeholder is willing and committed to engage on the various issues and seek resolution, as the legitimate body representing the attorneys’ profession and the LSSA will consider all remedies available to protect the interest of its members.

 The LSSA reminds all members to vociferously make their voices heard and their concerns known to the LPC and the public and to lodge these by 4 of November 2019, in terms of the notice placed in the Gazette by the LPC.

The LPFF has concomitantly also announced plans to levy legal practitioners for professional indemnity insurance, this is currently provided by the Legal Practitioners Insurance Indemnity Fund (LPIIF), of which the LPFF is the sole shareholder.
The estimate cost of PI insurance will eventually rise to above R10 000 p.a.
Similarly, this will also negatively impact on the cost of the profession as detailed above, in addition, there may be negative cost implications on the public, which in view of the LSSA is contrary to the objectives of the LPA.

The LSSA welcomes the decision by the LPFF to urgently consider to delay the proposed implementation of the recovery of the premiums payable for PI insurance, by a year.
In addition, the LPFF advised that the portal for legal practitioners to apply for their new Fidelity Fund certificates (FFC) will be opened shortly.

The LSSA is encouraged by the stance of the LPFF to engage with the LSSA and discuss options available to the LPIIF to address its underwriting losses, so that the financial impact on legal practitioners may be reduced.

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

 

Editor’s note:

The Law Society of South Africa brings together its constituent members – the Black Lawyers Association, the National Association of Democratic Lawyers and the provincial attorneys’ associations – in representing South Africa’s 27 200 attorneys and 6 600 candidate attorneys.