Today, 31 March 2017, marks a year since the establishment of the Action Group on Briefing Patterns in the Legal Profession. We view this as an important milestone and deem it necessary to provide an update on the progress made since the formation of the Action Group on 31 March 2016.

The continued outcry from various members of the legal profession and other stakeholders regarding the uneven distribution of legal work among advocates and attorneys, prompted the Law Society of South Africa (LSSA) to host a Summit on Briefing Patterns in the Legal Profession on 31 March 2016. Members of the legal profession and other stakeholders came together to discuss the lack of progress in addressing the persistent exclusion and marginalisation of certain legal practitioners in the attorneys’ and advocates’ professions. The Summit’s main objective was to “find solutions” to the perceived discriminatory practices. The focus on identifying solutions was significant as members of the legal profession; especially those who suffer from various forms of exclusion, have become weary of what is viewed generally as endless ‘talk shops’ on transformation of the legal profession. We were thus very cautious when hosting the Summit not to duplicate another form of a dialogue without any tangible outcomes.

We are proud to report that the Summit resulted in a hands-on Action Group which comprises of representatives of the attorneys’ and advocates’ professions, the big law firms and the Department of Justice and Constitutional Development. The Action Group meets on a monthly basis.

The progress made by the Action Group includes collating information on how national Government departments and state-owned entities distribute their legal work to legal practitioners. The information received indicates that:

• lucrative work goes mainly to a select pool of black male advocates and thus excludes many other advocates;
• other lucrative work goes to an identifiable pool of a few white male advocates thus also excluding other advocates;
• to a limited extent, other lucrative work goes to a classifiable group of black female advocates; and
• the majority of advocates, regardless of gender and race, receive little and/or no work.

In other instances, there are Government departments and state-owned entities that only make use of the services from big law firms, a few black advocates and a limited group of white advocates. The Action Group has ascertained that a firm’s BBBEE status is important to Government departments when deciding whether to give them work or not.
There is a small, select pool of black law firms that receive work. The bulk of the lucrative work goes to well-established law firms. The majority of law firms do not get work because they are not on the list of service providers/database of various Government departments and state-owned entities. Some law firms are on the database/panel but never receive work.

Support from the judiciary
The Action Group has sought and obtained the assistance of Judges President of various divisions of the High Courts to document statistics on legal practitioners who appear in their courts in both civil and criminal matters.
At the National Efficiency Enhancement Committee meeting chaired by Chief Justice Mogoeng Mogoeng on 30 March 2017, the Chief Justice expressed his support for the initiative. He sees the fact that black and women practitioners do not get the opportunity to develop their skills, as a huge problem. At the Constitutional Court, high level work did not appear to be going to black and women practitioners.
The Chief Justice said that Government and state-owned enterprises seem to prefer to appoint white practitioners, especially at senior level. Bias must be overcome and clients must be encouraged to change briefing patterns.
He added that, even small achievements must be celebrated. That is why all efforts to change are necessary.

Procurement Protocol
The Action Group has drafted a Procurement Protocol that has been approved by the attorneys’ and advocates’ professions. There will be a formal signing ceremony of the Procurement Protocol in June 2017.

Empowerment
The Action Group has facilitated applications for funding from the SASSETA for, inter alia, the provision of stipends to pupil advocates, candidate attorneys and the funding of development courses.

Challenges
The challenges confronting the Action Group concern a lack of cooperation from certain Government departments, state-owned entities and the business sector. The Action Group is exploring alternatives including the use of the Promotion of Access to Information Act 2 of 2000 to have access to the information required.

The Action Group members reaffirm their commitment to discharge the mandate that has been given to them by delegates at the Briefing Pattern Summit on 31 March 2016. However, they also emphasise that the solutions to address the challenges facing the legal profession require a concerted contribution from all stakeholders, including clients.

Members of the Action Group on Briefing Patterns in the Legal Profession
Mr Busani Mabunda (Chairperson)
Mr Dion Masher
Adv Thandi Norman SC
Mr Mvuzo Notyesi (Co-Chairperson, Law Society of South Africa)
Dr Tsili Phooko (Facilitator)
Ms Onnica Phahlane, Department of Justice and Constitutional Development
Adv Anthea Platt SC
Mr Richard Scott

ISSUED BY THE ACTION GROUP ON BRIEFING PATTERNS IN THE LEGAL PROFESSION

For comment:
Busani Mabunda 082 964 4490
Anthea Platt SC 011 223 8000 Cell: 082 579 7034
 

 

LSSA seriously concerned at unsubstantiated allegations against…

‘Accident victims who are seriously injured and who make hasty settlements with the Road Accident Fund (RAF) for what might appear to them to be a significant sum without independent legal advice or before their claims are properly quantified, will have their whole lives to regret this,’ warn Law Society of South Africa (LSSA) Co-Chairpersons Mvuzo Notyesi and Jan van Rensburg.

The LSSA has noted, with considerable concern the recent unwarranted attacks by the RAF on the role played by the legal profession in ensuring that claimants receive fair compensation and in particular the recent characterisation of attorneys as mere ‘intermediaries’ in the claims process. Attorneys are never ‘intermediaries’. They do not mediate between the victim and the RAF. They represent the victim, who is their client, to ensure the most just and fair outcome for their clients.

‘Attorneys and other professionals play a vital role in investigating, processing and, if necessary, litigating claims arising from car accidents, as well as in quantifying and advising victims on the actual value of their claims, particularly those who sustain serious injuries that will have a lifelong impact on their quality of life and their ability to earn an income.’ say Mr Notyesi and Mr Van Rensburg.

They add: ‘Not only is the claims process highly technical, complicated and difficult for a lay person to follow, it also requires that the claimant produce medical and police records and expert reports that many claimants are not able to access or cannot afford.’

The LSSA has also noted that the RAF continues to advertise and lobby aggressively for accident victims to claim direct from the RAF in press releases, print and online advertisements, on its website, at road shows and outreach programmes. In a recent media statement journalists were told that, in many cases, claimants are better off approaching the RAF direct because their claims are settled quickly – in around four months – and they get their full pay out without having to surrender a big chunk to an attorney.

While that might hold good for minor injuries, it certainly cannot be good for seriously injured victims where it can take as long as two years for injuries to stabilise. It is only at that stage that a proper assessment can take place of the quantum, both with regard to general damages for pain and suffering and for special damages for loss of income, past and future as well as medical and other costs. It may only then become apparent that the claimant’s earning capacity has been compromised or destroyed. If the claim was settled within four months it is very unlikely that any amount will be included for future loss of income or that the essential medical and other expert opinion was obtained necessary to quantify the claim properly. Once the claim is settled, then depending on the circumstances, it might not be possible to rectify the under settlement,’ explain Mr Notyesi and Mr Van Rensburg.

Importantly, the LSSA is of the view that the RAF has a conflict of interest when it seeks to act as both a ‘functionary’ as per the Road Accident Fund Act and to prosecute, advise and process claims on behalf of direct claimants.

This has resulted in cases where claimants have had to challenge the RAF in court for under settlement.

The RAF continues to lay the blame for significant delivery costs solely at the door of the legal profession. The reality is that many claims in which the victims are represented by attorneys, should be settled long before the cases reach the court, by which time significant costs have been incurred which could have been avoided. In these matters, the RAF is, in fact, solely to blame as it does not instruct its attorneys in time so they can use the rules of court to limit costs. The RAF also, in many instances, does not respond to settlement approaches made to them early on in the prosecution of the claim.

‘The RAF has repeatedly said that it supports fair and equitable compensation for claimants. It should, therefore, welcome the contribution that the legal profession can and does make to achieve this. The RAF should focus on its core function, being the administration of claims in terms of the Road Accident Fund Act, and work with the profession in order to curtail costs and expedite finalisation of claims, rather than seeking to compete for direct claimants. In this process, the RAF risks the possibility to face claims and to incur unnecessary costs for under-settlement or for prescribed claims’ say Mr Notyesi and Mr Van Rensburg.

 

ISSUED ON BEHALF OF THE CO-CHAIRPERSONS OF THE LAW SOCIETY OF SOUTH AFRICA, MVUZO NOTYESI AND JAN VAN RENSBURG
by the Law Society of South Africa Communication Department
Tel: (012) 366 8800 or website: www.LSSA.org.za
Contact:
Barbara Whittle, Communication Manager, (012) 366 8800 or 083 380 1307; barbara@LSSA.org.za
Nomfundo Manyathi-Jele, Communications Officer, (012) 366 8800 or 072 402 6344; nomfundom@LSSA.org.za