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Placing the blame for medical malpractice suits at the door of attorneys will not lead to the improvement of the standard of public health care for the majority in South Africa

The Council of The Cape Law Society has noted with grave concern the recent report in the Daily Dispatch where MEC Belinda Francis Scott is quoted, inter alia, as saying that attorneys are “not only criminal, but parasitical. They are vultures”.


There appears to be an unfortunate tendency, by the Minister and some of the MEC’s responsible for health, of avoiding responsibility for the weaknesses in their Departments, by deflecting public attention away from these weaknesses and focusing attention on the contingent liability claims against their Departments, coupled with the suggestion that attorneys manufacture these claims against the State, which results in a budgetary crisis. No mention is made of the poor service that the majority of the population is subjected to daily in the public health facilities of South Africa, which ultimately gives rise to such claims.


It is not constructive, is unhelpful and is in fact a disservice to the majority of the public who rely on these services to overlook the symptoms of a dysfunctional public health service in South Africa and to instead blame attorneys for those symptoms. A person who believes that he/she has suffered damages as a result of medical negligence is entitled to be advised and represented by an independent attorney, to have his/her matter determined in a fair public hearing before a court and if so determined by a court, to receive compensation. The same right to approach courts to enforce rights is exercised regularly by public officials whenever they wish to assert certain rights or defend themselves against claims of various natures. The Department is plainly not in a position to assist a person who has been injured and suffered damages as this would give rise to a clear conflict of interest.


Attorneys promote the right to access to justice that is enshrined in Section 34 of the Bill of Rights. They help members of the public, who may sometimes be impecunious, to take cases to court where the judiciary determines the merits of each case without fear, favour or prejudice. They do this consistent with their oath of office (see Schedule 2, Item 6 (1) of the Constitution).


It is of great concern that some political leaders responsible for health have expressed the view that users of public sector health care facilities should be denied their constitutional right of access to justice. In all medical negligence cases, the Department of Health is legally represented. Where the Department loses cases brought against it, its lawyers ought not to be victimised, as they cannot be expected to undo the negligence that health care professionals visit on those members of the public who place their lives in the hands of health care professionals.


The Department of Health should respect the right of all South Africans to access to quality health care as enshrined in Section 27(1)(a) of the Bill of Rights and must respect the dignity of all the people of South Africa as enshrined in Section 10 of the Bill of Rights.


The Cape Law Society calls on those political leaders responsible for health to refrain from making unfair generalisations and ill considered public pronouncements that are calculated to tarnish the image of the legal profession in South Africa. Such antics are not constructive.
Those political leaders responsible for health who are unable to ensure that the majority of the people of South Africa receive the high quality health services they deserve, should do the responsible thing and resign as soon as possible.


The Cape Law Society believes that an improved understanding can be enhanced through dialogue and extends an invitation to political leaders responsible for health to engage in constructive discussions with the organised legal profession in the spirit of working together. Furthermore, The Cape Law Society will not hesitate to take action against any attorney found to have acted unprofessionally by touting for work at hospitals. The Department is encouraged to report any such instances to The Cape Law Society.


Issued by
Lulama Lobi
Acting President of The Cape Law Society
Issued on behalf of the Council of the Cape Law Society
24 April 2017
The Cape Law Society
Tel: (021) 443 6700„ Fax: (021) 443 6751/2„ Email: cls@capelawsoc.law.za„ 
Website: www.capelawsoc.law.za
 

LSSA calls on Council on Higher Education to consult the legal profession on issues related to the LLB degree

The Law Society of South Africa (LSSA) questions the decision by the Council on Higher Education (CHE) not to include the legal profession in its review of the LLB degree.

The CHE has recently published the outcomes of its review of the LLB degree, on 12 April 2017. The LSSA has invited the CHE to consult the legal profession on issues relating to the LLB curriculum. Also, it has offered its support and its commitment to law faculties which may require input and assistance from the attorneys' profession to ensure their LLB degrees achieve full accreditation by the CHE.

'We deem it critical to the attorneys' profession to ensure that law graduates are effectively prepared to enter the profession and to serve the public professionally and efficiently. It is also critical that law students currently in the system are assured of the relevance and practicality of their degrees,’ say LSSA Co-Chairpersons Walid Brown and David Bekker.

Although the LSSA was asked for input in the standards-drafting process aspect of the review, it expresses serious concerns that it has not been consulted on the process since 2015. ‘The legal profession is a material stakeholder and represents the largest group of employers of law graduates, with up to 60% of law graduates joining the attorneys’ profession,’ say Mr Brown and Mr Bekker.

The LSSA, together with the South Africa Law Deans Association and the General Council of the Bar of South Africa, initiated the LLB review process following a summit they hosted on the LLB degree, held on 29 May 2013. This was after concern was expressed at the skills gap presented by law gradates when entering the legal profession. Following that summit, the stakeholders resolved to request the CHE to conduct a standard-setting process for the LLB degree. In conducting this exercise, the CHE was requested to consult widely with the LLB Summit Steering Committee of the profession established after the summit.

Mr Brown and Mr Bekker note: ‘It is accordingly difficult to understand how the profession can be sidelined by the CHE at this critical juncture in the process.’


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

 

LSSA calls on Council on Higher Education to consult the legal profession on issues related to the LLB degree

LSSA calls on Council on Higher Education to consult the legal…

New Co-Chairpersons Walid Brown and David Bekker lead Law Society of South Africa at time of transformation and change to new dispensation

Cape Town attorney Walid Brown (right) and Harrismith attorney David Bekker were elected Co-Chairpersons of the Law Society of South Africa (LSSA) at its annual general meeting on 22 April 2017.

Mr Brown says his objective for the coming year will be to utilise the momentum of transforming the legal profession, through the Legal Practice Act, to implement structures that will lead to a change in the demographics of this profession, a change in the power dynamic within the profession and ultimately to a more equal wealth distribution amongst the lawyers of this country. ’However, within this context it will always be necessary for us to ensure that we maintain a culture of excellence as a profession in whatever we do,’ he stresses.

Similarly, Mr Bekker notes that a smooth transfer to the Legal Practice Council and the continued existence of a representative body for all legal practitioners are important. ‘I would also like to get young practitioners more involved in professional affairs, as well as enhance mediation and arbitration by attorneys,’ he says.

The Legal Practice Act 28 of 2014 is expected to be fully implemented in 2018, bringing the Legal Practice Council – the new, national regulatory body for attorneys and advocates – into effect.
About the Co-Chairpersons
Walid Brown is a director at the Cape Town office of Werksmans Attorneys where he focuses on litigation and dispute resolution as well as insolvency, business rescue and restructuring.
He has the BA (UCT) and LLB (UWC) degrees as well as an Advanced Certificate in Insolvency Litigation (UP) and a Certificate in Advanced Business Rescue (UNISA).
He is an executive member of the Western Cape Branch of the Black Lawyers Association (BLA) and has represented the BLA on the LSSA Council since 2016.
David Bekker is serving his second term as Co-Chairperson, having been Co-Chairperson for the period 2013/2014.
Mr Bekker has been an attorney for 40 years this year having been admitted as an attorney and conveyancer in 1977 after having competed the BIur degree at the University of the Free State. He practiced for his own account until he joined Cloete & Neveling in 1982.

Mr Bekker has been a Council member of the LSSA since 2009 and has been a member of its Management Committee since 2010. He is currently chairperson of the LSSA’s Financial Intelligence Centre Act Committee; serves on the Deceased Estates, Trusts and Planning Committee and Competition Committee; and has been a trustee of the Legal Provident Fund since April 2009.

At international level, Mr Bekker represents the LSSA on the Council of the Commonwealth Lawyers Association. At provincial level, Mr Bekker has been a Council member of the Law Society of the Free State since 1989 and was its President from 1994 to 1996.

ISSUED ON BEHALF OF THE CO-CHAIRPERSONS OF THE LAW SOCIETY OF SOUTH AFRICA, WALID BROWN AND DAVID BEKKER
by the Law Society of South Africa Communication Department
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
 

New Co-Chairpersons Walid Brown and David Bekker lead LSSA at time of transformation and change to new dispensation

New Co-Chairpersons Walid Brown and David Bekker lead LSSA at…

Statement on progress made by the Action Group on Briefing Patterns in the Legal Profession

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
 

 

Statement on progress made by the Action Group on Briefing Patterns in the Legal Profession

Statement on progress made by the Action Group on Briefing Patterns…

LSSA seriously concerned at unsubstantiated allegations against attorneys regarding medical negligence claims

The Law Society of South Africa (LSSA) voices its serious concern at the allegations made against the attorneys’ profession at last week’s joint sitting of Parliament’s Standing Committee on Appropriations and the Portfolio Committee on Health. The LSSA is seeking a meeting with the joint committees in order to discuss what it views to be unsubstantiated and sensationalist allegations against attorneys with regard to medical negligence claims.

‘The country is still traumatised and shocked by the death of the 94 mentally and physically disabled patients as a result of the failing healthcare system, which included the neglect of the patients. We urge the Health Ministry to focus on addressing the dire skills shortages and poor conditions as well as the duty of care owed by healthcare professionals and medical facilities to patients, rather than on curtailing their right to fair and legitimate compensation. Attorneys cannot be blamed for simply carrying out their duties on behalf of victims who have been wronged,’ says LSSA Co-Chairperson, Mvuzo Notyesi.

He adds: ‘The LSSA has consistently maintained that legal practitioners cannot “manufacture” malpractice injuries and claims – these are substantiated by experts and then by the courts,’ says LSSA Co-Chairperson, Mvuzo Notyesi. He adds: ‘Where government or state facilities neglect to administer proper healthcare and treatment to patients, these patients rarely receive meaningful answers or feedback; and are even less so informed that a procedure went wrong due to negligence. They are also not told that they have rights at their disposal to seek relief. Where an individual or her/his family member suffers loss as a result of medical negligence, that victim has the right to be informed and to be legally assisted, thereby ensuring that fair justice is ultimately served.’

‘The LSSA has stated that it is the duty of legal practitioners to assist victims of medical malpractice – who are often the poor and vulnerable – to be compensated fairly for their losses if they have suffered life-changing and critical damage at the hands of the healthcare system and healthcare practitioners. Victims have the right to legal representation and they must have parity of arms if they are going to challenge the institutions that caused their loss in the first place,’ says Mr Notyesi.

The LSSA has requested to meet the Minister of Health, Dr Aaron Motsoaledi, on several occasions to discuss this issue, as both the medical profession and the legal profession exist to serve the public and it is in the best interest of the public that they cooperate to ensure that members of the public and victims of medical malpractice are treated fairly and professionally.

Mr Notyesi adds: ‘Attorneys are stringently regulated by the statutory provincial law societies, and touting or pestering of victims is certainly not tolerated. There are also strict rules regarding advertising. Should any member of the public, whether a victim or practitioner, have complaints against attorneys, they are encouraged to contact the relevant regulatory law society and follow the necessary steps to ensure that attorneys overstepping boundaries are dealt with. If there is alleged collusion between medical professionals and legal practitioners as well as a downgrading of standards to create an opportunity for collusion, this must be reported to the relevant statutory provincial law society and to the law enforcement agencies. If attorneys are found to be overreaching or overcharging, the law societies have assessment committees that investigate the allegations and assess the fees charged. This is regarded as serious misconduct by the profession and by the courts.’

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

 

LSSA seriously concerned at unsubstantiated allegations against attorneys regarding medical negligence claims

LSSA seriously concerned at unsubstantiated allegations against…

LSSA congratulates Thuli Madonsela on Commonwealth Rule of Law Award

The Law Society of South Africa (LSSA) congratulates former Public Protector Adv Thuli Madonsela on being selected as the recipient of the 3rd Commonwealth Law Conference Rule of Law Award. Ms Madonsela will accept the award at the closing ceremony of the 20th Commonwealth Law Conference in Melbourne, Australia, being held from 20 to 24 March 2017.

‘The LSSA, which is a member of the Commonwealth Lawyers Association, nominated Ms Madonsela for the award. We are delighted and proud that this worthy South African lawyer will receive international recognition from her peers across the Commonwealth for her work in protecting our Constitution and promoting the concept of the Rule of Law – that all are equal before the law – to all South Africans,’ say LSSA Co-Chairpersons Jan van Rensburg and Mvuzo Notyesi.

The LSSA aligns itself with the views expressed by the Commonwealth Lawyers Association (view CLA press release): ‘In her seven years as Public Protector, Advocate Madonsela demonstrated to ordinary South Africans that there is merit in pursuing the truth, regardless of the obstacles, and that justice can and will prevail. … Advocate Madonsela created a beacon of hope for all South Africans in ensuring that the public was not only aware of the public abuse of power, but also that they had recourse against it.’
The Commonwealth Lawyers Association (CLA) partners with LexisNexis in presenting the biennial Commonwealth Law Conference Rule of Law Award which recognises an individual, institution or firm or lawyers who have made an outstanding contribution to the rule of law which has an impact both within their own country and to the broader Commonwealth. The CLA says its judging panel found Ms Madonsela to be a very worthy winner who demonstrates the attributes this award seeks to foster within the Commonwealth.
The two previous winners of the Commonwealth Law Conference Rule of Law Award have been Ms Robin Sully from Canada and Mr Upul Jayasuriya from Sri Lanka.

• The Commonwealth Lawyers Association (CLA) exists to maintain and promote the rule of law throughout the Commonwealth by ensuring that an independent and efficient legal profession serves the people of the Commonwealth. More about the CLA
• More about the Commonwealth Law Conference Rule of Law Award.
• The CLA holds a biennial conference, the last being held in Glasgow, Scotland in April, 2015 and before that in Cape Town in 2013. The conference upholds the tradition of bringing together judges, lawyers and legal professionals from throughout the Commonwealth. More about the 20th Commonwealth Law Conference, Melbourne, Australia, 20 to 24 March 2017.

ISSUED ON BEHALF OF THE CO-CHAIRPERSONS OF THE LAW SOCIETY OF SOUTH AFRICA, JAN VAN RENSBURG AND MVUZO NOTYESI
by the Law Society of South Africa Communication Department
Tel: (012) 366 8800 
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