National Forum meeting on 31 May 2015

Source: De Rebus May 2015

First meeting of the National Forum of the Legal Practice Act

Left: The deputy chairperson and chairperson of the National Forum, Max Boqwana and Kgomotso Moroka, shortly after election on 31 March.

Johannesburg advocate Kgomotso Moroka SC and Port Elizabeth attorney and former Co-chairperson of the Law Society of South Africa (LSSA) and president of the National Association of Democratic Lawyers (NADEL), Max Boqwana have been appointed as the chairperson and deputy chairperson of the National Forum. The appointment was made at the first meeting of the members of the National Forum on the Legal Profession that was held at Kempton Park on 31 March 2015.

The meeting was attended by 19 of the 21 members of the National Forum, as well as a few delegates from other institutions.

In his opening address Justice Minister Michael Masutha said that the legal profession was a troubled profession, adding that that was the reason why ‘we are here today’. He added that the process of transformation was moving slowly and that looking around the room, it was evident that gender representation was low. ‘How are we going to achieve transformation when we, the organ that is supposed to be driving transformation, are not representative of transformation? We have a long way to go. This forum is not fully representative, we are starting on a wrong note. That is why the Justice Department designated two women as members of the forum. The forum is far from reflecting the demographics of the South African society, which is a constitutional imperative. The under representation of women in particular, who are only three amongst the 19 members designated by the constituent bodies, flies in the face of the very objective for which the forum has been established,’ the Justice Minister said.

In outlining the core function of the forum, Minister Masutha said that the main task of the forum was to provide a legislative framework for the transformation and restructuring of the legal profession in line with constitutional imperatives so as to facilitate and enhance an independent legal profession that broadly reflects the diversity and demographics of the country as set out in the Legal Practice Act 28 of 2014. He added that the forum is expected to level the playing field for the establishment of the Legal Practice Council and provincial councils.

Minister Masutha said: ‘We are meant to be the drivers of transformation in the profession. Between ourselves as politicians and as members of the legal profession, I think that we hold the bulk of influence on the subject of transformation, nation building, constitutional democracy etcetera and yet only about two weeks ago I had a file presented before me to sign off to the president to bring into operation the new Attorneys Amendment Act [40 of 2014], which will have the effect of changing the names of the various law societies and shedding off the old names of Transvaal, Orange Free State and Cape of Good Hope and so on. I thought wow, 21 years later, just to change names, that is how long it has taken this profession.’

Minister Masutha said that he ‘dreams of, and would love an era where South Africans do not find pain in constituting the goals of the Constitution’. He added that he would like to visit big white law firms to find out the challenges they experience in constituting transformation as well as what they are doing in constituting transformation. Minister Masutha added that government also has its own grievances, as it is losing cases every day. He said that lawyers representing government have an ‘all-is-in-the-bag, we-do-not-need-to-prove-ourselves, they-will-pay-us-either-way’ attitude, which he said was detrimental to government.

The Deputy Minister of Justice, John Jeffery, spoke on the salient features of the Act and what is expected of the forum. He said that the South African legal profession was right at the back with regards to transformation. ‘We are far behind. This process began over 20 years ago, the idea was to get attorneys and advocates to sit together and resolve issues. The reason for this forum is because you could not agree on everything. This is your chance to resolve issues, if you cannot resolve it among yourselves then the Minister will resolve it for you. It is better for you to resolve the issues yourselves,’ he said.

Deputy Minister Jeffery reminded the forum that it is already two months into the 24 month period. He added that the main task of the forum is to discuss its powers, functions and unresolved issues of the Act such as the training of candidate attorneys and pupillage. ‘It has two years to do it from 1 February 2015. The Minister can extend the period but the forum has a lifespan of three years,’ he said.

Deputy Minister Jeffery reiterated that if no agreement is reached, then the Justice Minister will make a decision, only after consultation with the forum. He added that although constituent bodies can remove their nominees from the forum, that there must be good course and the bodies must get confirmation from the High Court first. ‘We want to make it harder for constituent members to remove you just for straying over the boundaries of the bodies you represent. They cannot just remove you for that,’ he said.

The Deputy Minister concluded by saying: ‘It has been a long process, thank you for accepting the nomination. The Justice Department will provide admin support but you are basically running your own thing. The two professions – attorneys and advocates – must resolve issues themselves.’

Comment from members of the forum

The floor was then open for comment from members of the forum. Krish Govender, who was designated to the forum by the LSSA, said that the legal profession and the Justice Department were ‘in this together’. He said that the Justice Department should not be saying ‘you’ (the legal profession) and ‘us’ (government), adding that it was not just the legal profession not agreeing that put the Act on hold. Mr Govender added that the process started moving during the last term of the previous Justice Minister.

On the issue of transformation, Mr Govender said that there were many black men in the profession that were doing well. He added that black lawyers from NADEL and the Black Lawyers Association (BLA) brought a number of women into government and into the judiciary. ‘When you ask us where our women are, the answer is they are in the Bar and the judiciary,’ he said. He questioned what the legal system was doing to provide for and support these women, adding that this was a problem that both government and the legal profession needed to share.

‘We cannot in a united country, isolate a particular subject matter and think that it is a problem on its own. When the Minister refers to a troubled profession, I would like to link it to a troubled country and a troubled government. Because we are troubled and I do not say you, I say we as a nation. We in the legal profession are part of a troubled profession, which is part of a troubled government and part of a troubled country,’ he said.

Mr Govender asked why there is such a small pool of female lawyers? He said that South Africans must ask themselves what the systems of government are able to provide women, ‘what is our legal system doing at all the levels in advancing women? There are problems that we must share, this is not the cause of the legal profession,’ he said.

Speaking on briefing patterns, as a former state attorney, Mr Govender said that if government did its homework, and looked at the statistics, it would see that the Justice Department has done a sterling job in making sure that work goes to a percentage of previously disadvantaged individuals but that if one looks at the representation at the top, in the highest courts, that that is where the problem lies. ‘Who is being briefed there, and by whom?’ he asked. ‘The parastatals are out of control in terms of not even recognising the concepts of transformation for briefing patterns. When the state attorneys insist on briefing others, private lawyers just get briefed instead and decisions are taken elsewhere,’ he said. Mr Govender reiterated his point that the Justice Department and the profession needed to work together to fix these problems.

Advocate Willem van der Linde of the General Council of the Bar (GCB) agreed with and fully supported everything Mr Govender said. He added that this is a completely new Act, one that is not copied from any legislation anywhere in the ten countries that still have voluntary Bar associations. ‘It is innovative, so it requires of us to be inventive. It also requires us to revisit fundamentally important principles, we have to relive, revisit and reconsider the principles that we think are important in our profession. Because if we do that we may come across principles that we have thought are important but are not really and we also may come across others that we may never adhere to but are now important in our thinking,’ he said.

Mr van der Linde said that the GCB accepts the challenge being laid before it and does so with great commitment.

Brian Nair of Legal Aid South Africa (Legal Aid SA) said that Legal Aid SA represents the majority of indigent persons in the country and, therefore, it will play a meaningful role in contributing to deliberations of the forum. He added: ‘We have not been involved in previous disputes in previous deliberation on the Act and, therefore, come from a very neutral perspective. We will be able to contribute objectively to any future disputes that may take place.’

All stakeholders including the National Bar Council of South Africa, GCB, Attorneys Fidelity Fund, Legal Aid SA, Advocates for Transformation (AFT) and the National Forum of Advocates (NFA) who attended the forum expressed their commitment to the cause and assured the forum of their full participation in playing their part towards achieving the goals set out by the forum.

Speaking on behalf of the AFT, Advocate Dali Mpofu said that when everyone was against the Legal Practice Bill, the AFT looked at the preamble of the Bill, which spoke on access to justice, transformation, access to the profession etcetera and came to the conclusion that nobody in their right mind could ever oppose those ideals put in the preamble. ‘The million-dollar question, and that is our task, is to make sure that the body of the Act delivers on the promises of the preamble,’ he said. Advocate Mpofu added that he is not too concerned that the forum is not as representative as it should be because the honest truth is that neither is the profession. ‘So, in a way, this body is representative of the profession. We should not gloss over that fact. Let us just hope that when the permanent body takes over that the problems of transformation in the profession are overcome by then,’ he said.

Gender representation in the forum also dominated the meeting where the BLA’s Martha Mbhele – also an LSSA nominee – raised a concern that black women attorneys who opened their own practices have to close shop due to sustainability and lack of support in the male-dominated profession. She said that a survey conducted by the LSSA’s gender committee revealed that women put up their practices and structures but six to 12 months down the line they close shop to join the legal departments of retail shops or any other institutions to help them survive. She said that the reason the survey was conducted was because the committee noticed that there are more women entering the profession as candidate attorneys but do not last in the profession as ‘they disappear somewhere, we do not know where they go.’

Left: Three of the six female members of the National Forum, from left, Martha Mbhele, Thina Siwendu and Janine Myburgh at the first meeting of the forum on 31 March.

Ms Mbhele added: ‘Most black women left their firms to join these big white law firms, but did not survive. Once the firms had sucked them dry and used them enough to attract work, they kicked them to the street. Something has to be done to stop the complete disappearance of women lawyers because they are disappearing quickly.’

Ms Mbhele said that the minister is talking about approaching law firms to find out what contribution they can make to the transformation agenda and said that what the big law firms are probably asking is ‘how do you expect me to help you develop a strategy to take bread off my table?’

Janine Myburgh from the Cape Law Society – nominated by the LSSA – said that it was not important just to fill the room with women but to fill the room with people able to do the job.

Speaking on behalf of NADEL, Max Boqwana said that he is afraid that the current Act is not capable of addressing any of the things that worried the profession. ‘There is nothing in this Act that will address access to justice and to the legal profession, nothing in the Act defines a common South Africaness. This Act brings us together to do regulatory issues but after the meeting it allows us to be divided even worse than before. We have multiple identities. This is the issue we spoke about in 1996. Firstly we spoke about fusion, and understood the difficulties around it. We said it was maybe not a good idea, let us talk about unity. Unfortunately, 15 years later, we are unable to reflect that unity. This is the conversation that we should be dealing with. How do we identify a common South African identity that all of us can belong to?’ he asked.

During the meeting, the Justice Department’s Chief Financial Officer, Lorraine Rossouw announced that the department has set out R 17,9 million that will assist the forum in fulfilling its mandate. The money will be used for startup costs as well as to compensate the council.

First address of the chairperson

Ms Moroka was given a chance to give her first address as the chairperson of the forum. She said that she is aware that she is the minister’s designate but she is hoping that at a point in time she will earn the respect of the organised profession and all other members of the forum especially because the suggestion to make her chairperson did not come from the floor but from the minister. ‘I have been in this profession for over three decades. I have listened very carefully to the comments from the floor this morning and to what the minister and deputy minister have had to say and I agree that we have a huge job to do and that we have a timeframe to do it in, as well as a purpose to it and I am hoping all of us will put our shoulders to the wheel and get this thing done,’ she said. She added: ‘It has been a long time coming. We need to focus on what it is as a country we want to do and want to achieve and I believe we are going to be able to do it.’

The issue of alternates

The members of the forum also spoke briefly about alternates. The general feeling was that although the Act does not make provision for alternates, that members should be allowed to have designated alternates.

Deputy Minister Jeffrey said that the forum was a statutory body and that there is no provision for alternates in the Act. ‘So surely if the legislation does not provide for that and from the committees side we were never asked to consider alternates, surely you cannot. Maybe it is something that can be discussed by the forum but I would have thought an alternate on the point of view to listening and reporting back to the full member, but in terms of voting, I do not think that an alternate can vote. If the Act does not provide for alternates, how is it then possible to bring it into the Act?’ he asked.

It was suggested that there should be an agreed schedule with all the year’s meetings lined up so that the members of the forum can be available.

Deputy Minster Jeffery also reminded the forum that it has to provide six-monthly reports to the minister, which will get tabled in parliament. He closed the meeting by saying: ‘Apart from the support being given by the Justice Department, you are now on your own, the minister and I will not be attending your meetings going forward. Good luck with everything and thank you for accepting the nomination. Hopefully it will not take you too long to resolve the remaining issues.’

The KwaZulu-Natal Law Society has since requested that its recommended LSSA designate, Richard Scott, be replaced with Manette Strauss. Mr Scott was elected as the new LSSA co-chairperson in March (see 20). This will bring the number of women designates on the forum to six.

The 21 members of the national forum

GCB designates

  • Willem van der Linde SC
  • Ismail Jamie SC
  • Greg Harpur SC
  • hami Ncongwane SC
  • Dali Mpofu SC

Other designates

  • Mark Hawyes (National Bar Council of South Africa designate)
  • Jurgens Prinsloo (National Forum of Advocates designate)
  • Dumisa Ntsebeza SC (Advocates for Transformation designate)
  • Abe Mathebula (Attorneys Fidelity Fund designate)
  • Professor Managay Reddi (South African Law Deans Association designate)
  • Brian Nair (Legal Aid South Africa designate)

Ministerial designates

  • Kgomotso Moroka SC (chairperson of the forum)
  • Thina Siwendu.

LSSA designates

  • Max Boqwana (deputy chairperson of the forum and chairperson of the LSSA delegation)
  • Jan Stemmett (deputy chairperson of the LSSA delegation)
  • Krish Govender
  • Jan Maree
  • Martha Mbhele
  • Janine Myburgh
  • Lutendo Sigogo
  • Manette Strauss

Nomfundo Manyathi-Jele