Mid-Term Report by the Co-Chairpersons of the Law Society of South Africa to the Annual General Meetings of the constituent members of the LSSA
When we took office at the end of April 2017 at the Law Society of South Africa (LSSA) annual general meeting in Port Elizabeth, the developments around the Legal Practice Act 28 of 2014 loomed large at the forefront of our agenda. So it has proven to be.
The pace of negotiation has been slow and agreements even slower. As such the National Forum on the Legal Profession (NF) has been obliged to request two extensions from Justice Minister Michael Masutha, in order to submit its recommendations to him. Our appearance before the parliamentary portfolio committee in September has underlined that any further request for extension will not be well received. We, as the leaders of the legal profession, need to set aside our differences and politics in order to progress the agenda of the greater good. At the LSSA our planning for an uncertain future has continued in order to anticipate the coming into operation of the Legal Practice Council (LPC), envisaged to be in August 2018 or soon thereafter.
One of the main points of contention has been the statutory provincial law societies negotiating with the NF to finalise agreements on the transfer of their staff and assets to the LPC. In order to assist with a uniform approach, the Council of the LSSA has set up a forum to allow the four law societies to reach commonality. All four societies have now resolved to retain between 30% and 40% of their nett assets in cash, in order to plan for the future LSSA to continue performing its non-regulatory functions. This has now been communicated to the NF and we await their response. If the response is favourable the agreements with the NF will be signed and this part of the process concluded. If the response is not favourable the matter may have to be referred to arbitration – a situation that would not benefit the profession.
A Task Team has also been established to consider the way forward for the LSSA once the four provincial law societies cease to exist in 2018. This Task Team is considering various options for the formation of a unitary national body to protect the interests of all legal practitioners.
We are convinced that the profession will require a unitary body – including both attorneys and advocates – that will speak on behalf of the profession with one voice to the government, the future LPC, the public, the media and the international community. However, the formation of a unitary body can be achieved only once transformation imperatives are identified and petty political differences are set aside.
Within this context of uncertainty, we must take a moment to reflect on the loyal and committed staff at the LSSA, who through these trying times continue to serve the profession with such dignity and professionalism. They do this without the security that we as the profession have failed to give them. They must be saluted. The LSSA Management is embarking on a change management process to prepare the staff for the changes in the dispensation expected next year. Training and development always remains a high priority at the LSSA, as is the wellness programme available to the staff.
The late Nic Swart
We must record our deep sadness at the death of the Chief Executive Officer and Director of Legal Education and Development, Nic Swart in August this year. His loss has been keenly felt at each meeting where he would have participated in the past few weeks.
We wish to reiterate our public statement made on the day of his passing: The LSSA and the profession have lost a colleague, a friend, a mentor, a leader and an innovator passionate about the legal profession in general and legal education in particular.
Nic led the LSSA and its various departments ably as CEO since 2011 through times of growth and achievement locally, regionally and internationally, but also through the difficult and at times contentious processes around the transition to the new dispensation. A consummate educationist and professional, he spearheaded and nurtured legal education for the profession since 1989. He dedicated himself to ensuring that practical vocational training and continuing legal education continue to be accessible and affordable for aspirant legal practitioners and those already in practice. Nic was especially passionate about the empowerment of young lawyers.
Our profession owes an incalculable debt of gratitude to Nic Swart, as do the thousands of attorneys who have received training, guidance and support from the School for Legal Practice and the LEAD department over nearly three decades.
We wish to thank our six constituent members – the four statutory provincial law societies, the Black Lawyers Association and the National Association of Democratic Lawyers – for their support during this difficult time, and the many, many organisations – both local and international – and practitioners who have sent messages of condolence and support to us and to the LSSA in the weeks following Nic’s death.
One of the issues that Nic was passionate about was transforming the profession and the challenge to change the skewed briefing patterns by the State and state-owned enterprises. His goal was to work towards eradicating the race and gender-based discrimination and the exclusion of black and women legal practitioners from obtaining meaningful legal work. The Action Group on Briefing Patterns, which includes representatives of the attorneys’ and advocates’ professions, the Justice Department and the large law firms, met on a monthly basis to deal with the challenges around briefing. They drafted the Procurement Protocols for the Legal Profession, which were adopted by both branches of the profession and which were launched formally at a function in Kempton Park at the end of June. The newly appointed Deputy Chief Justice Ray Zondo was the keynote speaker.
We commend those attorneys’ firms who have adopted the protocols and agreed to report on their briefing patterns. Those who have adopted the protocols undertake to positively promote the procurement of legal services of black and women practitioners; to actively create better access for black and women practitioners; to bridge the skill set deficits, if any, among black and female practitioners; to increase the exposure of black and female practitioners to all areas of the law; to help broaden the pool of black and women practitioners; to ensure that fair selection criteria are used in the briefing of black and women practitioners; to promote a change in attitude so as to promote the inclusion of black and women practitioners in the main stream of practice; to render bi-annual reports for the monitoring of compliance with the aims of the protocols; to be held accountable; and to widen the pool of practitioners and to ultimately transform the profession. A transformed profession will lead to a transformed judiciary and progressively realise the true potential of this profession.
The LSSA is involved in three high-profile matters, two of which will be heard in February 2018.
Proxi Smart Services (Pty) Limited v Law Society of South Africa et al: Proxi Smart has proposed a business model to render certain conveyancing-related services which are presently performed by conveyancers. The view of the LSSA and the provincial law societies, is that the proposal by Proxi Smart cannot be supported as the full conveyancing process is regarded as professional work, and should remain so in the interest of the public. By agreement between the parties the matter is set down for hearing in the High Court: Gauteng as a special motion on 6 to 8 February 2018. The parties have requested that the matter should be heard by a Full Bench. We must also thank the Attorneys Fidelity Fund for agreeing to fund all costs which arise from this litigation. Their continued commitment to the profession is duly noted.
SADC Tribunal: The LSSA's matter to declare the actions of the President as well as the Ministers of Justice and International Relations and Cooperation in voting for, signing and planning to ratify the SADC Summit Protocol in 2014 as it relates to the SADC Tribunal, to be unconstitutional, will be heard by a Full Bench in the High Court: Gauteng Division on 5 to 7 February 2018. The 2014 Protocol deprives citizens in the SADC region – including South Africans – of the right to refer a dispute between citizens and their governments to a regional court if they fail to find relief in their own courts. Six Zimbabwean farmers have joined the matter as applicants, and the Centre for Applied Legal Studies and the Southern Africa Litigation Centre have been admitted as amicus curiae.
Women’s Legal Centre Trust v President and six others: The LSSA has joined this matter as amicus. The applicants have sought to declare the respondents’ refusal to enact legislation recognising Muslim marriages and divorces, as failing to act in accordance with their constitutional obligations. The matter was partly heard in the High Court: Western Cape division in August and has been postponed to December 2017.
The LSSA engages on a continuing basis with stakeholders and on various committees and forums. We will highlight only a few.
The LSSA has noted with concern the lack of any proper and structured consultation between the profession and the Department of Rural Development and Land Reform regarding the realignment of the Deeds Offices. We will be monitoring developments, but in the meantime attorneys are urged to participate in stakeholder engagements on this issue. In addition, the Electronic Deeds Registration Systems Bill has been published. It is envisaged that e-registration will be phased in, and conveyancers should familiarise themselves with the impact that it will have on practice.
The LSSA is represented on the National Efficiency Enhancement committee chaired by Chief Justice Mogoeng Mogoeng, and also on its working committee, the National Operations Committee (NOC). Issues that are dealt with include court directives, overcrowding at correctional centres, bail, and infrastructure problems at the courts, court procedure, pre-trial issues and long-outstanding judgments. We urge attorneys to raise problems in their local courts with the Provincial Efficiency Enhancement Committees that feed into the national structures.
The LSSA is seriously concerned at the criticism levelled against the attorneys’ profession in the context of medical negligence and Road Accident Fund (RAF) claims. On the former, the LSSA continues to seek a meeting with Health Minister Aaron Motsoaledi to engage with him on any policy being planned; and on the latter, the LSSA meets regularly with the RAF, and is scheduled to meet with its Acting CEO in October.
The LSSA has met with the General Council of the Bar, Advocates for Transformation, the National Forum of Advocates, the National Bar Association of South Africa and some smaller Bars to discuss issues of mutual interest, particularly with regards to the future of the profession. We intend to invite these and other organisations to participate in discussions to form the envisaged unitary professional body.
The specialist committees in the LSSA’s Professional Affairs department meet with relevant stakeholders in their specific fields of specialisation, and when necessary, with representatives of government departments.
As Co-Chairpersons we plan to meet with representatives of all the stakeholders later this year in order to brief them on developments in the profession generally and those involving the LSSA in particular.
With input from these committees, the LSSA has commented on the following draft legislation and documents, among others, since we took office:
• Draft Taxation Laws Amendment Bill, 2017
• Sectional Titles Amendment Bill
• Copyright Amendment Bill (1)
• Amendment of Regulations Relating to Maintenance Pursuant to the Maintenance Amendment Act 9 of 2015
• Draft Electronic Deeds Registration Systems Bill
• Property Practitioners Bill (B-2016)
• Various amendments by the Rules Board for Courts of Law relating to the Magistrates’ Courts rules, uniform rules and forms.
• Engagement with the Financial Intelligence Centre on proposed amendments to regulations in terms of the Financial Intelligence Centre Act (ongoing).
We wish to highlight our comments to the Justice Portfolio Committee on the Legal Practice Amendment Bill [B11-2017]. We addressed the committee in September on this Bill. Although the issue of appearance in the Higher Courts is not dealt with in the Bill, the LSSA is of the view that, for completeness sake, the Bill should also address the disparity between the position of attorneys and advocates. Section 25(2) of the Legal Practice Act, 2014 (LPA) provides that a legal practitioner, whether an advocate or an attorney, has the right to appear in any court or before any board, tribunal or similar institution.
The LSSA points out that the right of attorneys to appear in the High Court, the Supreme Court of Appeal or the Constitutional Court is restricted. In terms of s 25(3) of the LPA, attorneys wishing to appear in these courts have to apply to the registrar for a certificate of right of appearance, which will be issued if the attorney:
• has been practising for a continuous period of not less than 3 years (the period may be reduced if the attorney has undergone a trial advocacy training programme) and is in possession of an LLB degree; (s 25(3)(a)); or
• has gained appropriate relevant experience (s 25(3)(b)).
The LSSA notes that, in terms of the Right of Appearance in Courts Act, 1995 (which will be repealed once the LPA becomes fully operational), an attorney is entitled to acquire the right to appear in the higher courts if she or he has been practising as an attorney for a continuous period of at least 3 years or is in possession of an LLB degree or a foreign degree equivalent to an LLB degree (s 4(1)(a) and (b)).
The LSSA has stressed that, in future, it will be more onerous for many attorneys to acquire a right of appearance certificate than at present, since, instead of years of practice or an LLB degree, the test will now be years of practice and an LLB degree. Conversely, advocates will be entitled to appear in any court without having to meet the requirements set out in s 25(3).
In July we welcomed lawyers from other African jurisdictions to Durban as we co-hosted the PALU 8th Conference and Triennial General Assembly together with the Pan African Lawyers Union. In August we attended the18th Annual SADC Lawyers’ Association Conference and General Meeting in Gaborone, Botswana.
Our engagement with other African jurisdictions is increasingly important to us and we sent a small delegation to Lagos for the Nigerian Bar Association’s AGM in August. We have much to learn from our colleagues in Africa. We also need to support the judiciaries and lawyers in those jurisdictions when their independence is compromised.
As regards our other international engagements, we continued our engagement with the International Bar Association (IBA), Commonwealth Lawyers Association and the BRICS Legal Forum with visits to Hong Kong, China and attendance of the IBA Bar Leaders meeting in in Northern Ireland. We will be attending the IBA conference in Sydney in October and the BRICS Legal Forum in Moscow at the end of November.
However, to maximise our relationships in the light of cost constraints, we are in the process of redefining our engagement strategy and reconsidering with whom we wish to engage as against the benefit to the profession and the public.
Communication and De Rebus
During our time in office, in the print and broadcast media, we have:
• condemned the scourge of violence against women;
• urged members of the public to have their wills drafted for free by attorneys during National Wills Week;
• expressed our sadness at the passing of former LSSA Co-Chairperson, Judge Jake Moloi;
• welcomed the appointment of Justice Raymond Zondo as Deputy Chief Justice.
• condemned the personal attacks on Judge Bashier Vally and on the judiciary in general;
• urged the Judicial Service Commission to scrutinise judicial candidates for racist tendencies; and
• called on Council on Higher Education to consult the legal profession on issues related to the LLB degree.
Practitioners continue to receive regular communication from the LSSA through its electronic newsletter, advisories and regular updates on developments around the Legal Practice Act.
We urge practitioners to follow the LSSA on Twitter and LinkedIn, LEAD on LinkedIn and Facebook; and De Rebus on Twitter and LinkedIn.
We wish to thank all attorneys who participated in the National Wills Week initiative. The number of attorneys drafting free wills grows substantially year on year and attorneys are increasingly publicising the Wills Week through electronic and social media channels. This is an important initiative in terms of which the profession provides tangible, free services to the community and we receive enormous goodwill for the profession in return.
As regards De Rebus, it continues to be the leading communication and educational tool made available to all practising and candidate attorneys in print, online and app format. The circulation figure of the journal is some 24 200, which also includes subscription to individual and overseas subscribers. This has reaffirmed the journal’s potential of being used as a continuing professional development (CPD) tool going forward.
2017 saw the increase in interaction across all De Rebus digital platforms, with the De Rebus website taking 5th position in the government and politics segment. The journal’s Twitter followers are growing and currently stand at over 2 000. The De Rebus app has combined Apple and Android sessions of over 33 000.
De Rebus is the only journal made available for free to attorneys and candidate attorneys courtesy of the Attorneys Fidelity Fund, and one where attorneys can express their views and read newsworthy articles that are of relevance to the profession. Practitioners are encouraged to continue sending articles, letters, case notes, practice notes, comments and opinions to the journal to ensure that relevant information is published.
All the LEAD training programmes have proceeded well this year and a greater number of registrations have been recorded all round. It is also gratifying to note that the mentorship programme is making good progress with a good number of mentorship relationships having been concluded between mentors and mentees. We thank all practitioners who make themselves available as mentors. This is an invaluable service to the profession and the spin-offs for both mentee and mentor are great. We invite senior or experienced attorneys to make themselves available to mentor their colleagues who approach the LSSA and LEAD seeking support and guidance.
A word of thanks
We thank all attorneys who make themselves available to serve on the LSSA committees, to assist with media interviews, those who provide pro bono legal services to the public and who serve as Small Claims Courts practitioners. These contributions often receive no accolades, but they are recognised and appreciated.
WALID BROWN and DAVID BEKKER
29 September 2017