Chairperson,
Mr Busani Mabunda, President of the BLA,
Mrs Hlaleleni Matolo-Dlepu, Deputy President of the BLA,
Mr PC Mogale, Chairperson of the Limpopo Branch of the BLA,
Justice PM Mojapelo, Deputy Judge President of the South Gauteng High Court,
Justice EM Kubushi, Judge of the North Gauteng High Court and Deputy Chairperson of the BLA Legal Education Centre,
Members of the Judiciary and the Legal Profession,
Officials of the Department of Justice and Constitutional Development,
Ladies and gentlemen,
Comrades and friends.
I thank you for the honour to address the Black Lawyers Association on Africa Day, 25 May, and more especially the Africa Day that marks the 50th Anniversary of the formation of the Organisation of African Unity.
On 13 June 1994 the then recently elected first president of a democratic South Africa, President Nelson Mandela, addressed a meeting of the OAU in Tunis. On that historic occasion President Mandela said: “In the distant days of antiquity, a Roman sentenced this African city to death: "Carthage must be destroyed (Carthago delenda est)."
And Carthage was destroyed. Today we wander among its ruins, only our imagination and historical records enable us to experience its magnificence. Only our African being makes it possible for us to hear the piteous cries of the victims of the vengeance of the Roman Empire.
And yet we can say this, that all human civilisation rests on foundations such as the ruins of the African city of Carthage. These architectural remains, like the pyramids of Egypt, the sculptures of the ancients kingdoms of Ghana and Mali and Benin, like the temples of Ethiopia, the Zimbabwe ruins and the rock paintings of the Kgalagadi and Namib deserts, all speak of Africa`s contribution to the formation of the condition of civilisation.
But in the end, Carthage was destroyed. During the long interregnum, the children of Africa were carted away as slaves. Our lands became the property of other nations, our resources a source of enrichment for other peoples and our kings and queens mere servants of foreign powers.
In the end, we were held out as the outstanding example of the beneficiaries of charity, because we became the permanent victims of famine, of destructive conflicts and of the pestilence of the natural world. On our knees because history, society and nature had defeated us, we could be nothing but beggars. What the Romans had sought with the destruction of Carthage, had been achieved.
But the ancient pride of the peoples of our continent asserted itself and gave us hope in the form of giants such as Queen Regent Labotsibeni of Swaziland, Mohammed V of Morocco, Abdul Gamal Nasser of Egypt, Kwame Nkrumah of Ghana, Murtala Mohammed of Nigeria, Patrice Lumumba of Zaire, Amilcar Cabral of Guinea Bissau, Aghostino Neto of Angola, Eduardo Mondlane and Samora Machel of Mozambique, Seretse Khama of Botswana, WEB Du Bois and Martin Luther king of America, Marcus Garvey of Jamaica, Albert Luthuli and Oliver Thambo of South Africa.
By their deeds, by the struggles they led, these and many other patriots said to us that neither Carthage nor Africa had been destroyed. They conveyed the message that the long interregnum of humiliation was over. It is in their honour that we stand here today. It is a tribute to their heroism that, today, we are able to address this august gathering.
The titanic effort that has brought liberation to South Africa, and ensured the total liberation of Africa, constitutes an act of redemption for the black people of the world. It is a gift of emancipation also to those who, because they were white, imposed on themselves the heavy burden of assuming the mantle of rulers of all humanity. It says to all who will listen and understand that, by ending the apartheid barbarity that was the offspring of European colonisation, Africa has, once more, contributed to the advance of human civilisation and further expanded the frontiers of liberty everywhere.
We are here today not to thank you, dear brothers and sisters, because such thanks would be misplaced among fellow-combatants - we are here to salute and congratulate you for a most magnificent and historical victory over an inhuman system whose very name was tyranny, injustice and bigotry.
When the history of our struggle is written, it will tell a glorious tale of African solidarity, of African`s adherence to principles. It will tell a moving story of the sacrifices that the peoples of our continent made, to ensure that that intolerable insult to human dignity, the apartheid crime against humanity, became a thing of the past. It will speak of the contributions of freedom - whose value is as measureless as the gold beneath the soil of our country - the contribution which all of Africa made, from the shores of the Mediterranean Sea in the north, to the confluence of the Indian and Atlantic Oceans in the north.
Africa shed her blood and surrendered the lives of her children so that all her children could be free. She gave of her limited wealth and resources so that all of Africa should be liberated. She opened heart of hospitality and her head so full of wise counsel, so that we should emerge victorious. A million times, she put her hand to the plough that has now dug up the encrusted burden of oppression accumulated for centuries.
The total liberation of Africa from foreign and white minority rule has now been achieved. Our colleagues who have served with distinction on the OAU liberation committee have already carried out the historical task of winding up this institution, which we shall always remember as a frontline fighter for the emancipation of the people of our continent.
Finally, at this summit meeting in Tunis, we shall remove from our agenda the consideration of the question of Apartheid South Africa.
Where South Africa appears on the agenda again, let it be because we want to discuss what its contribution shall be to the making of the new African renaissance. Let it be because we want to discuss what materials it will supply for the rebuilding of the African city of Carthage.
One epoch with its historic tasks has come to an end. Surely, another must commence with its own challenges. Africa cries out for a new birth, Carthage awaits the restoration of its glory.
If freedom was the crown which the fighters of liberation sought to place on the head of mother Africa, let the upliftment, the happiness, prosperity and comfort of her children be the jewel of the crown.
There can be no dispute among us that we must bend every effort to rebuild the African economies. You, your excellencies, have discussed this matter many times and elaborated the ideas whose implementation would lead us to success.
The fundamentals of what needs to be done are known to all of us. Not least among these are the need to address the reality that Africa continues to be a net exporter of capital and suffers from deteriorating terms of trade. Our capacity to be self-reliant, to find the internal resources to generate sustained development, remains very limited.
Quite correctly, we have also spent time discussing the equally complex questions that bear on the nature and quality of governance. These, too, are central to our capacity to produce the better life which our people demand and deserve. In this regard, we surely must face the matter squarely that where there is something wrong in the manner in which we govern ourselves, it must be said that the fault is not in our stars, but in ourselves that we are ill-governed.
Tribute is due to the great thinkers of our continent who have been and are trying to move all of us to understand the intimate inter-connection between the great issues of our day of peace, stability, democracy, human rights, cooperation and development.”
Reading these words, I must admit that I am somewhat perplexed by the theme of 2013 annual general meeting of BLA, namely: “The Relevance and future of the Black Lawyers Association Post the Legal Practice Act.” To put it bluntly, I think it is the relevance of the theme that must be the subject of discussion not the relevance of the BLA.
Surely the relevance and future of the BLA, with its rich and treasured history, cannot and should not be measured, determined and or be depended on the passage through Parliament, of the Legal Practice Bill of 2012, no matter how significant its importance.
In fact, I would hasten to say that the deliberations on, and the eventual passing of the Legal Practice Bill by Parliament, not only heralds in a new era in the work of organisations such as the BLA, but necessitates its active participation in moulding the outcome of not only the Legal Practice Bill, but also other transformative initiatives, into one that will benefit of all the people of South Africa.
This is underscored by the aims and objectives of the BLA, which include:
- upholding, protecting and advancing human rights, civil liberties and the rule of law for the politically, socially and economically marginalised;
- challenging all discriminatory practices;
- promoting a non- racial, non- sexist judicial system and society;
- striving for the empowerment of disadvantaged communities; and
- promoting and advancing the evolution of jurisprudential order based on and reflective of the cultural aspirations, norms and values of the majority of the members.
The BLA has a history of fighting for the underprivileged and the voiceless. Your organisation has an illustrious history of lawyers that were partisans of the struggle against oppression and for social justice. Do not cede that role. Do not allow lethargy to set in. Your voice must be heard. You must intervene and influence the discourse that will inform the transformation of our legal profession and the system within which it practices.
The customs and technicalities of public affairs are still influenced by the ethos of the old order. Like your predecessors that challenged apartheid, you must challenge the assumptions of the old ethos that still influences the practice and the language of the law to fashion and align it with our Constitution.
Whilst our Constitution offers revolutionary possibilities, there are those that invoke the language of the Constitution but still seek to marginalise and keep out large sectors of our society from the protections of our Constitution. If your voice and efforts and the voice and efforts of progressive are not heard, as we witness in so many societies, we risk the law becoming the servant of the elite, responding to politically strong and financially powerful factions.
You must, like the great thinkers of our continent that President Mandela referred to, continue to move all of us to understand the intimate inter-connection between the great issues of our day of peace, stability, democracy, human rights, cooperation and development.
I have been requested to share perspectives on ‘Transformation of the Judiciary and the Legal profession, including the procurement of legal services to black practitioners.”
Let me, however, start by indemnifying myself against the possiblity of accusations of self-plagarism. In the energetic and and pro-active nature of youth the BLA Student Chapter at UNISA was one step ahead of its parent body and invited me to address its meeting on 4 May. I was also invited to address the AGM of the Tygerberg Circle of the Cape Law Society. This input incorporates elements from both of these inputs.
The Constitution is the supreme law of our land. It is also a supremely transformational constitution. It requires of us to follow a transformative course action in respect of access to justice and the transformation of the judiciary and legal system.
Transformation, the big T-word, necessarily includes - but is not limited to – attaining demographic representivity.
Transformation in the South African context basically means making our society, look, work, think and be like the Constitution says it should. Anyone who thinks that it does, or is close to doing so, or will do so in a decade, simply doesn’t “get it.”
Firstly, the Constitution enjoins us to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights and to lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law.
Secondly, it guarantees everyone the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
Thirdly, it provides that the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.
Fourthly, it says that all courts, including their structure, composition, functioning and jurisdiction, and all relevant legislation, must be rationalised with a view to establishing a judicial system suited to the requirements of the new constitution.
Government is committed to strengthening of the independence, the dignity, accessibility and effectiveness of the courts as part of this transformation process.
The Seventeenth Constitutional Amendment Act, the Superior Courts Bill, and the South African Judicial Education Institute Act, provide a strong legislative framework to realize this objective. Measures such as the establishment of the Office of the Chief Justice as a department advance the objective of greater administrative independence of the judiciary.
Your Annual General Meeting takes place 11 Days after the Superior Courts Bill has been approved by the National Council of Provinces - on 14 May 2013. The Bill has now been passed by both Houses of Parliament and it will be submitted to the President to be assented to and signed into an Act.
The Superior Courts Bill aims to rationalise, consolidate, and amend the laws relating to the Constitutional Court, the Supreme Court of Appeal and the High Courts in a single Act of Parliament, and makes provision for the administration of the judicial functions of all courts. The Superior Courts Bill is but one of the very important building blocks in the transformation of the justice system.
It has been preceded by the Constitution Seventeenth Amendment Act of 2012, that defines and strengthens the role of the Chief Justice as the head of the judiciary, exercising responsibility over the establishment and monitoring of norms and standards for the judicial functions of all courts.
We are also confident that with the innovation of the creation of the Office of the Chief Justice as a separate entity from the department, there will be adequate capacity to drive the case flow management initiative which is led by the Chief Justice. We remain committed to making everyone’s role and contribution in the administration of justice conducive to the delivery of effective and meaningful access to justice.
Both these pieces of legislation form part of a transformation policy package geared towards Government’s commitment to further strengthen the independence and broaden the accessibility of the courts, to all the people.
Yet it has hardly made the news, why the silence, the voice of the legal profession has hardly been heard, and that of the opposition even less. Why, is it because it is good news and therefore don’t sell, or is it because it is not popular to be seen to be supporting any initiative of government, not even if it is a constitutional imperative!
Access to justice is being promoted by, amongst others, the building of new courts the conversion of existing branch courts to full-service courts, the establishment of Small Claims Courts, the re-demarcation of magisterial districts, the Review of the Civil Justice System and the work of Legal Aid SA.
The introduction of Court-connected mediation which is part of the Civil Justice Reform Programme, is part of the transformation initiatives the success of which will depend on the contribution of attorneys and the legal profession in general
With regard to legal aid government has bugeted R1 360.7 billion for Legal Aid South Africa to provide legal representation at the state’s expense to eligible people in terms of the Constitution. 64 Justice Centres and 64 Satellite Offices have been established, with a 100% coverage of criminal courts, and 428 653 new legal matters requiring legal representation in both criminal and civil courts. The Legal Aid Advice Line dealt with 46 025 Advice matters.
With regard to infrastructure development the High Court in Polokwane, together with the Mpumalanga High Court in Nelspruit, will complete this Government’s commitment to establish High Courts in each of the nine provinces, thereby bringing justice closer to the communities it must serve. New Courts have recently been constructed in Ntuzuma in KZN and in Kathlehong and Tsakane in Gauteng. Of the 90 Branch Courts countrywide, 24 have now been proclaimed as full services courts.
Equality Courts have been extended to all High and Lower Courts. The challenge is now to ensure that more people use them. Progressive lawyers can play an important role in this regard.
The programme of establishing a Small Claims Court in in each and every one of South Africa's 387 magisterial districts is on track. We have already passed the half-way mark. To date we have 268 established Small Claims Courts, 87 of which have been established during the last four (4) years, with the great majority in the rural areas. I would like to appeal to the BLA to encourage all of its members who practiced for a period of 5 years or more to volunteer their services as commissioners.
With regard to the transformation of the judiciary, as outlandish as it might seem as we meet here today, but in 1994, less than a generation ago, 160 of the 165 judges on the bench were white men. White male judges were, to use biblical language, fourscore times two in number. The heavy onus of making the judiciary appear to resemble South Africa lay on the shoulders of three black men and two white women. As for black women, well….
Today, 100 black men and 49 black women, 71 white men and 21 white women serve our nation as judges. They do so knowing that they are part of a judiciary that is coming closer to reflecting the racial and gender composition of South Africa, as is required by our Constitution.
Similar progress has been made in addressing race and gender imbalances in Magistrates Courts. Of the 1661 magistrates, 974 are black and 687 are white, 647 are women and 1014 are men.
Whilst this represents significant progress, there is still much to be done - especially regarding the gender imbalances in the upper echelons of the judiciary, the Constitutional Court, the Supreme Court of Appeal and the ranks of the Judges President.
However, the untransformed state of the legal profession remains a stumbling block to the further transformation of the judiciary as well as to greater access to justice.
The legal profession is a key provider of services that promote access to justice and it also constitutes a pool from which the judiciary is appointed.
Of the 2 384 advocates (as at April 2012) who fell under the umbrella of the General Council of the Bar, 1 367 were white men, 366 white women, 295 African men, 89 African women, 47 coloured men, 37 coloured women, 114 Indian men and 69 Indian women.
The picture becomes even more skewed when one examines the profile of the 473 senior advocates (or “silks” as they are called - because of their right to wear silk robes): 382 white men, 20 white women, 29 African men, 4 African women, 9 coloured men, 1 coloured woman, 24 Indian men and 4 Indian women.
Traditionally, it is from the ranks of these “silks” that judges are appointed.
However it is encouraging that there are emerging trends that indicate that there are other new sources that increasingly feed into the esteemed human resources of the bench in our courts. These mainly include magistrates and attorneys who have demonstrated through their solid track records that they too can serve with distinction on the benches of our High Courts. This positive policy development has further enhanced our opportunities and capabilities for increasing considerably the number of judge candidates qualifying for the bench of the High Courts and thereby easing the burden on the Bar.
The appointment of acting judges and magistrates also creates a further opportunity to gain invaluable experience. On average, the Minister appoints 750 acting judges per annum, whilst I make on average 2 200 acting appointments of magistrates in the same period. These appointments provide opportunities for advancing our transformation agenda. However, for this objective to be realized it will be necessary to develop a comprehensive framework through which candidates for acting appointments may be drawn from a sustainable pool developed under the auspices of the South African Judicial Education Institute.
The attorneys’ profession is marginally more representative. As at June 2011 there were 20,077 practicing attorneys of whom 36% were black and 64% were white. Women constituted 34% and men 66%.
These statistics must be viewed against the reality that South Africa has a population of just over 50.6 million with an unemployment rate 25.2% or 4,6 million people.
South Africa’s population is served by approximately 2 384 practicing advocates, of which 1 428 (more than half) are located within Gauteng, whilst the Attorney’s profession comprise of approximately 21 463 practitioners. These figures translate to 1 lawyer in private practice for every 2121 persons. Of the 11 435 law firms in the country, 27 law firms have more than 50 attorneys (the so called large law firms), 11 210 law firms have between 1 and 9 attorneys (98% of all firms) and 7800 law firms are served by sole practitioners (68% of all law firms).
If you consider that the so called large law firms constitutes less than 10% of the law firms in the country, the small law firms and sole practitioners may well be viewed – at least in the eyes of the poor and the marginalised - as the “heart and soul” of the legal profession, especially in civil matters.
Interestingly, the profile of law students is much more reflective of South African society. In 2011 of all first year law students, 78% were black, 22% white, 54% were women and 46% men. In the same year, of the 3 751 LLB graduates, 68% were black, 32% white, 59 % women and 41% men.
The question is to what extent these more reflective demographics will be carried through into the profession and what stumbling blocks exist in this regard. The recently released research conducted of indicates that things will not change by themselves. Change is pain, and it will not come by itself.
Another important area of focus is the allocation of state legal work. I wish to reiterate the Government’s commitment to achieving the target it set for the allocation of briefs to attorneys and advocates. The policy on briefing patterns must not be seen in isolation but as part of initiatives that will culminate in the comprehensive transformation of the state’s legal services. These initiatives are aimed at broadening the pool of legal practitioners who are briefed by the state to ensure a fair representation of black and female practitioners consistent with the racial, gender and geographic demographics of our society.
The scarcity of black and female practitioners in the pool of practitioners who continue to dominate constitutional and other high-profile litigation cases has a consequential effect on the slow pace of the transformation of the judiciary. Many attorneys may feel that they would benefit less in the 65% target we have set for the allocation of briefs by the state as much of the attorneys work is carried out by state attorneys. Briefs by the State to attorneys firms are currently limited to correspondent matters and where there may be a conflict of interest. Contrary to popular belief this Government has delivered on its commitment in terms of briefs to the previously disadvantaged practitioners.
Of the 8854 briefs to advocates over the past three financial years (2010/11; 2011/12 and 2012/13), 7405 briefs (or 83,63%) went to black persons and 2 778 briefs (or 31,37%) went to women. The Minister will elaborate more during the budget vote next week. It is important that they view the allocation of state briefs in the context of the entire of the transformation of the legal profession. In this context it is important to consider the changes that will be brought to the State Attorney’s Act through the introduction of the Solicitor-General dispensation.
The Legal Practice Bill, 2012, currently before Parliament, is, of course, a central part in the transformation imperative of a legal profession that embraces the values underpinning the Constitution.
The Legal practice Bill presents a unique opportunity for the legal profession to shape its own future and also build a firm foundation for transformation of the judiciary. A transformed legal profession is the foundation upon which the judiciary can be transformed as members of the judiciary are, in the main, drawn from the legal profession.
We have come from far with the Bill. We acknowledge the contribution of the profession in shaping the Bill. The legal profession is encouraged to also use the parliamentary process underway to further enrich the legislation which we view as one of the instruments that promote access to justice.
The Legal Practice Bill proposes an incremental approach as far as its implementation is concerned. A Transitional South African Legal Practice Council (the Transitional Council) will fulfill a key role in the first phase of implementation, paving the way for the establishment of the permanent South African Legal Practice Council and putting systems and procedures in place for the second and subsequent phases of the implementation process.
Some of the main goals of the Bill, as set out in the purpose clause, are to:
(a) provide a legislative framework for the fundamental transformation and restructuring of the legal profession that embraces the values underpinning the Constitution;
(b) broaden access to justice:
(i) by putting in place a mechanism to determine fees chargeable by legal practitioners for legal services rendered that are affordable and within the reach of the citizenry;
(ii) by putting in place measures to provide for the rendering of community service by candidate legal practitioners and practicing legal practitioners;
(iii) by putting in place measures that provide equal opportunities for all aspirant legal practitioners in order to have a legal profession that reflects the demographics of the Republic;
(c) Create a single unified statutory body (a South African Legal Practice Council) (the Council) to regulate the affairs of all legal practitioners in pursuit of the goal of a unified, accountable, efficient and independent legal profession;
(d) Protect and promote the public interest; and
(e) Protect and promote the interests of consumers of legal services by the establishment of an Office of Legal Services Ombud.
I must admit that I remain perplexed at some of the principle objections to the Bill, one of which is that the appointment of three fit and proper persons by the Minister to the South African Legal Practice Council will for one or other reason impact on the independence of this statutory body and make it a body controlled by Government.
How is this possible?
The Council consists of 21 members of which 16 are legal practitioners appointed by the legal profession; one a teacher of law or legal academic nominated by the law teachers, legal academics or organisations representing law teachers or legal academics, and one person nominated by Legal Aid South Africa. Three government appointees outgunning, outsmarting or outvoting 18 members of the Council, of which 16 are legal practitioners! I think not. And, on a lighter note, I am also sure that no amount of name dropping by the ministerial appointees will impress the representatives of the legal profession.
Regrettably some of those who have done well under the current rules consider government attempts to equalise the playing field as akin to government tyranny. They project themselves as victims and what is good for them is good for the rest of society. Their view is based on an ingrained ideological tradition derived from a colonial model of the legal profession controlled by elites. Our Constitution does not provide a right for an elite to carry out decisions in an opaque way for their own benefit or permanently engage in their vices that keeps out others from ascending the ladders of the legal profession.
It is Orwellian to find individuals with no human rights back ground, some of whom fought for apartheid now casting themselves as defenders of the Constitution. In reality, their views are informed by self-interest. The BLA needs to be engaged in deconstructing these arguments. Unless your voice is heard, you cede the narrative to the forces whose voices dominate about the way the legal profession or for that matter society should operate.
The Legal Practice Bill does not provide for a unified profession. However, it is a debate that has again been raised with the introduction of the Legal Practice Bill. The fact is that the Right of Appearance in Courts Act No. 62 of 1995 had already laid the basis of a single, unified legal profession. The Act, which grants attorneys the right of appearance in the Superior Courts still has to realise its full potential. Another recent legislation that introduced fundamental changes in the legal profession is the Magistrates Courts Amendment Act of 2008 which conferred civil jurisdiction to the Regional Court. Similarly, this provides opportunity for attorneys to take on matters which were the preserve of their counterparts in the Advocates profession and by so doing, further expand access to justice for ordinary citizens. These legislative interventions are also yet to realise their full potential.
The Legal Services Sector Charter, which was adopted by the legal profession in 2007 characterises an important trajectory in the transformation of the legal profession. It constitute a pledge by the profession itself, to advance the transformation of the legal profession by creating a conducive and enabling environment for the equalisation of opportunities of access to the profession for aspirant lawyers and access to legal services for the poor and vulnerable members of society alike. These noble guarantees have yet to be realised and the Legal Practice Bill once enacted, will give the elements enshrined in the charter the required force of law.
Society needs to hear your voice. The bench needs to hear your voice. Government needs to hear your voice. A vibrant and engaged legal profession is an essential institution in building a healthy democracy.
You have to be fully engaged in dealing with pressing problems such as legal reform across the board, government malfeasance, sexual assaults on women and children, social justice, environmental issues and the myriad other challenges of a complex society that we live in.
Let’s summon all of ourselves to resolve to transform the way we think about our role in society as lawyers. You have a special obligation to carry on that struggle; we must collectively forge the intellect, the compassion, concern and discipline to transform our society.
To conclude with the words of President Mandela:
“We know it is a matter of fact that we have it in ourselves as Africans to change all this. We must, in action, assert our will to do so. We must, in action, say that there is no obstacle big enough to stop us from bringing about a new African renaissance.”
