J De Lange: North West Attorney's Council Annual General Meeting

21 October 2006

Chairperson of the North West Attorneys' Council Mr Madiba
Honourable Justice Mogoeng
Distinguished guests
Members of the council
Ladies and gentlemen

It is a great pleasure and an honour for me to address you this morning. I
want to thank the Council for this kind invitation to this important day in
your annual calendar, your Annual General Meeting.

Ladies and gentlemen, in recent months we have all been exposed to and
participated in the debate around the issue of the transformation of this
country's legal services sector. We are grateful that so many of you,
stakeholders in the legal sector, at very short notice, responded positively to
our invitation to play an active role in the process of developing a Legal
Services Charter.

We are keenly aware that the transformation of the legal services sector,
like in other sectors of the South African society, is contested terrain and is
never going to be easy. In the same breath the process of transformation of the
South African legal system and making it more reflective, the values in the
Constitution and of this country's demographics are a Constitutional imperative
that are non-negotiable. The debate on the transformation of the legal system
is therefore an important one, and one that all stakeholders need to be
involved in actively.

As government, particularly the Department of Justice and Constitutional
Development, we firmly believe that a systemically transformed, strong,
vibrant, economically sustainable and independent legal profession is a
fundamental component of our respected democracy. Substantive transformation
therefore means more than merely admitting more black and women legal
practitioners into the profession. Clearly merely opening the doors for all the
people of this country into the existing system is important but it is not
sufficient.

Clause 9 of our Constitution, (the Equality Clause), says, among other
things:

* Everyone is equal before the law and has the right to equal protection and
benefit of the law.
* Equality includes the full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative and other measures designed to
protect or advance persons or categories of persons, disadvantaged by unfair
discrimination may be taken.

At the indaba there was consensus that the legal services sector requires an
innovative, holistic and comprehensive plan to ensure that the legal services
sector is completely restructured and transformed.

The Indaba provided us with the first public opportunity to engage,
understand and contribute to the debate of the meaning of transformation,
equity and empowerment in the context of the legal services sector. The
follow-up provincial visits (29 September to 15 December 2006) by members of
the steering committee are intended to ensure that the practitioners who could
not attend the Indaba have another chance to interact with the draft charter so
that at the end of the process, we have a Charter that is a product of inputs
by the majority of practitioners and other stakeholders.

We already had well attended and successful workshops in the Eastern Cape
and Northern Cape provinces. The North West province workshop is scheduled for
8 December. We therefore hope that the provincial workshops will provide all of
us with valuable insight into issues and perspectives from the various role
players that will be impacted upon by the development of such a legal services
charter.

Some of the resolutions of the Indaba were that written inputs should be
made to enhance the draft Legal Services Charter. We await such inputs by
individuals or firms. Furthermore, it was recommended that bilateral meetings
should be considered between the ministry and key stakeholders within the legal
profession and the legal services sector. We are proceeding to organise such
bilaterals.

However, the issue about the legal services charter, for me, is not just
about the transformation of the legal profession. It is the transformation of
all legal services and in our country it is very important, due to our legacy
that we look at legal services much more widely than just the legal profession.
If we are going to put all our eggs in one basket we are surely not going to
achieve everything that we want to achieve. The pool of disadvantaged poor
needing legal services is too large, merely to rely on the legal profession to
provide such services. It is therefore very important that we look at this
charter very differently than the other existing charters. Not least of all
because legal services are provided by a profession that contains aspects of a
business, but is not a purely business entity like companies or corporations
involved in, for example, mining, and so on.

The process of drafting a legal services charter has to be seen in the
context of how we transform legal services in our country. That is a very
important point that featured as one of the big debates at the indaba. Clearly
when we look at the empowerment of the legal profession, then it has to be in
the context of how we provide access to professional and quality services to
our people, particularly the poor and the marginalised.

To me, the current debate on the transformation of the legal sector is
focused too much on the profession and particularly what the profession can get
out of the system. The reality is that transformation is a highly contested
process in our country. In fact, there are certain parties and individuals who
absolutely deny its existence or that it is a constitutional imperative. To
prop up this ridiculous contention, these people contend that the word
transformation is not even mentioned anywhere in our Constitution.

Now, ladies and gentlemen, you do not have to be a class one pupil, you do
not even have to be a first year law student to realise what transformation is
all about. It is all about change. That is all it is. Transformation is about
changing that which we had under apartheid to what we aspire to and the values
in the constitution. Any transformation that does not do that is not
transformation. It is therefore not change for change's sake. It is change to a
particular value system away from a particular value system. So all these
charters, and the empowerment process in the legal sector have to be seen in
the context of this kind of transformation.

In practical terms, transformation means it is imperative that we institute
changes in the legal system in order to ensure that it is responsive to the
needs of all South Africans, and does so fairly and speedily. At the same time
we also need to ensure that the justice system does not only serve those that
can afford to pay for lawyers, but also those that are marginalised and poor,
and have no meaningful access to justice. One of the key objectives of a
justice system rooted in a democratic dispensation is the question of 'Access
to Justice.' All South Africa's people, irrespective of their wealth and
station in life should have access to quality justice. For this to be realised
we need to redefine the roles of the various role players in the legal services
sector.

This includes the role:

* of lawyers and the legal profession
* place of the prosecuting authority in the system of justice
* of paralegals and advice offices
* of legal education, the approach to legal qualifications and the rules
relating to admission as legal practitioners
* of the public and non-governmental organisations (NGOs).

So transformation is the constitutional imperative this nation has agreed to
move towards in order to fulfil the needs of all her people.

Ladies and gentlemen, equitable demographic representation and inclusiveness
by race, gender and other legitimate constitutionally recognised identities is
an important value and a right within the Constitution, not least under
Sections 1 and 9 of the Constitution. To the extent that "transformation" at
the very least means or implies change from one state or form to another for
purposes of improvement within the justice system and elsewhere, no one can
reasonably argue that broad representation is not an essential element of
transformation. Otherwise, the imperatives of provisions such as those in
Section 174(2) of the Constitution would be devoid of any meaning and
value.

Addressing this very same important matter of transformation in 2002,
President Mbeki said: "It also seems obvious that one of the issues we should
discuss is the building of a pool of potential black and women candidates for
the judiciary and magistracy. The objective situation suggests that we must
attend to this challenge in a conscious and consistent manner. If we fail to do
this, the historic discrimination referred to in our Constitution will
guarantee that the racial and gender imbalances will, for the foreseeable
future, remain unchanged."

Government has since 1994 consciously set about reversing the awful legacy
of inequality by putting into place structures and policy frameworks that
redress past inequities and by diverting increasing proportions of the National
Budget to the needs of the poor and the vulnerable. Every piece of legislation,
and a significant portion of these championed by the Department of Justice and
Constitutional Development, that has been enacted, as well as the policies and
programmes introduced and implemented since 1994, have been geared towards
making this mandate a living reality for all the people of this country. While
encouraging strides have been made, the extent to which the majority of the
citizens participate meaningfully in our legal system still remains far too
limited.

In the first 10 years of our democracy, the profession of legal
practitioners, like a number of other professionals, has had to grapple with
the issue of transformation and adapt to the new demands of a democratic
dispensation. We acknowledge that this is not an easy process and it is also
frightening to some of us. In fact, its effect is well articulated by the
former Chief Justice, the late Ismael Mohamed, who said that some of us "are
intimidated by the depth of the challenges involved in meeting the need for
transformation to a just and equitable society instead of being inspired by the
energies which can be released in confronting the challenge; they are
immobilised by an assessment of what is, instead of being activated by what can
be; they allow the few thugs who invade our hard won peace, to paralyse their
responses instead of coalescing their energies to reverse the conditions which
create and sustain such criminals; they allow the empire of fear to suffocate
the power of love."

It is an undeniable truth that despite the slew of enabling and empowering
legislation that has been enacted since 1994, many black and female legal
professionals continue to face prejudice and marginalisation in the workplace.
One of the many reasons for the status quo is that equality is not realised
solely through legislation, equality is a state of mind. If we are to eliminate
prejudice, equality is a value that needs to be inculcated and shared and
upheld by the entire community, men and women alike. Institutions like law
firms and law societies too need to internalise this value and make their
environments affirming to all those individuals that enter them. Countenanced
by the very same question of equality in 1965, the then President of the United
States, Lyndon Johnson, said: "We seek not just freedom but opportunity not
just legal equity but human ability, not just equality as a right and a theory,
but equality as a fact and as a result."

This whole discussion around transformation, ultimately, and for the
foreseeable future, will always, inevitably lead to the big r word, racism.
Even as I say it I can imagine many of us, inwardly blanching. Not necessarily
because we are racist, but, rather because we know it is amongst us, ingrained
in our every day existence. The silent assassin, the unspoken obscenity of our
society, and our everyday existence.

Most people who are victims of racism do not want to be told how nice they
are and get patted on the back for being a jolly good fellow. The issue at
stake here is the human dignity, integrity and self-worth of that human being,
and not mere platitudes or niceties. Racism is about the perceived superiority
of some people over the perceived inferiority of others, usually based on
worthless criteria like race. Racism hits at and negates the inner core of the
existence of a human being on the basis of the race he or she belongs to. The
dignity, integrity and self-worth of each human being are sacrosanct and
non-negotiable. However, to further complicate the matter, it is also true that
one, of course, can negate or infringe upon the human dignity, integrity and
self-worth of a human being in many forms, and not only in the form of racism.
It is when you do it on the basis of race that it becomes racism. Therefore,
one can often impinge on the dignity, integrity and self-worth of an individual
without being racist. But because one cannot regulate how that individual will
experience it, one cannot dictate whether he or she will experience it as
racism or not.

That is what makes it so precious, but also so extremely difficult and
complex to deal with. It is the most subjective of subjectivities. Because,
just as the maxim goes: 'One person's freedom fighter is another's terrorist,'
so too can one say, one person's racism is not necessarily that of another.
Obviously, even persons of the same race may not experience the exact same
gesture, word, act, action or omission experienced in the exact same
circumstances or conditions as racism. It is the sum total of a person's
existence, which is unique to each one of us, that makes us to experience such
gesture, word, act, action or omission as racism or discrimination. Therefore,
that racism exists and that it is ingrained within the very fabric of human
existence and therefore into the very tapestry of social existence and our very
society, is as undeniable a fact, as the fact that the sun will rise tomorrow
morning and the day after.

Whether a particular hurtful act, which impinges on the human dignity,
integrity and self-worth of another, it is in fact racism, depends on whether
it is actuated by the perpetrator's belief that a person of another race is
inferior to the race he or she belongs to, and not and not on some other factor
like political or social preference, ideological disagreement, dislike of the
person, competition and so on. And herein lies the rub. Very few people go
around openly saying that the race they belong to is superior to another. And
therefore, it is the process of our human interactions which are mostly,
couched, subtle and unspoken that our unconscious beings manifest our inner
unarticulated prejudices and preferences. In these circumstances, especially in
a country like ours that was established, built and maintained on a racist
premise, to decode a gesture, word, action or omission as racism, is fraught
with responsibilities of contradiction, denialism, misunderstanding and
obfuscation.

Ladies and gentlemen, it is very important that we start reaching consensus
around what transformation is. At the moment, if you go around this room you
probably will find 50 different versions of transformation. Transformation has
to have a core value system which must be easy to agree on. When we say that
the reason for the proposed legal services charter is the transformation of the
legal sector, what are we saying? We must look at all the mechanisms that we
are creating here whether it is black economic empowerment which is important
and we must strive for or whether it is enhancing the skills of our profession,
particularly for blacks and women that have not had those opportunities.
Whether it is the delivery of services through paralegals or others, all that
has to be judged within this paradigm of transformation.

Another matter about transformation that just gets forgotten all the time is
the issue that transformation has to permeate, not just diversity and the value
system, but also the structures and the procedures of the legal system. I am
always fascinated that a lot of the procedures that we follow in court and
elsewhere still come from the apartheid era. Somehow now in this democracy, 12
years down the line, when you start questioning the assumptions and the values
behind those procedures, structures and rules, they are vigorously defended
often by persons who have a track record of having fought apartheid and
injustice! Some of these procedures, structures and rules are just absolutely
discriminatory and continue to marginalise the poor.

A very good example would be the rule around security. I think it is
questionable that you cannot proceed with your litigation unless you pay a
certain amount of money as security. Who do you think benefits out of that?
Only the rich can put up security, the poor cannot afford to put up security.
How many cases are excluded from proceeding just on the basis of that rule of
security? There is no mechanism either in government or in the private practise
to make sure that we holistically and coherently address these wrongs in the
profession. The process is arbitrary and it is going to backfire badly on us,
if left unaddressed.

Ladies and gentlemen, these are some of the barriers and challenges we are
countenanced with in this sector, but ultimately, it is stakeholders in the
sector, such as the legal practitioners, and not government, that can ensure
that the sector is completely transformed. As government we can create certain
frameworks, but it is your interactions with each other and the mechanisms you
create that will help you deal with the issue.

The point I am trying to make is that and I am personally very worried about
the profession. Lawyers play a critical role in our society. Yet somehow, 12
years into our democracy, there is a deafening silence and apathy, by the legal
profession, on major issues confronting our society. There are many major
issues that affect the profession and the society that we are not talking
about. The legal profession as a whole, and not individuals, need to pronounce
on these issues and actually start to tackle, in a meaningful way, the issues
of transformation and the mechanisms to address the matter. It is very
important for the legal profession and with government, where we can assist,
that we actually start a dialogue on transformation and other critical issues
affecting the profession and the sector. Hopefully this charter process will
encourage you to get involved for the sake of the profession and the sector.
The brutally honest truth is that if you do not get involved you are going to
be left behind. Government, constitutionally, is responsible for policy
formulation and we will not hesitate to fulfil that function. Policy formation
in the area of formulation of the administration of justice is the preserve of
the Department. In this case of the Legal Services Charter, the Minister
decided on a different approach that entails an exhaustive consultative process
led by legal practitioners. It is therefore vital that you sit down as a
profession and meaningfully discuss these issues. Ultimately, flowing from this
consultation process, the Minister will have to make some policy decisions
which will be processed through Cabinet and Parliament for approval. For
example the draft charter talks about changing the ownership of legal practices
in 5 years time, to be 40% black-owned. While many of you will agree with this
and probably aspire to it, the question is how are you going to get there? What
mechanisms will we use to do that and what does that mean? If the vast majority
of our legal profession actually consists of single and two person law firms
what does that mean for such targets?

Ladies and gentlemen, as our democracy matures it is increasingly important
that we reach more and more of our people. Does the charter actually deal with
the kind of transformation that recognises that legal services to the majority
of black and poor people, is mainly through the small, little firms, the one
and two person firms? The reality is that these small practices, and not the
big firms, are the ones that are easily accessible and provide critical
services to the poor. Will changing the ownership at the level of big firms
really impact on transformation in terms of improved access to legal services
for the poor? To take the point further, what mechanisms are we going to put in
place to develop the skills of lawyers generally so that they can provide a
good professional quality service? These are very tough issues that we need to
start debating and all of these debates have to always be in the context of the
transformation in terms of our constitutional imperatives, including the
important issues of diversity and values.

My department is in the process of establishing a policy framework regarding
our court structures, including the use of Alternative Dispute Resolution (ADR)
mechanisms to ensure public participation in judicial processes and alleviate
the courts of the workload of petty crimes and disputes which can be resolved
outside the formal court system. ADR refers to a collection of procedures or
mechanisms to resolve especially civil disputes. These various mechanisms are
"alternative" to those Court procedures that have gained an unfortunate
reputation for being protracted, expensive and risky. Thus, the ADR model is
much more flexible than the court system. It provides a spectrum of mechanisms
and it may even employ some of the best aspects of the court system to achieve
other objectives and satisfy other needs. How does the inclusion or expansion
of such legal services fit into the transformation processes? Do they fit in?
Will this enhance access to legal services, especially to the poor and
marginalised?

And this is exactly where legal practitioners and even paralegals, can come
in. In the transformation context what are we saying about paralegals? Some
people strongly contend that we should create a system where paralegals do
certain courses and obtain certain certificates which would enable them to
appear in certain courts. Others say no, their functions must be constrained to
matters outside the courts. An enhanced role for paralegals is important to me
because in the struggle days, paralegals played a very important role in
servicing the poor, particularly in rural areas, who required nothing more than
basic legal information or services. The question is, are the existing big
legal firms in a position to and willing to provide legal services for the
marginalised and the poor? If we move towards using paralegals to provide
affordable legal services to the poor and marginalised, to what extent do we
then integrate them into the rest of the legal system?

In conclusion, I think 12 years into our democracy it is wrong that we still
do not a have basic understanding and consensus around the core values of
transformation of the legal services sector. There is no broad consensus on
transformation with regard to where we are going, where we must go and how we
are going to do this for the benefit of our country.

There is just no such consensus, even vaguely on the horizon, at the moment
and we just cannot continue going on like this. Secondly, I think that as
lawyers, you fill a unique position in society and you have to get involved
with some of the broader issues as a profession and start giving some direction
to some of these processes. We may not all agree with what you do, but at least
do something, get involved with these processes that are happening more broadly
in society.

We are all only too painfully aware how difficult and complex transformation
is. I believe we should all be very excited and enthusiastic about the historic
opportunity given to us to participate in this process of building a better
life for all.

Once again thank you very much for inviting me. Obviously we are very happy
to have these opportunities to interact with all the stakeholders in the legal
services sector. Please let us all put our shoulder to the grindstone. Let us
start dealing with these issues in the profession and let us start playing a
role more broadly in society as a very, very important profession in our
society. We await you inputs.

Thank you very much.

Issued by: Department of Justice and Constitutional Development
21 October 2006