J de Lange: Centenary celebration of Balsillies Strauss Daly
Attorneys

26 October 2006

Programme Director
Mr Hennie Barnard, Chairperson of Balsillies Strauss Daly
Mrs Farieda Omar, veteran of our struggle and wife of our great friend and
leader, the late Dullah Omar
Mr Mninwa Mahlangu, Chairperson of the National Council of Provinces
(NCOP)
Members of Parliament
Mr Andries Nel, Deputy Chief Whip of the African National Congress (ANC)
Directors of Balsillies Strauss Daly
Distinguished guests;
Ladies and gentlemen

This is indeed a memorable day which I am certain you have looked forward to
for a long time. It is a great pleasure for me to share in your
celebration.

As a rule I tend to shy away from accepting invitations to address
individual law firms for obvious reasons. I usually only accept invitations to
address collectives of lawyers, like law societies and advocate councils.
However, I regard this occasion as an exception. Firstly, because it is your
centenary celebration and secondly, because I was asked to speak on
transformation, something that is highly unusual from a law firm which is
predominantly white-owned. My experience of such firms is to ignore or shy away
from issues like transformation and do the minimum in this regard. So I was
interested in meeting these people who were prepared to act contrary to the
perceived wisdom.

Ladies and gentlemen, Balsillies has over the past 100 years established
itself in specialised fields of the law and has become one of the prominent
legal firms in South Africa. The firm is not only celebrating its centenary
this year but it is also growing stronger and bigger as evidenced by the merger
to form Balsillies, Strauss Daly. This growth, obviously, is testimony to the
fact that it is built on a foundation of excellence in service to clients and
integrity in its dealings.

However, in celebrating this centenary, it is important that Balsillies
reflect on its past not just of the firm but also of the South African legal
system it has served and on the long and sometimes painful journey that we have
travelled to get to where we are today. It is this journey that has indeed
shaped who we are today and where we are going tomorrow.

In doing this we will then be able to look forward to a confident future one
where all South Africans have access to quality legal services and justice. It
is because of the legacy of our past that we now face enormous challenges in
constructing a completely new legal system. It is because of this past, that
our legal system is going through one of the most fundamental and yet exciting
processes of transformation ever experienced.

Balsillies itself is no stranger to change. Established in 1906, as AA
Balsillies and Co, it has undergone many changes. Therefore, as an institution
that has existed for a 100 years the process of change or transformation at
Balsillies not just the change in logos and names, I imagine, has come to
reflect the changing values in society as the broader community which it serves
has itself changed and demanded the same from it. This is because legal firms
like many entities in any society, do not exist in isolation. The changes they
undergo are often a reflection of the broader changes that take place in
communities in which they are located, because they are part of that
society.

Ladies and gentlemen, the all-embracing transformation of our country as a
whole is a constitutional imperative and remains one of the most important and
biggest challenges facing all of us. While the process of transformation in
most sectors of our society is well advanced, in others, such as the legal
services sector, there still lies ahead a very difficult and painful path.
However, it is a pathway that has to be negotiated if we are to breathe life
into our Constitution and make it real to the ordinary people of this country,
who on a daily basis come into contact with the legal services sector. The
issue of social equity quite apart from the numbers constitutes a very real
challenge for us. In recent months through the Sandton Legal Services Charter
Indaba held in August and the follow up provincial workshops, we have sought to
discover with all stakeholders the nature of the challenge we face in
transforming the legal services sector and what it is that stakeholders are
thinking on these issues?

I am sure that for many in legal practice as is witnessed more generally in
our society the transformation processes currently sweeping our society and the
legal services sector in particular, may be causing some discomfort and
concern. This is not entirely unexpected.

The honest truth is that we all generally fear change and that which we do
not know.

However while we acknowledge that this is not an easy process and it is also
frightening to some of us, it is instructive to heed counsel 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".

Ladies and gentlemen, so what is this transformation everyone is fussing
about? And what is required of those of you in legal practice in respect of
this transformation?

The system of apartheid declared a crime against humanity by the
international community consisted of millions of acts and omissions, big and
small performed daily consciously and sub-consciously which were interwoven
into a system which not only ensured privilege to a few but also deliberately
attempted to criminalise, degrade and dehumanise from the cradle to the grave
those excluded from such privilege. It is, therefore, that I strongly argue
that the very essence the very soul of apartheid permeates and perverts each
aspect of our individual and collective lives and is interwoven into the very
fabric of our political, legal, social, economic, psychological and
institutional life and structures. Even today still this is very much the case.
Although as we transform our society and move ever deeper into our new
democracy this stranglehold the apartheid legacy has on every facet of our
country will with ever-increasing speed diminish.

The government led by the African National Congress (ANC) has called for a
comprehensive integrated and holistic approach to deal with this vast task of
dealing with the legacy of our apartheid past. Our approach is best captured in
our strategic objective during this transitional period which amounts to the
social transformation of our society into a united, democratic, non-racial,
non-sexist and prosperous society.

I think the problem we are facing and trying to address through this all
encompassing term "transformation", is best captured by the eloquent words of
the former Chief Justice, the late Ismael Mohamed who remarked, "This pervasive
and continuing legacy of racial inequality is potentially capable of seriously
impairing the fulfilment of our vision to build a single and united South
Africa which is morally just, politically stable and economically vigorous. It
is a legacy which therefore needs urgently to be addressed and reversed."

Ladies and gentlemen, transformation is an all embracing, holistic,
inclusive and integrated project to change the attitudes, consciousness and
material conditions of our people in a meaningful and effective way to reflect
the values that we struggled for and which are embodied in our Constitution and
in the human rights culture we strive towards.

The main content of this transformation project is the transformation of the
political, economic, social, ideological, moral, institutional and all other
spheres and aspects of the apartheid dispensation by the building of a single
South African nation which acknowledges the diversity of its people, the
forging of a new progressive patriotism, the healing of the wounds of a
shameful past, the de-racialisation of society, the progressive eradication of
gender inequalities and women's oppression in particular, uplifting the quality
of life of all South Africans through the progressive sustained eradication of
poverty and attainment of the basic needs of the majority and creating and
maintaining a culture of democracy and human rights. Flowing form the above,
the triad of essential elements of this project namely reconciliation,
reconstruction and development have been identified as forming the kernel of
our social transformation project during the transition. Each element of course
has a distinct and separate existence but they are also inter related and inter
dependent. The one without the other would constitute a defective and
incomplete social transformation project.

Unfortunately in the last four years, particularly through commentary by and
in the media, such transformation processes have simplistically been equated
with the mere changing of the racial composition of institutions or with
delivery of services. However, as important as the attainment of these two
goals is, they obviously do not contain the sum-total of what transformation
is. It is obvious that if we are trying to change not only the material
conditions which are the consequence of apartheid but the mind sets and the
consciousness that underpinned or were forged by apartheid and its existence,
then clearly a much longer term process is being embarked upon in which
changing the racial composition of institutions or delivery of social services
are merely but two, albeit two important, aspects of this transformation
project.

In a nutshell the envisaged transformation processes are meant to change
fundamentally, in the shortest time possible, the political ideological and
socio-economic relations which existed under the apartheid dispensation to
power relations more in accordance with the principles captured in our
constitutional dispensation. But this must not only be achieved formalistically
as the substance of our society and our very existence must reflect this
reality. In other words we want a society where all citizens do not only enjoy
the freedoms and liberties of a liberal democracy as important as these may be
but one where the principles of non-racialism, non-sexism, equality, dignity,
humanity and diversity are given real meaning for ordinary citizens and becomes
interwoven into the very fabric of our society.

Needless to say, to achieve this kind of transformation where the odious and
noxious legacy of apartheid which still today pervades and is interwoven into
the very fabric of our society has to be ripped out and replaced with a more
caring, equitable, humane and dignified society will take much time, effort and
pain. There is no quick fix solution for this kind of transformation of a
society, especially our apartheid stricken society whose singular greatest
achievement is its abiding legacy of having been declared a crime against
humanity.

Despite this Herculean task we have undertaken, this is the pact we entered
into with our people and we shall prosecute it to its successful conclusion. We
also at all times are mindful and remain so even when all around us lose their
heads that transformation is a process and not an event.

In summary, therefore, transformation at the very least means or implies
change from one state or form to another. The equivalent in nature would be the
transformation from a caterpillar to a butterfly. In the context of South
Africa, it therefore means to change in accordance with the Constitution from a
judicial system under an apartheid state to a judicial system under a
constitutional state. But it is not change merely for the sake of change. So it
is not merely a question of wholesale change of everything that was there
before 1994 but to change only that which was wrong, which in the South African
context happens to be a substantial part of the old system. In its broader
sense the transformation of the judicial system means a judicial system which
is consistent with the values and principles underpinning our constitutional
democracy. Key to this value system is the establishment of a legitimate,
accessible, efficient and transformed judicial system including a court system
that responds to the needs of the citizens as enshrined in the Constitution. In
the context of the transformation of the judiciary the concept also refers to a
judiciary that broadly reflects the racial and gender composition of South
Africa as envisaged by the Constitution.

Ladies and gentlemen, let me deal with the issue of diversity transformation
in some detail as it seems to be the matter that attracts all the adverse
attention. Equitable demographic representation and inclusiveness by race,
gender and other legitimate constitutionally recognised identities (which I
refer to as diversity transformation) are important values and rights within
the Constitution, not least under Sections 1 and 9 of the Constitution. Clause
9 of our Constitution (the equality clause) is unique within international
jurisprudence and reads amongst others:
* 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.

To the extent that "transformation" at the very least means or implies
change from one state or form to another for purposes of improvement of the
justice system, 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 9 and
174(2) of the Constitution would be devoid of any meaning and value.

Addressing this very same important matter of diversity 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."

Despite the slew of empowering policies and enabling 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 policies and
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
(US) 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."

Ladies and gentlemen, 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 merely 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 other 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 sometimes
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 persons 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
engrained within the very fabric of our human existence and therefore into the
very tapestry of our 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 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 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 with each other 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
possibilities of contradiction, denialism, misunderstanding and
obfuscation.

Racism should become something we should not run away from, shy away from.
It is an issue we must confront daily, in our everyday thinking and existence
and we need to do so honestly and sensitively, with one goal in mind to
understand it and then to do all within our ability to eradicate it. This is
the task of each individual South African and all South Africa institutions,
like Basillies. However, it is also true that racism could also be highly
divisive and can be used to deepen the fissures and fault lines in our society
and lead to further fragmentation of our social fabric and social cohesion. But
this will only be true if we allow one of two things to happen. If we either,
firstly, ignore it or stifle any interaction around it or secondly, if we leave
the raising of the issue to people who may want to use this highly explosive
issue for their personal aggrandisement or benefit or some other self seeking
or racist agenda. Thus we have no alternative, but to deal with it.

And to do so boldly and unapologetically but always with the wisdom of
Solomon and within the parameters of our African value system of ubuntu. In
other words we need wise and bold leadership on the issue. And for that we need
bold leaders, who deal with it sensitively in a solution seeking and
reconciling manner yet devoid of maudlin sympathy, cynicism and paternalistic
platitudes.

Ladies and gentlemen, the third aspect of transformation namely of the
procedures, processes, rules (and structures) of our justice system seems to
get forgotten all the time. However, the transformation processes have to
permeate not only aspects of diversity and the value system of our society but
also the structures, processes, rules and the procedures of the legal system.
As you know a lot of the conservative and oppressive procedures, rules,
processes or structures that we follow in court and elsewhere in the justice
system remain completely intact from the apartheid era. Somehow now in this
democracy, 12 years down the line, I am always fascinated when one starts
questioning the assumptions and the values behind or underlying those
procedures, processes, rules and structures you become the enemy and they are
vigorously defended often by persons who have a track record of having fought
apartheid and injustice! Some of these procedures, processes, structures and
rules are just absolutely discriminatory and continue to marginalise the poor.
They need urgently to be touched with the same transformation brush.

Ladies and gentlemen, I will remind you that the government's approach in
dealing with issues which may broaden the social cohesion deficit like
transformation and racism is always to remind ourselves that South Africa
belongs to all those who live in it and it is therefore our duty, all of us,
black and white, male and female to unite in our diversity in order to ensure
our collective success. This approach is most cogently captured by President
Mbeki who advised that, "All of us, as South Africans, need to understand that
as the struggle for freedom from white minority domination had its price so
will our efforts to achieve non-racism and national reconciliation have their
price. That price will have to be paid by both black and white South Africans.
All of us would have to internalise the reality that our very collective future
depends on the ability of all our people to understand that the success of
black South Africa is conditional on the success of white South Africa and that
the success of white South Africa is conditional on the success of black South
Africa."

Let me conclude this part by saying to those amongst us who may still
harbour silent fears of this monster called transformation I can do no more
than to leave you with the words of wisdom of economist and author, Dr Hazel
Henderson who gently reminds us, "If we can recognise that change and
uncertainty are basic principles, we can greet the future and the
transformation we are undergoing with the understanding that we do not know
enough to be pessimistic."

Ladies and gentlemen, briefly moving from the general to the specific it is
very important that we start reaching consensus around what transformation in
the legal services sector means. At the moment if you go around this room you
probably will find 50 different versions of such transformation. However,
transformation in the legal services sector has to have a core value system
which must be easy to agree on. We need urgently to reach consensus on such
core values.

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. However, as I tried to highlight above
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.

Therefore, at the Legal Services Charter 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 and comprehensively
restructured and transformed.

For those of you in the legal services sector in practical terms
transformation should, therefore, mean that 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 quality legal services and justice. One of the
key objectives of a justice system rooted in a democratic dispensation is the
question of meaningful access to justice. All South Africa's people,
irrespective of their wealth or station in life should have access to quality
legal services and justice. For this to be realised we, firstly need to
redefine the legal services sector as broadly as possible and not only to
include the legal profession and we need, secondly to redefine the roles of the
various role players in this broader legal services sector. This includes the
role of lawyers and the legal profession, including the approach to legal
qualifications and the rules relating to admission as legal practitioners, the
role and place of the prosecuting authority in the system of justice; the role
of legal assistance by the State, including services provided by the Legal Aid
Board, the role of paralegals and advice offices, the content of legal
education and the role of the public and non-government organisations
(NGOs).

All these proposed transformation processes within the legal services sector
always must take place with the objectives of fulfilling our constitutional
obligations of, firstly, creating a progressive rights based society and
secondly of providing access to all our citizens of quality and professional
legal services. All other objectives we pursue or achieve in pursuance of the
type of transformation outlined herein, should be subservient to the objectives
stated above.

The recent Legal Services Charter 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 change 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 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 from
individuals or law 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.

Ladies and gentlemen, it is appropriate to say a few words about Balsillies
at the end. I congratulate you on your centenary and wish you well with your
celebrations during the course of the year. I trust that over the next 100
years you will continue to draw on the good in the past as you build a new
future and that the new merged firm will be every bit as successful as it has
been up to now. It is particularly pleasing for me to note that during the
transformation of your legal firm to what it is today, the issue of black
economic empowerment (BEE) seems to feature. I see that 30% of the Balsillies
Strauss Daly is held by black shareholders that are actively involved in the
day-to-day running of the new firm. It is interesting to note that the Draft
Charter talks about changing the ownership of legal practices in five years
time to be 40% black owned. Balsillies seems well posed to reach this target
and set an example for the rest of the legal fraternity. I watch developments
in this regard with interest.

You have chalked up a major milestone, 100 not out, but the journey is still
long. There are still many other challenges ahead during the next 25 years and
thereafter and your expertise and experience gained over the last century will
be called on. Finally, I want to say that you are fortunate that I am
recovering from a cold. Otherwise I would have treated you to a fine rendition
of happy birthday to Balsillies Strauss Daly. As it is I will confine myself to
saying, 'many happy returns Balsillies Strauss Daly on a centenary of
achievements'. We all look forward with confidence to your next century.

As a word of encouragement for the next 100 years I would like to leave you
with these wise words of Nigerian poet, Ben Okri who reminds us that,
"They are only the exhausted who think
That they have arrived
At the final destination
The end of their road
With all of their dreams achieved
And no new dreams to hold."

I thank you!

Issued by: Ministry of Justice and Constitutional Development
26 October 2006
Source: Department of Justice and Constitutional Development (http://www.doj.gov.za/)