Programme Director
The Dean and Head of the school of Law, Prof Managay Reddi
Professors and lecturers
Students
Colleagues and friends
Good afternoon, it is an enormous pleasure for me, and with a touch of nostalgia, to be back here this afternoon at my alma mater and to be part of today’s proceedings. One is indeed struck by the brevity of time, as it feels like yesterday when I myself was a student here at UKZN’s Law School.
There are many quotes and anecdotes about lawyers, but sadly it appears that most of them are either negative or derogatory in tone. In fact, as early as 1727 a British writer, John Gay, wrote a fable called “The Dog and the Fox”, and he says -
“I know you lawyers can with ease,
Twist words and meanings as you please;
That language, by your skill made pliant,
Will bend to favour every client;
It’s the fee that directs the sense,
To make out either side's pretence.”
Some may say that that is rather harsh, but perhaps we have brought the negative perceptions that society often has of lawyers upon ourselves. For many, the practice of law and being a lawyer, albeit attorney or advocate, is a pure calling. They do not do it for the sole purpose of material gain, but for the love of the law and to deliver a service in the betterment of society.
They seek to ensure justice for all and show a dedication and commitment to being, first and foremost, officers of the court. A striking example would be someone like Adv George Bizos who is a Senior Counsel, but who has set an example throughout his career, by agreeing to be paid a salary by the Legal Resources Centre, equivalent to about R3,000 per day, which is what some other senior advocates charge per hour.
Then there are those who practice law as a business, practicing their craft brilliantly, but being purely market driven in their approach, in other words guided by the fact that they will charge what the market can pay and will justify exorbitant fees by claiming that people are happy to pay it; simple supply and demand economics in other words.
The issue of fees impacts on access to justice. Access to justice in its broadest sense entails the progressive realisation of the rights entrenched in the Constitution and the ability of every citizen to claim the fulfilment of these rights. It refers to social justice, such as the fair distribution of health, housing, welfare, education and legal resources in society, and, as one author says, is more about the basic ‘needs’ rather than the ‘wants’ of society.
A prospective litigant must have knowledge of the law, must be able to identify that he or she may be able to obtain a remedy, must have some knowledge about what to do and must also have the necessary skills to institute or defend the case. An ordinary person who is not a lawyer, even a well-educated person, does not possess the necessary skills to represent himself or herself accordingly. It is therefore clear that legal representation makes up an integral part of access to justice. I will return to the issue of legal representation and the legal profession in a moment.
Access to justice has been an important issue in many countries over many decades. More than a century ago, an Irish lawyer, Sir James Mathew remarked that: “Justice is open to everyone in the same way as the Ritz Hotel.” In other words, it is open and accessible to all in theory, but not in reality. Sadly, from a South African perspective, the challenges are more acute. Given the fact that our past is characterised by systemic oppression and discrimination due to institutionalised apartheid, the normal challenges of accessing justice are compounded.
Programme Director, the issue of improved access to justice is a much discussed topic. There are many obstacles to increasing access to justice, the most pertinent challenge being that of lack of funding for State-provided legal aid and the high costs of legal fees. Iqbal Suleman of Lawyers for Human Rights states it plainly: “This is the way it is. If you can’t cough up the bucks, then you are out of luck. The propertied and moneyed class can afford the best legal services. The poor cannot. What is on the surface, presented as a level field of justice, is in reality far from it.”
Dave Holness, whom many of you may know as the Director of UKZN Law Clinic, argues that the attorney and own client fees of private attorneys invariably far exceed the prescribed tariffs. Even on the basis of the High Court tariffs it is clear that access to a lawyer is for affluent South Africans only. For example, in civil matters, in terms of the High Court Tariffs, fifteen minutes in court or in a consultation is listed at the sizeable cost of R177.50, and for each page drafted R50 is allowed in terms of the tariff. Now one may say, R177 isn’t that much, but let us put that into perspective. Bear in mind that the average domestic worker earns approximately R170 a day, that means that a mere 15 minutes of court time or 15 minutes in consultation will cost them more than an entire day’s wages.
Nathan Geffen, formerly of the Treatment Action Campaign, examined legal fees and states that the “big firms typically charge R4,000/h for a partner’s time, but the top attorneys in the country can fetch R6,000/h. For the lowest-ranked qualified attorney you’re looking at R1,500/h and candidate attorneys are charged out at a bit under R1,000/h. ”
It therefore goes without saying that, not only for the poor or indigent, but even for middle class people, the cost of legal representation is simply unaffordable. We live in a deeply unequal society. Disparity of income or inequality of wealth is measured by the Gini coefficient. The Gini index measures the extent to which the distribution of income deviates from a perfectly equal distribution, in other words a Gini index of 0 represents perfect equality, while an index of 100 implies perfect inequality.
The GINI index in South Africa was 59.3 in 1994 and 57.8 in 2000. According to a World Bank report it measured 63.1 in 2009. Our Gini coefficient, and therefore our levels of inequality, has in other words gone up and up since 1994.
According to an Organisation for Economic Cooperation and Development report South Africa’s Gini coefficient is currently at around 70, making it among the highest in the world, and, says the report, although advances in areas such as electrification and access to education have increased equality of opportunities, no progress toward income equality has been made since 1994. In fact, we have become a more unequal society. By comparison, Ghana has a lower Gini index, of 39.4, Nigeria has an index of 43.7, the United States scored a 45 and Zimbabwe 50. Euromonitor states that in 2011, Norway had the lowest Gini coefficient of 25.6%. The Economist further observes that we have the biggest economy and the most developed democracy among the larger African countries.
However, it is also among the most unequal. Our economy is growing and welfare spending has brought down absolute poverty levels, yet “the gap between rich and poor is now wider than it was under apartheid”.
Then there is the question of whether there are enough lawyers in South Africa to provide adequate legal services. Prof David McQuoid-Mason argues that the South African legal profession consists of approximately 20 000 practising attorneys and 2 000 practising advocates who serve about 50 million people. This yields a ratio of lawyers to the general population of one lawyer for every 2 273 people.
This is a high ratio of lawyers to ordinary people for an African country. But, he argues, it is most unlikely that more than 30% of the population or about 15 million people can afford the services of lawyers. This then means that for the affordable part of our society there is a ratio of one lawyer for approximately 682 people. This ratio of people to lawyers– in respect of those estimated to be able to afford lawyers - is higher than that in several European countries as well as the United States, Brazil and New Zealand.
So although it appears that there are enough lawyers to provide legal services, this is only the case for those who can afford it. He therefore argues that, in the foreseeable future, it is likely that most people in South Africa will continue to be unable to afford to employ lawyers and will become increasingly reliant on Legal Aid South Africa and mechanisms other than lawyers for assistance in legal matters.
That is why it is of fundamental importance that law students or legal graduates become involved. They can make a significant contribution by getting involved with their universities’ law clinics or, possibly, by way of community service. The issue of community service was recently raised at the LLB Summit which was held in May this year.
As you are aware, there are issues and concerns regarding the current LLB. In a recent edition of De Rebus, editor Kim Hawkey writes about the standard of quality in the legal profession, which is intrinsically tied to the current debate on the value of the LLB degree. According to De Rebus Judge Mojapelo, an initial proponent of shortening the length of the LLB degree, conceded that there are problems with the current LLB and that it was time to revert to a postgraduate LLB.
The LLB Summit had recently been convened to find solutions and make recommendations for improving the LLB. Certain critical problems were identified, the main ones being a lack of uniform standards pertaining to the LLB curriculum and the fact that too great a focus on the quantity of subjects, rather than the quality of the subject content. Furthermore, it was mentioned that students generally lack language, literacy and reading skills.
Consequently, a change in the structure of the LLB needs to be considered and consensus was reached that the four years of study must be extended to five years of legal education, however no agreement was reached on how the extended LLB should be structured. It was resolved that a standard setting process must be undertaken and that a LLB National Task Team be established to monitor this process.
Furthermore, let me say a few words about the Legal Practice Bill. Firstly, we are aiming to continue to restructure and transform the legal profession through this Bill which is currently before Parliament. The objectives of the Bill are to transform the legal profession by amongst others, the equalisation of opportunities for access to the profession on the one hand, and the need to enhance access to affordable legal services, on the other.
Unfortunately, the Bill has been in the pipeline for too long. Its drafting began more than a decade ago under the first post-apartheid Justice Minister, Dullah Omar, and was reintroduced to Parliament in 2012. The reason it is taking so long is because the legal profession has vested interests in that there are huge divisions between the attorneys’ profession and the advocates’ profession.
The main complaint that lawyers have about the Bill is that they argue that it interferes with the independence of the legal profession. South Africa comes from a British Commonwealth heritage and if one looks at other Commonwealth countries one sees that they have also undergone a review of their legal profession. It is interesting to note that other Commonwealth countries – such as Nigeria, Zimbabwe, Namibia, New Zealand and parts of Australia – that also come from the tradition of having two Bars, have abolished that tradition and now only have one unified profession.
At the moment, candidate attorneys who are doing their articles of clerkship receive salaries, however pupils do not get paid for pupillage, which makes it difficult for aspiring advocates and severely limit accessibility to the profession. The Bill will hopefully change this.
There were complaints about the community service clause, mainly that it will be impractical to implement, it is too vague and unclear, for instance who will monitor the process, who will remunerate them and who will have to serve and for how long.
Currently, a ‘candidate legal practitioner’ is defined as a candidate attorney or pupil and does not include law students. Community service at universities is not covered in the Bill. It appears that there is not much opposition regarding community service for candidate legal practitioners and that opposition was mainly received with regard to recurring community service for existing practitioners, since practitioners felt that it would be punitive. This was not the Bill’s intention.
The intention was that lawyers give back by imparting their skills to others. Other problems with community service work was how the envisioned National Legal Council would monitor it without it costing too much; that it was voluntary, which meant that it would not be remunerated; and that practitioners that are new entrants to the profession usually had limited time, hence them not having time to do community service.
Most contentious, however, is the clause on forms of legal practice. The Bill was amended by the Committee to allow advocates to take briefs directly from members of the public, if those advocates are in possession of Fidelity Fund certificates. The Bill, as introduced, as a general rule, prohibited advocates from taking briefs from the public. This was one of the compromises reached between the Department and the legal profession before the Bill was introduced into Parliament.
The referral rule was, in other words, maintained. This amendment is motivated on the grounds that it will broaden access to justice generally and to the profession as well. The requirement that an advocate must have a Fidelity Fund certificate is intended to protect members of the public. The Bill gives advocates a choice. They can either practice in terms of the referral rule or they can practice with a Fidelity Fund certificate. They must, however, indicate their preference in this regard when they are enrolled as an advocate after being admitted to practice by the High Court.
There has been lots of debate around the question of fees charged by legal practitioners. There is some degree of opposition to the Minister’s involvement in determining fees. With regards to disciplinary matters, there have been numerous calls for the profession (both advocates and attorneys) to deal with these issues themselves. It has also been suggested that the proposed Legal Services Ombud should not fulfill a role in dealing with appeals/reviews of disciplinary hearings conducted by the profession as the introduced Bill suggests.
The Bill may be contentious, and there is some stringent opposition to it from certain sectors, but from the side of Government, we believe that this is what we need to be able to make legal services accessible to all our people.
Lawyers have an amazing opportunity make justice a reality for our people, in particular the poor and the marginalised, who have been deprived of justice and equality due to our country’s history. Our people will not be able to realise their constitutional rights if there are no lawyers to assist them in doing so. Lawyers have the power and the responsibility of restoring society’s faith in the legal system, the rule of law and in democracy. Professor Emeritus of the University of Oregon, Prof Rennard Strickland, said it best when he said:
“At the most pragmatic level, lawyers are society's professional problem solvers. Lawyers are called upon to make distinctions, to explain how and why cases or experiences are alike or different. Lawyers are expected to restore equilibrium, to be balancers. Every discipline, every profession, every job, and every calling has a cutting edge. At that cutting edge, lines are drawn. Lawyers and judges are society's ultimate line drawers. On one side of the line, the conduct, action, or inaction is proper; on the other side of the line, it is not.”
In conclusion, I want to leave you with words from Judge Kathy Satchwell. Judge Satchwell recently took two advocates to task in the Johannesburg High Court for failing to draft proper affidavits for detained asylum-seekers. One affidavit in particular was found wanting. The advocate, representing the state attorney, was asked to clarify the confusion in the affidavits, but blamed the State Attorney’s Office for not briefing him well, whereupon Judge Satchwell said “Tell your State Attorney that this is not a sausage machine… these are people’s lives.”
And this is what I want to leave with you. Justice is about people. We must remember that we are dealing with people’s lives. Attorneys and advocates are often the ones people rely upon in litigation or criminal proceedings which are enormously stressful, overwhelming and daunting. If people do not have confidence in their legal representatives, or in our courts, or our judiciary, or the rule of law then our struggle for freedom and our struggle for access to justice for all our people will be in vain.
Professor Reddi, congratulations on the launch of the Centre for Postgraduate Legal Studies. I am sure it will be a great learning experience for all its students. It was an honour for me to be part of this university. I wish the Centre and the University all the best for the future, may it go from strength to strength.
I thank you.
