Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the Annual General Meeting of the Law Society of the Northern Provinces (LSNP), held at the Pilanesberg AB Omega Hall, Sun City
President of the LSNP, Mr Strike Madiba
Chief Justice of the RSA, Justice Mogoeng Mogoeng
Judge-President of the Gauteng High Court, Judge Mlambo
Madam Justice Masipa
Members of the judiciary
Members of the legal profession
Distinguished guests
Annual General Meetings bring with them an opportunity for reflection - A time to look back on the past year, a time to assess the successes of an organisation and to contemplate areas of possible improvement.
With regard to the image of our profession I’m sure you noticed that all jokes about lawyers are negative? Probably the world earliest lawyer joke is to be found in Shakespeare's Henry VI, Part 2, where Dick the Butcher famously says “The first thing we do, let's kill all the lawyers.” Shakespeare actually uses satire and irony to try and show that attorneys and judges can instill justice in society. But most people like to quote it out of context.
And it doesn’t get much better from there….
Why don’t sharks attack lawyers? Professional courtesy.
What do you call a smiling, courteous person at a bar association convention? The caterer.
What do dinosaurs and decent lawyers have in common? They're both extinct.
Whilst some in society may find this funny, the question we need to ask ourselves is why there is this attitude towards the legal profession and what can be done to correct it.
The conduct of a few rotten apples is largely to blame.
Factors such as their behaviour in road accident fund cases and in terms of unlawful contingency fees, their behaviour in terms of certain debt collecting practices, are to blame.
I’m sure you have all heard about the University of Stellenbosch Legal Aid Clinic case, on behalf of several debtors, which raised a number of concerns about the abuse by some attorneys in debt collection. It has been found that some attorneys obtain judgments by default without the knowledge of the debtors and load the initial amount owed by the debtor with exorbitant legal costs. And there definitely are perceptions amongst the public that the law societies are not able to discipline their members.
As a legislative response, we will be introducing amendments to the Magistrates Court Act and the Superior Courts Act to address some of the abuses of the civil debt recovery system. We are also proposing an amendment to the Debt Collectors Act that will subject attorneys who do debt collection to the jurisdiction of the Council for Debt Collectors in terms of the Debt Collectors Act.
We welcome the decision by the statutory component of the LSNP to elect their councillors in future. Perhaps former BLA president, Busani Mabunda said it best when he argued that LSNP members are being denied a right to voice out their views.
He said - ‘The decision to do away with elections was for political reasons. The KwaZulu-Natal Law Society, Law Society of the Free State and the Cape Law Society all have elections. The LSNP is the only law society without. Council members are supposed to represent the aspirations and will of the people and LSNP members are being aggrieved by not being heard.”
The election of councillors is a step in the right direction and I want to commend the LSNP on taking this decision. I was pleased with the large numbers in support of this. You cannot run an organisation without all leaders being elected and having the support of the members.
On the issue of transformation, whilst transformation has many meanings, one key element is that we need a legal profession, both attorneys and advocates, which is reflective of the race and gender composition of the country.
Do we have this or are we anywhere close? The answer is no.
Racially, in terms of the latest available figures, 70% of the Bar is white – while whites make up only 8.9% of the population; 18% of the Bar is African, but Africans make up 79.2% of the population.
From a gender perspective, countrywide, 25% of the Bar are women, but women make up just over half of South Africa’s population – 51.3%.
If one breaks it down further, per individual bar, the Johannesburg Bar has 1001 members, of those only 25% (251) are African and of those only 6% (61) are African females.
The Pretoria Bar figures are even more discouraging – of a total of 570 members, only 18% (104) are African and only 4,5% (26) are African females. The North West Bar is very small, it has 19 members, 36% (7) are African and 15% (3) are African females.
Countrywide, if one looks at the figures from the General Council of the Bar, we have 451 silks. But they do not reflect the demographics of our country at all. Only 7% (32) are African and when it comes to African female silks, it is less than 1% - with only 0,8% (4) African female silks.
A report on transformation of the legal profession by the Centre for Applied Legal Studies found that Black women face an array of barriers throughout their legal careers.
These barriers include issues such a shortage of jobs and, I quote, “few connections to established members of the profession: because the profession remains largely male and white, it is unlikely that black women will have longstanding connections with people in the profession.”
The report also mentions, amongst others, issues of cultural alienation and bias based on historic roles of black women.
Government is acutely aware that these barriers do exist.
And therefore we do believe that the Legal Practice Act will remove some of the barriers that practitioners, particularly Black and female practitioners, experience.
It is important to stress that the National Forum, envisaged in the Legal Practice Act, must represent the demographics of South African society.
The 19 members of the Forum who were designated by its various constituent bodies were a far cry from meeting this important constitutional imperative. Of the 19 nominations, only 4 are women.
This prompted the Minister of Justice to intervene and to write to the respective constituent bodies of the Forum to have a re-look into the matter with a view to improving its gender balance.
The Minister accordingly designated Advocate Kgomotso Moroka, SC and Ms Thina Siwendu, both from the profession, as members of Forum.
I also want to respond to criticism that government is not doing enough to transform the profession.
The State is the biggest consumer of legal services in South Africa, and its litigation account runs into billions of rands annually.
The State has a target of 76% of the value of briefs going to Previously Disadvantaged Individuals – these comprise of Black people and women of all races. I am told we are largely achieving this target.
However, if 76% of the briefs are going to previously disadvantaged individuals then why are the results not showing a greater impact in terms of developing black counsel and women in general?
As I’ve said, the most glaring shortfall in the Bar figures is with regard to African women.
So clearly we need to do more.
We need a target within the Previously Disadvantaged category for African women. In fact, we need to break down the 76% and set targets for each group.
For example, we will not be changing the demographics of the Bar if the 76% of work is given mainly to white women or Indian men.
We will also consider the proposal made in the CALS study proposed that:
"The Department of Justice and Constitutional Development should undertake a research project to monitor the career paths of black female law graduates and determine how and if they progress in the legal profession over a ten year period. They should also encourage the JSC to take responsibility for the patterns of discrimination that may or may not be emerging in the profession and, as a result, in their decision-making."
We must consider these and other proposals, because quite clearly we are not making the necessary progress.
We must ensure that briefs are given as widely as possible, in other words, that it’s not the same people who are continuously briefed and that female and Black practitioners are exposed to many different types of work, so as to build expertise in a variety of areas.
And we are putting our money where our mouths are, as our Justice and Correctional Services Minister, Michael Masutha, has recently said he will only be represented by black female counsel, unless circumstances are such that a suitably qualified female black counsel is not available.
But I want to challenge members of the LSNP and ask what you are doing to support the racial and gender transformation of the bar. Who are you briefing and how many of you are sticking to your comfort zones in an old boys club?
And what about the attorneys’ profession? Of the country’s 23 712 practicing attorneys, 36% (8708) are female. As mentioned earlier, 51% of our population are female – so women are still under-represented in the profession.
Whites make up 8,9% of the population, but 61,9% of the attorneys’ profession. Africans make up 79% of the population, but only 22% of the attorneys’ profession. People of Indian descent make up 2,5% of the population, but 8,9% of the attorneys’ profession. Coloured persons make up 8,9% of the population, but only 5% of the attorneys’ profession.
The LSNP is by far the biggest law society in the country, with 13 059 practicing attorneys. Of these 62,7% (8188) are male and 37,3% (4871) are female.
African practitioners make up 27% (3586), coloured practitioners 1% (129), Indians 5% (652) and whites 64% (8381). Some 2,3% identify themselves as “other”.
Last year, of the 1577 attorneys admitted within the area of the LSNP, the majority were still white – with 797 white attorneys admitted (50%) and 585 African attorneys (37%) admitted. Of the 1646 new candidate attorneys, as at April this year, the biggest group are now African, with 46,5%. Whites make up the second biggest group (44,5%).
Is enough being done as far as candidate attorneys? Last year there were 4180 LLB graduates countrywide. The majority of these graduates are African (55%) and female (57%), we must ensure that they have opportunities to do their articles.
It was telling for me to see that a prominent law firm in South Africa made eight partner appointments to its finance and banking, employment and tax practices recently - and there was not one single African appointment among them.
This particular firm, who recently assured me they are transforming, have only 5 African directors, out of a total of 122 directors – only 2 of whom are African women. When the issue of transformation comes up, they pad the numbers by referring to the 14 Coloured and 15 Indian directors.
Transformation is not just about statistical representivity, it is also about attitudes.
Access to justice means access for the public to legal services and our courts, but it also means access to the profession.
On this, I want to raise the issue of pro bono work. Some firms are saying that they are not getting enough pro bono work to do. Legal Aid SA has a voluntary pro bono system in place and has memoranda of understanding with the statutory Law Societies as well as 3 of the 13 Constituent Bars of the GCB and the National Bar Council of South Africa.
In terms of this arrangement, practitioners will be required to render pro bono legal services of up to 24 hours per annum. Should a matter exceed the 24 hours in any one year, such additional hours will be counted as pro bono hours for the ensuing years to a maximum of the following 2 years.
I want to sincerely thank those attorneys who are going the extra mile in making the delivery of pro bono work a success, for example in Gauteng there are 51 accredited pro bono practitioners and 83 in Limpopo and Mpumalanga.
However, the number of pro bono matters is low: only 18 new pro bono matters in Gauteng in 2014/15 and only 4 new pro bono matters in Limpopo and Mpumalanga. This is something I will be raising with Legal Aid SA and the various law societies.
I also want to the thank the 420 Commissioners of the Small Claims Court and the 186 advisory board members in Gauteng, the 148 Commissioners and 224 advisory board members in Limpopo, the 123 Commissioners and 181 advisory board members in Mpumalanga and the 86 Commissioners and 77 advisory board members in North West for availing themselves for this noble cause.
Without your valuable contributions the Small Claims Court would not be able to function.
I am pleased to say that Gauteng, Limpopo and Mpumalanga all have 100% coverage in terms of Small Claims Courts – in other words, a functioning Small Claims Court in every magisterial district. North West requires only 7 new Small Claims Courts in order to also have 100% coverage.
Regarding possible legislative changes to the Small Claims Court Act, as you are aware, the Act precedes the Constitution and has not been subject to any amendments after 1996, as the last amendment effected was in 1992.
The Department of Justice and Constitutional Development has therefore recently commenced with a comprehensive review of the Small Claims Act and will, as part of this process, consult with all relevant stakeholders, including the law societies.
One of the challenges in the Small Claims Court process, which was raised by a number of Commissioners and judgment creditors, is the issue of security required by the sheriff to attach and or remove property.
Most judgment creditors do not have the financial means to pay the sheriff.
The Commissioners have indicated, and rightly so, that this not only frustrates and defeats the purpose of having small claims courts, but it also negatively affects their efforts in providing a pro bono service to the public, as they provide the service but the order can often not be executed.
I am therefore pleased to inform you that following discussions with the South African Board for Sheriffs, it was agreed that the unclaimed funds in the trust account of sheriffs should, after a period of time, be paid over to the Board for Sheriffs.
The sheriff or the clerk of the small claims court may then direct an indigent judgment creditor to the Board for Sheriffs for assistance.
The Board for Sheriffs will determine the conditions of such applications for assistance, in consultation with the Minister.
Our Department has prepared draft Judicial Matters Amendment Bill, which will soon be submitted to the Minister and me for consideration. Thereafter it will be published for general comment and I trust that the LSNP will make it inputs as part of the process.
I wish you all the best for the AGM. As you reflect on the year that has passed and the year ahead, remember that the Constitution, the rule of law and access to justice must remain relevant to all South Africans.
You can make an important contribution to further these cornerstones of our democracy.
I thank you.
