Programme Director,
The President of KwaZulu-Natal Law Society (KZNLS), Mr Richard Scott,
The 4 Vice-presidents of the KZNLS,
The Director of KZNLS, Mr Gavin John and the Secretariat
Members of the KZNLS,
Colleagues and friends.
Annual General Meetings are always a good time to assess where your organisation and the legal profession is, in order to look to the future and plan for the coming year. The legal profession as a whole is on the threshold of major changes with the imminent finalisation of the Legal Practice Bill. This Bill has been extremely long in the making with work on the Bill commencing over 15 years ago on the initiative of the late Dullah Omar – the first minister of Justice in a democratic South Africa.
There are some who would say that this Bill is unnecessary - that there is nothing wrong with the legal profession that needs to be fixed. A few go further to claim that this Bill will destroy the independence of the Legal Profession or that the changes will destroy the professionalism of the attorneys and advocates.
But let’s look at some facts.
We come from a British common law system and when it comes to the legal profession, comparisons need to be made with other British Commonwealth countries. Reform of the legal profession is something that has been happening in almost all the larger countries of the Commonwealth.
Britain itself – in its component parts of England, Ireland, Scotland and Wales – has been reforming the profession on an on-going basis. In Nigeria, Kenya, Zimbabwe and Namibia the distinction between the Bar and side bar was abolished on independence. The same situation applies in New Zealand and parts of Australia.
So what is wrong if we in South Africa (SA) look at the reform of the legal system and why has is it so difficult to get any kind of reform implemented?
There are other factors that we need to look at in the SA context I have recently given speeches on the topic of the legal profession and access to justice, more specifically the role of the profession in making justice more accessible to all South Africans.
The main thrust of my arguments on both those occasions were, firstly, that the majority of our people, not only the poor, but also the middle class, simply cannot afford private legal services or the services of an attorney, thus making it difficult for them to access justice and, secondly, that there is a growing level of disillusion and distrust amongst members of the public in the legal profession.
Attorney and own client fees 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. As you aware these tariffs have recently been increased and were gazetted on the 11th of this month and come into operation on 15 November.
In terms of the new Rule 70 a consultation with a client to institute or defend an action, for advice on evidence or advice on commission or for obtaining an opinion now will cost R235 per quarter of an hour. So as from 15 November it will cost the domestic worker 3 days’ wages to pay for a 15 minute consultation if she is paid the minimum wage.
Then there is the issue of the public’s confidence, or lack thereof, in the attorney’s profession, let me share some thoughts on complaints against attorneys and the issue of accountability.
South Africa’s four provincial law societies and its national body, the Law Society of South Africa (LSSA) uses, what your local journalist, William Saunderson-Meyer, calls a system of “behind-closed-doors protectionism,” to hold lawyers to account.
He argues that there is no rational explanation as to why the disciplinary proceedings are not open, unlike, for example the disciplinary proceedings against medical practitioners or why the public cannot check an attorney’s record for serious and repeated professional failings or why the public should not be represented on disciplinary panels.
Others make the point that it is this lack of transparency within the legal profession which now makes government intervention inevitable, in the form of the Legal Practice Bill. I will return to the Bill in a moment.
The British system of dealing with charges of misconduct against attorneys is much more open and transparent. They have an independent Solicitors Regulation Authority (SRA) which deals with these matters and it is important to note that in the United Kingdom disciplinary rulings are freely available, online, and contain both the name of the attorney and the firm.
In stark contrast to other countries, such as the UK, our law societies will not disclose the identity of disciplined attorneys, unless the person is suspended or is being struck from the roll, which in any event is part of the High Court record, and as such is therefore easily available.
There are many members of the public who would, sadly, agree with Saunderson-Meyer’s observation that South Africa’s law societies “place member interests above transparency, appear to discipline members inconsistently, and are indifferent to international benchmarks”. The Health Professions Council website details all disciplinary hearings against a practitioner’s name, including the full charge sheet and sentence and publishes it online. One can find no justification why the same standards should not apply to the legal profession.
In a recent submission to Parliament’s Portfolio Committee on Justice and Constitutional Development the LSSA informed the committee that fines for misconduct against attorneys ranged from between R2 000 and R50 000, and could reach up to R100 000.
However, according to the research done by Saunderson-Meyer, to whom I referred earlier, the figures provided by the provincial societies show that fines rarely exceed R2 000 and in some of the provinces more than half of the fines imposed are routinely suspended. In 2012 South Africa’s 21 463 attorneys faced 3 782 complaints of “unworthy or unbecoming conduct” which includes offences such as failing to appear or doing work of inferior quality.
There were a further 3 418 more serious complaints of “unprofessional conduct” which includes failure to respond to correspondence, overcharging and various financial and accounting transgressions. In 2012 the Cape Law Society received 3 269 complaints and upheld 229. Penalties ranged from warnings to a R23 000 fine. The Northern Provinces held inquiries involving 603 attorneys were held. Of those, 425 complaints were upheld, leading to 25 warnings and 23 suspensions.
The fines totalled R2.1-million, of which approximately R800 000 was conditionally suspended and R500 000 was unconditionally suspended. The Free State upheld 27 complaints with fines averaging R2 000. KwaZulu-Natal (KZN) conducted 11 inquiries, suspended 29 attorneys and struck four from the roll. The LSSA reports 78 attorneys nationally struck from the roll, as these are the only disciplinary category it monitors.
I believe that the way law societies are handling charges of misconduct goes against the spirit of the Constitution. It is ironic that there is this closing of ranks, this way of protecting its own, by the very self-same people who are supposed to be the custodians of the Constitution and all it embodies, a Constitution which seeks to promote an open and democratic society.
It appears that when Sanderson-Meyer requested the information on misconducts from the various law societies, only the Free State and KZN responded. However, KZN initially said that it couldn’t provide him with the information because the clerk was on maternity leave. Then it said it couldn’t provide it without the authorisation of a full executive meeting. Eventually it did provide the information, but the law society refused to name the attorneys involved.
If a member of the public would want to seek some sort of assistance or lay a complaint, the first place they would look would be the relevant Law Society’s website. If we look at the KZNLS’s website for the section on how to lay a complaint, it reads:
(1) The Law Society upholds the standards of conduct which every attorney practising in KwaZulu-Natal is required to observe. The Society does so by investigating all complaints about conduct unbefitting an attorney.
However, point (2) then states: “The Law Society’s control over attorneys’ conduct is limited to their professional conduct as distinct from their competence.”
In other words, if a lawyer is incompetent, then there is nothing anybody can do. If members of the public have dealt with an incompetent lawyer, than the Law Society cannot help them. Who then, is supposed to regulate the competency or incompetency of practicing attorneys, if the Law Society by its own admission cannot do so. In other words, self-regulation simply doesn’t work. But it goes further. Point (3) reads:
“The first step in dealing with a complaint is to decide whether it is a complaint which the Society can investigate. Examples of complaints which the Society can investigate are: failure to reply to correspondence, failure to account for clients’ money, breach of confidence, conflict of interest and dishonesty.”
And then (4): “However, if the complainant says that he/she wants compensation because the attorney has been negligent, then that is not a complaint which the Society can investigate. Such a complaint concerns legal issues which only a Court and not the Society can decide on.”
So, if a member of the public wants to complain or ask for their money back from a non-performing or incompetent lawyer, they cannot approach the Law Society, but must find yet another lawyer, to help them take action against the first lawyer. And then we wonder why the public have lost faith in the legal profession.
Then there is the issue of the racial and gender transformation of the profession and we need to ask ourselves: - how transformed is the attorneys’ profession in this regard? In Kwa Zulu Natal for example is there any large attorneys firm with a majority of African partners? In the large law firms most of whom will have some black partners; do those black partners have any real power? How many managing directors or CEOs of these firms are Black people or women?
How can this be 19 years into our democracy?
These are issues that the Legal Practice Bill needs to address. When we speak of the legal profession, what makes a profession a profession, as opposed to other forms of business? Many of you will recall that somewhere, as part of our Ethics course as articled clerks, we were taught that there are generally six common characteristics of a profession:
- It demands possession of a body of specialised knowledge and extended practical training.
- It renders an essential, specialised service and demands continuous in service training of its members.
- It has a clearly defined membership of a particular group with a view to safe- guarding the interests of the profession.
- It involves a code of ethics.
- It sets up its own professional organisation.
- It has a transparency of work.
We accept that attorneys have to make a living but Attorneys cannot see themselves as simply running a business in the normal course, in other words, for the primary aim of increasing a profit margin. This is not what a profession does; a profession renders a specialized service under a strict code of ethics.
I agree fully with the views expressed by the co-chairpersons of the Law Society of South Africa, David Bekker and Kathleen Matolo-Dlepu in today’s New Age who spoke of a “legal profession underpinned by the ethos and framework which makes us a profession and separates us from a business enterprise.”
I want to talk a little bit about community service which is also one of the provisions of the Legal Practice Bill, namely mandatory community service to ensure the continued registration of legal practitioners.
It is common knowledge that KZNLS was the last law society to decide on mandatory pro bono work. It has been debating the issue since 2002, but its members repeated voted against it, and only adopted the Cape model in 2010. And despite it providing pro bono services since 2010, information to assist the public in accessing these services is not freely available.
I recently phoned the KZNLS to enquire about pro bono services. The lack of assistance was astonishing. Why is there not sufficient information on the website, why does no-one know what the means test is, and where is the roster outlining which firms are available to assist? Where is the information for law firms who want to volunteer their time and want to provide pro bono services? If we are serious about providing a service to the betterment of society than much more should be done to make these services accessible.
On the positive side, let me take the opportunity to thank those of you and your firms who go the extra mile when it comes to pro bono work and also those of you who participated in National Wills Week which was held earlier this month. This is one of the laudable initiatives whereby attorneys can assist the public.
Why then the need for 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.
This is clearly a need to regulate fees and deal more effectively with complaints against legal practitioners. If the profession cannot adequately regulate itself, then it simply leaves no choice but for state intervention.
Ultimately it’s about the safety and protection of the public. Why is it that when government passes legislation like the Consumer Protection Act, it is widely supported by all, but the moment the consumer is a client of a lawyer, then government is accused of undue interference and we are told that another set of rules should apply?
The aim really is to protect the public. To explain by example: The Bill was amended by the Committee to allow advocates to take briefs directly from members of the public, but only 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.
With regard to the two issues I raised earlier, the Bill sets up a mechanism for considering the issue fees. Disciplinary proceedings are also made more transparent and there is also the creation of an independent Legal Services Ombud to deal with complaints. Many countries have an independent and impartial Ombud to oversee the profession and protect the public. For example, the UK’s Legal Ombudsman consists of an 8-person board, of which 2 are solicitors.
There has been a lot 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. However, the Minister is currently involved in the setting of fees, as the Tariff of Fees of Attorneys is set out in the Rules, which are made by the Rules Board, with the approval of the Minister.
Before I close I would like to speak about two issues for which I have been delegated responsibility for.
Firstly with regard to Small Claims courts, these courts have greatly contributed in access to justice for all. However, we are aware that in some small towns attorneys do not support the Small Claims courts or wish to serve as Commissioners, as they feel that these courts take away the bulk of their work. So, in this case, when the Department of Justice and Constitutional Development tries to make it easier for people to gain access to justice, it is being frustrated by the legal profession itself.
KZN has 53 magisterial districts and 17 of these do not have Small Claims courts and I am appealing for support from attorneys to avail themselves as Commissioners. During the past year, 6 Small Claims courts have been established in KZN, namely in Ntuzuma, Glencoe, Alfred (Harding), Ngotshe, Msinga and Mooi River. The establishment of a Small Claims court in Melmoth is imminent.
The 17 districts or sub-districts that still require Small Claims courts are Babanago, Bergville, Dannhauser, Impendle, Kranskop, Howick, Mapumulo, Mtonjaneni, Mtunzini, Ndwedwe, New Hanover, Nkandla, Nqutu, Polela (Bulwer), Richmond, Utrecht and Weenen.
Secondly with regard to the appointment of persons as Acting Magistrates, I am finding that it appears that not all persons who wish to be considered for such an appointment are able to do. An announcement will be made shortly where applications can be made to the Ministry or department.
Programme Director, I wish the KZNLS all the best for a very successful Annual General Meeting (AGM). Lawyers have a real opportunity to make access to justice a reality for our people, in particular the poor and the marginalised, those 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.
I hope that we can return to what Michael Greco, former President of the American Bar Association, calls the “renaissance of idealism”, a “recommitment to the noblest principles that define our profession: providing legal assistance to assist the poor, disadvantaged and underprivileged; and performing public service that enhances the common good.”
I thank you!
