President of the Law Society of the Northern Provinces Mr Busani Mabunda
Judge President of the North Gauteng and South Gauteng High Courts, Judge President Dunstan Mlambo
Retired Judge President Bernard Ngoepe
Judges present
Co-Chairs of the LSSA
Members of the Law Society of the Northern provinces
Thank you for the invitation to be here today and to be part of the proceedings. Also let me take the opportunity to congratulate retired Judge President Bernard Ngoepe on his appointment as South Africa’s very first Tax Ombud.
The Tax Ombud will provide taxpayers with a low-cost mechanism to address administrative difficulties that they may be experiencing and we believe that Judge President Ngoepe’s experience in tax and administrative law will greatly assist the public.
Earlier this year we bid farewell to one of the most astute legal minds this country has ever produced, namely former Chief Justice Pius Langa.
When one thinks of the legacy of our former Chief Justice and when people recall their memories of him they often mention his address at the University of Stellenbosch on “transformative constitutionalism”. He said: “This is a magnificent goal for a Constitution: to heal the wounds of the past and guide us to a better future. For me, this is the core idea of transformative constitutionalism: that we must change.”
Indeed, it is a matter of change. Not only changing our society in order to achieve the type of society that the Constitution envisages, but also changing access to justice. The legal profession itself is facing imminent change with the passing of the Legal Practice Bill in the National Assembly early next week.
But why do we need to change some of you may ask? Why do we need a new law regulating the profession? What is wrong that needs to be fixed? Well the first issue is that of racial and gender transformation. Has the profession really changed over the past two decades? How can it be that 19 years into our democracy our legal profession is still not transformed so as to broadly reflect the diversity and demographics of our country? Nineteen years into our democracy, only nine out of South Africa's 473 senior counsel are black women.
Moreover, only four of these are African. This is less than 1% of the total. White women are also not adequately represented, with only 20 practising as senior counsel in South Africa.
This lack of transformation is not only evident in the composition of our law firms and in the advocates’ profession, but is also evident in briefing patterns. Why is there this resistance to change, to transform? Perhaps Izak Smuts SC is correct in his observation that -
“Well-established attorneys firms, dominated by white male attorneys, often rely upon the old school tie network, which militates against opportunities for black and female advocates and correspondent attorneys attempting to make their mark. There is nothing remarkable about this, and it is not peculiar to South African society. People work more comfortably with those they know and understand.”
Whatever the underlying reasons for the resistance to change are, there can be no debate that the legal profession has not changed much over the past two decades.
If one looks at the profiles of our law firms it paints a rather disheartening picture. For example, if one looks at some of the firms who constitute the so-called “big five” of our firms, there is cause for concern about the lack of representivity, especially on the level of directors or partners. My office found that in one of the “big five” firms there are 123 partners, of whom 93 are white and only 30 are Blacks. Of the 30 Black practitioners, only 17 are Africans.
Another one of the “big five” mentions on its website that it is an equal opportunity employer committed to employment equity at all levels. Approximately 42% of their legal staff and 60% of their business services staff are persons of colour.
But as a professional partnership, the firm is owned by its equity partners, with only approximately 17.5% being owned by previously disadvantaged individuals. This begs the question: How, in 2013, can a firm with over 150 partners, have only 17.5% black equity?
Why is it possible for our smaller law firms to have more majority Black ownership, but not our big firms? Why is it that other professions such as, for example, chartered accountants, can have firms like Sizwe Ntsaluba Gobodo? SNG is a firm of chartered accountants who are the largest black-owned and black managed accounting firm and the fifth largest accounting firm in South Africa. It has 55 partners and is nearly completely black owned and black managed.
Another interesting fact one notices when examining some of the firms is a tendency that Blacks, in general, and Africans, in particular, are predominantly to be found at associate level. And what power or influence do associates really have? And how long does it take the average associate to become a senior associate and then a partner?
I would also like to refer you to a demographic survey by Plus 94 Research of large corporate law firms commissioned by the LSSA amongst others. The profiles of our country’s law firms of being overwhelmingly white and male are in stark contrast to the racial and gender profiles of our law students. In 2011 the majority of LLB graduates were African (1 784), 355 were Coloureds, 404 were Indian and 1 268 White.
Also the majority of the graduates were female, with 1954 females as opposed to 1 622 males. However, what is more startling is the fact that, despite the majority of LLB graduates being African, it is still the white graduates who are getting articles.
The Law Society of South Africa’s figures show that the LSNP have just over 12 000 practicing attorneys. Of those the overwhelming majority of 8 207 are white, with 3 165 African. In the LSNP 1 104 articles of clerkship were registered in 2012. But of these articles, 587 candidate attorneys were white, as opposed to 412 African, 89 Indian and 16 Coloureds.
I would just like to pause at this point and particularly address colleagues of my own skin colour and gender who may be feeling tired of the complaints of the overrepresentation of white males and that they do not have not a place here anymore. It is a not uncommon refrain that one hears in dinner table conversation that because of affirmative action our children cannot get jobs anymore that they must go emigrate to get employed.
This is not the case. In the 1st quarter of this year, the unemployment rate for white youth (aged 15 to 29) was 15%, compared to 35% for Coloureds and Asians and 46% for African and if we look only at youth with a tertiary degree, the unemployment rate was 31% for Africans and 5% for whites. This country has enough space for everyone but as our much lauded Constitution enjoins us we do have to address the imbalances of the past.
So how committed is the profession really when it comes to transformation and what can be done to improve the situation? Are we, from the side of government, and from the side of the profession doing enough to harness Black talent and to provide an easier access into the legal profession?
I would argue that meaningful transformation must entail more than a simple numbers game. It is about mentorship, about a meaningful transfer of skills and by exposing graduates to a range of different types of cases and areas of law, so that they can develop expertise in a chosen area. In this regard, let me mention some of the initiatives, undertaken by some of our firms, aimed at advancing Black and female professionals.
In this case, let me use the example of one of the “big five”, a firm which ensures that at least 60% of their annual candidate attorney intake comprises previously disadvantaged persons, it engages in a number of guidance and advisory arrangements with fledgling law firms owned by previously disadvantaged individuals and it participate in the Integrated Bar Project, a programme designed to expose previously disadvantaged law students to major commercial law firms.
Furthermore, it seconds previously disadvantaged attorneys to international law firms in Australia, the UK and the USA and runs an English language bridging course to assist attorneys whose first language is not English. It also offers bursaries to previously disadvantaged law students studying at South African universities and they invite law students from South African universities to take up internship positions in the firm.
I have recently, on two occasions, met with Student Chapters of BLA and it was striking to note that all the law students said the same thing, they wanted to gain experience and exposure, for example, to be able to do internships, even if for a week or two during holidays, without compensation, but for the opportunity to see how the law works in practice.
The second area of concern is that of the cost of litigation. At the general meeting of the Gauteng circle of LSNP earlier last month I mentioned the issue of fees and the fact that legal costs are unaffordable for the majority of our people. Speak to any ordinary, middle class South African and they will tell you that they are ineligible for legal aid, and they are hesitant to hire a lawyer, as they doubt they can afford one.
Yes, recent increases in tariffs have been inflation linked, but there were substantial, higher-than-inflation increases in tariffs in the past. By way of international comparison, it is interesting to note recent developments in Germany. In July this year, German lawmakers passed new laws pertaining to court and legal fees.
The Act on Modernisation of Cost Rules (Kostenrechtsmodernisierungsgesetz) amends both the German statutory provisions on lawyer's fees Rechtsanwaltsvergütungsgesetz) and on court fees Gerichtskostengesetz). It consists of both increases of the fee tariffs and structural changes to cost rules.
On average, the value-based legal fees have been increased in the order of 12%. It is interesting to note that in discussions on the new tariff increases, it is explained that “these increases may sound exorbitant” but the tariffs had remained unchanged for almost a decade, and some fees had not been amended for even longer.
In other words, in Germany an increase of 12% is considered as exorbitant. Also of interest is the fact that, in Germany, lawyer's fees, court fees and additional costs are extremely transparent. Statutory scales exist for lawyer's fees and court fees. Negotiated hourly rates usually range between 210 and 300 according to the complexity of the case.
A further issue is whether law societies and bar councils are able to impartially deal with disciplinary matters against their members or whether there is a tendency to protect one’s own. You may well be aware of the matter in the North Gauteng High Court concerning an application by this Law Society to strike off attorney Oniccah Nkoe for mishandling trust money.
In this case, the client was awarded R594 000 by the Road Accident Fund and it took Ms Nkoe two years to pay over any money. The client only received R142 000 of the awarded R594 000, as Ms Nkoe kept the balance for herself. Acting Judge Masango found her conduct 'of a serious nature as the dignity and the integrity of the profession is being compromised' and struck her from the roll.
In an online article called “Secrecy and the Legal Profession” Carmel Rickard says this is the correct decision, and asks a number of important questions, such as 'What has happened about Nkoe's client?', ‘What kind of oversight is there in a case like this?’ and, 'Why doesn't the Law Society also explain to the public what else is being done to rectify the situation?' 'Why didn't the judge ask what was being done about Nkoe's failure to hand over the client's money, or question the Law Society about whether charges had been laid?'.
Attorneys and Advocates are officers of the court. They regard themselves as honourable people who are part of a noble profession. But why is it that the public perception of lawyers is not the same and that all the jokes about lawyers is of them being money grabbing and dishonest people?
Ultimately it’s about delivering quality services to the public and the protection of the public; something we also aim to address in the new Bill. Patrick Torsney of i-legal.or.uk, a forum for civil legal aid practitioners in the UK, asks the pertinent question of what lawyers could do to help people who struggle to afford private legal services. He argues that “The 'for profit' legal profession should recognise that while lawyers have no equivalent of doctors' Hippocratic Oath, the law is more than simply a tool or trade: it is a glue that binds society.
A proactive commitment, in one form or another, to make sure everyone is able to take their place within society is an essential part of being a lawyer. Clients' needs are not just a potential source of revenue. They arise from the human condition. Resolving legal problems at an early stage is vital, and properly funded legal advice can enable this to happen.
Nonetheless, it is not the job of the legal profession to resolve all the iniquities involved in access to justice. You do not blame plumbers for winter. Society as a whole is responsible for improving the lot of its citizens through both access to justice and education about rights and responsibilities.”
Master of ceremonies,
Torsney is correct, it isn’t the job of the legal profession to resolve all iniquities involved in access to justice. We, as the executive, as government, also have a role to play, we have to do the necessary to help resolve the iniquities. And that is why we have the Legal Practice Bill.
Apart from endeavoring to address the issues I raised earlier let me also stress that in spite of our own history of social restructuring that we have to address, reform of the legal profession is not something unique internationally. All the major countries in the British Commonwealth are engaged in it.
The Legal Practice Bill aims to provide a legislative framework for the transformation and restructuring of the legal profession into a profession which is broadly representative of South Africa’s demographics under a single regulatory body. It aims to ensure that legal services are accessible and to remove any unnecessary or artificial barriers for entry into the legal profession. It seeks to strengthen the independence of the legal profession and ensure the accountability of the legal profession to the public.
It establishes the South African Legal Practice Council to exercise jurisdiction over all legal practitioners and candidate legal practitioners. It is envisaged that the Council will, amongst others, consists of 16 legal practitioners, comprising of 10 practicing attorneys and six practicing advocates.That is out of 22 people. They are elected by the profession not appointed by the Minster. Provincial councils must be established progressively in each province and the LPC may delegate powers and functions to these bodies.
Let me stress that this is not fusion by stealth the bar and the side bar remain but there will be one regulatory body for the profession as a whole. That is not to say that the existence of the split bar is a holy cow that can never be changed. It is interesting to note that many commonwealth countries have abolished the split bar Nigeria, Kenya, Zimbabwe and Namibia on our continent as well as New Zealand and parts of Australia.
On the racial and gender transformation issue the council must develop programmes in order to empower historically disadvantaged legal practitioners, candidate legal practitioners and the legal profession and it must report to the Minister of Justice on the implementation of these programmes annually. The Minister may make regulations on the establishment of a mechanism to monitor progress.
With regard to fees that was a difficult one one recognises that at the upper end, practitioners are making lots of money but in the single person practices, people are battling. The bill provides that fees must be in accordance with the tariffs set by the Rules Board for Courts of law.
The tariffs must take into account matters such as seniority and experience but clients may agree to pay more or less but this agreement must be in writing. We have borrowed from an Australian initiative that the practitioner must provide the client with a costs estimate in writing as soon as practically possible after first receiving instructions.
Then the bill tasks the South African Law Reform Commission to within two years investigate and report back to the Minister with recommendations on, inter alia, the manner in which to address the circumstances giving rise to legal fees that are unattainable for most people, the desirability of establishing a mechanism which will be responsible for determining fees and tariffs payable to legal practitioners and the desirability of giving users of legal services the option of voluntarily agreeing to pay fees for legal services less or in excess of any amount that may be set.
With regard to misconduct investigations the bill provides for much greater transparency in dealing with complaints including the involvement of the non lawyers in the disciplinary hearing and public access to information about complaints to me made available on the Council’s website.
The bill also creates the Legal Services Ombud. The President must, as soon as practicable after the commencement of this Act, appoint a judge discharged from active service as the Legal Services Ombud.
The Ombud is competent to investigate, on his or her own initiative or on receipt of a complaint, any alleged maladministration or abuse or unjustifiable exercise of power or unfair or other improper conduct or undue delay in performing a function in terms of the Act or any act or omission which results in unlawful or improper prejudice to any person, which the Ombud considers may affect the integrity and independence of the legal profession and public perceptions in respect thereof.
We believe that these, and other provisions in the bill, will ensure that legal services are more accessible, will make the legal profession more accountable and will greatly improve overall access to justice for all our people.
Because a few issues still remain unresolved, a statutory national forum will be created once the Act starts coming into effect to make recommendations on the outstanding issues such as the election procedures for constituting the legal practice council and the composition, powers and functions of Provincial councils. The LPC will only be established after the conclusion of this process and in the interim, regulation will be done by the Law Societies and Bar Councils.
In conclusion,
Change is not a choice. Change is not a “nice-to-have,” it is an essential constitutional requirement. We must change. The Constitution enjoins us to do so.
I wish the Law Society of the Northern provinces a very successful AGM. As our legal profession enters a time of much-needed change, let us all view this as a new opportunity, an opportunity to once again embrace the vision of our Constitution. To return to the words of Pius Langa.
“Transformation is a permanent ideal, a way of looking at the world that creates a space in which dialogue and contestation is truly possible, in which new ways of being are constantly explored and created, accepted and rejected and in which change is unpredictable but the idea of change is constant.”
I thank you.
