Programme Director,
Chairperson of the Gauteng Law Council, Dr Curlewis,
Judge President of the North Gauteng and South Gauteng High Courts, Judge President Mlambo,
President of the Law Society of the Northern Provinces, Mr Mabunda,
Members of the Gauteng Law Council,
Colleagues and friends.
Good morning and thank you for extending the kind invitation to be part of today’s proceedings. As an attorney myself, it is a pleasure to be here and to be able to share some thoughts with you, both on developments within the profession and the justice system as a whole.
I had to give a dinner speech to a student lawyers’ organisation a few weeks ago and in order it make it humorous, I asked my staff to find me a few lawyers’ jokes. The response that came back was that the only lawyer’s jokes they could find were uncomplimentary ones about how much people hated lawyers and thought they were terrible human beings.
I trust that what the general public feels about lawyers is not something of a surprise to you. So let’s take a few steps back and ask ourselves why these perceptions exist. In my view they are based on two perceptions: firstly, that lawyers are more interested in making money than providing quality service and they charge outrageous fees and secondly that lawyers are dishonest.
The issue of fees is something that I will come back to and as regards the dishonesty, obviously the complexities of legal ethics and the right of an accused to legal representation is something the general public is not too familiar with.
Every profession has its bad apples and lawyers who steal from for example the Road Accident Fund are an exception. I think a major problem is that members of the public do not feel they are getting an adequate service from lawyers and that the Law Societies do not take effective and sufficient action to enforce ethics.
Someone approached me just the other day, his mother, a single parent had recently passed away and although she left enough to support her children, the attorney two months later had still ensured issuing of the letters of the executorship. I will also come back to the issue of discipline.
Programme Director,
Fortunately, in our history, were have many great lawyers who are recognised as heroes – people who brought about social change and social justice. Nelson Mandela, Oliver Tambo, Mahatma Gandhi, Bram Fischer, Arthur Chaskalson, George Bizos, Duma Nokwe, Albie Sachs, Lewis Baker, Pius Langa, Zac Yacoob and Dullah Omar to name a few.
We all know our history and it is a terrible history of the human beings inhumanity to other human beings. Why you may ask am I raising the issue of our history here? It is because our history shaped each of us here are today and the society we live in. That is something we cannot wish away or ignore.
That is why the Preamble of our Constitution enjoins us to “recognise the injustices of the past” as well as to “heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights” and to improve the quality of life of all citizens and free the potential of each person”.
We are a deeply unequal society.
Whilst social grants and major advances in the building of houses, access to water and electricity and health care may have reduced poverty, more than half of South Africans still live below the poverty line, while 13.3% live in inordinate or extreme poverty.
Disparity of income or inequality of wealth is measured by the Gini coefficient. According to an Organisation for Economic Co-operation and Development report South Africa’s Gini coefficient is around 63.1 making it among the highest in the world.
The Economist observes that 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”.
But as I said our constitution enjoins us to establish a society based on social justice. Now there can be no social justice if there is no access to justice
A prospective litigant must have knowledge of the law, 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.
There are many obstacles to increasing access to justice, the most pertinent challenge being that of limited resources available for state-funded legal aid and the high costs of legal fees. 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 Advocate 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.
Currently, 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.
The prescribed minimum wage for a domestic worker who works more than 27 hours per week is R8.95 per hour, R402.96 per week and R1 746.00 per month. So if a domestic worker works a 5-day week and is paid the minimum wage, it calculates to an average wage of R80.55 per day. This means that a mere 15 minutes of court time or 15 minutes in consultation will cost them more than 2 days’ wages.
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.
It is safe to say that society is general is becoming all the more disillusioned at the high fees charged by some legal professionals. In the Mail and Guardian of 20 September this year there was a comment and analysis piece where it states:
“There is something deeply disturbing about the absence of any debate about fees, in the context of the low incomes earned by most South Africans… How can one complain about the huge salaries earned by the chief executives of mining houses compared with the wages of miners, but turn a blind eye to someone earning so significant an amount as a lawyer?
The precedent set by the struggle lawyers of the apartheid era is illuminating. A distinguished line of lawyers worked for, and defended, activists and civil society organisations through our racist past, and they were up against the limitless resources of the state.
Lawyers such as Arthur Chaskalson, Pius Langa, Zac Yacoob, George Bizos and Dullah Omar, to name but a few, did not stop working for their clients when the money dried up. Defending people in rural places before aggressive magistrates and with security police harassment, over long periods, was part of the job – and because it was done with such dedication we have inherited a proud tradition. Sadly, today, that tradition counts for little.”
Then there is the issue of whether there are enough lawyers in South Africa to provide adequate legal services. Prof David McQuoid-Mason of the University of Natal argues that the South African legal profession consists of approximately 20 000 practising attorneys and 2000 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.
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.
Programme Director,
Lawyers can and do bring about social change and social justice in many ways. On the issue of pro bono legal services, let me say the following. If we have more legal practitioners doing more pro bono work it will make a significant contribution to increased access to justice. However, in South Africa, there has been a lot of debate about whether pro bono work should be mandatory or voluntary. Currently, pro bono work is governed by the rules of each province’s law society and the various bar councils.
In a country, such as ours, where the disparity between rich and poor, between the haves and the have-nots, is so glaringly obvious, and where we are still struggling to redress the injustices of the past, one would expect that there would be a general level of commitment towards pro bono work. But, as Holness argues in his article, there appears to be hesitancy on the part of some of our legal community to embrace mandatory pro bono work.
For example, the KwaZulu-Natal Law Society has debated the issue of mandatory pro bono service since 2002, but its members repeatedly voted against the mandatory requirement, following the Cape model only in the second half of 2010.
However, on the positive side, there have been significant contributions made by way of mandatory pro bono work, especially by some of our large law firms, who often go above and beyond the requirements set by the law societies. As an example, one firm, as early as 2006, contributed 8432 hours to pro bono work.
This amounted to 34 hours per practitioner, ranging from candidate attorneys to senior partners. In monetary terms, in 2006, this amounted to R6,5 million. That same firm has in the past few years upped their commitment to pro bono work to 50 hours per year per practitioner.
Another way in which attorneys can make a significant contribution to improved access to justice is as small claims court commissioners. The introduction and expansion of the Small Claims Courts around the country has enabled the speedy settlement of disputes.
Today, we have 279 established Small Claims Courts. 16 new Small Claims Courts have been established already since 1 April 2013. This far exceeds the first quarter target of 4 new Small Claims Courts. Mpumalanga is the only province which has 100% coverage, with a Small Claims Court in each of its 33 magisterial districts, but the other provinces are making good progress.
As one does not require the services of an attorney in the Small Claims Court, it becomes easier for people to access the system. The main challenge in establishing new Small Claims Courts is getting practitioners who are willing to assist as Commissioners. Gauteng has 31 magisterial districts and has 29 Small Claims Courts, resulting in 93% coverage and I appeal to the attorneys of Gauteng to volunteering in those 2 districts to ensure 100% coverage in this province.
The Small Claims Courts usually sit after hours and these Commissioners assist on a voluntary basis, without any compensation. Their only compensation is the richly rewarding knowledge that they have served society and the cause of justice and created a better life for our people.
I’m sure the many of you have questions and views on the Legal Practice Bill. Why, may you ask, do we even need the Legal Practice Bill? Why is there a need to bring about changes to the profession?
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.
On the broader issue of transformation within the legal profession there is no doubt that the profession does not adequately reflect South African demographics. According to a study done by UCT’s Democratic Governance and Rights Unit in April this year the demographic breakdown of the South African judiciary shows that, as of October 2012, only 28% of the judicial officers nationwide were women.
In 1994, there was only one woman on the bench and though the number has risen to 69 women. While it is noted that the last few years have seen an increase in female appointments, the overall figures nationally are still of a grave concern. 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 have not fared much better, with only 20 practising as senior counsel in South Africa.
Speaking as a member of the Executive, we cannot allow this situation to continue. There are simply too many barriers, keeping people out of the profession. Well-known academic and constitutional law expert, Professor Pierre de Vos, argues, correctly in my view that the status quo will remain until the legal profession is radically overhauled.
He states that: "The way in which the profession is structured, requiring advocates to be briefed by attorneys and requiring advocates to first do a pupillage for a year when they don't even get paid - all these things make it very difficult for people to get ahead in the profession unless they are supported by some sort of network, an old boys' network. So unless you radically address this, it's going to perpetuate the racial composition of the advocates' profession at every level, but especially at a senior level."
Retired Constitutional Court Justice Johann Kriegler has also recently remarked that "Lawyers across the world are elite. They normally come from the upper middle-class. Our commerce, mining and agriculture are still dominated by white males. So when white males want legal representation, they go to other white males," he said.
And sadly this situation is not restricted to advocates only, but also to the attorneys’ profession. In June this year the Parliamentary Portfolio Committee was briefed by the Law Society of SA. It was found that although South Africa has succeeded in opening the doors of legal education to all, the ¬profession itself remains the preserve of white males.
The LSSA’s submission shows that 64% of attorneys currently practising in South Africa are white. Black males make up 24% of the profession, while 41% are white males. At least 23% of lawyers are white females. The 2 684 black female attorneys make up just 12% of the total.
In 2011 the majority of LLB graduates were African 1784 as opposed to 1268 being white. What is startling is that of the majority of graduates getting articles are still white. The LSSA figures for the LSNP where the vast majority of attorneys practice gives the figures of 587 African to 412 white candidate attorneys who had articles registered from 1 July 2012 to 1 April 2013.
We are hoping that the Legal Practice Bill will address this problem by creating one council for lawyers and by removing barriers for people to gain entry into the profession. 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 introduced 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 and both attorneys and advocates resisting any changes complaining that they would interfere with the independence of the legal profession.
As you know South Africa our legal profession is based on that of British system and if one looks at other British Commonwealth countries including Britain itself one sees that they have also undergone or are undergoing a review of their legal profession. It is interesting to note that Nigeria, Zimbabwe, Namibia, New Zealand and parts of Australia have abolished having attorneys and advocates and now only have one unified profession.
With regard to the two issues I raised earlier, the Bill will attempt to set up a mechanism for considering the issue fees. Disciplinary proceedings are also made more transparent and there is also the creation of a Legal Services Ombud to deal with complaints.
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, whilst at the same time strengthening the legal profession.
One of the criticisms against the Legal Practice Bill is that it will have a negative impact on the independence of our courts. But we, as the executive, as government, respect the separation of powers and the integrity and independence of the judiciary. In fact, on 23 August 2013, the President signed into operation the Constitution Seventeenth Amendment Act, as well as the Superior Courts Act.
The Constitution Seventeenth Amendment Act entrenches the independence of the Courts and acknowledges the Chief Justice as the head of the judiciary who exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts.
The Constitutional Court may now, over and above constitutional matters, also decide on any other matter if it grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court.
I am very pleased that Judge President Mlambo is with us today. In terms of the Superior Courts Act, the Judge President of a Division is now also responsible for the co-ordination of the judicial functions of all Magistrates’ Courts falling within the jurisdiction of that Division, and this may include any matter affecting the dignity, accessibility, effectiveness, efficiency or functioning of the courts, including case flow management.
Two other points of interest are sheriffs and acting Magistrates. As you are aware, we have appointed 71 new sheriffs and they have assumed their duties on 1 October 2013. Finally, of the 45 entry-level magistrates recently appointed, 23 are from the attorneys’ profession and 3 are advocates, while of the 28 regional magistrates appointed, 3 are from the attorneys’ profession and 4 are from the advocates’ profession.
The appointment of acting magistrates provides a unique opportunity for the development of skills and competencies of persons that aspire to be appointed as judicial officers and the exposure and experienced gained is invaluable. For this purpose, we are looking into ways of increasing the pool of suitable candidates for acting appointments. We hope that many attorneys will make themselves available for this purpose.
Programme Director, in conclusion, US Supreme Court Judge, Ruth Bader Ginsburg once said:
‘”It is generally not ideology that keeps lawyers from helping to repair tears in their communities, nation, and world, and in the lives of the poor, the forgotten, the people held back because they are members of disadvantaged or distrusted minorities. It is more likely to be apathy, or anxiety that one is already overextended. Those are forces not easy to surmount.
Yet lawyers who consider themselves not simply tradesmen working for a day's pay, but members of a true and learned profession, will make the effort to overcome inertia, the workloads on their tables, and the shortness of the day, for the rewards are great. Lawyers fare best in their own estimation, and in the esteem of others, if they do their part to help move society to the place they would like it to be, for the health and well-being of today's children and of generations to come.”
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. From the side of government, I can assure you that the political will is there. With the help of the legal profession it becomes possible.
I thank you!
