I am very happy to be here tonight, and indeed feel honoured to address the 32nd Annual Dinner of this esteemed organisation, the Black Lawyers Association. The oppression of our people since their exclusion from the Union Government of 1910, assumed a legal approach.
That is why we have embraced the approach that says unless the legal profession is transformed, there will always be the feeling that the ghosts of the past are continuing to haunt us. For these reasons, we need society at large, and specifically organisations such as the Black Lawyers Association, to play a crucial role towards giving practical meaning to the transformation of the justice system as a whole.
In all our areas of transformation, unless society at large partake and lead in its own right, we will not be able to realise our goals. Take for instance the issue of crime prevention, unless communities participate in activities such as those of the Community Safety Forums, working in tandem with the police stations, criminals will always wreck terror on our communities.
Being cognisant of government's constitutional responsibility to ensure the achievement of equality and equity in the country, it is important that as government, we are at the forefront of ensuring the transformation, be that of specific sectors, such as the legal profession and the judiciary or that of being responsible for promoting broad and overarching transformational initiatives impacting across various sectors.
The Legal Practice Bill currently still in the draft stage, seeks to transform the legal practice sector. The key object of the bill is to rationalise the various pre-1994 statutes which still regulate the legal profession in different parts of the country. A single statute is envisaged which will regulate all legal practitioners.
In turn, this will give rise to the streamlining of pre-1994 structures which will not only enhance access to the profession for aspirant lawyers, but will also enhance access to legal services, impacting positively on access to justice. Engagement with representatives of the legal profession has been taking place regarding basic principles that will lead to a single piece of legislation governing attorneys and advocates.
Among these basic principles is the creation of a single and unified statutory body to regulate the affairs of legal practitioners. While this principle envisages the continued existence of the two main categories of lawyers, namely advocates and attorneys, however, this will be by means of a single regulatory body that takes into account the needs of the different branches of the legal profession.
Of paramount importance is the need to protect and promote the public interest whilst ensuring a strong and united legal profession, which is indispensable for the protection of the principles upon which our Constitution is based, the maintenance and development of an effective legal system and for the promotion of an independent judiciary.
The transformation of the legal profession is a conditio sine qua non for the transformation of the judiciary. Section 174(2) of the Constitution, requires of the judiciary to be broadly representative of the demographics of South African society. The legal profession is the primary feeder to the judiciary therefore the bar and the side bar must at all times be equipped with this transformation imperative.
The challenge posed by the transformation process of the legal profession, was well articulated by the former Chief Justice, the late Justice Ismail Mahomed, when he said that "the new Constitution has ushered in momentous times for all of us. For the Bar it is a time for the discovery of its potential greatness; a time for renewal and cohesion; a time for strong leadership with a faith which is optimistic and temper which is positive. It is not a time for dissipation and fragmentation or a time for despair, pessimism or retreat."
While this piece of advice was intended for the Bar, it is nevertheless to a large extent, relevant and equally applicable to the Attorneys' profession and the judiciary as a whole. The department has made progress in reaching consensus on key principles and I understand that a second draft Bill is currently being prepared for my attention and further consultation with all interested parties. I intend to introduce this Bill in Parliament as soon as possible in early 2010.
Bearing in mind that the State is the largest consumer of legal services in the country, there is merit in recognising that the procurement of government litigation services be seen to be a vehicle and effective driver for this transformation imperative. In order to give effect to this goal, the department is considering ways in which it can ensure an equitable distribution of its legal work to the benefit of the previously disadvantaged practitioners.
In terms of achieving the goal and objective of improved access to legal services, coupled with the need to reduce the high cost of legal services, it is important that the Department of Justice and constitutional development, promote the efficient and effective Management of State Litigation.
Acknowledging that the management of litigation by the state is fragmented and lacking in policy direction, we commit to the ideals of an integrated, policy driven, professional, empowering and cost effective management of state litigation. In this regard the department is in the process of finalising a blueprint which will mirror a framework on how state litigation should be managed and coordinated.
This policy framework seeks to address the above challenges, to ensure an improvement in the quality of services rendered and generally for the proper management of state litigation. In the first quarter of the current financial year, of the 754 briefs that were issued to Counsel, 89% of these were issued to blacks (i.e. black females and males).
Of the 89%, 63% was issued to black male advocates and 26% was issued to black females. It should be noted that in the majority of cases client departments dictate as they hold the purse, which counsel to brief, and that the State Attorney has no say in the matter. This situation must be remedied. With respect to the value of the briefs, R68 331 868 was paid out to counsel as opposed to R62 177 845 that was paid during the first quarter of the last financial year. Expenses increased by R6 154 023, that translate to nine percent.
In the second quarter of the current financial year, 83% of value of briefs went to males and 17% to females. 71% went to blacks and 29% to whites. R56 714 352 was paid out to counsel for the period under review. In comparison to the previous quarter, payment to counsel decreased by R11 617 516. On year to year comparison, payments to counsel decreased by 13% from R65 182 071 to R56 714 352.
A cursory look at these statistics may indicate that we have in fact achieved our transformation goals. However, these statistics are in fact misleading in as far as they fail to indicate the actual value paid as per the briefs issued.
What black practitioners in the legal profession decry is that they are in fact given those briefs that would pay by far less in monetary value, while the lucrative ones are given to established legal practitioners.
I understand future statistics to be prepared for next year will indicate these discrepancies so that the evidence of our transformation is not misleading and is tackled scientifically. The Legal Service Charter which was drafted in 2007 is one of the initiatives undertaken to improve the above situation. The Charter will derive its force of law through the enactment of the Legal Practice Bill, envisaged for early 2010. The Charter signals guiding principles to provide a transformed legal profession and to eradicate the inequalities of the past.
The commitment by the legal profession to the development of a scorecard to which will set measurable targets underscores its deep commitment to the transformation goals deriving from the Constitution. The scorecard will set targets for the following elements, among others: ownership, management, preferential procurement, skills development, employment equity and socio-economic development.
Ladies and gentlemen,
Despite the legislative enactments geared at ensuring a South Africa envisioned in our democratic constitution, there is no doubt that much relies on the capabilities and the will and desire of those involved in our social, economic and political establishments to ensure that those visionary ideals become a living reality.
For instance, despite all the legislations we can ever come up with, with regards to crime and corruption, these societal ills will never come to an end until the moral framework of society changes, and the people at large partake in combating this malice that undermines our democracy. Ultimately it is people and not statutes that make things happen.
Likewise, if the justice system is to be transformed, what that means is that we must feed it with progressive minds. Recently, we would remember the issue of an honourable Judge, who served under apartheid and never challenged State institutions that dispensed injustice to our people. While the constitution provide for citizens to duly challenge State institutions, the question invoked by such extraordinary decisions when taken by a judge invariably put into question the actual motives behind such actions.
Some may argue that what this points to, is that judges and all in the justice system, are human beings whom while applying the letter of the law, are in fact inspired by ideological and other moral outlooks. This is more so if the decisions challenged are in contrast re-confirmed by other judges, including by the Constitutional Court.
Of course these ideological outlooks are hardly overtly entertained as this is supposedly considered sacred in that regard, in order to keep the judiciary free from such influences other than the letter and spirit of the law. And I must emphasise that we must support that stance where we keep as sacred the motives of judges, with all its inherent weaknesses because it is nonetheless a correct atmosphere consistent with the desire to ensure the separation of powers amongst the three arms of the State.
Like those who enacted the legislative pieces that gave rise to the Union of South Africa who were supported by legal minds that believed in the racial supremacist project, we too need legal minds that believe in the ideals of a non racial, democratic, non sexist, equal, just and prosperous society. I therefore challenge the BLA to continue to ensure that we design mechanisms that would ensure more black legal practitioners who espouse these ideals.
Lest I be misunderstood, I know there are many legal minds from amongst white people, who believe in the common destiny of our people irrespective of race or gender. Who could challenge the stances of Braam Fischer or of Advocate George Bizos or Joe Slovo and many others, with regards to the vision of an equal and democratic society?
As the BLA, we must be concerned with how many matriculants register for law studies at universities, how many graduate, how many proceed further with their studies, how many actually practice as lawyers, and how many become Senior Counsels, Magistrates, Judges, Judge Presidents and members of the various tiers of our courts up to the highest levels. Having said that, we can nonetheless point to some successes, but we must not rest on our laurels because the tasks ahead are evidently still daunting.
The history of our struggle for equality places on your shoulders the responsibility to be innovative and provide leadership in your own right, and not reduce yourselves to complainants or victims of the contemporary processes of our transformation. I have confidence that the genius of your competent and visionary minds will not fail us or those who died and invariably passed on the baton of a better South African society onto our shoulders. I believe that the resolutions that you will adopt in this AGM, will shed light on the actual mechanisms that would help transform our judiciary and the South African society at a large.
Ladies and gentlemen, our legal frameworks must not just stop the injustices of the past with repeal of legislations such as the Black Administrations Act, but also enable the emergence of the new society that we collectively envisage, amongst others through the Legal Practice Bill to correct the injustices of the past.
That is why we as government have embarked on a programme of land restitution, to reverse what the legal instruments such as the Group Areas and Land Acts sought to achieve. That is why we must collectively ensure that black empowerment becomes a reality and not a cosmetic dressing of the inequalities of the past.
We must also ensure that we work hard to ensure that indeed justice is accessible by all our people, and that is why we have designated the responsibility of Equality Courts within the Magistrates Courts. In addition, we will thrive to ensure that all our provinces have high courts as part of ensuring accessible justice for all.
Your invaluable input in all these developments is vital. As government, we guarantee you that we consider it as one of our utmost mandates that transformation results into changes that would benefit all our people.
I wish you well as you continue to chart a way forward on the challenges ahead and again I re-assure you that our doors will forever be open for any assistance that we can be able to give.
I thank you!
Issued by: Department of Justice and Constitutional Development
13 November 2009
Source: Department of Justice and Constitutional Development
(http://www.justice.gov.za)
