09 December, 2005

Watchdog called on to take stick to SA’s law societies

Legal Affairs Correspondent CAPE Town information technology lawyer Reinhardt Buys said yesterday he hoped the Competition Commission would force law societies to change some of their anticompetitive rules. Buys filed a complaint with the commission late last month, highlighting the anticompetitive rules of different law societies that prohibited law firms from marketing themselves and from offering legal services lower than the prescribed minimum. “The basis of our complaint is that the current South African regulation of attorneys fails to recognise the difference between regulation of the profession and representation,” Buys said. The country’s law societies are the professional bodies to which all practising attorneys must belong and by whose rules they must abide. There are four such societies: the Cape Law Society, the Free State Law Society, the KwaZulu-Natal Law Society and the Law Society of the Northern Provinces, which includes Gauteng. Buys said he was awaiting a response from Justice Minister Brigitte Mabandla to a complaint he filed with her early last month. In an open letter to Mabandla, Buys called for the scrapping of the Attorneys Act and the dissolution of the law societies. “We did not receive any response from the minister ... This is rather disappointing because we truly believed the minister shared our concerns.” The Law Society of SA dismissed Buys’ call, saying all professions need regulation. It said the interests of the public would not be protected without the Attorneys Act. It said issues Buys had raised would be discussed. Buys said representation and regulation should be two different functions. “Although it may be true that the law societies represent the legal profession, it is simply not correct to assume that they should also regulate the profession.” “Within our legal profession, these rules and functions are confused and the representative body is also the regulatory authority. Imagine if a group of liquor store owners replaced the Liquor Board to regulate and license liquor stores.” http://www.businessday.co.za/articles/topstories.aspx?ID=BD4A124985

04 December, 2005

Proud to be African

Our legal system should be Africanised, demands Judge John Hlophe. He's part of a whole chorus demanding that the South African economy, the universities, parliament, the civil service, the arts and the media in our country should now be Africanised, writes, Max du PreezI like Africa. I like the people and the cultures and the styles of African people in all the African countries I have visited. I have a deep respect for the history and heritage of Africa. I am proud to be an African. I see Africa as the Mother Continent where all spirituality, culture and civilisation have their roots.So on the face of it, I should also be in favour of a general "Africanisation" of our society. If only I knew what was meant by it. Judge Hlophe himself didn't help much. He gave one example which had nothing to do with the essence of a legal system or common law, and more about insufficient evidence put before a magistrate. Most of the other suggestions put forward represent pure nostalgia for a traditional, rural lifestyle of generations ago that would be completely impractical in our present largely urbanised society. Judge Hlophe's recent admonitions to attorneys on how they should walk and dress in court - white shirts and dark suits, no short skirts - in fact, seemed very British. Academic Malegapuru Makgoba also had a mouthful to say about Africanisation recently. White people should learn to eat, drink, dance, talk, dress and act like black people if they want to be "rehabilitated". It was just silly. An Afrikaner farmer from the deep platteland lives much more "like black people" than Makgoba himself or most of the new black elite from where the Africanisation calls mostly come. I do think there are some facets of our common law that should be adapted to our circumstances. We need to make provision for people to have more than one spouse, for instance. But if we declare that a man may have more than one wife but a woman only one husband, in accordance with African custom, we would be in breach of our constitution's stipulations on gender equality. The same problem pops up when the restoration of some of the powers of traditional leaders is considered: they were not democratically elected. "Africanisation" can never be allowed to contradict our constitution.I do think our parliament can be more "African". One example: It is a very old and respected African custom for the representatives of the ordinary people to address the king or the chief (the head of state). Yet in our new parliament the head of state is very seldom present. Another example: In the African tradition, people with problems or complaints went to their local chief or elder, who took the issue to the highest authority. This was the way the chief or king remained in touch with his people. That suggests we should have a constituency system where every citizen knows who his or her local representative is. LanguagesYet our ruling party is vehemently opposed to any form of constituency system.If we are serious about the Africanisation of our society, I believe the first place we should start is with the protection of our languages. We are fast becoming an English-only country. Speaking English is seen as proof of sophistication and success. We should have mother tongue education up to at least secondary school level and we should encourage people to converse with the state in their own languages - in the offices of the bureaucracy, the courts and the elected assemblies. But when we consider the Africanisation of our society, we should be very clear in our thinking. The South African nation consists of more than just black people. Among our "Africans" are also people of Indian extraction, Muslim people who call themselves Cape Malays, the diverse group formerly classified as coloureds, Afrikaners, white English-speakers, even Portuguese speakers and people of Chinese ancestry. The whole ethos of our new deal is that all communities are entitled to their culture, language and way of life. When we "Africanise", we have to remember these groups are Africans too; their customs, traditions and heritage are as valid to be accommodated as the majority grouping.In any case, which "Africa" are we talking about? It is a vast continent and cultures, lifestyles and customs differ vastly. We don't have all that much in common with the peoples of, say, Mauritania, or Burkina Faso. Shouldn't we be talking about our region only?After generations of colonialism and apartheid, most South Africans suffer from an inferiority complex bordering on self-loathing. We constantly look to the outside for validation.I believe it would be to our advantage as a nation if we could shift our own view of ourselves, if we could generate more pride in our history and heritage. We should stop trying to be like Europeans or Americans. If that's what is meant by Africanisation, I support it wholeheartedly. http://www.dailynews.co.za/index.php?fArticleId=2980633

Protect SA’s law from mawkish sentimentalism

IN THE Cape Argus ( November 15) respected journalist Michael Morris makes a bold attempt to give credence to Judge Hlophe’s controversial call for the “Africanisation” of the law, but fails. Mindful of the binary Eurocentric-versus-Afrocentric arguments that lead nowhere, he invokes much of the view of Prof Hugh Corder, dean of law at the University of Cape Town, that “it is fundamentally healthy that questions are raised about the values against which the law is interpreted,” but that this issue be separated from the controversy of racism within the judiciary. For him the latter is a managerial matter that should be dealt with in-house, the former has to do with the application of the law and is a valid concern. Both Corder and Morris sympathise with Hlophe’s view that South African law would do well with a good infusion of “African values”. As usual they haul out the hackneyed example of ubuntu, and then sink into the South African sin of “exceptionalism”, claiming that our extraordinary diversity inspired a legal system that has become “something of a prototype … in a developing country not shackled to one particular parent system”. Morris knows he is skating on thin ice, hence all the caveats and the use of Corder’s arguments to give legitimacy to a post-1994 obsession that everything should be Africanised, as though this notion imbues legal practice with a nobler quality. This romantic nonsense is at the heart of slovenly thinking dressed up as deep thought and inspires a populism disrespectful of the rule of law. What does it mean to Africanise the law, or to Americanise or Europeanise it for that matter? These words are used glibly when no one dares to define it, and it is on this score that Morris’ assumptions should be debunked. The flow of the law is no longer unidirectional, from developed to developing countries. Postcolonial societies and globalisation have had profound cultural and political influences on the interpretation of the law, hence the richness of jurisprudence internationally. The US Supreme Court cites cases from South African jurisprudence as they do from many countries across the world. Similarly, South African law draws on seminal judgments from all over the world. Human rights law in particular has had to deal with the challenges thrown up by cultural diversity, customary law, and gender equality in keeping with the demands of modern society. Conceived in patriarchy and racism, Roman Dutch law has undergone radical amendments over decades. Feminists from the Seneca Convention to the British suffragists, and from Amsterdam to Botswana, have contested the sexism and racism implicit in the law. As early as 1791 in France, Olympe De Gouge questioned the French Declaration of the Rights of Man with her Declaration of the Rights of Women, and had her head chopped off. The irony is that while France has moved on, many of its former colonies have remained static, still supporting sections of sharia law and its iniquitous impact on women. “To infuse with African values” assumes that the law will be kinder to the oppressed; it assumes that what is indigenous is kinder. And this is not always so. In the case of Amina Lawal, sharia law was deeply uncivil towards her rights as a woman. Similarly the idolised notion of ubuntu covers a multitude of sins in customary law against the rights of women — with regard to sexuality, marriages, inheritance, divorce, children, circumcision, virginity testing, etc. Throughout history African women have challenged customary laws that discriminate against them. Just to give a thing an African name does not “purify” or ennoble it. Where “African law” has not been codified or documented it can be invoked to mean anything. In the vacuum of definition, restorative justice in the mind of the victim, for example, can mean vigilantism, the necklace, the kangaroo court, etc. On the other hand, scholars such as Thandabantu Nhlapo have pointed to many examples of African customs that would do wonders for family law and the social welfare system, provided the values underlying the African family were properly understood and applied. Finally, the question of equal access to customary law is an aspect very few people have given attention to. Do only certain tribes have rights to customary laws or do we grant Ben Travato his wish to have two wives? Or is this the preserve of the indigene? If so, who is the indigene? We have to be careful what we ask for, or we might fall into the trap Orwell warns of — “that slovenly language and slovenly thinking begin to feed off and reinforce each other: the slovenliness of our language makes it easier for us to have foolish thoughts”. ‖Kadalie is a human rights activist based in Cape Town. http://www.businessday.co.za/articles/opinion.aspx?ID=BD4A117744

Cape Law Society welcomes judgment against the buying of work

In a Judgment of the Cape High Court, (Case No 3475/04), Judges S Desai and Erasmus H J ruled against the buying of work by attorneys which can exist in various forms. This decision confirms the Cape Law Society's view that the independence of the profession is non-negotiable. This offers members of the public the reassurance that their freedom to choose an attorney in all legal matters will enjoy the protection of the courts. Members of the public are advised to ensure that they appoint the attorney of their choice. The public is cautioned to question any referral by a third party to attorneys. It also is important that the public fully understand the relationship between the attorney and the person making the referral. The client must understand the fees payable, discounts and rebates which the attorney will grant. Clients must insist on total transparency in the way all payments will be affected with all parties involved. The trust between an attorney and the client is paramount and should not be subject to any interventions by a third party. Members of the attorneys' profession also welcome the considered judgment. As a profession, attorneys have always called for strong action against the buying of work. This is a landmark judgment and sets a new normative standard dealing with the buying of work at all levels. The precedent will accelerate the campaign nationally to stop the buying of work. Contact details Nalini Gangen Director Cape Law Society 021 424-8060 Waalburg 28 Wale St Cape Town Mobile Phone: 082 800 5093 Nalini.Gangen@capelawsoc.law.za Ashoek Adhikari Vice-President aadhikar@pawc.wcape.gov.za Cape Law Society 0836258695 http://www.mediaweb.co.za/ArticleDetail.asp?ID=2936

Transformation of the Legal Profession

Transformation of the legal profession is not only an economic and moral imperative but the maintenance of the rule of law is dependent on transforming the legal profession. Currently a little over a quarter of the country’s attorneys are black, even though approximately 88% of South Africa’s population is black. If law firms are destined to achieve success and gain strength through diversity, this can only be achieved by skills being transferred to black lawyers by proper mentoring and training. Skills transfer will ensure that a bigger pool of black lawyers develops the expertise that is necessary to take up judicial appointments. Without a transformed judiciary, the majority of our population will have little faith in the justice system. Law firms can play an instrumental role in the transformation of the judiciary, by ensuring that black lawyers are exposed to quality work and that the necessary skills transfer is occurring. Unfortunately for many years in South Africa, the bulk of black lawyers served individual clients while the institutional clients were serviced by white lawyers. Consequently many black lawyers developed little commercial legal experience. Fortunately this is beginning to change and a greater number of black lawyers are being exposed to challenging, quality commercial and governmental work. The large law firms, which have an impressive client base and the infrastructure to train and mentor young lawyers, are employing more and more black candidate attorneys. The challenge that remains for these firms is to ensure that these candidate attorneys do not, after qualification turn their backs on the profession. The commercial reality is that black lawyers with skills and expertise are a precious resource. Commerce and the major law firms are competing for the same pool of black lawyers. Unless young black lawyers are satisfied that they are being given equal opportunities to succeed and develop, the major law firms will struggle to retain them.When I was still an inexperienced young black lawyer, I was fortunate to be paired with an experienced attorney who treated me as a colleague, spent a significant amount of time on training and mentoring me, who appreciated my input and who exposed me to his clients and to quality commercial litigation work. As a result I have managed to develop an independent commercial litigation practice which has allowed me and my firm to measure my capability and more importantly allowed me to meet the criteria necessary to be invited as a shareholder in the firm. Even though apartheid was dismantled more than ten years ago, we must not lose sight of the fact that many black law graduates only had access to an inferior quality of education where English was not a first language. Furthermore, many young law graduates are at a disadvantage because their family environment has not exposed them to the commercial world. It is the recognition of these imbalances and a concerted effort to level the playing fields that will contribute to the successful training and mentoring of young black lawyers and more importantly their retention in the profession.Transformation of law firms has been described as transformation in the true sense because, in terms of legislation, a partner/shareholder in a law firm has to be an admitted attorney. In other words a black empowered company cannot be invited to become a partner/shareholder in a law firm to change the profile of the firm and to achieve the diversity much sought after by the market. In the light of this, the need to provide equal opportunities to work, training and mentoring and the transfer of skills cannot be overstated. Without a focused mentoring programme, large firms are not going to transform and will lose out on the opportunity of adding value to clients by offering a team of people from diverse backgrounds to deliver solutions.At Deneys Reitz we have made some strides in the sense that we currently employ 63 black professionals and we have 12 black directors. Notwithstanding the challenges faced by the large law firms in retaining black professionals, I take comfort from the fact that most of the firm’s black directors have been trained in house and have progressed through the firm’s structures. The process of transformation at the firm is, however, nowhere near completion. But I remain optimistic that if young black lawyers coming through the firm’s structures are given the same opportunities I was given and are properly trained and mentored, Deneys Reitz will become a truly South African law firm.The distribution of work by institutional clients to black firms must be encouraged, but the fact that black attorneys in the large law firms were also disadvantaged and should also benefit from empowerment initiatives should not be overlooked. The large law firms have the resources and the infrastructure to train black attorneys. But if the black attorneys at these firms are not supported by institutional clients, there will be no incentive for the black attorneys to remain with the traditional large law firms and this will perpetuate segregation between black and white attorneys and we will not move away from the notions of black and white firms. Institutional support for black attorneys at the large law firms will promote the success of black attorneys at these firms and will accelerate the transformation of the traditional large white law firms. Aslam Moosajee http://www.deneysreitz.co.za/news/news.asp?ThisCat=3&ThisItem=686