[ Western Cape ]

Input by Mr Andries Nel, MP, Deputy Minister of Justice and Constitutional Development at SLSJ Western Cape Regional Seminar, July 2010

31 Jul 2010

I would like to thank Students for Law and Social Justice for organising this seminar and for inviting us to participate.

At the risk of prescribing myself, I must confess that the last time that I was at Habonim Camp was a quarter of a century ago.

It must have been some time during the second half of 1985, because one of the speakers at the meeting was a very heavily bearded Graeme Bloch, now at the Development Bank of Southern African and author of Toxic Mix, a book about our education system, then a member of the executive committee of the United Democratic Front, the UDF, in the Western Cape. Graeme arrived clandestinely, taking refuge behind his massive beard in an attempt to elude the Security Branch who had been hunting for him since PW Botha declared a State of Emergency on 20 July 1985.
The meeting was a political education seminar organised by Nusas, the National Union of South African Students, and affiliate of the UDF, at the University of Cape Town. I still remember clearly how our “Political Commissar”, Peter Cranko, passionately, and probably also patiently, tried to induct us into, amongst others, the Gramscian concept of hegemony.

If anyone had said to me at that seminar 25 years ago, that one day I would be escorted here by members of the South African Police Service, of my own free will, to engage in discussion with student activists on the law and social justice in a free and democratic South Africa – as Deputy Minister of Justice and Constitutional Development, nogal, I would have looked at them askance, suspecting either their sanity, or their loyalty – or both.

We have come a long way since then. But having come a long way also comes with its own challenges. This inherent in the way that society develops – the solution to one set of problems will invariably give rise to a new ones.

One of these challenges is that, perhaps because of the concept of hegemony that “Commissar” Cranko tried to teach us, the objective of attaining a united, non-racial, non-sexist, democratic and prosperous South African nation has become so “mainstreamed”that we easily forget how radical and how revolutionary a vision it really is, especially given our history and the difficult legacy that it has bequeathed us.
Twenty-five years ago it was the pursuit of this objective that caused many thousands to lose life, limb and liberty. Now, it is an objective that few will dare disagree with – publicly and openly at least.

Everyone professes commitment to this vision:Everyone from the hard working men in Carling Black Label adverts to the Premier of the Western Cape. I suppose that this is not necessarily a bad thing. It is, in fact, an important part of building a united South Africa nation.
However, every now and then, the tension between theory and practice causes an ugly cat to be let out of its ideological bag.

Take for example the following statement by the Leader of the Official Opposition during the debate on State of the National Address in 2004: “The DA agrees on the need for radical and fundamental change. But the policy of transformation, as the ANC defines it, aims at something more. The goal of this transformation is to achieve “representivity” – a state of affairs in which every institution, public and private, reflects the demographics of South Africa as a whole.”
His statement of course begs the question who should remain unrepresented and in which institutions should they not be represented?

I raise this not to engage in some quick party political point scoring but to make the point that, as activists for social justice, we cannot content ourselves with superficial understandings. Social Justice is a radical concept that demands a radical and profound understanding of our society, how it works and, consequently, what is needed to change it.

It is also your role as intellectuals to help our society imagine what it can be. You need to think critically and ask: What exactly do we imagine when we imagine a South Africa that is United? A South Africa that is Non-Racial? A South Africa that is Non-Sexist? A South Africa that is Democratic? and finally, and perhaps the most difficult and contested of our imaginings, what exactly do we imagine when we imagine a South Africa that is Prosperous?You must help us imagine a judiciary and a legal system is such a society?

President Zuma outlined some of this when he spoke at the Second Judicial Conference for South African Judges in July last year. He said: “When we talk of judicial transformation and access to justice, we are talking about three issues in particular. We want to ensure that even the poorest of the poor do enjoy access to justice.Secondly, that the justice that people access is of a high standard and thirdly, that justice is attained without undue delay. Central in the struggle for a just society has always been, and continues to be human rights and the rule of law, which are fundamental pillars of a Constitutional democracy.
He went on to say that: “Transformation to ensure improved access to justice must address issues of language, procedures and processes, as well as other issues that may alienate poor from the justice system. It must include physical access to courts, and the provision of some form of legal aid to ensure that a lack of financial resources does not hamper access to the justice system. Poverty is still one of the major barriers for our people in exercising their right of access to justice.

And that, “Some of the poverty-related factors which inhibit access to courts or justice include the long distances that people have to travel in order to access the courts and related services. There are also the prohibitive costs of attaining the services of lawyers. The Legal Aid Board has traditionally provided legal assistance to those who are indigent in criminal matters. Government has as part of promoting access to justice, given the Legal Aid Board limited jurisdiction on civil matters to assist the most vulnerable such as farm dwellers that face evictions, women and children. Government has also begun to deal with the question of language in some courts on an experimental basis.”
I have been asked to do the impossible. In 15 minutes I am supposed t Describe the legacy of inequality of access to justice inherited by our current government and what has the department of justice undertaken in order to address this issue of inequality? Indicate when will the Legal Practice Bill plausibly be passed? Describe the elements of the Legal Practice Bill aimed at providing greater access to justice including community service?What are the possible consequences that can be expected with regards to access to justice if the Legal Practice Bill is passed? Up until now transformation of the judiciary has been rather slow, does the department expect this to be a continuing trend or does it expect a more rapid transformation with the increased amount of law graduates?It seems that the organisers of your seminar have yet to hear of the maxim: “Lex non cogit ad impossibilia.” (The law cannot compel a person to perform the impossible.)

In addressing the issues raised by the President above, and in answer to my impossible terms of reference:

Our society under apartheid was characterised as colonialism of a special type, internal colonialism or apartheid colonialism. Our legal system bears all the hallmarks of this history.

Our justice system has not fully overcome the spatial divisions of Apartheid colonialism. The boundaries of our magisterial districts as well as the distribution of resources within these boundaries reflect the topography of Apartheid, following the boundaries of the so-called homelands and self-governing states. It was only yesterday that curious institutions such as the Supreme Courts of Venda and Bophuthatswana still existed.

Under apartheid most “black areas” either had no courts whatsoever or had so-called “branch courts” that only heard criminal matters, often forcing residents in these areas to travel long distances to “White areas” to access services relating to civil matters including maintenance, small claims courts and deceased estates.

Our interventions are aimed at, on the one hand, re-furbishing the so-called Branch Courts in the former “black” areas and rural villages and confering upon them jurisdiction to function as fully-fledged courts and, on the other hand, at ensuring the re-alignment of the magisterial districts with the municipal boundaries established under our democratic constitutional dispensation.

Thus far, 15 of the 90 Branch Courts have been converted into full service courts, with effect from August last year. A further 4 will be converted this year.

In addition to the above, a substantial portion of the budget of the Department of Justice & Constitutional Development is directed at building court buildings where there were none before, thereby also helping to break down the spatial patterns of Apartheid colonialism.
Recently new court buildings were completed in Galeshewe in the Northern Cape and Ekangala in Gauteng (formerly in Mpumalanga). We aim, within the next 5 years, to build 7 Lower Courts in Mamelodi and Katlehong in Gauteng, Ntuzuma in KwaZulu-Natal, Colesberg in the Northern Cape and Lutzville and Ashton in the Western Cape. Plans for the construction of High Courts in Mpumalanga and Limpopo are underway. This will have a major impact on communities that currently have to travel to Pretoria to access the North Gauteng High Court.

Another important intervention is the establishment courts of the regional divisions which will exercise civil jurisdiction. This will increase access to justice as more serious civil matters, amongst others divorce matters, can now be dealt with in more courts closer to the people.

Small Claims Courts are another powerful mechanism to provide access to justice, especially to the poor. Our objective is to establish at least one Small Claims Court in each of South Africa’s 384 magisterial districts.Presently, we are over the half-way mark, with 210 established Small Claims Courts.Our aim is to establish 60 new Courts during 2010 and a further 60 by the end of the 2011 financial year.Most of these newly established Courts will be in rural areas. We aim to increase the jurisdiction of these courts from R7 000.00 to between R10 000.00 and R15 000.00.

Legal Aid SA provides legal assistance in over 400 000 matters per annum. It has achieved full coverage of all criminal courts by providing legal aid services and thus ensuring that no person passes through the criminal justice system unrepresented because he/she is poor. The major challenge we face is providing civil legal assistance. In the past year it was able to assist only 30 000 persons with civil legal aid.This constitutes only 7% of the total new legal matters handled in 2008/09 and was a decline from previous years.It is also an insignificant response in relation to the almost two million civil matters enrolled in our courts per annum.

There are a number of other programmes which time does not allow me to discuss fully. The Indigenous Language Pilot Project aimed at the promotion of the use of indigenous languages as language of record in our courts; the Access to Justice programme is the joint initiative with the Foundation for Human Rights and the European Union aimed at strengthening civil society participation in Civil Society Organisations to participate on the Constitutional Development Dialogue; the established Equality Courts throughout the country; The Review of the Civil Justice System the terms of reference of which have been approved by Cabinet.

Key to access to justice is the transformation of the legal profession. This is long overdue. In May this year Cabinet approved the Legal Practice Bill for submission to Parliament. Once the Bill is introduced in Parliament it will follow the normal parliamentary process. We cannot say when it will be passed but we anticipate that the parliamentary process will start in September this year.

Guaranteeing the independence of the legal profession: The independence of the legal profession needs to be protected and strengthened.Practitioners should nominate their representatives on governing bodies.At the same time, there needs to be regulation of the profession to protect the public and to ensure access to justice. The State has a primary responsibility in ensuring these aspects.

The Minster, as the member of Cabinet responsible for the administration of justice, of which the provision of legal services is an important aspect, must, through legislative and other measures, promote the independence of the legal profession, enhance access to justice and promote the interest of justice.

Establish a unitary legal profession consisting of attorneys and advocates: The continued existence of the referral rule for practitioners practicing without Fidelity Fund Certificates will be retained.The reality is that there are different types of legal practitioners within the profession: those practitioners who currently practice as attorneys and those practitioners who currently practice as advocates.Legal practitioners practicing without a Fidelity Fund Certificate may not practice in a partnership.Legal practitioners practicing with Fidelity.
Fund Certificates may only form partnerships with other legal practitioners practicing with Fidelity Fund Certificates.The establishment of a unitary legal profession in contrast to the option of a merged or fused profession entails the establishment of a single governance or regulatory framework for uniform norms and standards for all practitioners.This position differs from the approach adopted in the previous drafts which preferred a unified profession.The latter model would entail the integration and fusion of the Bar and the Side Bar.

Establishment of a single regulatory framework to unify the profession and to rationalise the governance structures established under the old apartheid regime: A single national body to regulate the legal profession, made up of representatives of the two categories of the legal profession, should be established.The primary functions and powers of the national body are to determine norms and standards for the profession, set the requirements for admission to the profession, oversee the implementation of the Legal Services Charter and to promote and protect the public interest and access to justice. The composition of the national body must reflect South African demographics, with particular reference to race, gender and regional interests, in addition to ensuring representation from legal practitioners with Fidelity Fund Certificates and those without.The national body must be cost-efficient and manageable in terms of size and while the majority of its members will be legal practitioners, it is important that there is representation from law schools and persons representing the public interest.The legal profession will be responsible for the nomination of members to the national body.The appointment will be by the Minister who will have the limited and bounded discretion to refuse to accept nominations only on grounds of lack of inclusivity.The procedure for nomination will be determined by the profession itself. The core functions of regulation can thus be summarised as necessary to regulate entry to the legal profession, determining standards for training and education, determine rules for the conduct of practitioners and practice, enforcement of those rules and addressing complaints of the consumers of legal practices and providing redress.
The No Dominance rule: The reality is that the number of practicing attorneys far exceeds the number of practicing advocates.Mechanisms need to be put into place, where appropriate, to ensure that one group of legal practitioners is not dominated by another, for instance by means of deadlock-breaking mechanisms or weighted voting mechanisms.The Bill contains a mechanism to ensure that there is no dominance by any category of legal practitioners over another in respect of the core values which affect that category and which will be specifically defined.The rule takes the form of weighting of votes in respect of defined issues or a veto.

Admission requirements, Registration and Discipline: All legal practitioners must be registered on a central roll of legal practitioners after complying with the academic and any other requirements which may be determined by law and being admitted as a practitioner by the High Court.Legal practitioners shall be entitled to practice throughout the Republic, unless they have been struck off the Roll.A minimum qualification and training applicable to legal practitioners shall be a LLB degree or a Bachelor’s degree and a LLB degree, satisfactory completion of practical legal training and vocational training requirements and passing a competency based examination.The form and content of the articleship and pupilage will be further negotiated and be regulated through Regulations.

Fidelity Fund: The Fidelity Fund will continue in existence and must be regulated by a Fidelity Fund Board.The Fidelity Fund Board must be manageable in terms of size and there must be a reasonable balance between legal practitioners and non-legal practitioners who posses the required skills.The Minister will appoint members to the Board.

Legal Community Services: The prescription of legal community service may be prescribed by the Minister by Regulations on the recommendation of the National Council.Legal community service will be included as part of the articleship and pupilage and a minimum period will be prescribed for admitted practitioners.

Legal Services Ombud: The Legal Services Ombud will be a retired judge appointed by the President upon the recommendation of the JSC.The mandate of the Ombud is to promote and protect the public interest, ensure the fair, efficient and effective investigation of complaints against legal practitioners, promote high standards of integrity in the legal profession and to promote the independence of the legal profession.

Funding model: In principle, the profession should fund the governance structures established under the Act.With regard to the funding of structures, the following is provided for:(a)The National Council and its sub-structures are funded by fees payable to practitioners and an annual appropriation by the Fund.(b)The Fidelity Fund Board is primarily funded by interest accruing to the fund from trust accounts of legal practitioners and other money which the fund is lawfully entitled to, such as insurance payments, investments etc.

The recognition of voluntary associations: The main object of a voluntary association is to promote and develop high standards of legal practice among its members and to promote the legitimate interests of its members.The establishment of voluntary organisations is not prohibited.The Constitution guarantees the right of freedom to association already.The proposed legislation must therefore recognise these associations, if and when these are established and, where appropriate, require or urge the national and regional governance structures referred to above, to take the views of these voluntary organisations into consideration in certain instances.The views of the regional structures would also have to be taken into account in these processes.The voluntary organisations would, it is envisaged, also use their lobbying powers in getting their representatives appointed on the national and provincial governance structures in order to have their voices heard in the regulation of the legal profession.

Recognition of other providers of legal services including para-legals: Para-legals have an important role in the administration of justice in ensuring that the community has access to legal services in respect of matters that do not require the technical application of the law.While the Bill seeks to regulate practitioners, it is important that other providers of legal services, including para-legals, are regulated through a separate legislative measure.

Devolution of assets of the Societies of the Regional Council: In principle, it would be necessary for the assets of the regional societies to devolve to the regional councils.The Bill should allow for a process of negotiation and set out the duration for such purpose.

Legal training: Continuous legal training should be entrenched.

Transitional Council: The Transitional Council will be established to facilitate the smooth implementation of the Bill.This body will be composed of representatives of existing bodies within the broader legal profession and it will prepare for the establishment of the permanent national body and regional bodies.

In conclusion I would just like to say that I came here expecting to address a group of 20 or 30 students at most. Not that there would have been anything wrong with this. I believe that the following words in the Bible apply to politics as well: “Few as you are gathered in my name….” However, to see more than 200 law students from UCT, UWC and Stellenbosch gathered over a weekend to discuss law and social justice really gives one hope for the futu

Issued by: Department of Justice and Constitutional Development
31 Jul 2010