BLA must build confidence and be proud of black legal practitioners

By Kgomotso Ramotsho

The Black Lawyers Association (BLA) held the Sixth Godfrey Pitje Memorial Lecture on 19 November 2021 and Annual General Meeting (AGM) on 20 November 2021 under the theme ‘The Relevance and Role of the BLA during and post-COVID-19 pandemic: Its impact to members and the legal profession’ in East London. Judge President of the Eastern Cape Division, Selby Mbenenge, said holding an AGM is important for the effective operation of any organisation. He added that it is a time for taking stock of whether the objectives of the organisation during the past two years have been fulfilled or not. He pointed out that the AGM would be meaningless without answering the following questions:

  • What has the BLA done to build a society devoid of racial and gender discrimination?
  • What contributions has the BLA made towards creating an independent judiciary that is transparent, accountable, non-sexist, and non-racial?
  • What has the BLA done to support and promote investment programmes leading to broad-based economic empowerment and meaningful conversation in the economy by black people to achieve sustainable development and general prosperity?

Judge President Mbenenge also spoke of the challenges that the judiciary have operated in since May 2020 due to the COVID-19 pandemic, however, he pointed out that through those challenges some matters were heard, even though it was not a normal court sitting. Speaking about the legal profession, he said it must be structured and should reach students at universities, as well as legal practitioners starting their own practices. The BLA should steer them in the right direction, as in any profession there are aspirations to move up the ranks of the profession. However, he said one’s actions were more important than one’s words.

In his opening speech at the Memorial Lecture, outgoing BLA President, Mashudu Kutama, said that the BLA must never be blinded by its past achievements. ‘We must emerge [from] the AGM with new energy, vigour and programme of action to take us to new heights. It must never be business as usual. Our challenges are immense, in particular, after the enactment of the Legal Practice Act 28 of 2014 [LPA]’, Mr Kutama said.

He added that the gala dinner is an opportunity for the BLA to pay homage to the legacy and values of Godfrey Pitje and other leaders. He said the BLA draws lessons from the path Mr Pitje and other leaders travelled, as well as their experiences. He pointed out that while the dinner might be the last Pitje gala dinner organised by the BLA – as the family wish to broaden the lecture to the public – the BLA must find ways to honour past leaders at both provincial and national level. He said the BLA should consider establishing a bursary scheme in honour of past and late Presidents, namely Mr Pitje, Edward Mvuseni Ngubane and Lutendo Benedict Sigogo.

Mr Kutama said the BLA should have a Pitje Ngubane Sigogo Excellence Award for an LLM student in the field of constitutional law to encourage members to do research in this important field of constitutional democracy. He added that regarding the transformation of the judiciary, the BLA has achieved tremendous results in the transformation of the legal profession and the judiciary. ‘We participate in all structures of governance in the profession and our members are appointed in various High and Lower Courts and tribunals. These we achieved through a detailed and meticulous programme of action intended to transform these structures. It is not by coincidence that we boast to be the only organisation that have had its past members as both Chief Justice and Deputy Chief Justice at the same time, namely former Chief Justice Mogoeng Mogoeng and former Deputy Chief Justice Dikgang Moseneke,’ said Mr Kutama.

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Mr Kutama added that in past years the BLA produced and recommended younger generations as judicial officers to the Bench namely Brian Mashile J, Babalwa Mantame J, Lebogang Modiba J, Leicester Adams J, Nomsa Khumalo J, Thoba Poyo-Dlwati J, Daphne Mahosi J, Mpostoli Twala, Martha Mbhele DJP, Lester Nuku J, and Mandla Mbongwe J to name but a few. He noted that this is a tremendous achievement never to be matched and the BLA must be proud of their former members for ascending to the Bench. He pointed out that the BLA must intensify the transformation of the judiciary and recommend more black women to the Bench. Mr Kutama pointed out that through the BLA Legal Education Centre (BLA LEC), the organisation must introduce judicial skills training for its members and be biased towards black female legal practitioners within the ranks.

Mr Kutama said since the adoption of the Constitution more than two decades ago, the legal profession and Judicial Service Commission (JSC) has not seriously considered the impact of ch 8 of the Constitution in the transformation of the judiciary and jurisprudence. ‘The minister does not consider gender nor racial composition of the division when he/she appoints acting judges. The JSC considers this constitutional imperative when appointing permanent judges in term of section 174(2) of the Constitution. We must also begin to debate the relevance of having the existence of the [Supreme court of Appeal] (SCA) and the Constitutional Court. In other jurisdictions like India (a BRICS member) there is only one apex court with both first instance and appellate powers. In South Africa parties may appeal the SCA decision to the Constitutional Court, therefore the SCA is not a final court of appeal. Regulatory as a constituent member of the Law Society of South Africa (LSSA), the BLA continues to play a meaningful role in the discussions on the future of the LSSA post the LPA. We will be guided by a transformative agenda of the legal profession and not by narrow interests of those against transformation,’ Mr Kutama said.

Mr Kutama added that the BLA must particularly pay special attention to the future of the legal profession by participating in the Legal Practice Council (LPC) and its various committees. ‘We are shaping the future governance structure of the profession, education and training of legal practitioners, rules and regulations that will govern legal practitioners and the unification of the profession,’ said Mr Kutama. He added that the BLA will continue to be robust and transformative in their engagements with various organisations and stakeholders. He pointed out that the BLA wants the LPA to produce innovative, honest, skilful, and competent legal practitioners who are ready to practice law at the highest level and who can easily be elevated to the bench. ‘We dare fail on this mission’, he said.

On the distribution of legal work, Mr Kutama, said the BLA adopted a radical programme of action to fight against skewed briefing patterns and racist distribution of legal work by the state- and state-owned enterprises. He added that the BLA must continue to strive and take radical steps until the spirit of s 217 of our Constitution, including relevant procurement legislations and rules and regulations are realised. Mr Kutama pointed out that it is a waste of time to call for transformation of the legal profession and, in particular, of equitable distribution of work without changing the economic relations in the private sector. He added that the seminal observation must be the organisation’s torch bearer in discussions rather than celebratory statements. ‘This we see in the distinct legal work in both [Road Accident Fund] (RAF) and competition law despite both legislations passed by the same legislature, two years apart. The difference is the class, gender and race dominant,’ said Mr Kutama.

Mr Kutama pointed out that the BLA is alive to the issues confronting society. He said in the province of the Eastern Cape scores of children cross rivers while going to school. He added that the denial of education is the highest form of deprivation. ‘Our silence is deafening and by far an extension of demeaning these children in their quest for education. The BLA cannot keep quite while society is ravaged by corruption in both public and private sectors,’ said Mr Kutama. He pointed out that corruption, wherever it occurs, represents a decline in the value system of the nation. He said if left unchecked, it poses a grave threat to the democratic values and dreams of being an ethical and developmental state.

Mr Kutama added that it is time that the BLA LEC establishes a public law interest unit populated by BLA members to assist the public at large on matters affecting our communities, for example housing, land, etcetera. This unit will provide necessary training to legal practitioners in the field of public law and constitutional law and provide a huge avenue for the training of candidate legal practitioners.

Constitutional Court Judge Zukisa Tshiqi said it is proper that the life of the late Mr Pitje is celebrated. She said the Memorial Lecture affords a moment to reflect not only on the achievements and legacy of the late legal icon, but also to reflect on the achievement of the BLA, for the two are related. As the BLA celebrate its founding member, they must also reflect on how far they have come. She said she was humbled to be a black Justice of the Constitutional Court, and to have the opportunity to pay tribute to Mr Pitje, without whom this would not be possible. She pointed out that Mr Pitje’s legacy to her is a mark of a great man, a legacy of an establishment of the BLA.

Judge Tshiqi pointed out that the BLA LEC sponsored her articles of clerkship. She said those who started practicing the same year as her, were afforded the same benefit. She added that they should thank the likes of the late Mr Pitje for that opportunity. She pointed out that during her time at the BLA she had the privilege of being mentored by legal giants who were all patient. She said in honour of Mr Pitje she will focus her speech on the BLA itself, as it is an embodiment to what Mr Pitje and his fellow colleagues dedicated their lives and career. She pointed out that black legal practitioners continue to be denied government and corporate work and it is even worse for black female legal practitioners. She added that it is unfortunate that in a democratic South Africa (SA) black legal practitioners and female legal practitioners are confronted by challenges of discrimination. She said she did not think that the legal profession is as transformed as Mr Pitje and other black leaders had hoped.

Judge Tshiqi said when the BLA was formed, it advocated for the transformation of the legal profession and the judiciary. She added that the objective was and still is to remove the barriers that are challenging black legal practitioners. The BLA needs to focus on developing young people so that they are ready to enter the legal profession, notwithstanding any past disadvantage legal practitioners have encountered. She said programmes offered by the BLA are to make sure black legal practitioners excel. She added that her dream is that all young legal practitioners benefit from these programmes and that the BLA needs to promote, develop, and encourage confidence and belief in black legal practitioners.

At the AGM, the Minister of Justice and Correctional Services, Ronald Lamola, gave the keynote address, in which he said that the BLA is known for its decorated history in the country. He added that it is something that it must internalise in all its manifestations. He pointed out that in SA, which was besieged by the total repression of the black race, a crime against humanity, the BLA stands out as an institution not an organisation.

Mr Lamola added that BLA is not only just an institution but a black institution. ‘Some may ask why I have chosen the word institution instead of organisation. An organisation is a systematic collection of people, who work together for achieving the desired end, under a common identity. Conversely, an institution is an establishment, that is dedicated to promoting a specific cause that can be educational, professional, social. Let us for one second try to imagine whether the lofty goals of the Constitution would be institutionalised without the advocacy of organisations like the Black Lawyers Association. When all is said and done, our society cannot afford to develop without this organisation,’ Mr Lamola said.

Mr Lamola pointed out that the 2021 BLA gathering was missing a critical pillar of the legal profession, the late Mr Sigogo. He said Mr Sigogo raised issues with his pen that could not be ignored even though the ink had dried. Mr Lamola quoted an excerpt from De Rebus where Mr Sigogo as President of the BLA said: ‘We owe it to the coming generations to address the challenges facing us today in a manner that they will look back and appreciate the role we would have played’ (2017 (May) DR 13)Mr Lamola said everyone should take up this challenge without delay. ‘Our quest to transform state legal services is something we intend to fulfil with zeal’, Mr Lamola said.

Mr Lamola spoke about the establishment and the mandate of the Office of the Solicitor-General (OSG). The Solicitor-General (SG) will not only be leading and coordinating state litigation but will also oversee the performance of the entire state legal services with specific focus on reducing the state’s contingent liabilities and protecting the interest of the state. Some of the milestones achieved to date include the litigation strategy and policies to implement the State Attorney Amendment Act 13 of 2014. Mr Lamola added that to achieve the desired change within the state legal services environment, the SG has developed a Litigation Strategy 2021-2026 to position the OSG as the nerve centre for the provision of state legal services. The strategy also deals with the policies as envisaged in the State Attorney Amendment Act. He pointed out that the five policies to implement the State Attorney Amendment Act have been developed.

On briefing patterns, Mr Lamola said that the OSG remains committed to the transformation of state legal services and empowerment of previously disadvantaged legal practitioners (PDIs). He added that the Constitution places a critical social and moral responsibility on government to create equality of opportunities to private practitioners as well. He pointed out that to respond to this Constitutional imperative the OSG has already finalised the Briefing and Outsourcing of Legal Work policy in line with s 3(4) of the State Attorney Amendment Act. The overarching aim of this policy is to develop legal skills through equitable outsourcing of legal work to PDIs.

‘In a nutshell the policy is primarily intended to empower PDIs and to also increase the number of black lawyers briefed. The details of the briefing patterns are available [on] the Department of Justice and Constitutional Development’s website and the records clearly indicate that for the past years the offices of the State Attorney were measured in terms of the transformation of the (PDIs) advocates, more especially female legal practitioners,’ Mr Lamola said. On procurement of state legal service, Mr Lamola added that due to the various challenges raised regarding the procurement of state legal services and non-compliance with s 217 of the Constitution. The Office of the State Attorney is in the process of developing a new unique process for the procurement of state legal services. ‘In addition to that which I have just mentioned, I am proud to say we are on the cusp of a new era in the legal profession. Although the democratic dispensation has championed Broad-Based Black Economic Empowerment, to address the imbalances created by the Apartheid laws, policies, and practices and to promote socio-political equality and equal participation in the economy of the country. Members of the legal profession do not have a sector code to guide them to address imbalances and inequality within the legal profession’ Mr Lamola said.

Mr Lamola said the legal profession must be reliant on generic codes, which by their nature are overly broad and as such, have not been able to address the unique nature of the legal profession as a sector in the economy. He added that, government alone cannot transform the legal profession, that it requires the collective buying of government and the private sector to ensure that legal profession thrives in a manner, which does not entrench existing privileges, which are patriarchal and white supremacist in nature. He said that to this end together with the LPC they can say that the Legal Sector Code, which is imminent will help transform the legal sector to give effect to the objectives of the Constitution by promoting effective and sustainable economic participation by black people and women in the economy of SA in general and, in particular, the legal profession.

The National Annual General Meeting (NAGM) adopted and accepted the report by its outgoing president, the report reflected on the state of the country in general and the situation within the legal profession. The NAGM noted the slow pace of transformation manifesting itself through the unfair briefing patterns, which leads to black, and women legal practitioners being excluded by the dangerous and racist tendencies of the government in entrusting their legal work with white legal practitioners to the exclusion of black legal practitioners.

The NAGM resolved to strengthen its resolve to fight for a transformed legal profession and judiciary by using all available platforms and by any means necessary, including litigation and civil disobedience. The NAGM noted the reports from branches of the organisation and reflected on the challenges faced by some of the branches particularly in the KwaZulu-Natal Province where the NAGM adopted a special resolution dealing with these challenges as they relate to the situation of the organisation in that province. On the transformation front, the NAGM further resolved to establish an internal structure to concentrate on the issue of the transformation and to invest all requisite resources to strengthen the programme of transformation within the legal profession and the judiciary. The NAGM further elected a new leadership since the term of the previous National Executive Committee (NEC) was coming to an end. After a smooth voting process duly supervised by the Institute of Election Management Services, the following members were elected to the NEC:

  • Bayethe Maswazi – President.
  • Mabaeng Denise Lenyai – Deputy President.
  • Noveni Kubayi – Treasurer General.
  • Charlotte Mahlatji – General Secretary.
  • Ncumisa Sotenjwa – Deputy General Secretary.
  • Tebogo Hlapolosa – Head of Policy and Legislation.
  • Vumani Mthembu – Head of Legal Education and Research.
  • Maboku Mangena – Head of Events and Campaigns.

 

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