Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon John Jeffery, MP, at the National Association of Democratic Lawyers (“NADEL”)’s National Policy Conference & Annual General Meeting, held at the Protea Imperial Hotel, Pietermaritzburg, 25 March 2017
Members of the judiciary
NADEL President Mvuzo Notyesi
MEC Sihle Zikalala
Members of Nadel
Ladies and gentlemen
I have been asked to share some thoughts with you on transformation of the legal profession as a constitutional imperative.
One cannot see transformation of the legal profession in isolation, as the legal profession should reflect society. A transformed legal profession will lead to a transformed judiciary.
What it means, in short, is that society as a whole must be transformed – the Constitution demands it.
Transformation can be many things: economic transformation, institutional transformation, social transformation.
All forms of transformation, just like human rights perhaps, are indivisible and interconnected.
As Deputy President Cyril Ramaphosa recently remarked all government's policies have always been aimed at making the lives of our people better. He said: "The transformation agenda of every administration since the advent of democracy has been directed towards the achievement of a better life for all.”
Is that not the very essence of transformation?
The question now is what is the role of the legal profession and the judiciary to bring about the achievement of a better life for all?
A lot has been written over the past few weeks about the role of the courts in holding the other branches of government to account.
Some argue that the court is performing its duty as the custodian of the Constitution.
Others will say that it’s judicial overreach, with the judiciary entering the domain of the executive.
Whichever way one argues it – and whether or not one agrees with the judgments or not - two important points emerge: firstly, our courts have proved themselves to be independent.
And secondly, as President Zuma said at the United Nations: “Perhaps nothing reflects adherence to the rule of law like the judicial settlements of disputes.”
But, claim the pontificators, watch this space, because all this is about to change.
Phephelaphi Dube, the Director of the Centre for Constitutional Rights, writes about a “vulnerable judiciary”. Justice Malala says “judges (are) being intimidated”.
And, some claim, it is Government who is making the judiciary vulnerable.
Nothing could be further from the truth.
When Government was told by the Constitutional Court to make anti-retro virals available after the TAC-case, did we do it? Yes, we did.
When the Constitutional Court, in the case of Minister of Home Affairs v Fourie told us to extend the definition of marriage to include same-sex spouses and to rectify the inequality in the legislation, did we do it? Yes, we did.
When the Court ruled that our process for the withdrawal from the International Criminal Court was ‘unconstitutional and invalid’, did we withdraw the notice? Yes, we did.
When Mr Khosa, a foreign national went to court to challenge the constitutional validity of the Social Assistance Act which only allowed for grants for South Africans and when the Court then found the legislation invalid and applied a “reading in” remedy, as through the words “or permanent resident” appear after the word “citizen” in the Act, did Government comply and make social grants available to foreign nationals? Did we put steps in place to give effect to the judgment? Yes, we did.
In fact, I could stand here all day citing cases, but the bottom-line is this: Government complies – so how can it possibly be capturing or undermining the judiciary?
Well because, says Dube, the ANC’s policy documents points towards it. He writes:
“The governing party is reported to be seeking “judges with a progressive philosophy and who advance judicial activism to give effect to social transformation to be appointed to the Bench.”
Let me again stress the words “who advance judicial activism”.
In other words, we want judges to be more activistic, not less.
For any government who would, purportedly, want to undermine or clip the wings of the bench, judicial activism would be the last thing they want.
They would obviously rather want a bench that practices judicial deference.
And yes, we do want judges with a progressive philosophy. This is nothing new. We certainly don’t want conservative ones.
The issue of the transformation of the judiciary has been at the heart of ANC policy for decades.
At its 2002 national conference in Stellenbosch, the ANC resolved to expedite the transformation of the judiciary, to create a more representative, competent, sensitive, humane and responsive judiciary.
This was echoed in 2013 Mangaung Conference Resolutions which state that “there should be holistic criteria for eligibility to judicial appointment which include amongst others social activism”.
Again, note the word “activism.”
So we want judicial activism and we want social activism. Even if that means that a more activistic court will find against us.
And why do we want judicial appointments who advance judicial activism and social activism?
Because the Constitution demands from all of us that we must change.
So how do we ensure that the judiciary is transformed? By transforming the legal profession.
For a long time in the history of our legal profession, Black people and women were almost entirely absent from the ranks of senior partners in large firms of attorneys and senior counsel at the Bar. Unfortunately although there is better representation in these upper echelons they are no way close to reflecting the race and gender demographics of the country.
They were also largely absent from the controlling bodies of the Bar Councils and Law Societies until recently, when steps were taken to make these bodies more representative.
Some of the main challenges clearly evident are the need to make the legal profession representative of the diversity of South African society and the need to make the legal profession more accessible to the public.
Therefore the Legal Practice Act was passed to transform the legal profession. The Act was signed into law by the President in 2014.
The Act paved a way for the establishment of a National Forum.
The Forum will develop election procedure for constituting the South African Legal Practice Council which will serve as a regulatory authority of the legal profession in South Africa.
The Forum will make recommendations for, amongst others, the establishment of the Provincial Councils and their areas of jurisdiction, composition, functions and manner of their election.
It will also set all the practical vocational training requirements that candidate attorneys must comply with before they can be admitted by the court as legal practitioners; prepare and publish a code of conduct for legal practitioners, candidate legal practitioners and juristic entities.
With regards to where we are in the process, the Code of Conduct for legal practitioners, candidate legal practitioners and juristic entities was gazetted on 10 February 2017.
The Code is not in force yet, but will apply to all legal practitioners (attorneys and advocates) as well as candidate legal practitioners and juristic entities when the Legal Practice Act comes into operation.
I can also advise that the Minister has granted an extension of time to the National Forum to finalise outstanding issues and negotiations with the statutory, provincial law societies.
The timeframes for the implementation of the Act have accordingly been amended in view of the extension granted by the Minister.
A Legal Practice Act Amendment Bill is currently before Cabinet to give effect to this. The Bill also effects some amendments to the transitional process that the National Forum identified.
By the second half of this year, the Forum is to make recommendations to the Minister in terms of s 97(1)(a) of the Act. The agreements between the Forum and respective law societies with regard to transfers of staff and assets must be finalised and the Forum is to issue Rules on training and discipline for public comment.
By early 2018 we envisage the implementation of Chapter 2. The Minister’s proclamation for the establishment of the Legal Practice Council (LPC) and provincial councils (PCs) should be finalized. The Forum is to make all Rules in terms of s 95(1)).
By the second half of 2018 we want to ensure the implementation of the rest of the LPA in terms of s 120(4).
All Rules and Regulations will need to be in place, law societies to be abolished and regulatory functions of advocates' structures to be transferred to the Legal Practice Council and the Provincial Councils.
The Council and Provincial Councils will then commence as the bodies responsible for regulating the legal profession.
The Forum is to be wound up after a final meeting with the LPC in terms of s 105(3).
There are a myriad other issues that affect transformation, such as the race and gender demographics of the profession, the magistracy and the judiciary.
There is the issue of briefing patterns.
And there is the assessment of the impact of the decisions of the Constitutional Court and the Supreme Court of Appeal which our Department is busy with.
The purpose and objective of the assessment is to locate the jurisprudence of the CC and SCA within the developmental state, as described in the National Development Plan, and to establish the extent to which socio-economic rights decisions of the CC and SCA have advanced constitutional justice and its influence on social transformation.
Empirical studies were conducted and a total of 140 interviews were conducted with various stakeholders directly involved in landmark cases such as the litigants (community leaders, NGOs); legal representatives (attorneys and advocates) and the Judiciary.
Interviews were also conducted with those indirectly involved in landmark cases but directly involved in the implementation thereof such as government officials in various affected departments.
On the question of transformation, transformation within the context of the assessment is confined to the impact on the lives of citizens. In other words, have the court’s decisions –
- reduced inequality?
- enhanced dignity?
- satisfied the basic needs of people?
The assessment concludes that courts have a pivotal role to play in constitutional transformation and has been transformative in their role.
However transformative the courts are, they cannot physically implement their own decisions – political will and implementation by government through policy making determines the impact of transformation.
Furthermore, a strict and rigid interpretation of the doctrine of separation of powers creates obstacles for the court’s obligation to making a difference in peoples’ lives.
Barriers to accessing justice, include a lack of knowledge and awareness of socio-economic rights and the costs of litigation and incidental expenses
Litigants interviewed expressed there was value in the process of litigation – as they felt they had a voice.
The Department is to submit the final report to Cabinet and recommend that a Policy Dialogue/Summit be convened to deliberate on the findings of the assessment.
These are but some of the measures we are taking to ensure that meaningful transformation takes place – that meaningful change takes place.
As Pius Langa once described transformation Constitutionalism:
“This is a magnificent goal for a Constitution: to heal the wounds of the past and guide us to a better future. For me, this is the core idea of transformative constitutionalism: that we must change.”
I thank you.