Mr Molefe’s Speech
The speech was on the 19 May 2017: General meeting of the Black Lawyers Association.
Good Morning Comrades, ladies and Gentlemen,
At the outset might I take this opportunity to thank you for having invited me to deliver the keynote address at this general meeting of the Black Lawyers Association? I must add that I am immensely grateful for the support and succour that I have always received from this august body since the inception of my incumbency of the office of Chief Executive Officer of the Attorneys Fidelity Fund and and dare to add that without such perhaps I may never have occupied this important office within our profession. Because of that I will always acknowledge the BLA as not only a stalwart organisation but also add a very big catalyst of change in this our profession of lawyers that is dominated by so many whose interests are directly adverse to those of black lawyers and yet they have felt the impact and might of the BLA and others, THUS GIVING TRUE CREDENCE TO THE SAYING THAT UNITED WE STAND AND DIVIDED WE FALL. Had the BLA not clustered black lawyers together those many years ago I am certain that the theme of this meeting today would have been nothing but an afterthought in the hallowed corridors of power from whence we as black lawyers had previously been excluded. It is in this context that we have to look at the BLA, warts and all and still salute it and its founders for the wonderful creation they birthed during the year 1977.However even more important especially today, is the continued selfless contribution by all its later leaders that continue to keep this organisation alive, relevant and vibrant as a force within the leadership of the legal profession today.
Having said that I pause to reflect on the theme of this meeting today: The Theme “Determination of the future of the legal profession post the Legal Practice Act-Our responsibility and Priority” is really about both the now and the tomorrow. The now and tomorrow of lawyers individually and collectively and one might add that for black lawyers who have always been at the periphery of the real economics that drive wealth and power within the profession so much more important and pertinent. This theme is about setting objectives for tomorrow but thereof germination lies in the seeds that we plant today. We are at the cusp of change and so how shall we approach it-In this regard Buddhist scripture tells us something in a very interesting manner:
Majjhima Nikaya the Buddhist scripture puts it ever so very aptly and I quote “If you want to know the past, to know what has caused you, look at yourself in the PRESENT, for that is the past’s effect. If you want to know your future, then look at yourself in the PRESENT, for that is the course of the future”. IN short when we join structures we join them as we are because the past shaped us today but today when we look at the future we must look at today so that it transforms us lest we enter the future as if it is today.
This statement of time examination is about the setting and achieving of objectives. The objectives that lawyers set for themselves, be it about life choices, career or other spheres of living are nothing more than the destiny they see for themselves. Objectives are about destiny journey and that is exactly what this theme seeks to address. William Jennings Bryan, a populist American Democrat who lived in the latter part of the 1800’s could not have put it any better when he said and I quote “Destiny is not a matter of chance, it is a matter of choice, it is not a thing to be waited for, it is a thing to be achieved”. The Legal Practice Act 28 of 2014 actually sets the basis for the journey that all lawyers have to undergo but within that journey are the objectives that will inform what our priorities and responsibilities will be in the future.
Interestingly I believe that the objectives that one alluded to are clearly spelt out in the preamble to this Act and they read as follows:
- Provide a legislative framework for the transformation and restructuring of the legal profession into a profession which is broadly representative of the Republic’s demographics under a single regulatory body;
- Ensure that the values underpinning the Constitution are embraced and that the rule of law is upheld;
- Ensure that legal services are accessible;
- Regulate the legal profession, in the public interest, by means of a single statute;
- Remove any unnecessary or artificial barriers for entry into the legal profession;
- Strengthen the independence of the legal profession; and
- Ensure the accountability of the legal profession to the public.
Having spelt them out like this all that can be said is you and I as lawyers need to action them and turn them into reality. I would add that for the BLA and any lawyer in particular it does not matter what the colour of their skin is, these principles enunciated above should form their beacon and be the guiding light in answer to what their responsibilities and priorities should be when they plot the future post the implementation of the Legal Practice Act. For Black lawyers in particular, this calls for a much closer examination of conscience and moral values for it has not just been us as professionals who have been downtrodden in the past but in particular the vast majority of the black population and yet in many instances and forms we have either tacitly or implicitly acquiesced in acts and behaviour that left them even more vulnerable because of our own accumulation of power or having been coopted into the previously hallow walls of power we never imagined we could access.
In order to unpack this theme further to identity our responsibilities and priorities I am going to examine and give meaning to each of the points raised in the preamble to the Act and contexualise them against the reality that we face as black practitioners:
The first point raised in the preamble is about providing a legislative framework for transforming and restructuring the legal profession into a profession that is broadly representative of the country’s demographics under a single regulatory body-There are a number of pertinent questions that arise from this. The first is what is one’s understanding of transformation? Transformation is defined by the Merriam-Webster particularly as an act of changing in form or shape or appearance or an act, process, or instance of transforming or being transformed. Both these definitions posit a positive step or act initiated by someone to effect change in all sorts of formats. In the context of the LPA in particular the burning platform was the need for the profession to be regulated by a single regulator representative of the demographics of the country. One infers from this that it does not matter who regulates as long as the regulator and the profession broadly evince South African demographics. So what are our responsibilities and priorities in this regard? Firstly it is to ensure that whosoever leads this profession reflects the demographics of the country both in all facets. That does not mean and certainly excludes predestined quotas like prescribing that the the regulator must consist of 6 black males, 4 black females 2 white men or women for that matter. It merely requires that the majority lead be they male or female and majority here does not refer to majority in the profession but majority in the country. Reality dictates that those who are the majority be in the leadership irrespective of colour or gender even if they are the minority within the profession. This might be uncomfortable for some but that is the only and simple interpretation that one can ascribe to it.
Real change also talks to some uncomfortable truths amongst ourselves as well. A basic challenge we face and always skirt around which I actually wish to point out is that whilst still talking the language of transformation in terms of demographics, it is not the real deal when during transformation leaders be they male or female continue to be recycled or continue to make themselves available for leadership ostensibly because there is a dearth in leadership in the profession particularly females. Nothing could be further from the truth. We know for a fact that in this profession there a very few women in real positions of power and influence and we generally pay lip service to gender issues yet we don’t find it strange when men are recycled as leaders who continue old habits that go against the grain of the transformation agenda in the country. The real reason for this is simply megalomania and the taste of power amongst some of us men. Because of this two immediate challenges, responsibilities and priorities arise for us post the LPA: Firstly, Making sure we do not compromise our understanding of demographics and work towards a real leadership based on that criteria to the exclusion of all other factors including pre-determined quotas. Secondly yielding ground to other leaders and in particular to our female counterparts to lead us as well and cease the practice of recycling leaders at their expense. This is but one element of transformation.
There is yet another element to this transformation agenda that poses a challenge and requires being prioritised in the future. It is not about people but about structures in which the profession operates. The structures we operate in as black lawyers have a particularly negative history and are dripping with colonial links that have particular asymmetry with the concept of flexibility.
Flexibility fundamentally evinces itself in empathy towards your fellow man because you look at him or her as a distinct individual with individualistic strengths and their own quirks. Put simply flexibly allows for what we Africans refer to as Ubuntu! However if one looks at legal structures as they currently exist, not only are they rigid, they also tend to lend themselves towards the most extreme of positions in any matter particularly on conduct and discipline. The rules of the societies for instance remain rigid and inflexible and do not accommodate peculiarities that are brought into any situation by variables that are introduced by different facts in different circumstances. Two simple examples are glaring: We still treat every attorney when dealing with compliance or non-compliance to the rules with a one size fits all approach-If you are guilty of theft be it a small quantum or even a disproportionately high one, the only answer is strike off and that is it.Yet society recognizes that punishment can and ought to differ based on the peculiar circumstances of each case. The question is what have as black lawyers done to change structural rigidities like these in the rules which we now so vigorously enforce together with those that excluded us in the past and dare I also add formulated them without ours, let alone society’s input? Very little would be my answer to this question.
Moving on to the second structural rigidity pointing to a lack of transformation is rigidity to embracing fundamental principles of business and continuing to treat issues like touting as anathema. Touting is a buzz word that evokes strong emotive reactions within our profession yet quite honestly we live in a hyper competitive world that seeks to entrench competition all the more. Talk in business is always about what one’s competitive edge is yet amongst lawyers we still cling to old archaic approaches that tend to suggest that to tout for work is in itself an evil. According to the Merriam-Webster dictionary, touting means no more than “an attempt to sell (something) typically by a direct or persistent approach” or at worst to offer tips for a share for any resultant winnings”. This is no different than ordinary marketing in business and if money is exchanged and disclosed in the normal course within accounting books as well as absence of disparaging your opposition it certainly can neither be illegal nor unethical. Where is the creative thinking that is being embraced in other jurisdictions that promote transformation in the legal profession when we can’t even think about change in how we approach as basic as the matters I allude to herein? How are we going to compete with international jurisdictions that allow for free marketing of legal services when we haven’t even began to ingest the need for such at a reasonable pace? Mind you these firms are going to invade our space at some point and we need to be ready to compete even in the marketing of our services to guarantee viability and success. The old narrative of creating anathema and bedeviling certain activities that should support law businesses has to cease. Remember new ideas scare people and lead to resistance but bear in mind what John Locke says about that, “New opinions are always suspected, and usually opposed, without any other reason but because they are not common.”
We therefore have the responsibility to change narratives and discourse without fear when we join the new structures that the LPA created in order to ensure that things do change and we do not get caught in the popular refrain about the fact that the more things change, the more they remain the same! Let’s define new, simple, flexible rules of conduct for the profession that will be infused with the ethos of Ubuntu where each individual practitioner is treated as an equal but distinct individual. IN short when we join structures we do so boldly as we are because we know how the past shaped us for today but today when we look at the future we must first look at today so that it to transforms us lest we enter the future as if it is still today.
The LPA also called for the embracing of the values underpinning our constitution and support for the rule of law. Here I pause to say that nothing could be more onerous than this expectation of the LPA from the legal profession. In contradiction nothing should actually make us even more proud because without so much saying so, this defines the legal profession as society’s vanguard.
Embracing the values of our constitution is about healing the divisions of the past and establishing a society based on democratic value, social justice and fundamental human rights. More importantly, it is about promoting a society in which government is based on the will of the people and every citizen being equally protected by the law. A third and key value as enshrined in our constitution is about the improvement of the quality of life all citizens and the freeing up of the potential of each person. I will return to this later as I look into yet another aspect set out in the LPA that bears relevance to the is discussion. I have already alluded to the fact that the LPA in my mind sets us up as society’s vanguard by calling upon us to promote the values of the contribution that asks of us what our role and responsibility should be currently and in the future to promote equality before the law ensue the prevalence of the rule of law as well as ensuring that government is by and through the will of the people. John Locke wrote the following in 1609:
“All mankind… being all equal and independent, no one ought to harm another in his life, health, liberty or possessions”. The same Locke wrote as follows as well “ “It may be too great a temptation for the human frailty, apt to grasp at powers, for the same persons who have power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from the law, both in its making and execution to their own private advantage” This is quoted with approval by the Deputy Judge President of the Gauteng High Court, Justice Mojapelo in a discussion paper on the rule of law and separation of powers and you may wonder why. I have already alluded to the fact that the LPA places us in a position where we as a profession are the bastion and last post of society. So what are our responsibilities in the light of this post the LPA,-I submit they have not changed and more importantly they become even ever so much more critical in the face of developments that undermine the very constitution that the LPA is referring to. We have to prioritise the defense of the rule of law without compromise and without being lured by either power or wealth. We have to honestly pointently and directly tell those that instruct us that we are not paid gun slingers but rather the defenders and entrenchers of truth.
We also have an obligation that extends beyond that which is the complete defense of rule of law wherein no man in this country be they big or small be they occupiers of high or low office have a clear cut understanding that lawyers will be there to ensure that they are treated equally without any form of discrimination and that none of them is above the law in any form or shape. I have alluded to black society in general being victims as the downtrodden and as such that giving us an even more onerous obligation to defend equality and the rule of law-That calls for us to take on visibility in addressing such issues as the SAASA scandal and we never be overtaken by other parties whose activities are informed by nothing but altruistic and missionary considerations. We have to act because we are a part of the sufferers.We are in fact the victims. These sentiments are truths that are as old as Methuselah and yet remained ever so relevant for centuries long and to come. So the challenge remains the same as today, defend our profession, defend its independence and more importantly defend society with as much zeal as you can conjure up.
I have spoken about A third and key value as enshrined in our constitution which is about the improvement of the quality of life all citizens and the freeing up of the potential of each person. Once more I want to refer you to the writings of Locke who writes as follows on human potential “the improvement of understanding is for two ends: first, our own increase of knowledge; secondly, to enable us to deliver that knowledge to others”. Locke further writes as follows, “education begins the gentleman, but reading, good company and reflection must finish him.”
So human potential can only truly be freed up if one learns and improves himself, shares that learning with others and as Locke says reflecting on the learnings in good company. What is our obligation as lawyers then in the freeing up of the potential of each and everyone of us including society in general? In the legal profession in particular, it is important to note that a whole lot of effort has been made in order to learn in order to teach and in order to enhance the potential of law students as well as lawyers over the years. Has that obligation changed? I dare say not but complications brought about by the LPA need to be addressed otherwise the resources required to enable us to prioritise the unlocking of the potential of each law graduate and lawyer will be stunted. In this respect, I want to refer you to the provisions of section 46(b) of the current Attorneys Act and contrast it with the provisions of section 57(1) (i) of the Legal Practice Act.
Section 46 (b) authorises the Board of control of the AFF to enter into relationships of agency with any third party to perform functions that can be carried out in terms of this act. On the other hand Section 57 (1) (i) of the Legal Practice Act restricts agency only to between the Fund and the Legal Practice Counsel or any of its sub structures. This has huge implications to the question of learning and teaching in so far as structures that do not belong to the counsel are concerned. That entire freedom of making resources available to voluntary organisations like the BLA NADEL and any other is taken away completely by this section.
So when we talk about freeing the potential of individuals in fulfilment of the constitutional values and obligations placed on the legal profession, there can be only one sole dependency for this and it will be the dependency of the profession in its entirety on the thinking of the Council about what is and what is not appropriate for learning and teaching. So the BLA cannot for instance, originate programmes of learning and teaching which it hopes to use to enhance the skills of its members without looking for funding elsewhere because the Fund will no longer in the future be in the position to use Section 46(b) and be restricted by 57(1)(i) of the LPA. What is our response to this is the question and I submit post the LPA we need to target an amendment in the act that will essentially restore the status ante quo for without that organisations such as the BLA will struggle to run with their own programmes that are intended for learning and teaching and in that way fail to fulfil its obligation to free up the potential of young and old lawyers. The matter is so much more grievous because without skilling and continuous reskilling lawyers will not be able to give proper effect to the defence of such fundamental requirements in our society such as the rule of law nor able to climb the ladder of success to a point where proper independent and well skilled judges would be produced amongst them. For me this remains the biggest challenge, priority and obligation.
The last element I would like to address that imposes obligations on us post the LPA is accountability to the public. We need to accept and concede that our image within the society we operate in is horrendous but also be graceful enough to know that we are responsible for it.In many instances we find ourselves being the butt of bad jokes that live a lot of distaste in the mouth. It is uncommon in fact that even amongst ourselves we tell jokes that are disparaging about lawyers. I once attended a meeting where a lawyer posed a question that went like this:
LAWYER AND SPERM
Q: What do a lawyer and a sperm have in common?
A: Both have about a one in 3 million chance of becoming a human being.
Accountability is not only about being seen to discipline those amongst us for miscreant behaviour. It is far wider than that-It is about inclusiveness, transparency and empathy outside of the obvious need to fulfil our mandates diligently. It is also about ensuring that our client are appraised of their rights vis-vis ourselves in relation to the mandates they give us. It is about the trust and respect we should show to them before they can even begin to imagine we are human after all and reciprocate same.
We need to foster a new culture of trust in us by our clients and that can only happen if we truly embrace the values I have alluded to already. The days of in camera hearings and dilatory behaviour in dealing with ourselves must and truly be a thing of the past and transparency and the free flow of information be the order of the day. In this can we hope to recapture the lost trust and respect that ordinary citizens had in this noble profession.
In conclusion, I would like to say that we must always remember that we operate in institutions and society and as such in order to transform and change same we ought to take positive action to do that and that includes transforming ourselves. In order to achieve this take heed of the words of P of Jim Rohn, an American author and motivational speaker and I quote “Let others lead small lives, but not you. Let others argue over small things but not you. Let others cry over small hurts, but not you. Let others leave their future in someone else’s hands but not you”
Adopting this attitude can only enhance us as a profession that is a catalyst to change in society!
Thank you and God bless!