POLITICAL REPORT PREPARED BY THE PRESIDENT OF NADEL IN THE POLICY CONFERENCE AND ANNUAL GENERAL MEETING HELD AT EMPEROR’S PALACE, KEMPTON PARK, SOUTH AFRICA.
14 – 17 MARCH 2019
The Deputy President of NADEL – Adv. Manye
The Collective Leadership of NADEL,
The President of the Supreme Court of
Appeal for the Republic of South Africa – Madam Justice Maya
The Judge President of South and North
Gauteng High Court Division of South Africa – Honourable Justice Mlambo
Justices of the Constitutional Court – Justice Madlanga
Justices of the Supreme Court of Appeal – Justice Ntshiqi
Justices of the High Court –
The Honourable Deputy Minister of Justice – Honourable John Jeffrey
The representatives of the Alliance Partners
SACP and COSATU –
The National Director of Public Prosecutions – Advocate Batohi
The Ambassador of Venezuela – Her Excellency Mairin Merida
The Cuban Ambassador – HE Rodolfo BenitezVerson
BLA President – Mr. Lutendo Sigogo
The LSSA – Law Society of South Africa –
Representative from PALU – Honourable Ms. Gigi
Representative from Indian Bar Association – Mr. Prashant Kumar
Representatives from SADCLA – Mr. Max Boqwana
Representatives of various Law Societies in
the SADC Region. Namibia, Zimbabwe,
Mozambique, Swaziland and Botswana –
Distinguished guests, colleagues, friends
and delegates from all branches of NADEL
across the 9 Provinces of the Republic of South Africa –
On 10th March 2019, Ethiopian flight ET302 was involved in a tragic accident which left all those on board dead. This was a painful event. We take this opportunity to extend our heartfelt condolences to the Government of Ethiopia, Ethiopian Airlines and the bereaved families. We support the call for the investigation of the circumstances that led to the crash of the Ethiopian flight.
The people and the legitimate Government of Venezuela are currently subjected to a sustained state of anarchy, chaos and external insurgence by the imperialists led by the United States of America. In this act of high provocation, which is motivated by a quest for regime change in Venezuela, gross human rights violations are being perpetrated on a massive scale. The imperialists and intruders have caused electric blackouts to that nation. At the centre of these illegalities, resides the resolve by the American regime to seize power from the democratically elected Government of Venezuela. The imperialists seek to dictate to the people of Venezuela, the persons who must lead their country and the types of Government systems suitable for the Venezuelans. In the course of these illegal activities by foreign countries to Venezuela, children and adults are suffering untold hardships due to unilaterally imposed sanctions. There is shortage of food, medicine and to greater extent basic needs of life. We have no doubt that these acts of aggression are motivated by greediness, selfishness and business interests for oil reserves and resources of that country. Out of this mayhem occasioned at the behest of the United States of America and its allies, many Venezuelan citizens died as a result of hunger and the country is becoming poorer and poorer. The unilaterally imposed sanctions against Venezuela is an act of serious violation of human rights and a breach of international law. We support the position of South Africa as articulated in the United Nations on the unilateral interventions and sanctions imposed on Venezuela.
As we celebrate 25 years into our Constitutional democracy, our comrades in Palestine, Western Sahara and elsewhere in the world, remain denied their right of self-determination and statehood. In the course of the struggle by our allies in Palestine, children, women and activists are killed on a daily basis. The State of Israel continues to wage war against the Palestinians and thus perpetuate a gross and serious violation of Human Rights and dignity. We remain firm in our commitment to the people of Palestine and their struggle against oppression. The freedom of the people of Palestine and Western Sahara cannot be postponed indefinitely. We commit to join all efforts by our revolutionary forces aimed at ensuring that the dignity and the right of self-determination for the Palestinian people are realised. We support the resolutions by the South African Government to downgrade the Israel embassy and demand that more actions be taken against these aggressions. Human existence and the right of self-determination which include the recognition of the independent state for the Palestinians is a fundamental right. We will never relent until the Palestinians and the people of the Western Sahara are liberated.
The month of March in each year, has since became the biggest event in the legal calendar for NADEL representatives, stake holders in the legal profession, the Government representatives and our international friends. It is a time set aside for reflections, reactions and resolutions on concrete responses by collective community of progressive lawyers. We come together for intrinsic self-analysis, reflections, consultations and robust engagements in drawing concrete plans, implementable programmes and decisive actions needed to advance the ongoing process of reconstructing a true liberated South Africa and the world. In less than 365 days ago and precisely in March 2018, we converged in East London. Now, we meet here in Kempton Park, Gauteng Province. Central to these meetings, is to build a South Africa in which all enjoy equal rights and freedom. We mainly assess the progress made and the areas of intervention. This meeting is no different, save that a lot of toxic and distasteful events which seeks to undermine the Constitutional project for South Africa has occurred. It is well to remember that this is a human rights month.
The month of March marks some historic events in the Republic of South Africa and the world. On 8th March 2019, we were celebrating International Women’s Day. On 21st March 2019, it is an official Human Rights’ Day. It is on that basis that the month of March is recognised as a Human Rights month in South Africa. People died on the 21st March fighting against injustice. The month of March should be bringing hope for the many South Africans. Startlingly, we witness a daily revelation of video footage of abuse against women and children. The propensity for commission of crimes of sexual assaults and violence against women including domestic violence has since become prevalent in the society. These crimes are committed with disdain, arrogance and a “don’t care” attitude. These acts of violence have extended themselves to churches, political parties and public offices. In the recent and past few days, the church has been in the media for all the wrong reasons ranging from pastors raping women, children. We also witness the church pastors being involved in acts of corruption, money laundering and fraud. The acts of corruption has just engulfed every corner and space in our society. The country is still shocked by the high levels of falsehood coming from the church. This country is still unable to reconcile itself with the escalating levels of falsehood and criminality allegedly coming from the people of the church. We welcome the commitment by the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. The investigations of these matters, is urgent. The police and the NPA should also deal with the obvious crimes of fraud, money laundering and other acts of corruption related to these incidents. Whether church should be regulated, is a matter that South Africans must start to debate. The suggestion of pastors resurrecting the dead was obnoxious and disgraceful to the respect that our society accord to the church. This was an abuse and manipulation of our people’s religious and cultural beliefs of which our Constitution rightly protects. The insinuatory statements made in Parliament that our mother of the nation, Mrs Winnie Nomzamo Madikizela Mandela, was not a tried and tested woman in our struggle and that she was no woman of substance – was a shocker of the year and a direct insult to the revolution. Perhaps this would be viewed from the angle of lack of appreciation for the selfless sacrifices that Mrs Mandela made for our freedom.
It is well to remember that within a short period of time, upon his assumption of office for the Presidency of the Republic of South Africa, Mr. Cyril Ramaphosa had to establish several commissions to probe corruption within State institutions. It was quite obvious and a serious concern from the citizenry that the looting of State resources by both domestic and international syndicates in partnership with public office bearers, had become rampant over the last few years. There was self-evident massive material accumulations by small cliques in our country, whilst the population at the same time was getting deeper into poverty and hopelessness. The corruption appear to have entrenched itself even within the State institutions responsible for criminal justice and justice. Corruption was taking place at a massive scale, to an extent that one would believe that it is lawful to be corrupt. Those who resist corruption became victims of the corrupt. The society had completely lost confidence of a normal society. The revelations at the State capture commission and other commissions are strikingly shocking. It has never been anticipated that corruption would even find its way to the State institutions responsible for criminal justice and justice. The suggestions that some Magistrates, Prosecutors and Police were part of this massive corruption is an indictment against the people of South Africa.
The difficult question at all times when observing these obnoxious and toxic incidents is “what is to be done, by whom and when”.
These conducts violate the Constitution for the Republic of South Africa. The undertakings made by the founding fathers of NADEL, which we must all remind ourselves about, is that an activist lawyer must never cease her/his activism for as long as the frontiers of poverty, inequality, threat against the rule of law is prevailing. The existence of inequality and corruption is a threat against the rule of law, democracy and humanity. The main objective of the revolution, stripped into its essential parts, is the fight against frontiers of poverty, respect for the rule of law and protection of human dignity. In this regard, we can, without reservation, refer to a document of the present ruling party drafted under extreme conditions by men and women who were far away from home. The African National Congress, through the Harare declarations, made their intentions clear, whilst in exile, weeping tears and sweating blood, that the only end sight of the revolution would be a creation of “a new constitutional order in which all would enjoy universally recognised human rights, freedoms and civil liberties, protected by an entrenched bill of rights.” This is a noble commitment made in times of pain and difficulty. Should we allow anyone to undermine this objective simply because he is powerful or has struggle credentials, the answer must be no. What then, must we do? You answer this question.
The declaration by the ANC became the cornerstone of the subsequent negotiations with the apartheid regime. The success of the negotiations was the ultimate inclusion of the declaration in the Constitution of South Africa. The Constitution was written with leaking wounds, blood flows, weeping of tears. This is a Constitution which entrenches the rule of law, human dignity, achievement of equality, the advancement of human rights and freedoms. The Constitution puts a final nail against racism based on gender, colour, creed and other objectionable forms designed to divide our society. This Constitution accepts that whilst we are a diverse people, but we co-exist and can achieve unity for the better of our nation and its people. The Constitution compels mandatory accountability, responsiveness and openness in a system of our Government. The Constitution of the Republic of South Africa is a document that ushers in hope for a better future and commits all of us to work for the realisation of that future. Why then embrace corruption or remain supine when corruption is rife. What concrete steps have we taken to confront the evils created by inequalities and poverty. The Constitution makes a clear commitment to:-
- Improve the quality of life of all citizens and free the potential of each person; and
- Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
This conference must examine the achievement of the above noble commitments in light of the factual existence of two societies in South Africa, the poor and the rich, the haves and the have-nots. The constant refusal of recognition for blacks and in particular African majority to share in the wealth of the State. The refusal to recognize women as the key stake holders in the Governance for the Republic and highest decision making. The prevailing homelessness by the African majority, lack of access to land, property and other resources. The imbalanced economic power and the deliberate denial of access for the African majority. We still witness prejudice briefing patterns against women and African majority. Legal briefs are still given to the white male legal practitioners. The corporate world still favours white male legal practitioners much to the exclusion of women and the African majority. What do we do? The cancer of corruption undermines every effort of the revolution and the undertakings embodied in the Constitution. How do we respond?
All progressive persons and their organisations have a task of responding to these questions honestly. Expectedly, NADEL therefore, cannot, with its history, constituent membership, stature and responsibility, escape answering these questions. NADEL’s response must be practical, focused and produce a positive impact for the benefit of society. Most importantly, NADEL must help the nation understand the nature and drivers of the problem. It must give direction as to what must be done. In order for us to debate meaningfully, it is first important to report on what we have done in the past year and what we intend to do with the help of your suggestions, views and resolutions from this conference.
ON GOVERNANCE OF THE PROFESSION
NADEL took a conscious position to dismantle apartheid with its institution and support basis. The legal profession was one of the institutions that needed to be transformed. NADEL has been very firm in its call for the establishment of a single unitary body for the governance of the legal profession. This position guided the participation of NADEL in the previous Provincial Law Societies and Law Society of South Africa. Our representatives, led by Cde Max Boqwana and Krish Govender articulated this position well in the National Forum and the entire negotiation process leading to the establishment of the Legal Practise Council.
Indeed, in November 2018, after successful elections, a Legal Practise Council (LPC) which is a regulatory body came into existence. We participated in those elections jointly with the Black Lawyers Association (BLA). The elections for the Provincial Councils are still under way. The profession is regulated by one body. As the Legal Practise Act, did not adequately deal with the members interests, the LSSA which has to be adjusted into a more transformed shape and form continue to exist. The LSSA is the voice of all lawyers in the Republic of South Africa on issues pertaining to the rule of law, access to justice, public interest and interest of members. The representation to this body is drawn amongst all progressive formations within the Attorney’s profession. It is envisaged that a single member’s interest organisation for legal practitioners which currently exist as, attorneys and advocates, shall soon come into existence. In the LSSA, the present representation is on equal basis. That equal representation is extended to all institutions in which the attorneys are required to participate as such. The regulatory functions are dealt with by the LPC. We are convinced that we are on the right path and soon, we will fully achieve the establishment of a truly transformed legal profession with a single regulation and members’ interest. There has been a silent rumbling about the regulations of the elections which required the achievement of transformative reflection of the legal profession. These rumblings emanate from the opponents of transformation and those who resolve to resist change. We cannot muddle with change, but shall battle on.
THE JSC AND THE JUDICIARY
The Judicial Service Commission is a body established in accordance with the Constitution of the Republic of South Africa responsible for the appointment of judges. Through an internal arrangement with the BLA, NADEL is entitled to a 2 ½ year of 5 years period participation. We have been represented and our representation is due to be replaced by the BLA representatives for the next period of 2 ½ years. Our participation in the JSC affirms the commitment to ensuring the acceleration of judicial transformation. It is our understanding that the legitimacy of the judiciary shall always be influenced by its acceptance from the people it serves. The outlook of the bench is the starting point. The judicial philosophy and life orientation of those that ascend to the bench is fundamental. Transformation is not replacement of colours from the bench but a commitment and understanding of values and aspirations set out by the Constitution. We are proud as NADEL to report that our JSC has acquitted itself to the mandate of the Constitution and it is a well-balanced structure with divergent views. As far as we can recall, interviews at the JSC are conducted in a robust and fair manner, with which we are well pleased. We remain in support of the activities and the decisions taken by the JSC. We are still convinced that JSC is still properly constituted and no need for any constitutional amendments in relation to its structure.
Our judiciary has been demonstrable seen in its commitment to the foundational values of the Constitution. Indeed, if it was not the commitment of our judiciary and adherence to the principles of judicial independence, South Africa would by now be plagued into chaos and anarchy. The looters, capturers and crime syndicates were unable to find their way to the judiciary due to its strength and office commitment. We are indeed proud of our judiciary system and the judiciary. Even the attacks that were directed to some of our judges with a view to intimidate them in the process of adjudicating some heavy and weighty cases, failed as they came to naught. Notably, Justices Mlambo, Ledwaba and some few other judges were the targets of emotional attacks and those threats. NADEL was very firm throughout those trying times and maintained defence of our judiciary. We enjoy strong relations with the judiciary. The Chief Justice, President of the SCA and all the Judges’ Presidents are supportive and very encouraging. We can confidently say we are part and parcel of all activities led by the office of the Chief Justice, who is personally welcoming and supportive. Judge President Mlambo gives personal support to the legal profession. In each instance when he issues a directive pertaining to certain matters, he does not omit to invite NADEL and other organisations. We are encouraged by this good gesture and consultative approach. The Judge’s Presidents always support the profession and this is affirmed by the willingness of consulting organisations when considering a pool of Acting Judges. Judge Legodi, Judge Makgoka, Judge Tshiqi and other Judges assist us in our judicial training and are always prepared and willing.
THE CONSTITUTIONAL COURT
The Constitutional Court is now the apex court. It is a final court of adjudication. Judges who are appointed to this court should be persons with experience, capacity and in-depth understating of the Constitution. The experience required for judgment writing, especially for the Constitutional court and the Supreme Court of Appeal develops over sometime of exposure to these courts. The period of 12 years prescribed for Judges in the Constitutional court is insufficient and has an inherent challenge for the society, as some judges retire from active service at an early age. This comes at a huge loss to the state as those judges remain entitled to the same benefits as judges in the active service. If it was not for these limiting provisions, Justices, such as Judge Mokgoro and Nkabinde would still be in that court. As we resume this conference, we need a review of the term of office for Constitutional court judges. We would support the increase of term from 12 years to a period applicable to other judges, alternatively, a limited period of 15 years or age 65. We further wish to debate the number of judges to be recommended to the President for appointment to the Constitutional Court. At least the number of candidates required should be reduced to 3 candidates. We reject the developing norm that persons for consideration for appointment in the Constitutional court should be limited to judges or persons who must first act in that court. The first judges of the Constitutional court were drawn even from academics and persons who were not judges. Those judges produced the much celebrated jurisprudence. We need diversity in the Constitutional court and limiting the appointment or prospects of appointments to judges affect the pool.
THE LEADERSHIP OF THE JUDICIARY AND THE LEGAL PROFESSION
The appointment of Madam Justice Maya as the President of the Supreme Court of Appeal was the confirmation of confidence on leadership provided by women. The recent appointment of Adv Batohi is a further attestation to the commitment on recognition of women leadership. We note that there is only one female Judge President out of 9 provincial divisions of the High Court. There is an urgent need to address this imbalance. In the legal profession, we highly appreciate and support the appointment of Ms Catherine Dlepu and Adv Platt as the Chairperson and Deputy Chairperson for the LPC. It is still regrettable that we have not done much as a profession to advance women leadership. The current leadership of NADEL has ensured a balanced deployment of women to serious positions in the profession and that confirms the commitment to address the gender transformation.
NADEL / LSSA JUDICIAL TRAINING
Pursuant to the resolutions taken at the Port Shepstone conference, NADEL launched a judicial training programme. We have, up to now, conducted four judicial training programmes. These programmes have been effective and responded well to the challenges that we sought to address. The resolution to launch the NADEL / LSSA judicial training was informed by the need to create a large pool for potential and aspirant judicial officers. This training is complimentary to the initiatives by the office of the Chief Justice, through SAJEI. We can report that in each training, we always attract more than 50% female candidates. Some of the candidates have been given an opportunity as acting Judges in various divisions. We have noticed that some of the candidates from our training appear on the shortlists for the advertised judicial appointments by the JSC and the Magistrate commission. We shall continue with this training programme.
NADEL LEGAL EDUCATION
As part of our commitment for the preparation and development of capacity for attorneys as the court officers, NADEL resolved to offer legal education. We have rolled out training programmes in all nine provinces and they have been successful. We have a dedicated training co-ordinator, Ms Memory Sosibo. Our training has included Customary Law, Principles of Forensic Evidence, Case Flow Management, Human Trafficking, Effective Communication, Constitutional Law, Legal Drafting, Judicial Skills, Gender Based Violence, Candidate Attorney – Admission Prep, LPC, Women in Law. NADEL undertakes to provide continuous legal training for practitioners, candidate practitioners and paralegals. This confirms our commitment on access to justice and the legal profession.
QUALIFICATIONS, TRAINING AND ADMISSION EXAMINATIONS
NADEL insists that there must be a single formula for qualification of persons interested to pursue legal profession. We are against any form of gate keeping. A single training for all legal practitioners is an appropriate solution. Transformation always brings about changes and new experiences. The separate trainings for persons as advocates and attorneys, is nothing else but gate keeping and increase of legal costs. There is no rational basis for the retention of these separate trainings, even if, it is for a limited extent. NADEL was concerned by the leakage of admission exam papers. However, we have been assured that measures have been put in place to avoid the recurrence of this nature. We still insist for the single training of legal practitioners and similar assessments. The barriers created by separate trainings are not consistent with the ideal of a single profession of which NADEL stands for. We will remain resolute in persuading other stake holders to adopt the view that there must be a single training for all legal practitioners. There is a need for the review of the relevance for separate conveyancing training. This remains an untransformed area in the legal profession. It cannot be that in this area, failing rate of candidates remains over the past 30 years at 95%. It would seem that there is a deliberate intention to keep this area to a select few, in particular the dominant white males. We need to review the relevance of the conveyancing examinations and decide whether they should not be scrapped and replaced with a form of training assessment that will improve access.
ESCALATING LEGAL COSTS AS AN IMPEDIMENT ON ACCESS TO JUSTICE
NADEL accepts that the unbaiting escalation of legal costs is an obstruction on the right of access to justice and access to court. As a public interest organisation, we have long held a view that every effort must be undertaken to ensure access to justice and equality of arms. We support the endeavours to control the escalation of legal costs. However, we insist that such measures must not involve complicated mechanisms which would be a frustration to the legal practitioners and the members of the public. We therefore support the endeavours made to clarify and reformulate the provisions of section 35 of the legal professions act. We support the process for the complete review of the structures of the legal tariffs.
RELATIONS WITH BLA, LSSA, LPC AND OTHER STAKE HOLDERS
We enjoy mutual respect with the BLA. We have participated in the LPC elections in an alliance. We retain our historic relations as progressive organisations in the legal profession. There is a good relation between ourselves and the BLA. We identify issues of common interest and remind ourselves as forces of change and advocates for transformation. Our relations are sound and solid. We also retain good relations with the Law Society of South Africa (LSSA). We accept the LSSA as the voice of all legal practitioners in the Republic of South Africa, whilst we appreciate that NADEL is an independent organisation entitled to its views informed by its ideology and character. We always seek to reach consensus with the LSSA. Our participation in the LSSA has been good.
We also enjoy sound relations with the LPC and commit our support for the LPC. The LPC is a product of our negotiations and as such it remains our responsibility to give support. We also enjoy support with the LPFF. Our relations are sound.
The Attorneys Development Fund is a structure that was created by the legal profession to provide support for the development of attorneys. It was through this entity that the profession undertook to provide support for the young practitioners to start up their practices. This organisation has been a dismal disappointment. Those appointed to the board of the ADF simply demanded what they term independence of the board and totally neglected their mandate. NADEL is a shareholder of the ADF. Our shareholding was informed by our commitment of ensuring access to the profession and providing support service to those who just entered the profession. The failure to roll out properly this support soured the relations. These relations with the ADF came to a dead end upon discovery of theft of R22 million from the coffers of the money meant to support the young practitioners. Surprisingly, whilst R22 million was stolen by the CEO and other conspirators, only R1.4 million is said to have been used to support the young practitioners over a period of 3 years from the date of discovery of theft. It is our view that the law enforcement agencies should ensure that those who are involved in this theft are held to account and are prosecuted.
RELATIONS WITH THE GOVERNMENT AND STATE INSTITUTIONS
Since 1994, we have had cordial relations with the Government. These relations started out of the long held relations with the ruling party as the then, a liberation movement during the days of the struggle for liberation. We both adopted the freedom charter as the guiding document for a liberated South Africa. In fact, Oliver Tambo, Nelson Mandela and all leaders of the African National Congress, were instrumental in the launch of NADEL. During the negotiations for a liberated South Africa, NADEL played a key role at the request of the African National Congress. Subsequent thereto, most of our senior members assume roles in the new democratic order and assisted in the foundational phase of rebuilding South Africa. These relations drastically changed after 2007 under the previous President. This was occasioned by our objections to some of the decisions made during that period. Arising from that, we were side lined on matters in which our voice could have been heard.
In the current administration, the relations appear to be improving. We have been given a space to articulate our views and participate in some critical decision making. This has been particularly so in relation with the office of the President and the Ministry of Justice. The President took an unprecedented decision to involve NADEL and other organisations within the legal fraternity in the process of employing a new director of public prosecutions. It is well to remember that this was just a good gesture on the part of the President as he is not compelled by any law to do so. We are very much hopeful that the relations with the current President, who appears to be transparent and open, will improve for the better. Indeed, we appreciate the opportunity that the President presented to the legal profession and in particular to NADEL. We can confirm that we were so pleased with the process followed in the recruitment and ultimate appointment of the National Director for Public Prosecutions. We will support the prosecuting authority and the National Director in its effort to restore the dignity and public confidence to that institution. We are at least assured that the present Director is not a product of such suspicious capture by any group of persons or associates. At worse, she is a capture of the entire legal profession.
MINISTRY OF JUSTICE
We have good relations with the ministry responsible for justice. The ministry of justice is always responsive and supportive. The ministry is always prepared to listen and remains open for persuasions by NADEL submissions. The Deputy Minister of Justice is always with us and pays heed to our views and concerns.
The State Attorney remains dysfunctional across the Republic. The State Attorney continues to refuse agreements reached on the redress of briefing parties. In all important cases which are believed to be complicated, black practitioners, in particular Africans and women, continue to be overlooked in preference to white males. The justification for this practice has always been that it is done at the behest of legal advisors from the departments. This practice has a potential to undo the transformation gains. It is reported in Mthatha, Eastern Cape that the work from the Department of Health has been given to a private white big firm, in order to bypass the briefing of the African majority living in that part of South Africa. In the same area, work from the Department of Police has again been centralised to a white firm to exclude the African majority. These acts, if true, will surely result in a big blow to the transformation agenda. We are still shocked that legal work in an area dominated by black African majority legal practitioners would be privatised and handed over to a big white firm which does not even have offices in the area. It is also alleged that there was an advance payment of legal fees in excess of R60 million. This is tragic to transformation. We have also been informed that payment to black practitioners in the Mthatha area is being frustrated so that those offices can close down. This is an assault to the revolution and the Constitution of South Africa. The most underperforming Minister of Health, Mr Aron Mtswaledi, has been branding all lawyers in this country as corrupt. The Minister has been called upon to provide some form of evidence and up to date, he has come up with nothing. We urge members of the public to report acts of corruption by legal practitioners. The LPC is entrusted to deal with this matter.
We accept that there are some corrupt elements within the legal profession. These corrupt elements taint the profession. We have always maintained that corruption has no place in the legal profession as it hurts the society. NADEL is willing to avail any form of assistance to ensure that any form of corruption within the legal profession is rooted out. We were pleased to hear that some practitioners in the Eastern Cape were arrested and caused to appear in courts on allegations of corruption. We urge the LPC to process those cases in the disciplinary hearing. We cannot allow the legal profession which has been known to be honourable, now to find itself at the centre of allegations of corruption, theft and fraud. The State capture could not have sustained itself if it was not the conduct of some unscrupulous legal practitioners. Illegal contracts to facilitate State capture surely were prepared by some practitioners. The money laundering has been facilitated with the help of certain dishonest practitioners.
THE PROSECUTING AUTHORITY AND LAW ENFORCEMENT AGENCIES
Before the appointment of Adv. Shamila Batohi, we had no relations with the National Prosecuting Authority. In fact, we were inundated with claims that the National Prosecuting Authority is subject to political influences, political capture and other forms of manipulations. Although these claims were never independently verified and confirmed, some revelations in the various commissions established by the President are scaring and suggestive. In our last conference held at Port Shepstone, we extended an invitation to the then National Director, Adv Shaun Abrahams, but he was unavailable. The current National Director of Public Prosecutions, Adv Batohi, has made a commitment in her acceptance speech to work with the stake holders in the legal profession. NADEL undertakes to support the National Director and maintain a good working relation to ensure that the institution restores its dignity and public confidence. We are hopeful of the restoration of the much needed strong and independent NPA. The sophistication of crime we witness these days, need our support for the NPA and the law enforcement agencies.
Law Enforcement Agencies
The Minister of Police has always indicated his willingness to work hand in hand with NADEL and other stake holders in the legal profession. We will work with the Minister of Police in areas of common interests, particularly the combatting of crime. The head of Hawks has opened his hands to work with NADEL. The National Commissioner of Police has also indicated his willingness to engage with NADEL on issues of common interest. We are hoping for good working relations with the Law Enforcement Agencies when and where circumstances demand.
We continue to enjoy relations with progressive forces in the international space. We have been involved in the elections at Venezuela as observers, which were held on 20th May 2018. We issued a statement subsequent to these elections. We enjoy relations with the SADCLA, PALU, BRICS Legal Forum and individual organisations within the legal profession in the international space. We continue to support the Palestinians, Turkish people, people of Venezuela, Cuba and the rest of the historic revolutionary forces. We maintain our status as a human rights organisation and continue to advocate for the rule of law and respect of international law and treaties.
We have issued more than thirty (30) press statements since March 2018. The statements were issued in response to the pertinent issues affecting our country which included condemnation of threats of violence against the office of the Auditor-General, the elections in Venezuela, the Zimbabwean elections, the statement by the Constitutional Court in the corruption watch case, the actions of Justice Kroon. The details of the statement will be dealt with by the Secretary-General.
PROJECTS AND CAMPAIGNS
The resolutions of NADEL on land expropriation without compensation was a special resolution by the East London conference. We can report that we executed this mandate. A land committee chaired by our former President, Adv Gcina Malindi, was established. The committee made well received presentations in Parliament before the Justice Portfolio Committee. The committee continues to advance our resolutions. The committee is currently conducting research on the best formulations of section 25 to give effect to the resolution for expropriation of land without compensation. In the event of the Freedom Front and DA taking the matter to court, we have resolved to join in those proceedings and advance the interest of NADEL and members of the public. We are committed to the fight for the redress of the injustice of the past. In our view, land redress is a direct response to landlessness, homelessness and equal distribution of resources. Land redistribution represents restoration of dignity and eradication of inequality.
PIUS LANGA SCHOLARSHIP AWARD
We believe that as a contribution to transformation, NADEL should adopt a scholarship award at least for two students in a year to do masters in human rights and Constitutional law. These students shall be contracted as researchers for the human rights and advocacy projects section 21 company. We believe that we will enhance research capacity and produce a new breed of researchers and legal practitioners.
STUDENT TRAINING PROGRAMME
We have launched a student training programme. In terms of this programme, we will forward a human rights topic to all universities in the Republic of South Africa. Students will be invited to write assignments and those assignments shall be marked by selected Judges. We will then award to a top student some prizes which include NADEL book, a voucher for the student to purchase a legal text book. The student will be invited during the holidays to work and volunteer in our head office of the Human Rights Research and Advocacy Project (HRRAP). We encourage our branches to ensure that members are available to do mentorship for students at the university. These programmes are all designed to promote access to the legal profession and provide legal support.
We undertake to provide other legal assistance to communities including training at universities. We will reinstate legal advice centres.
RE-OPENING OF NADEL LEGAL CENTRES
In the past, NADEL established advice centres in townships, farms, small towns and rural areas. This proved very much effective in providing legal services and improved access to justice for ordinary South Africans. This is best achieved by engagement of paralegals under the supervision of volunteering attorneys. In order for NADEL to be relevant we must be active in communities. For these reasons, we have established student chapters for NADEL who must serve in the research team, street law programmes and advice centres. We will establish our own paralegal programmes and partner with other NGO’s who deal with access to justice.
RESPONSE TO CORRUPTION, STATE CAPTURE & OTHER CORRUPT PRACTICES
The wave of corruption in our society is not only alarming but it undermines the very human existence. Corruption is a serious threat to the rule of law. Due to corruption, service delivery cannot be accelerated in a pace required for the rebuilding of this country. The President of the Republic of South Africa, in his commitment to decisively root out corruption has established no less than four commissions of enquiry. This must indicate the level of corruption and the extent to which it has spread. NADEL cannot stand slothful. We must do something.
It is the responsibility of NADEL as a home of progressive lawyers firstly to constantly remind the society that our Constitution is written with tears and blood of our forebears and therefore the greatest inheritance bestowed on us by the period of long, arduous and painful struggle for liberation. Anyone, therefore, who seeks to undermine this inheritance, must surely be the enemy of our people.
NADEL must urgently convene a colloquium, which will include those in the Law Enforcement Agencies, Prosecution and Judiciary on the one side and other Anti-Corruption Agencies / Organisations on the other side to deal with the following amongst others:
- the proper characterisation of the current problem of corruption and state capture in our country;
- assessment of what is coming out of various commissions and decide what needs to be done with the current information and to stand ready in ensuring that the final outcomes are appropriately implemented,
- compile top 100 cases that need to be immediately investigated and followed;
- Set up an investigating and prosecution task team that will implement the outcomes of the colloquium and that will partner with the State.
To develop a comprehensive partnership with the state at an appropriate level (DOJ or Presidency) to:
- strengthen the investigative arm of the police and co-operate in up-skilling to dealing with sophisticated commercial crime;
- provide comprehensive opinions, data analysis, etc., to ensure successful prosecution of those who seek to destroy the State;
- provide a comprehensive opinion and audit of suspicious contracts and ascertaining value for money, legal breaches and criminal acts;
- assist the State to set up a Special Court, focusing on the outcomes of these commissions;
- set up a joint monitoring and evaluation unit to assess progress with regard to these matters.
The organisation is not receiving any funding from international donors. We are financially challenged in the execution of some of our programmes. We mainly rely on our membership subscriptions. It has been difficult to run the organisation to its fullest. We are thankful for the support we receive from the LSSA and LPFF. It has been difficult at times to deliver to our optimal potential. The majority of our office bearers are legal practitioners who run private firms and practices. They mostly do voluntary work for the organisation. This presents some challenges in the execution of our duties. These are matters which we must resolve by appropriate responses. We have carried out the mandate given to us by the last conference in East London. We had a little challenge during the LPC elections. Some comrades sought to defy the collective resolutions of the conference and the NEC. These comrades sought to stand in the elections outside the internal processes of the organisation. We understand that these were the first elections, however, the principle of democratic centralism is an ancient principle of NADEL. It is regrettable that some members of NADEL would still not understand the functioning democracy of NADEL. The organisation responded well to deal with those challenges.
“That the rule of law as we understand it consists in the set of conventions and arrangements that ensure that it is not left to the whims of individual rulers to decide on what is good for the populace. The administrative conduct of government and authorities are subject to the scrutiny of independent organs. This is an essential element of good governance that we have sought to have built into our new constitutional order.
It was to me, never reason for irritation but rather a source of comfort when these bodies were asked to adjudicate on actions of my Government and my Office and judged against.”
The statement by former President Nelson Rolihlahla Mandela and quoted by Justice Edwin Cameron in his book “Justice – A Personal Account”.
The freedom of the people of South Africa is in your hands. Your silence or acquiesce shall mean complicity to the crime and history must accordingly judge you. This conference must answer the questions and the proposals we present.