Speech by Hon Mathole Motshekga during the National Assembly second reading debate on Legal Practice Bill
12 November 2013
Since the dawn of Western civilisation racism and privilege has been the greatest impediments to access justice and legal services. The heart of the African problem in church and state institutions during the times of the slave trade and colonialism was racism, class and gender discrimination. These triple challenges have been the greatest impediments to justice from the advent of slavery and colonialism. The guiding principle of justice has always been simple. It says give everyone his or her due. To achieve this you need a legal system that is able to dispense both formal and substantive justice.
A legal system must be value centred and driven. It must reflect at least the sense of justice of all the people. In a society such as ours which is united in its diversity a legal system should be rooted in a common value system that brings together and binds all members of society. South Africa inherited the colonial legal profession and structures a well as colonial jurisprudence (i.e. legal philosophy). The legal culture and traditions are based on English common law and Roman Dutch law which are premised on individualism. These common law systems are based on the customs and traditions of European nations which had nothing in common with indigenous African customs and traditions. The European customary (or common) laws were imposed on indigenous African people who are the overwhelming majority of the population. Indigenous African laws or customary laws only applied if they were not repugnant to the imported European customary laws.
Practising African lawyers (both black and white) were and still are trained in English common law and Roman Dutch law and made to believe that European customary laws are superior to African customary laws. The challenge facing African lawyers both black and white, is that they are using a colonial legal system and a colonial legal philosophy to dispense justice to the overwhelming majority of black people who have been victims of a colonial legal system and administration of justice. South Africans are admired the world over for dismantling the apartheid state and its bantustans within half a decade and replacing them with a united, non-racial, non-sexist and democratic state. The rationale for all these was to create a society based on social justice and the rule of law and in which all citizens enjoy the fundamental right to freedom, equality and justice for all.
The decolonisation of the legal system and legal profession is a prerequisite for the establishment of a society based on social justice fundamental human rights and the rule of law. This means that the passage of the Legal Practice Bill should have been prioritised and passed by this Parliament during the first decade of our democracy to ensure that the overwhelming majority of the people who were enslaved, colonised and oppressed gain access to justice and legal services.
It is a matter of grave concern that on the eve of the 20th anniversary of our freedom from apartheid colonialism political parties in this house are not yet at one on the transformation of the judiciary and the legal profession. The Democratic Alliance and some sections of the bar and side bar do not even accept the term transformation. They want to change the form, not the substance of the legal system and the legal profession. Thus they prefer the term restructuring to transformation. The African National Congress made many compromises in good faith to enable the parties to reach consensus so that this Parliament can pass this Bill. These compromises notwithstanding the Democratic Alliance rejected this Bill in its entirety showing that they negotiated in bad faith. However, the ANC remains committed to this Bill because it provides a framework for the transformation of the legal profession and the judiciary in line with our constitution.
The Legal Practice Bill gives the Minister of Justice and the unified legal profession the authority to drive the transformation of the legal profession which is a prerequisite for the transformation of the judiciary itself. This will open the door for the Africanisation or indigenisation of the law. The revolutionary morality developed during the struggle against slavery, colonialism and apartheid taught us the imperative of building a united, non-racial, non-sexist democratic and prosperous society in which the value of every citizen is based on our common humanity (Ubuntu/Botho). The philosophy of Ubuntu/Botho transcends race, class and gender. The concept Ubuntu/Botho is the fountain head of the principles of freedom, equality and justice for all. These principles are inherent in and inalienable from all human beings regardless of race, class and gender.
The philosophy of Ubuntu/Botho and its underlying values and principles teach us that each and everyone must be given his/her due on account of common humanity. These principles were taught by the African sage Khem, popularyly known as Thoth-Hermes. The Greek law maker, Solon, and other Graeco-Roman lawyers such as Pythagoras, Plato and Cicero were students of this African sage. But none of our law schools make reference to him. The jurisprudence or legal philosophy taught in our law schools alienate African law graduates from themselves and their communities.
Ubuntu values and principles must be infused into our legal system and profession and made the bedrock of African jurisprudence, human and peoples rights culture. Legal systems are informed and shaped by the cultures of the communities they serve. It is therefore imperative that law graduates should do community services before completing their studies and commencing their legal practice. Community services root the students in the cultures of the communities they are meant to serve and assist them to develop a social conscience which is a prerequisite for a progressive legal profession. Legal education without community services produces legal technicians who see justice as a matter of form, rather than substance. The DA and some sections of the law teachers and the legal profession insisted that community services should be left to the discretion of the law schools, because for them legal practice is about the mastery and application of rules, not delivery of substantive justice.
The law, as opposed to statutes, evolves from the cultures and customs of people. For instance, during the eighties urban Africans from diverse cultural backgrounds rejected Apartheid laws and evolved an alternative community law and justice system which even Kobie Coetzee, the then Minister of Justice recognised. However, liberal lawyers condemned the community courts as kangaroo courts and the justice they meted out as mob justice. They introduced street law to counter peoples law.
On the contrary, in neighbouring Zimbabwe community courts established in liberated zones were integrated into the legal system. The integration of these courts gave recognition to and consolidated the popular sense of justice. Zimbabwe also fused the bar and side bar soon after independence. The DA and sections of the legal profession resists fusion of the bar and side bar and have grudgingly accepted a unified legal profession. They do so fully aware that the greatest stumbling block to access to justice and legal services is the divided bar. Besides they frown upon any role of the Ministry of Justice in the regulation of the legal profession. They believe in self-regulation and an independence of the legal profession. The DA and its supporters lose sight of the fact that the state has a primary responsibility to ensure that all citizens, regardless of race, class and gender, have access to justice and legal services. The legal profession represents its self- interest, not the interest of the downtrodden who want to receive their due. The state is the custodian of the interests of the citizenry, not the legal profession. The independence of the profession is an important element of the rule of law, but it cannot and should not take precedence over access to justice and legal services.
It must be the sole responsibility of the attorneys and advocates to train a new crop of lawyers. Thus, in the same manner that attorneys pay the salaries of their articled clerks, advocates should pay their pupils. The resistance of the DA and some sections of the bar to accept such a provision means that young law graduates from previously disadvantaged communities will not be able to join the bar. As judges are largely appointed from the ranks of advocates the judiciary will remain the preserve of the haves and the elites in society.
The language barrier is one other great impediment to access to justice and legal services. Before 1994 no one would get a law degree without passing English, Afrikaans and Latin even if they were going to work or practise in the Bantustans. Today we have eleven official languages but there is no requirement that all law graduates should pass at least one of the indigenous languages before they could receive their law degree. The system is therefore producing lawyers who are rooted in foreign jurisprudence, cultures, religions and languages. It is therefore not surprising that African lawyers, both black and white, would continue to see indigenous African law, cultures and belief systems as repugnant to the Eurocentric African societies.
South Africa and Africa needs a new legal paradigm. To achieve this we must liberate the voice of the aspirant lawyers and social scientists at universities and involve them in the transformation process. Our constitution provides for representative and participatory democracy. Going forward parliament must maximise the participation of students, rural women and youth in dialogue around the transformation of the legal profession and the judiciary. This matter cannot be left to the legal profession.
DOMESTICATION VS. EVOLUTION OF AFRICA-CENTRED LEGAL NORMS AND STANDARDS
The Constitutional Court per Justices Mokgoro, Langa and others provided leadership by infusing Ubuntu values and principles in our jurisprudence. On the whole, however, it appears that where there is a lacuna in other laws the courts have recourse, first and foremost, to western judicial precedents rather than African ones. Some of the parties like the DA in this parliament are champions of transplants of legal norms and standards.
The DA sought to import lock, stock and barrel an Australian legal fees structure, in total disregard of the fact that in South Africa we have two worlds the first and the third world. The DA lives in the first world and legislates for the elites. It has no regard for the overwhelming majority of the people who have not tasted justice since 1652.
South Africa must Africanise or indigenise the legal profession and the judiciary to empower them to meet the aspirations of all South Africans for justice. The DA, however, seeks to prevent this by stripping this parliament and the executive of any say in the transformation of the legal profession and the judiciary. They seek to deny the ministry of justice any power to frame regulations governing the legal fees structures or community services and only concede that if it does so it must be in not after consultation with the legal profession that is primarily governed by the profit motive. In essence, the DA wants a system of co-governance between the executive and the legal profession that has not yet been transformed.
Under Apartheid colonialism the criteria for access to justice and legal services was race and wealth. Under the DA government it would be wealth and privilege. These would bar thousands of black graduates, in particular, from entering into the legal profession. The policy of the DA on the legal profession shows that the DA falsely makes itself a champion of job creation for the youth. Thousands of law students and graduates will soon see through the DA and respond appropriately. The DA has proven beyond reasonable doubt that its old-fashioned liberalism is a great impediment to its own transformation to include the black middle class. The DA is pro-corporate and is hell bent on defending the social and economic privileges of the white minority. South Africans, especially the youth, would be naïve to believe that a party that cannot transform itself would be able to transform the legal profession, the judiciary and the country.
We are a representative and participatory democracy. When we return to parliament with a greatly increased majority in 2014 we shall ensure meaningful participation of the students, rural women and youth in the transformation of all aspects of South African society. We shall not and cannot leave transformation to the DA and its researchers. The ANC supports this Bill as it has created a new terrain of struggle for meaningful restructuring and transformation of the legal profession and the judiciary.