The Law Society of South Africa has placed transformation at the top of its agenda. Its close involvement with the Legal Services Charter process is evidence of this.
The charter was launched under the auspices of the minister of justice in August last year and has since undergone extensive redrafting. The Law Society has noted that the third draft, released in mid-October, is simpler, more focused and reflects a social compact between the providers of legal services and the public. It believes the charter will contribute to the economic transformation of historically disadvantaged practitioners, and will provide an opportunity for every legal practitioner to embrace transformation.
The economic transformation aspects are outlined in scorecards. ‘The profession’s scorecard must take into account the current landscape of legal practice and the requirements of legal practitioners,” says Law Society co-chairperson David Gush. ‘The vast majority of attorneys’ firms are owned by sole practitioners, or have one or two partners, and advocates all practise as sole practitioners. This must be reflected in the ownership criteria, with the resultant greater emphasis on the social transformation aspects.
‘As a profession we must ensure that economic transformation takes place through the equitable distribution of work. But we also have an obligation to practitioners to make certain that, once they join the profession, they are given the necessary tools and skills to succeed in the profession,” says Gush.
The Law Society’s commitment to skills transfer started in 1990 with the establishment of the School for Legal Practice. Its legal education and development department runs seminars and update workshops for attorneys. With funding from the safety and security sector education and training authority, Sasseta, it has embarked on an 18-month skills transfer project to provide 150 previously disadvantaged practitioners with free skills training in commercial and tax law as well as property law and conveyancing.
The school has nine branches around the country and one distance-training section, providing more than 1 000 candidate attorneys with vocational training in various fields of law. This year 79% of the candidates attending the school were black and 46% women.
The Law Society began the transformation of its council and substructures soon after 1994. At that stage only the four statutory provincial law societies were the constituents of the society’s predecessor, the Association of Law Societies.
The Law Society of South Africa was inaugurated in March 1998 with its six constituent members being the Black Lawyers Association (BLA), the National Association of Democratic Lawyers (Nadel) and the four statutory law societies (the Cape Law Society, the KwaZulu-Natal Law Society, the Law Society of the Free State and the Law Society of the Northern Provinces).
The council has two co-chairs, one nominated by the provincial law societies and the other by the BLA and Nadel. The current co-chairpersons are Gush and Henry Msimang, who is also the president of the BLA. Last year the Law Society appointed its first black CEO, Raj Daya.
Who benefits from transformation?
Government has set the goals for transforming the workplace. The black empowerment law of 2003 is the most well-known statutory initiative and aims to give representation to all members of society in a just and equitable way.
Its implementation has taken longer in some sectors than in others, with the legal sector lagging behind.
The third draft of the Legal Services Charter has been published for comment. Hopefully it will be the final version.
One of the stumbling blocks has been concurrence on the required quotas stipulated by the BEE law.
Legal firms operate under the auspices of the Advocates Act, which stipulates that a partner in a firm has to be a practising lawyer. The problem is that the pool of black candidates is running dry.
In most firms, becoming a partner takes between five and 10 years. Legal firms are recruiting newly qualified black lawyers in large numbers, yet those at partnership level are more difficult to lure away from their current positions. Many mergers have taken place and more are on the cards.
There are several associations promoting the causes of particular groups, such as the Black Lawyers Association, the Black Women Lawyers Association, the newly launched South African Women Lawyers Association and the National Association of Democratic Lawyers.
And legal firms have not been complacent. They have been active in changing the profession from its staid Irish coffee model — white at the top and black at the bottom — to a dynamic, integrated, diverse one where merit remains the determinant.
But the current situation raises concerns. With small black firms merging with larger ones, polarisation is on the increase. On the one end of the profession will be huge firms able to offer every conceivable skill — and insisting on employing only the top students. What then of the other 90% who qualify? How will they be deployed in a system that aims to empower all? Only time will tell. — Ilse Ferreira
Legal charter
The Legal Services Charter has yet to be finalised. The first draft was published in August last year. A national indaba and regional consultative workshops were held and the justice department formed a focus working group to evaluate the representations received from stakeholders.
In July this year, the second draft was published. The following concerns were raised:
- Whether the charter should apply to all persons and institutions, or only suppliers of legal services;
- Whether white women and disabled people should be protected under the charter;
- Whether the charter should only deal with BEE or extend to other issues;
- How the targets for ownership, management and control, employment equity, skills development, preferential procurement, enterprise development and social development should be set; and
- Whether all legal practices should be bound by the charter or whether smaller practices should be exempt from compliance with the charter.