Minister Mmamoloko Kubayi: Legal Practitioners Fidelity Fund and Law Society of South Africa Young Lawyers Conference

Programme Director
President of the Law Society of South Africa, Nkosana Mvundlela
Judges who are present
Distinguished lawyers and legal practitioners
Distinguished guests
Ladies and gentlemen

Good morning

It was Karl Marx who wisely observed that “Men make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past.”

As a revolutionary who had set himself the very difficult task of changing society, Marx had come to a realisation that the present is shaped by the past and anybody who wants to change the present to shape the future will have to wrestle with the effects of the events of the past.

I was reminded of this wise Marxian maxim when I was reflecting on the theme you have chosen for this conference which says: “Awaken the leader within: young lawyers Shaping a Just future”.

Accordingly, the South Africa that we find ourselves in today, which you seek to shape into a just future has been shaped by what the world declared as a crime against humanity, that is Apartheid.

Your theme tells me that you looked around and realized that the country that we live in today is still charactised by injustices that require, that as lawyers and legal practitioners you want to shape a just future.

Your indignation in the face of injustice which has compelled you to seek to shape a just future, has set you on a path which requires you to do so with a clear understanding objective reality, that is circumstances existing already, given and transmitted from the past.

This necessarily means that engaging on this daunting task you must constantly ask yourself the question: what is this South Africa in which we are going to Shape a just future?

This year we are celebrating the 70-years anniversary of the adoption of the Freedom charter. The Freedom Charter is a vision adopted by the people of South Africa who, under the repressive system of apartheid, dreamt then of a future democratic, Non-racial and non-sexist South Africa.

In drafting that vision was led by a group of people who like yourselves looked around the world in which they lived and found that it was in discord with their sense of justice and moral and political beliefs.

They too decided that they wanted to awaken the leader within and strive to shape a just future as outlined in the Freedom Charter. It is for this reason that many of the clauses of the Freedom Charter have been codified in the constitution of 1996.

Amongst other clauses the Freedom Charter envisioned a society in which “All Shall Be Equal Before The Law!” This clause was necessitated by the fact that the African people under apartheid were not only impoverished and dispossessed of their land, they were also stripped of human rights and had limited access to justice.

According to the policy of apartheid, African people were sub-humans whose only role was to produce wealth for their white counterparts. Verwoerd and fellow National Party leaders and followers, were of the view that African people belonged in Bantustans where they were condemned to poverty and underdevelopment.

In his apartheid vision, Verwoerd described the place of African in this way, he said:

“The native in our urban areas must be regarded as a visitor who will never have the right to claim any political rights or equal social rights with the Europeans in the European areas”.

Indeed, under Apartheid all animals were equal, but some animals were more equal than others.

To maintain the unjust system of apartheid, the apartheid government unleashed a repressive system that not only killed innocent people but also imprisoned, deported or restricted without a fair trial.

I am quite certain that over time as you practice as lawyers and legal practitioners you will shape a just future for our country but you will have to contend with the circumstances created by our unjust past some of which I have alluded to.

After the democratic breakthrough in 1994 and having recognized that wrongs were committed, South Africans amongst themselves decided that in the interest of creating sustainable peace they are not going to set up wartime tribunals or pursue a road to revenge and retribution but instead they decided to pursue a reconciliation project.

Determined to build a future South Africa that is just and guarantees a better life for we adopted a constitution inspired by the Freedom Charter with a preamble that says:

“We, the people of South Africa,
Recognise the injustices of our past;
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, …adopt this Constitution as the supreme law of the Republic so as to ¬
Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;”

To start the healing process, we established the Truth and reconciliation commission to help deal with what happened under apartheid. All of us agreed that those who had committed crimes and did not come forward to the Truth and Reconciliation Commission to reveal what happened would be prosecuted.

This was to ensure that the pursuit of peace was not at the expense of the pursuit justice by prosecuting those who refused to participate in the process of reconciliation. In this regard, we have opened multiple inquests so that we can gather evidence to enable us to hold those who committed crimes under apartheid accountable.

Our pursuit of justice for the victims of apartheid crimes is with the understanding that South Africans who are victims of these crimes have the right to justice, in their own country, on account of what they have suffered.

So I am saying that in your quest to shape a just future you will also have to confront the pain and complexity of our past.

I say this because it is directly related to the work you do. As legal practitioners, you will encounter situations like these. This is your context and your challenge, and how you choose to respond today will shape your future. As we often say, we want a just future. That future depends on what you do now, how you show respect, and how you respond to the present circumstances.

Asked what Justice is, South Africa’s first Chief Justice and former defence attorney for Nelson Mandela in the Rivonia sabotage trial, Arthur Chaskalson said the following: “… if we’re going to reduce it to a very simple, basic level, justice is to respect the inherent dignity of other people, to treat them with the dignity that they deserve, and to understand the impact of your own actions on others.”

He further said that: “It doesn’t really help to say that not everybody lives according to the values of the Constitution. The challenge is to create a society where those values are realised.”

Indeed, one of the ways in which we can create the kind of society that Justice Chaskalson was talking about is by increasing access to justice. By increasing access to justice for the poor and vulnerable, we would be according the respect to the inherent dignity of other people and treating with dignity they deserve.

Post 1994, though we have done away with pieces of laws that were discriminatory, access to justice is now divided between the haves and have-nots.

Though we have been striving to fulfil our constitutional mandate of ensuring there is justice for all, significant sections of our society have limited access to justice. A society that has a limited access to Justice cannot be described as a just society.

Amongst the leading factors for the limited access to justice are the following:

• The high costs of litigation and legal advice.
• The long delay in resolving legal disputes and court cases;
• The approach to the regulation of legal costs in which an unsuccessful litigant bears the costs of a successful party limits access to legal proceedings by individuals;
• Many South Africans live long distances away from courts. This is particularly true of the Supreme Court which is only located in certain major centres.
• Many people living in rural areas do not have effective access to lawyers to seek legal advice;
• The limited availability of legal aid in South Africa, particularly in civil cases. This adversely affected the position of individuals who have legal disputes or potential disputes with large corporations. Persons in this position include employees without the backing of a trade union, consumers, etc.

Why am I raising this with you and young lawyers? Over and above dealing with your own challenges, you have to realise that you are in a sector that has many challenges that you must help us find solutions to. You are members of our society, you are members of the sector that must help us find solutions. So, the conference should not be about your challenges only, but also about the challenges south Africa face.

Ladies and gentlemen,
At the centre of the factors I have just mentioned are poverty and unemployment. I have no doubt that in your deliberations of how it is that you are going to shape a just future, you are going discuss how you are going to intervene such that you can help increase access to justice.

It goes without saying that for you to shape a just future you must have fidelity to your profession and adhere to high ethical standard. Few months ago it was reported that “Unscrupulous lawyers have plundered their clients’ trust funds to the tune of R1.4 billion with more than 500 cases documented – but only 59 convictions were made in seven years and just 25 resulted in jail time”.

I think you will agree with me that the many cases that are surfacing without any consequent management will do damage to the profession that has an important role to play in society in ensuring justice. Shaping a just future must start with you respecting the ethical code of your profession.

The question is: what is it that you are going to do to root out this wayward behavior in your midst so that you can shape a just future?

But to ensure that the cohort that we bring up that tomorrow become the champions and captains of this industry are not found wanting. This is a quest we must have and a challenge that we must face because at the hands of this are poor and vulnerable communities. These are aunts, these are mothers, these are our members. They are people with faces and they have names.

We now live in a world in which technology is changing every profession both positively and negatively. Two days ago, I read a story of Lawyers who gotten themselves in hot water because they used Artificial Intelligence, large language models, to draft their legal filings.

The trouble arose when the AI tool went beyond the allowable scope and started inventing cases which it cited to support the case. In principle there is nothing wrong with enhancing your work using technology, what is unethical is when you take the work that you did not produce and pass it as your own.

In this case it seems the lawyers only admitted that they had used the tool after it was found that the cited cases were nonexistent which the judge understood as an attempt to mislead the court.

This raises a few questions: Should you as a lawyer who uses AI to draft your papers, which a client can also use without your help, be paid the same fees as a lawyer who writes the full submission? Can the work produced by AI be regarded as your work? Where you have used an AI tool, should it be mandatory to disclose? Who should bear the responsibility of the errors committed by the AI tool?

As government we have a role to play in ensuring that the legal profession is transformed so that we can eliminate the Imbalances of the past. The only way of ensuring access to Justice for all by transforming both the judiciary and the legal profession to reflect the demographics of our country.

The slow pace of transformation of the legal profession remains a sore point and it must be tackled head on. The legal sector code which has been challenged by the big law firms provides a framework through which the briefing patterns, the ownership patterns and the participation of vulnerable groups such as youth and women will be changed in favor of the previously disadvantaged. I have already expressed my disappointment with the legal challenge, because I was of the belief that all us are patriots who are committed to building an inclusive economy. Evidently that is not the case.

It cannot be that thirty-one years after democracy there are still areas of the economy and professions in which black people barely participate not because they lack the capacity to do so but because opportunities are closed. We will relentlessly defend the challenge against the legal code with the understanding part of a just future depends on transformed legal profession.

We are never too small or too insignificant to contribute to the effort to change society for the better. I have no doubt that by the end of this conference you shall have discovered ways in which you are going to practically shape a just future. As I conclude let me quote a Pan Africanist Kwame Nkrumah “ Leadership is not by birth but by a vision that transcends generations”

I wish you well in your deliberations!

I thank you

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