In a constitutional democracy such as ours, the role and function of lawyers can never be underestimated. The judiciary is the bulwark that protects citizens from abusive exercise of state power. On the brink of the twenty-first anniversary of our democracy, we can look back and say that the judiciary has done a fairly good job.
But, some of the legal bodies from which members of the judiciary are drawn have yet to embrace our not-so-young democratic order in their own ranks. The Law Society of the Northern Provinces (LSNP) is a case in point.
The Attorneys Act provides that the four law societies that regulate the profession in four geographic areas in South Africa, hold an election every three years. Despite this requirement, the LSNP last held an election over ten years ago. A former chief justice and judge president permitted the LSNP to suspend future elections more than a decade ago, and subsequently no elections were held.
The LSNP Council comprises 24 members. The Attorneys Act says that there have to be 12 members. Way back when, the 12 (statutory component) co-opted 12 more: six from the Black Lawyers Association (BLA) and six from the National Association of Democratic Lawyers (Nadel). Up to now the BLA and Nadel have conducted themselves as invited guests who are on the council by the grace and favour of the statutory component. BLA and Nadel have had frequent elections within their own ranks, while the statutory component has not.
The LSNP is holding its annual general meeting this weekend. Four LSNP members, employed at Norman Berger & Partners (NBP), have put forward four resolutions they want tabled at the AGM. These resolutions are:
1. To increase the quorum for a special meeting from 15 to 200. There are presently about 12 500 LSNP members. With a council comprising 24 members, a quorum of 15 was easy to achieve, and effectively ensured that the council does not need to solicit members’ views.
2. To lift the indefinite suspension of elections for the statutory component of the council, and hold an election within four months of the AGM.
3. To prevent the statutory component of the council from choosing candidates to replace any councillors who resign or retire. Not one of the three current Johannesburg councillors has been elected, as is the case with the current LSNP President, Pretoria attorney Dr Llewellyn Curlewis.
4. Calling upon the LSNP Council to hold a formal vote regarding the continued presence of personal injury lawyer Ronald Bobroff as a councillor. Bobroff, earlier this year, suspended himself from the council, moments before the council was to vote on whether he should remain. This in reaction to several courts, including the Constitutional Court, finding his common law contingency fee agreements unlawful.
The LSNP wasn’t too keen on the proposed resolutions and sought legal advice. It then proceeded to ‘cherry-pick’ a number of the proposed resolutions (1 and 3) and reject the rest, branding them as, “legally untenable if adopted”.
We may in fact never know what the LSNP means by this phrase as their attorneys have stated that, “the advice obtained by the Law Society is covered by legal professional privilege”.
Legal professional privilege only applies when one seeks advice in contemplation of litigation.
The chief justice & judge president
A former chief justice and a former judge president did once upon a time exercise their powers in terms of the Attorneys Act, and granted the LSNP an indefinite suspension of the elections. This was in line with a resolution passed by LSNP members.
Times have changed since then. The Bobroff matter looms large, not only in legal circles but also in the public domain. Former LSNP President Ronald Bobroff and his son Darren stand accused of overreaching their clients.
There seems to be an inconsistent approach by the LSNP. There appears to be a perception that Bobroff is being protected, while other attorneys receive harsh sanction for lesser professional indiscretions.
It is an outrage that the LSNP Council’s statutory component won’t entertain the idea of elections even being discussed at the AGM. Perhaps for these 12 councillors it is, in truth, all about the money. They each receive a monthly stipend of between R8 000 to R10 000 – excluding their travel allowances – for just one day’s work each month.
The issue of the LSNP operating within its own rules is not a new one. The BLA member, Matshego Ramagaga, was quoted in the Mail & Guardian in 2008 criticising the white LSNP Councillors somewhat snidely over their governance issues, saying that, “Council members needed to understand that the law society is not a “retirement village”.”
These members still hold office some six years later.
It is a tragedy that in a democratic South Africa the LSNP Council cannot, if it has to appear before a court of law, legitimately claim to represent the views of its members. This is because the statutory component – ten white men and two white women, many of whom were not democratically elected but coopted to the council – desperately cling onto the monthly stipend, and the power that accompanies the position that they should, in all honesty, vacate. Were they to do this, it would save the profession from the embarrassment of a court having to declare that those whose task it is to uphold the LSNP’s own rules – and administration of justice – are, themselves, ignoring these very rules.