Prof Carmen Nathan Honored in Speech by SA Deputy Minister of Justice

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I Googled my late mother, Professor Carmen Nathan, who died many years before social media and Internet was really happening, (1990).  I came upon an honor bestowed upon her by the South African government in 2014 when they celebrated 20 years of the new SA constitution. I never knew about this until I found this and was taken by surprise .  The Deputy Minister of Justice and Constitutional Development delivered a lecture with mom his theme and quoting the articles I had written about her.

So now this is what I saw – as copied and in screenshots – as it appears on the South African Government website. For some reason I was not able to access the webpage other than a cached version, after I posted its link on Facebook:

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Programme Director, Mr Mashishi,

Rector, Professor Davhana-Maselesele,

Vice-Rector, Prof Lalendle,

Dean of the Faculty of Law, Prof Mbao,

Ladies and gentlemen.

Thank you for the kind invitation to be part of these proceedings and to deliver this Prestige Lecture in honour of Prof Carmen Nathan. Many of you may be familiar with the life and work of Prof Nathan, but it would be fitting to highlight a few aspects.

Prof Nathan was born Carmen Miller in Johannesburg in 1934. She left school before matriculating. Her daughter, Melanie, writes that her mom left school “because Grandpa Lulu thought she was way too smart to be there. Women did not need an education.”

She subsequently worked as a legal secretary and this stimulated her interest in law. As a wife and mother of two young children, she entered the University of Port Elizabeth in the 1960’s and apparently this caused quite a stir at the time as, in those days, the study of law was something that very few women did.

People in her community were taking bets whether she would last six weeks or six months. After all, she had to face many challenges. She had to redo her matriculation year and then attend the University of Port Elizabeth, which taught mostly in Afrikaans, a language the family never spoke at home and one she was not adept in.

But, writes her daughter, there was no stopping her.  She obtained her B Juris (cum laude) in 1968 and her LLB, also cum laude, in 1971. Professor Nathan’s main fields of academic interests were family law, indigenous law and medical law. She wrote a book on Family Law and was co-author of several other text books. She published many articles in a number of law journals. Over many years Carmen Nathan was in the forefront of the women’s rights movement in Southern Africa.  She was an ardent campaigner for human rights.

But, in reading about her life, what strikes one most about Prof Nathan is her “South African-ness” and her sense of belonging to a broader identity of being African. For example, Prof Nathan had mentioned in her will that she wanted a “Tswana/Jewish Burial” and her wish was granted, with a funeral she herself could not have imagined. Over 4,000 people showed up to the tiny remote village of Motswedi, where the rabbi had to be brought by helicopter. She was buried in Motswedi, along to the sounds of a Tswana gospel choir and the chanting of traditional Jewish prayers.

Ladies and gentlemen,

I’ve been asked to share a few thoughts with you on the topic of 20 years of constitutional democracy in relation to legal education and ethics.

Our past and the dawn of a constitutional democracy have impacted on legal education. As Prof CRM Dlamini wrote in the 1992 South African Law Journal: “Our legal education in South Africa was strongly influenced by the governmental policy of apartheid. This policy was not based on the idea of justice, and it had an effect on our approach to law, as well as on the relationship between law teacher and law student. As a result, our legal education was riddled with contradictions, anomalies and inconsistencies. There are various ways whereby our legal education either bolstered apartheid or was influenced by it.”

Under apartheid, separate education, including university education, was provided for students according to their racial designation, with separate institutions established for White, Coloured and Indian as well as for each of the larger African ethnic groups in South Africa. Not surprisingly these African universities were under-resourced and inconveniently located in rural areas. Black students were permitted to attend white universities only if they obtained permission from the Minister of Education to do so.

By the 1970s, three different types of law degrees were offered at South African universities. Most law faculties offered the LLB degree, which by then was a two- or three-year postgraduate degree which followed a Bachelor of Arts, Bachelor of Commerce or other undergraduate degree. The LLB qualified graduates for practice in both the higher and lower courts.

Some faculties offered a four-year undergraduate degree, the Baccalaureus Procurationis (B Proc), which qualified graduates for practice as attorneys only.  And, finally, a few faculties offered the three-year Baccalaureus Iuris (B Iuris), which qualified graduates for practice as civil servants (prosecutors and magistrates for in those days magistrates were civil servants employed by the Department of Justice) in the lower courts. Graduates could choose to follow the B Iuris with an LLB postgraduate degree, in which case they would also qualify to practice in both the higher and the lower courts.

In 1994 it was estimated that only about 20% of the legal profession were of African origin.   Law curricula at the time reflected the interests of the economically dominant white population, with much emphasis placed on commercial subjects as well as a requirement to study Latin, English and Afrikaans.

With the transition to democracy came an urgent call to transform the legal profession and legal education. Beyond dispute was the necessity of addressing the under-representation of Blacks, and more particularly of Africans, in all areas of the legal profession and of establishing a single, affordable academic qualification that would provide access to both branches of the profession.

The low number of black lawyers and the high cost of a minimum of five years of study proved to be driving forces in the campaign to radically alter legal education. The four-year undergraduate LLB degree was introduced in 1997 as part of the transformation agenda of the new democratic government.

The change was to address the historical legacy of an under-representivity of blacks, and particularly Africans, in the legal profession as well as the perceived status differential between attorneys holding a B Proc degree and those who had completed a primary degree, followed by a postgraduate LLB. This distinction largely followed the lines of racial difference, and also determined access to the advocates’ profession and ultimately, to the judiciary.

The Qualification of Legal Practitioners Amendment Act of 1997 required all universities to introduce a four-year undergraduate LLB degree so that, effectively, the minimum period of study to qualify to be admitted was reduced to four years.  The four-year legal qualification did away with the necessity of studying for the LLB degree as a post graduate qualification. It also replaced the BProc degree for attorneys.  

Some universities embraced the change, but others adopted strategies to discourage students, other than high academic achievers, or students who had proved themselves in their first year of undergraduate study in another faculty, from registering for the four-year LLB.

So where are we today? The majority of law graduates now leave university with the new LLB qualification, although a number first acquire a general degree (BA or B Com) before enrolling in the LLB curriculum. Data from universities show that those who do the combined degrees have a substantially higher completion rate within the minimum period than those doing the LLB as their first degree.

Systemic and structural features of post-apartheid South Africa, which reflect the legacy of unequal educational provision, a vast socio-economic divide, and a divided legal profession, continue to hamper attempts to redress past imbalances.  An unequal school system, ongoing poverty, and the under-preparedness of increasing numbers of students gaining access to higher education have produced data that reveals high university drop-out rates.

There is dissatisfaction amongst stakeholders. Criticism of attempts to transform the legal profession through the introduction of the undergraduate LLB have emanated mainly from the two primary stakeholder groups: the attorneys’ and advocates’ professions, who have expressed dissatisfaction with the quality of law graduates; and legal academics who are struggling to meet the challenges of teaching under-prepared students in a shorter time period, dealing with the constraints of dwindling resources, increased student numbers and poor student language and literacy competency.

All of these factors have given rise to the question as to how legal education can most effectively be improved.

A National LLB Summit was held in May 2013, attended by a wide representation of stakeholders in the country.  A National LLB Task Team was established and standard setting under the auspices of the Council on Higher Education was undertaken. The National LLB Task Team comprises representatives from the South African Law Deans’ Association, the Society of Law Teachers of Southern Africa, the Law Society of South Africa, the General Council of the Bar, the Department of Justice and Constitutional Development and the Department of Higher Education and Training.

The South African Law Deans Association has indicated that, despite the arguments in 1996 of improving access and reducing costs for particularly black students, about 18 years later, only 25% of all students (including black/African students) complete the four year LLB in the minimum four years. Most students take 5, 6 or even 7 years.

Therefore SALDA is recommending that the LLB becomes a five year degree programme, with the following caveats: That the five year degree will not merely be used to include more law modules and that the LLB degree should be aimed at enabling students with the requisite graduate attributes and skills.

The Council for Higher Education is currently in the process of releasing the draft standards for public comment and roadshows will be conducted during the next two months in Pretoria, Port Elizabeth, Cape Town and Durban.

We need to ensure that there is a thorough debate on the matter. I was interested to discover on a recent visit to Great Britain that the period spent doing a law degree after school is only three years.  Is the problem of law graduates being underprepared for the profession also an indication that the way they are being taught could be substantially improved?

Why is legal education so important? As former Chief Justice Chaskalson said: “Society also has a deep interest in the system that trains lawyers. Because this system directly affects the competence, availability and values of lawyers in society… the training of lawyers has implications for the observers of the rule of law and the maintenance of law and order in society. And if society has no confidence in the system that trains lawyers, this may well diminish confidence in our justice system.”

Currently the majority of LLB graduates are African and female. The breakdown for 2013 shows 2039 graduates are African, 1092 are White, 362 Indian and 277 Coloured. There are 2129 females and 1649 males.

However, despite these figures, the legal profession is still overwhelmingly white and male. In 2014 we have 22 476 practising attorneys nationwide. Of these 14 385 are male and 8102 are female. Of the more than 22 000 practicing attorneys the majority – namely 14 189 – are white and only 4930 are African.  There are 1092 Coloured and 2002 are Indian.

It is still white graduates who obtain the majority of articles of clerkship.  There were 1000 African candidate attorneys to 1048 white candidate attorneys for the period 1 April 2013 to 1 April 2014.  While this is an improvement on previous years, it still does not reflect the position with regard to graduates.

With regards to gender representation, it appears as if the attorneys’ profession is making progress, as more female attorneys (167) than male attorneys (126) were admitted to the profession last year. However, the advocates’ profession is still a matter of concern when it comes to gender. According to the statistics of the General Council of the Bar, only a quarter (645) of our country’s total 2571 advocates at the Bar are female.

Of these only 4,5% (116) are African females.  Of the silks, or senior counsel, only 27 are female, of which only 4 are African. That is less than 1% of our country’s 451 senior counsel. This is a concern, particularly since many of our judges come from the ranks of the advocates’ profession.

What is perhaps even more concerning is the finding of a recent report by the University of the Witwatersrand’s Centre for Applied Legal Studies and the Foundation for Human Rights. The report highlights barriers for black women that have a knock-on effect and may explain why the judiciary remains dominated by white men. Among the findings, notes the report, is that some law firms use their black female attorneys to solicit work, in other words to attract clients, only to have them excluded from the team that then later does the work. “There are lawyers who continue to refer to black women as window dressing,” the report says.

But it is not only the legal profession that is at fault. In certain instances, society is also to blame, for example, if one looks at some of the criticism directed at Judge Masipa after the Oscar Pistorius judgment. While it is natural that everyone would have their own opinion on a high profile case such as this, it is the sub-text of the criticism that is particularly concerning. As the Black Lawyers’ Association said in a recent statement  – “it would appear that the attacks directed to Judge Masipa are so directed to her not because of her in ability to perform her duties as a judge, but on account of her being a woman and black.”

And Kameel Premhid, writing in the Mail and Guardian’s Thought Leader, sums it up perfectly when he writes about the way in which some people have reacted to the judge’s findings.

He says: “These reactions are deeply problematic and probably reflect more on how damaged our society is than on the learned judge’s reasoning… The racialised and sexualised narrative of the criticism demonstrates just how much our perceptions of competence are. The suggestion that a white and/or male judge would have found differently… shows how little respect we give to highly qualified black women.”  

Criticism such as this is not only harms the individual concerned, but undermines the independence and integrity of our judiciary, our courts and the rule of law.

Finally, let me say a few words on the topic of ethics. The National LLB Task Team which I mentioned earlier, has stressed that legal ethics must be an essential part of the legal education curriculum. Why are ethics so important? Because ethics is one of the characteristics which makes the legal profession a profession, as opposed to an ordinary business.

A profession is a career which complies with the following six requirements: an intellectual basis, a private practice, an advisory function, a tradition of service, a representative body, and a code of conduct. It is also a very important requirement for admission as an attorney or advocate to be a “fit and proper” person.

The various Law Societies and Bar Councils are responsible to monitor the conduct of their members. In 2012 there were 3 782 complaints of ‘unworthy or unbecoming conduct’ against attorneys, which includes offences like failing to appear. There were a further 3 418 more serious complaints of ‘unprofessional conduct’. It is worrying that disciplinary proceedings against lawyers, unlike those against medical practitioners, take place behind closed doors. As William Saunderson – Meyer says South Africa is virtually the only modern democracy where this is the case, elsewhere, from Australia to Zambia there are more transparent processes.

We are therefore pleased that earlier this year, the Johannesburg Bar Council took the lead and, for the first time, conducted an open disciplinary enquiry. We hope that the other professional bodies will, in the interests of their clients and the public at large, follow suit. The Legal Practice Bill will provides for transparency in the complaints procedures as well as open disciplinary hearings. The Bill is expected to transform the legal profession and to enhance quality and affordable legal services to all our people.

Not only attorneys and advocates, but indeed all role-players within the justice sector are bound, and must adhere, to various codes of conduct. There are codes of conduct for sheriffs who serve court documents, for magistrates and for judges. Ethics is something that our courts place a great deal of emphasis on, as a Gauteng magistrate recently found out.

The magistrate reportedly refused to hear an accused’s bail application, as the bail application was in Afrikaans, saying “it was an English court.” The North Gauteng High Court subsequently ruled that the magistrate was not faithful to the oath that she took as a judicial officer and has ordered the magistrate to pay R115 000 plus interest, out of her own pocket, in damages.  

Ladies and gentlemen,

We have achieved much over the past 20 years. We have succeeded in building a constitutional democracy that is often hailed as one of the most progressive in the world.  We have gone from a system which deprived people of their most basic civil and political rights to a constitutional democracy which not only guarantees fundamental civil and political rights, but also the attainment of socio-economic rights.  We have succeeded in building a legitimate and democratic justice system and a justice system which embodies the vision of the Constitution.

It was the lawyers who were often at the forefront of the struggle. In our history, the lawyers were the ones who brought about social change and social justice. Mandela, Tambo, Gandhi, Fischer, Chaskalson, Bizos, Nokwe, Sachs, Langa, Yacoob and Omar were all lawyers. This is a proud tradition. When you join the ranks of the legal profession, do us proud in the same way and follow in their footsteps.

I wish you all the very best and I conclude with the words of Arthur Chaskalson: “Legal education is an investment, which, if wisely made, will produce most beneficial results for the nation and for the profession and accelerate the pace of development.”

By Melanie Nathan
Commissionermnathan@gmail.com

SCREENSHOTS:

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