LSSA’S ETHICS SUMMIT HELD AT HILTON HOTEL, DURBAN ON 28 FEBRUARY 2014 BY MADODA NXUMALO, DIRECTOR AT NGUBANE AND PARTNERS INC. “ETHICS IN THE PURSUIT OF TRANSFORMATION” THE HONOURABLE JUSTICE YACOOB; MEMBERS OF THE LEGAL PROFESSION; AND LADIES AND GENTLEMEN Impact of Transformation on Ethics Prior to 1994 as historically disadvantaged practitioners we were under false illusion that, come democracy, we would eat pie in the sky. When the reality struck home that: “the more things change, the more they stay the same” we, then, like all spheres of our society tripped over each other to attain personal aggrandizement at the expense of ethics . The legal profession, I have no doubt that even other professions, was so engrossed on transformation and inadvertently neglected ethics. There is nothing wrong with transformation, we needed it, we need it and we will still need it. The challenge presents itself when one considers transformation as free for all or a monster that needs to be eradicated from the face of the earth. We are still looking at ourselves as black and white. Pre-democracy Law Societies were viewed as pursuing an apartheid agenda and a job reservation policy for whites only. Nothing was seen to be done for a black practitioner, save to oppress him. It’s no wonder when the new era dawned upon us, some of us were proudly gravitating towards, “It’s our turn to eat” jingle. . The jingle is so deafening that we are unable to hear the message of counsel from our own who represent us in law societies. If we dare hear, we readily label them as supping with the devil. We accuse them of not protecting our interests as white counterparts used to do in the past. We matter-of-factly, remind them that they are “deployees” in such structures so they should dance to our tune. It stands to reason that when the jingle is too loud one can hardly hear a word, let alone ethics. When they remind us that crime does not pay; we equally remind them back that behind every fortune there is a crime. On the other hand and in the name of transformation, edicts are flouted day in, day out in order to score large state contracts and do shoddy work in courts so as to get a quick buck. We are prepared to hire previously disadvantaged practitioners in order to fulfil quotas and score cards, all under the pretext of economic empowerment, the so called “Rent-a-block” policy. Recently, an in thing is to swallow smaller firms, who happen to be black, by larger firms but only to attract contracts. There is nothing wrong about it as long as such hiring and merging are equally beneficial to both players. The beef only arises when there are sinister undertones. Once we invoked such mischievous thoughts, then we have ethical issues. Some of us view transformation as a threat to our wealth and we are prepared to protect it even if means defying ethics. In defence of our bad behaviour, we are quick to hide behind a popular but lame catchphrase: “We are not breaking the rules but bending them”. Change is Upon Us As a country we find ourselves in a difficult space. We are a nation in transition. We are a young democracy. We have no identity. We are a nation trying to find itself. We are battling to synchronize ethics in line with the prescripts of our constitution. We are no longer afraid to express ourselves, thanks to the freedom of expression, whether in print-media or social networks. The latter finds popularity with younger practitioners. If there are no clear rules, for example, on how, what and when to tweet, then, ethics becomes an unintended casualty. As a profession we need to embrace change and dare not falter lest we become extinct as happened to dinosaurs when they resisted change. Let’s take full advantage of social media to spread the gospel, something along the lines of legal brief. Technology has taken over our lives especially the younger practitioners. Ours is a conservative profession. It guards against values that are tried and tested with the highest level of jealousy. When anything appears to threaten those values, our profession does not take kindly. We need to recognise that generations come and go. Obviously, when this happens certain values are lost in transition. The field of sociology imparts us the need to recognise various generations and they are categorised by, among others, Greatest Generations, Baby-Boomers, Generation X, Generation Y, etc . This helps us to learn to live in harmony as different generations. All these generations have distinct features and their approach to life is unique to each generation. Generation Y is the younger generation born during the 80s, among other things; they have information overload, tech-savvy, opinionated, etc. In the past year there was a complaint by a candidate attorney about what I can term an ill-treatment from his/her principal to which the then KZN Law Society President responded . This is a clear example of how Generation Y is prepared to make his/hers views known. Cleary, times have changed. I am told that here in KwaZulu-Natal younger practitioners consist the majority of culprits when it comes to misconduct. I hold the view that seasoned practitioners are putting commercial interest before those of mentoring up and coming practitioners. Indeed, time now is not only our stock in trade but has also become the new currency. If we fall short in mentoring, surely ethics suffers. We need to balance the two. Legal Practice Bill Hopefully, the Code of Conduct as envisaged by the Legal Practice Bill will be able to align ethical standards in conformity with the Constitution. Others are lamenting that the Legal Practice Bill is taking an inordinately long time to finalize. We ask those who are in a hurry to bear with us. We cannot afford haste and to borrow from a blurb of a popular beverage, ”Slow brewed, extra matured because quality takes time”. Even Rome, we are told, was not build in one day. Matters of national importance are no easy feat and they are not an event but a process. The road ahead is winding and inclining. We need to keep our eyes on the ball and we cannot and must not afford complacency as Madiba taught us: “When I walked out of prison that was my mission, to liberate the oppressed and oppressor both. Some say that has now been achieved. But I know that is not the case. The truth is that we are not yet free; we have merely achieved the freedom, the right not to be oppressed. We have not taken the final step of our journey, but the first step on a longer even more difficult road…….I have walked that long road to freedom… But I have discovered the secret that after climbing a great hill, one finds that there are many more hills to climb” . All is not Gloom and Doom Unethical behaviour is not only confined to the legal profession but a cancer that is devouring all spheres of our society at unprecedented levels. It is in forums like these where we can try to curb such cancer. Those of us who are not brave enough to confront today’s challenges have to take a leaf out of the following inspiring words: “It is easy in the world to live after the world’s opinion; it is easy in solitude to live after our own; but the great man is he who in the midst of the crowd keeps with perfect sweetness the independence of solitude” . Over the years the profession has introduced lot of interventions in order for us to be in sync with societal norms, principles and standards. To name a few, mandatory practice management, attorneys development fund, synergy link, etc. Our country is endowed with opportunities which inevitably will, in time, filter into our ranks. However, we seem not to notice them. This reminds me of reggae lyrics: “In the abundance of water the fool is thirsty” . The sooner we learn to stop complaining about what we don’t have and start using what we have, the better for our country and the profession. At the dawn of our democracy there was something flickering at the end of the tunnel, then, we were not sure whether it was a ray of hope or the light of an oncoming train but now we can gladly tell it is the ray of hope. The judiciary and the media have been so far our beacon of hope in the battle against moral decay. Look around us you will find despair and misery but law is still a noble profession. THANK YOU!!!
Posted on: Thu, 20 Mar 2014 10:35:42 +0000
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