Giving a Lift to a Relative
It is that time of the year when many of you travel long distance to the Village for the Festive season. One of the most difficult things is to GIVE or be GIVEN a lift by a Relative, unless you enjoy an EXTREMELY comfortable embarrassment-free relationship. The discomfort makes many of you lie and say ‘yakazara’; ‘handisi kuinda kumusha’; ‘ndiri kuinda kwanaMadam’ etc. This is just to avoid having to deal with the discomfort. Much of this discomfort would be reduced if we followed basic rules of etiquette. I suggest the following Rules:
1. Do not offer ‘kudira’ fuel unless you really mean it. Any driver will know from the sound of your voice when you do not mean it. Pretending to read my newspaper at the fuel station is just not funny. If you really mean it, just bring some coupons.
2. Do not call me ONLY just before a major holiday and talk aimless and end the conversation with the question ‘munoinda kumusha here’? If you do not know the names of my children, you probably should not be asking for a lift.
3. If I give you the lift, please buy your own beer. The cooler box is for me and my family. Again do not expect me to buy you food. I have a family to feed. Use that money you are saving!
4. Do not complain about my driving, speed or lack of it. I married someone precisely to do that!
5. No smoking. This applies whether it’s done inside or outside the car. Madison is not a good perfume.
6. When the Police stop us, please shut up! You are not the driver.
7. Use the seat belt. It is there for a purpose. If it makes you uncomfortable, you should really take Musasiwa. They do not have seat belts on their buses.
8. Do not throw out rubbish through the window. Neither should you throw it on the floor.
9. Please do not relieve yourself on my car wheels. Firstly, my family does not need to see you. Secondly, I will have to change the wheels at some point. It is enough having to deal with dog urine on the wheels!
10. If you have a weak bladder please do not DRINK! Do not compete with the Police in stopping me!
11. We will leave at the time that I have set. If you are not there by that time, I will not come and look for you at your house, nyangwe muri Sekuru!
12. On the way, it is good to chat. But please know what to talk about. My kids do not need to hear you say, ‘mbuya venyu vakaroiwa naMai Nzviru, nokuti vairima rukweza zvakaoma!’
13. When you turn up for the lift, please do not bring additional passengers like your wife and children and say, ‘tsano, ambhuya venyu nerudhendhe varamba kusara’!
14. Do not bring excess luggage. I may have a pick-up but it is not a hired container. You do not decide to carry all the scrap rubbish to the Village simply because I have given you a lift. The same rule applies on return. Do not bring sacks of maize simply because my car is now ‘empty’.
15. ‘Kuyenda hwumbangu, kudzoka hwumbangu’ does not apply. Do not expect me to take you back simply because ‘takauya tose’! We must have an EXPRESS agreement on this. Number 13 applies again!
Have a Merry Xmas, and a prosperous 2012! If you are anywhere near Bako, Gutu, come and enjoy 7 days on Unity Day!!
By Tererai R. Mafukidze
Wednesday, December 14, 2011
Tuesday, December 13, 2011
Intelligent Musical Voices of Our Time
Musicians are underrated. As George W. Bush would put it, they are mis-underestimated! Who can explain the right to liberty, the essence of human freedom, better than Leonard Dembo in his classic ‘Zvaunoda Handizvigoni’? Who can capture the soul and intrigue of our criminal justice system better than Simon Chimbetu in his song ‘Ndourayiwa’? Cephas Karushanga described the unfairness of our legal system when he sang ‘Shereni ihombe pamhaka’! My beloved Dr Love, Paul Matavire sadly lambasted the rape complainant in the banned ‘Joke of the Year’ and yet gave praise to the prison system in his ‘Back from College’.
Oliver Mtukudzi laid bare the essence and connection of the Rule of Law and Democracy when he sang ‘Ngoromera’. In the most painful tune one will ever listen to, Dr Love captured the tragedy of orphaned children in his chilling classic ‘Handirambi’. James Chimombe’s ‘Kudakwashe’ entombs the pain of disability in a child like no other. Yet his heart-rending acceptability of it teaches the true essence of love.
Dembo’s ‘Chinyemu’ captures the unfairness of the tax system, while Chimbetu’s ‘Survival’ portrays the emergence of greed in public life. Lovemore Majaivana in his banned ‘Sayiwela’ painfully presents an invoice for compensation of victims of the Matabeleland and Midlands ‘madness’. His elegiac cry and the melancholy in his voice as he calls out Lookout Masuku from emathuleni cuts a deep nerve of pain. Dr Love’s frustration with selective compensation of war veterans is aptly captured in the less known gem ‘Govanai’. The musician understands the essence of social justice.
His exceptional talent is in evidence as he describes the sexual abuse and inequality women endure in his tragic-comedy ‘Dhiyabhorosi Nyoka’! Chiwoniso’s rendition of the Mbakumba spiritual ‘Nhemamusasa’ puts you in a trance as the pain of pastoral existence is transfigured into a rallying call for hard work. Yet, when you recall the poverty of ordinary folk you realise that maybe all you want is for Leonard Zhakata’s God to give you your own ‘Mugove’. You want to cry out, like Dembo did and sing ‘riiniko muchauya here, Baba kuzotinunura, vachauya here Baba?’ Mtukudzi could not stomach the long wait and had to complain ‘mhinduro yenyu inonoka, muchazopindura aniko?’. The first ‘record’ my Father bought me in 1978 was ‘ndochema misodzi, misodzi yeropa, pamuromo chete, heyaa, pamuromo chete’. He had overheard me sing it, then aged 5.
Who remembers Thomas Mapfumo’s ‘Pidigori Waenda’? Who remembers Pied Pipers’ ‘Gidi Ishasha’? The Harare Mambos popularised ‘Mbuya Nehanda kufa vachitaura shuwa...tora gidi uzvitonge’. When you listen to it played, especially by Victoria Falls legends, Mandebvu, you stand back and say, is this message timeless? Despite being independence songs, they reflect a continuous struggle for political freedom against a system that continues to use oppression against popular will. Oppression is colourless. It can look like you.
Wouldn’t you today cry when you listen to Marshall Munhumumwe and the Four Brothers sing ‘Maruchengera, naZvanyadza svetukaiwo tipembere, hona rugare rwauya, tiiteiwo makorokoto...amai hwee kanhi ndofara ini...!’ Listening to it now, you realise that Maruchengera and Zvanyadza were sceptical. They did not readily drown in the euphoria. They knew something. Maybe, as the saying goes, ‘we came too soon!’
By Tererai R. Mafukidze
Oliver Mtukudzi laid bare the essence and connection of the Rule of Law and Democracy when he sang ‘Ngoromera’. In the most painful tune one will ever listen to, Dr Love captured the tragedy of orphaned children in his chilling classic ‘Handirambi’. James Chimombe’s ‘Kudakwashe’ entombs the pain of disability in a child like no other. Yet his heart-rending acceptability of it teaches the true essence of love.
Dembo’s ‘Chinyemu’ captures the unfairness of the tax system, while Chimbetu’s ‘Survival’ portrays the emergence of greed in public life. Lovemore Majaivana in his banned ‘Sayiwela’ painfully presents an invoice for compensation of victims of the Matabeleland and Midlands ‘madness’. His elegiac cry and the melancholy in his voice as he calls out Lookout Masuku from emathuleni cuts a deep nerve of pain. Dr Love’s frustration with selective compensation of war veterans is aptly captured in the less known gem ‘Govanai’. The musician understands the essence of social justice.
His exceptional talent is in evidence as he describes the sexual abuse and inequality women endure in his tragic-comedy ‘Dhiyabhorosi Nyoka’! Chiwoniso’s rendition of the Mbakumba spiritual ‘Nhemamusasa’ puts you in a trance as the pain of pastoral existence is transfigured into a rallying call for hard work. Yet, when you recall the poverty of ordinary folk you realise that maybe all you want is for Leonard Zhakata’s God to give you your own ‘Mugove’. You want to cry out, like Dembo did and sing ‘riiniko muchauya here, Baba kuzotinunura, vachauya here Baba?’ Mtukudzi could not stomach the long wait and had to complain ‘mhinduro yenyu inonoka, muchazopindura aniko?’. The first ‘record’ my Father bought me in 1978 was ‘ndochema misodzi, misodzi yeropa, pamuromo chete, heyaa, pamuromo chete’. He had overheard me sing it, then aged 5.
Who remembers Thomas Mapfumo’s ‘Pidigori Waenda’? Who remembers Pied Pipers’ ‘Gidi Ishasha’? The Harare Mambos popularised ‘Mbuya Nehanda kufa vachitaura shuwa...tora gidi uzvitonge’. When you listen to it played, especially by Victoria Falls legends, Mandebvu, you stand back and say, is this message timeless? Despite being independence songs, they reflect a continuous struggle for political freedom against a system that continues to use oppression against popular will. Oppression is colourless. It can look like you.
Wouldn’t you today cry when you listen to Marshall Munhumumwe and the Four Brothers sing ‘Maruchengera, naZvanyadza svetukaiwo tipembere, hona rugare rwauya, tiiteiwo makorokoto...amai hwee kanhi ndofara ini...!’ Listening to it now, you realise that Maruchengera and Zvanyadza were sceptical. They did not readily drown in the euphoria. They knew something. Maybe, as the saying goes, ‘we came too soon!’
By Tererai R. Mafukidze
Thursday, December 1, 2011
Mugabe Taking His Morning-After Pills
MUGABE TAKING HIS MORNING-AFTER PILLS
I do not have any intimate knowledge about unnatural contraception. I am Catholic and so we do not plan our children. I always marvel at those who claim to. I cannot imagine sitting down with my wife, with an Agenda for the day’s meeting, a minute taker and the resolutions book. There is certainly a good reason in nature why most animals cannot breed in captivity. Catholics have their point, but do not ask me why I still have two children.
Many women will tell you that if they engage in an activity that may result in them falling pregnant against their will, they rush to the nearest pharmacy presumably on the next morning and purchase the wonder pills named the morning-after. The pills are designed to prevent breams and tiger fish in the Zambezi River’s upstream flow from finding a hospitable valley of fertility. For the medicine to gather and put back the bolting donkeys in the stable, it must be taken within 72 hours of the activity. The pharmacist is ethically required to give some counselling before dispensing them. The woman must be told that this is not a regular contraceptive. Put in another way, it is an “emergency kick-out panel”. The Pope and others consider this murder still.
If you do not take it within the required period, you risk giving birth to a baby or more with clenched fists and a naughty smile. When you undo the clenches, you may find the progeny holding the belated morning-after pills. Like election results posted outside polling stations!
The tragic-comedy that engulfs the Presidential results shows that Mugabe has decided to take his morning-after pills long after the 72 hour period. How else do you explain fraud charges against Binga ZEC officers? Some of the charges according to the state-owned Herald of the 16th April, 2008, allege that they recorded Tsvangirai as having 16 492 votes instead of 16 493, a difference of one vote! It is alleged that they recorded the Zanu PF’s candidate as having 2 794 votes instead of 2 798, a difference of 4 votes. In another instance it is alleged that they gave Langton Towungana, a presidential candidate, 107 votes instead of 111? Can anyone seriously prove any criminal intent to defraud? What happened to innocent counting errors? I thought the law has a rule expressed in Latin as, de minimis non curat lex? This means that the law does not concern itself with trivialities.
What will the morning-after pills achieve now? Mugabe either has to abort the foetus or give birth to an unwanted baby. A rerun will not reverse all the risks that unprotected polling brings. Even a ten thousand generals with freshly imported Chinese ammunition, a supine state press, a marauding militia, comical spokespersons, a lame-duck South African President, designer clothes and 400 motor vehicles driven by medical doctors will not help. A fatal disease may have been contracted.
Liberation movements have shown consistently that they cannot easily change from the autocratic military movements to democratic parties demanded of modern governments. This is why I prophesy that whatever happens, Zanu PF has contracted a disease that will claim its life. Kenneth Kaunda’s UNIP has virtually disappeared in Zambia. It has about 2 seats in the current Parliament. Kaunda will outlive it. Kamuzu Banda’s Malawi Congress Party is dying in Malawi. Jomo Kenyatta and Daniel arap Moi’s KANU is dying in Kenya.
Chama Chama Pinduzi of Tanzania has survived because it has managed to change. When Julius Nyerere threw in the towel on his own terms, Ali Hassan Mwinyi took up the mantle, followed by Benjamin Mkapa and now Julius Kikwete. In Mozambique, they are on their second President since the death of Samora Machel in 1986. On Seretse Khama’s death, Siketumile Masire took over in Botswana. He was succeeded by Festus Mogae. Mogae has just stepped down one and half years before the end of his second term, to allow Iain Khama the chance to prove that he can lead the Tswana.
Zanu PF has no succession plan. Like an old fractured horse, it may need to be put down. Rumours abound amongst its zealots indicate that they want a rerun after taking some contraception. They may dispense with the need for morning-after pills this time. It is said that after some 18 months, someone will take over from Mugabe.
However, they may have already contracted the fatal disease. Like its sister change-resistant liberation movements across the continent, Zanu PF detests democracy, the intelligent and the young. The next crop of “leaders” by age is Bright Matonga, Patrick Zhuwawo and Saviour Kasukuwere. They make me laugh. Not-so-Bright Matonga makes people who watch him on international television news channels laugh at me as a Zimbabwean.
When rumours of alternative candidates to Mugabe were spreading last year, Oppah Zvipange Charm Muchinguri, the Zanu PF’s Women’s League leader, threatened to strip naked if anyone dares challenge Mugabe. She was walloped in the parliamentary elections on March 29. Makoni’s late challenge cost us a strip show. His upmarket Harare underwear business would have benefited from this enterprise. And people say he has business acumen! You would have thought Muchinguri, who witnessed the death of the legendary Josiah Tongogara had learnt some principle. No, it’s all profanity.
In order to defeat the fatal disease, anti-retrovirals may have to be taken by Zanu PF. But with its tendency to postpone bitter medicines, they may be given too late to the patient. By the time Gono buys the foreign currency at Harare’s 4th Street mobile alternative exchange bureaus necessary to import the anti-retrovirals, they may indeed be more dangerous to the body than remedial.
As the dead cockerel Party walks up the banks of the mythical River Styx on its way to Judgment, it may be faced with the true revolutionaries who once doubted Mugabe’s leadership waiting to ask a few questions? “Jonathan who?” “Gideon who?”
Why did we reduce this “glorious revolution to a feudal agrarian enterprise?” “Is this what we fought for?”
Someone will have a sobering thought and say, “Firstly, he should not have polled. And the morning-after pills came too late”. A High Court judge will say it was not an urgent matter.
Any girl will tell you, you do not need morning-after pills if you have behaved responsibly. As the late musician Paul “Dr Love” Matavire put it, majichimbo-chimbo anofara musi wafa kondo ziso! Prey celebrates the demise of its predator.
Happy Independence Day!
Tererai Mafukidze is a Zimbabwean lawyer based in Johannesburg. He can be contacted on tereraim@gmail.com.
I do not have any intimate knowledge about unnatural contraception. I am Catholic and so we do not plan our children. I always marvel at those who claim to. I cannot imagine sitting down with my wife, with an Agenda for the day’s meeting, a minute taker and the resolutions book. There is certainly a good reason in nature why most animals cannot breed in captivity. Catholics have their point, but do not ask me why I still have two children.
Many women will tell you that if they engage in an activity that may result in them falling pregnant against their will, they rush to the nearest pharmacy presumably on the next morning and purchase the wonder pills named the morning-after. The pills are designed to prevent breams and tiger fish in the Zambezi River’s upstream flow from finding a hospitable valley of fertility. For the medicine to gather and put back the bolting donkeys in the stable, it must be taken within 72 hours of the activity. The pharmacist is ethically required to give some counselling before dispensing them. The woman must be told that this is not a regular contraceptive. Put in another way, it is an “emergency kick-out panel”. The Pope and others consider this murder still.
If you do not take it within the required period, you risk giving birth to a baby or more with clenched fists and a naughty smile. When you undo the clenches, you may find the progeny holding the belated morning-after pills. Like election results posted outside polling stations!
The tragic-comedy that engulfs the Presidential results shows that Mugabe has decided to take his morning-after pills long after the 72 hour period. How else do you explain fraud charges against Binga ZEC officers? Some of the charges according to the state-owned Herald of the 16th April, 2008, allege that they recorded Tsvangirai as having 16 492 votes instead of 16 493, a difference of one vote! It is alleged that they recorded the Zanu PF’s candidate as having 2 794 votes instead of 2 798, a difference of 4 votes. In another instance it is alleged that they gave Langton Towungana, a presidential candidate, 107 votes instead of 111? Can anyone seriously prove any criminal intent to defraud? What happened to innocent counting errors? I thought the law has a rule expressed in Latin as, de minimis non curat lex? This means that the law does not concern itself with trivialities.
What will the morning-after pills achieve now? Mugabe either has to abort the foetus or give birth to an unwanted baby. A rerun will not reverse all the risks that unprotected polling brings. Even a ten thousand generals with freshly imported Chinese ammunition, a supine state press, a marauding militia, comical spokespersons, a lame-duck South African President, designer clothes and 400 motor vehicles driven by medical doctors will not help. A fatal disease may have been contracted.
Liberation movements have shown consistently that they cannot easily change from the autocratic military movements to democratic parties demanded of modern governments. This is why I prophesy that whatever happens, Zanu PF has contracted a disease that will claim its life. Kenneth Kaunda’s UNIP has virtually disappeared in Zambia. It has about 2 seats in the current Parliament. Kaunda will outlive it. Kamuzu Banda’s Malawi Congress Party is dying in Malawi. Jomo Kenyatta and Daniel arap Moi’s KANU is dying in Kenya.
Chama Chama Pinduzi of Tanzania has survived because it has managed to change. When Julius Nyerere threw in the towel on his own terms, Ali Hassan Mwinyi took up the mantle, followed by Benjamin Mkapa and now Julius Kikwete. In Mozambique, they are on their second President since the death of Samora Machel in 1986. On Seretse Khama’s death, Siketumile Masire took over in Botswana. He was succeeded by Festus Mogae. Mogae has just stepped down one and half years before the end of his second term, to allow Iain Khama the chance to prove that he can lead the Tswana.
Zanu PF has no succession plan. Like an old fractured horse, it may need to be put down. Rumours abound amongst its zealots indicate that they want a rerun after taking some contraception. They may dispense with the need for morning-after pills this time. It is said that after some 18 months, someone will take over from Mugabe.
However, they may have already contracted the fatal disease. Like its sister change-resistant liberation movements across the continent, Zanu PF detests democracy, the intelligent and the young. The next crop of “leaders” by age is Bright Matonga, Patrick Zhuwawo and Saviour Kasukuwere. They make me laugh. Not-so-Bright Matonga makes people who watch him on international television news channels laugh at me as a Zimbabwean.
When rumours of alternative candidates to Mugabe were spreading last year, Oppah Zvipange Charm Muchinguri, the Zanu PF’s Women’s League leader, threatened to strip naked if anyone dares challenge Mugabe. She was walloped in the parliamentary elections on March 29. Makoni’s late challenge cost us a strip show. His upmarket Harare underwear business would have benefited from this enterprise. And people say he has business acumen! You would have thought Muchinguri, who witnessed the death of the legendary Josiah Tongogara had learnt some principle. No, it’s all profanity.
In order to defeat the fatal disease, anti-retrovirals may have to be taken by Zanu PF. But with its tendency to postpone bitter medicines, they may be given too late to the patient. By the time Gono buys the foreign currency at Harare’s 4th Street mobile alternative exchange bureaus necessary to import the anti-retrovirals, they may indeed be more dangerous to the body than remedial.
As the dead cockerel Party walks up the banks of the mythical River Styx on its way to Judgment, it may be faced with the true revolutionaries who once doubted Mugabe’s leadership waiting to ask a few questions? “Jonathan who?” “Gideon who?”
Why did we reduce this “glorious revolution to a feudal agrarian enterprise?” “Is this what we fought for?”
Someone will have a sobering thought and say, “Firstly, he should not have polled. And the morning-after pills came too late”. A High Court judge will say it was not an urgent matter.
Any girl will tell you, you do not need morning-after pills if you have behaved responsibly. As the late musician Paul “Dr Love” Matavire put it, majichimbo-chimbo anofara musi wafa kondo ziso! Prey celebrates the demise of its predator.
Happy Independence Day!
Tererai Mafukidze is a Zimbabwean lawyer based in Johannesburg. He can be contacted on tereraim@gmail.com.
Can a Judge be Acting Attorney General?
By Tererai Mafukidze
The recent announcement that Justice Bharat Patel had been appointed the Acting Attorney General of Zimbabwe has raised serious concerns about judicial appointments, judicial independence and the separation of powers in general. These concerns arise if he has not or did not on acceptance of the appointment resign from his position as Judge of the High Court.
It is as well settled that a sitting judge cannot be an Attorney General, albeit an acting one, as it is that it is impossible for an Attorney General to be appointed an Acting Judge. The offices are mutually exclusive.
The AG is the “principal legal adviser to Government”. He is an ex-officio member of Cabinet and Parliament though he lacks voting powers in both. He is also the chief Prosecutor who institutes and undertakes criminal proceedings before any court on behalf of the state. He can order the Police to investigate any matter he believes may involve criminal conduct.
Whenever the AG is unable to discharge his functions, as in the case of Mr. Sobhuza Gula-Ndebele, a/the Deputy Attorney General will be designated by the President to act in his place. At the time the AG was suspended, there was no Deputy Attorney General in office. Three have recently been appointed subsequent to the appointment of Justice Patel. I will not debate whether the President has power to appoint an Acting AG outside the offices of Deputy Attorneys General. That is another matter.
The AG's terms and conditions of office, including salary and allowances are set by the President, while the salary and allowances of judges are set by Parliament through a law. The system adopted for the payment of judges' salaries and benefits is meant to enhance their independence, particularly, from the executive branch of government. It ensures that our judges are not beholden to any person. By accepting this appointment, Justice Patel has put himself in danger of being beholden to the Executive. Such control of a judicial officer contravenes the independence of the judiciary as enshrined in the Constitution.
Judges are appointed to adjudicate disputes and other matters associated with judicial work. They are there to settle disputes between private citizens, between state and citizens. They are not government agents and cannot in their discharge of functions be under the direction of any persons.
In taking the Judicial Oath in terms of the Constitution, the Judge undertakes that he or she “will do right to all manner of people after the laws and usages of Zimbabwe, without fear or favour, affection or ill-will”. In the Cabinet Oath taken recently by Justice Patel as the Acting Attorney General he undertakes “to freely give (my) counsel and advice to the President of Zimbabwe for the good management of the public affairs of Zimbabwe”. The differences in oaths is not fortuitous. Cabinet members are not expected to act like judges. Political office requires less virtue!
Judges have been appointed in Zimbabwe to head commissions of inquiry which is not essential judicial work. Such appointments are generally accepted because they are simply asked to inquire and report. Even in this instance, the appointments must be made in the few and select cases where their skill as judges to “dissect and analyse evidence, appraise witnesses, exercise a fair and balanced judgment, write a clear and coherent report” are important.
The conduct of some war veterans during the Inquiry into the War Victims Compensation Fund showed clearly the undesirability of using judges. The sight of war veterans behaving riotously in a court room in front of then Judge President Chidyausiku was a big slight on his judicial personage and an affront to the decency expected of proceedings before a judge.
Restrictions on Judges Extra-Judicial Activities
In modern jurisdictions a judge cannot accept appointment to another public office if the duties of the judicial office and the other public office “cannot be faithfully and impartially discharged by the same person”. Further, a judge cannot accept the position if it is incompatible “with the proper performance by the judiciary of its responsibilities as an institution exercising judicial power”
As an Australian court put it;
l incompatibility might consist in so permanent and complete commitment to the performance of non-judicial functions by a judge that the further performance of judicial functions by the judge is not practicable.
l It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions is compromised or impaired.
l Or might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished”
With respect, the appointment of a sitting judge to the office of Acting Attorney General cannot pass any of the aforesaid test factors. It is quite obvious that in the discharge of his mandate as AG, the judge is not solely dealing with law but with matters that are partial to the State and political. His membership of Parliament and Cabinet exposes him to the vagaries of politics which in turn make him unsuitable to remain in judicial office where the demands of his office are different and sacrosanct.
In his discharge of his mandate other than the power to prosecute and investigate, he is subject to the direction from the Executive. He is not free from political influence and there is a realistic prospect of him exercising political discretion. The work to be done is “an integral part of, or closely connected with functions of the legislature or the Executive Government”.
Public confidence in the Judiciary is undermined whenever judges are perceived to have been handicapped in their ability to decide matters independently and impartially. As has been aptly put by Lord Bingham, “a judge should be a political eunuch.” If he was a member of a political party he must cease to be one on appointment. Subsequently, he must do nothing which could give rise to any suggestion of political partisanship. The Burgh House Principles on The Independence of International Judiciary set out the same requirements.
There is persuasive guidance from the Supreme Court of India which had occasion in 2002 to deal with a similar matter. The court noted that a Judge assigned an executive office could not have the right to revert to the Bench. Judges would have the right to revert to their positions on the Bench if say they have been appointed to head commissions of inquiry. Where judges have taken up executive offices, they must lose the right to reversion. Any subsequent return to the Bench should start with the usual appointment procedures. Unless we guard against these practices, what would stop the Executive from appointing a sitting judge as the Acting Commissioner of Police, Acting Minister of Security, etc?
The Indian Supreme Court further emphasised that; “Independence and impartiality are two basic attributes essential for a proper discharge of judicial functions. A judge of a High Court is, therefore, required to discharge his duties consistently with the conscience of the constitution and the laws and according to the dictates of his own conscience and he is not expected to take orders from anyone...He, therefore, belongs to the third organ of the State which is independent of the other two organs, the Executive and the Legislature. It is, therefore, plain that a person belonging to the judicial wing of the State can never be subordinate to the two other wings of the State. A Judge of the High Court, therefore, occupies a unique position under the constitution. He would not be able to discharge his duty without fear or favour, affection or ill will, unless he is totally independent of the Executive, which he would not be if he is regarded as a government servant. He is clearly a holder of a constitutional office and is able to function independently and impartially because he is not a government servant and does not take orders from anyone.”
It further emphasised that judicial independence was part of the basic structure of the constitution to secure the rule of law essential for the preservation of a democratic system.
Closer to home, the Lesotho Appeal Court was called upon in 1985 to decide a matter which raised issues similar to the appointment of Justice Patel. The King had appointed a Prosecutor as an Acting Judge of the High Court. The Court ruled that the appointment was inimical to independence of the judiciary. The Prosecutor had to resign his position before he could take up judicial office even in an acting capacity. It further noted that the Courts must be free and self-governing and not dependent upon the authority of another body nor be in a position of subordination or subject to external control. In declaring the appointment unlawful, the Court further noted that the public would not feel confident that the courts were independent of the Executive, even though they might in fact be so independent.
While the Lesotho matter dealt with an exact opposite of what has transpired in Zimbabwe, the principles remain the same. A Judging Prosecutor is as unlawful as a Prosecuting Judge!
Desirability of the Candidate
Justice Patel is a talented lawyer. He served the Attorney General's Office well over many years. He appeared and argued brilliantly in many cases before the superior courts of the country. He has previously been the Deputy Attorney General and acted as Attorney General when Andrew Chigovera left. As an individual, he is probably one of the most deserving of the position.
But the matter is not about desirability. Constitutional incompatibility of his role as a judge and his appointment to act as the Attorney General is the problem.
Justice Patel's sharp mind and judicial skills may well help in bringing some stability to the office of the Attorney General. He may have an independent mind that allows him to handle the challenges in an exceptional manner. He may be desirable in the light of the political drama surrounding the arrest and suspension of Gula-Ndebele. However, his appointment is unconstitutional unless he relinquishes the office of judge of the High court without any right of reversion.
Taking into account the suddenness of the appointment, I doubt whether Justice Patel has not left matters that are partly heard and judgments pending. Is he going to put on his gown and wig and deal with them as a judge, or the parties have to wait until his redeployment as Acting attorney General is over. He may able to write the judgments, but imagine an accused person being convicted in a criminal matter by the Acting Attorney General, who is in fact the Prosecuting Authority? This would appear to violate the elementary principles of natural justice that require clear separation between the prosecuting authority and the Judge.
Any action taken by Justice Patel if he continues to ride both horses faces the real risk of being declared illegal and invalid.
As was stated in the 1989 American case of Mistretta v United States, “[The Judicial Branch's] reputation may not be borrowed by political Branches to cloak their work in the neutral colors of judicial action”.
The constitutional imperative for a sitting judges to not take up posts that conflict with his work is long-established. As the US judge Justice Harlam F. Stone noted in his letter to Newton D. Baker some 80 years ago;
“It has been a long tradition of our Court that its members do not serve on committees or perform other services not having a direct relationship to the work of the Court”.
Put simply, a Premier League soccer referee can not play for Dynamos FC, even for a temporary period.
Conclusion
I earnestly hope that this embarrassingly untenable incestuous constitutional imbroglio will be immediately brought to an end. The Law Society must, like sister organisations in both India and Lesotho take the necessary legal action to ensure that this is untangled. More than anyone else they understand the danger that this situation poses for constitutionalism, human rights and the rule of law. Constitutional values cannot be sacrificed at the altar of political expediency.
Tererai Mafukidze is a Zimbabwean lawyer. He writes in his individual capacity.
The recent announcement that Justice Bharat Patel had been appointed the Acting Attorney General of Zimbabwe has raised serious concerns about judicial appointments, judicial independence and the separation of powers in general. These concerns arise if he has not or did not on acceptance of the appointment resign from his position as Judge of the High Court.
It is as well settled that a sitting judge cannot be an Attorney General, albeit an acting one, as it is that it is impossible for an Attorney General to be appointed an Acting Judge. The offices are mutually exclusive.
The AG is the “principal legal adviser to Government”. He is an ex-officio member of Cabinet and Parliament though he lacks voting powers in both. He is also the chief Prosecutor who institutes and undertakes criminal proceedings before any court on behalf of the state. He can order the Police to investigate any matter he believes may involve criminal conduct.
Whenever the AG is unable to discharge his functions, as in the case of Mr. Sobhuza Gula-Ndebele, a/the Deputy Attorney General will be designated by the President to act in his place. At the time the AG was suspended, there was no Deputy Attorney General in office. Three have recently been appointed subsequent to the appointment of Justice Patel. I will not debate whether the President has power to appoint an Acting AG outside the offices of Deputy Attorneys General. That is another matter.
The AG's terms and conditions of office, including salary and allowances are set by the President, while the salary and allowances of judges are set by Parliament through a law. The system adopted for the payment of judges' salaries and benefits is meant to enhance their independence, particularly, from the executive branch of government. It ensures that our judges are not beholden to any person. By accepting this appointment, Justice Patel has put himself in danger of being beholden to the Executive. Such control of a judicial officer contravenes the independence of the judiciary as enshrined in the Constitution.
Judges are appointed to adjudicate disputes and other matters associated with judicial work. They are there to settle disputes between private citizens, between state and citizens. They are not government agents and cannot in their discharge of functions be under the direction of any persons.
In taking the Judicial Oath in terms of the Constitution, the Judge undertakes that he or she “will do right to all manner of people after the laws and usages of Zimbabwe, without fear or favour, affection or ill-will”. In the Cabinet Oath taken recently by Justice Patel as the Acting Attorney General he undertakes “to freely give (my) counsel and advice to the President of Zimbabwe for the good management of the public affairs of Zimbabwe”. The differences in oaths is not fortuitous. Cabinet members are not expected to act like judges. Political office requires less virtue!
Judges have been appointed in Zimbabwe to head commissions of inquiry which is not essential judicial work. Such appointments are generally accepted because they are simply asked to inquire and report. Even in this instance, the appointments must be made in the few and select cases where their skill as judges to “dissect and analyse evidence, appraise witnesses, exercise a fair and balanced judgment, write a clear and coherent report” are important.
The conduct of some war veterans during the Inquiry into the War Victims Compensation Fund showed clearly the undesirability of using judges. The sight of war veterans behaving riotously in a court room in front of then Judge President Chidyausiku was a big slight on his judicial personage and an affront to the decency expected of proceedings before a judge.
Restrictions on Judges Extra-Judicial Activities
In modern jurisdictions a judge cannot accept appointment to another public office if the duties of the judicial office and the other public office “cannot be faithfully and impartially discharged by the same person”. Further, a judge cannot accept the position if it is incompatible “with the proper performance by the judiciary of its responsibilities as an institution exercising judicial power”
As an Australian court put it;
l incompatibility might consist in so permanent and complete commitment to the performance of non-judicial functions by a judge that the further performance of judicial functions by the judge is not practicable.
l It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions is compromised or impaired.
l Or might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished”
With respect, the appointment of a sitting judge to the office of Acting Attorney General cannot pass any of the aforesaid test factors. It is quite obvious that in the discharge of his mandate as AG, the judge is not solely dealing with law but with matters that are partial to the State and political. His membership of Parliament and Cabinet exposes him to the vagaries of politics which in turn make him unsuitable to remain in judicial office where the demands of his office are different and sacrosanct.
In his discharge of his mandate other than the power to prosecute and investigate, he is subject to the direction from the Executive. He is not free from political influence and there is a realistic prospect of him exercising political discretion. The work to be done is “an integral part of, or closely connected with functions of the legislature or the Executive Government”.
Public confidence in the Judiciary is undermined whenever judges are perceived to have been handicapped in their ability to decide matters independently and impartially. As has been aptly put by Lord Bingham, “a judge should be a political eunuch.” If he was a member of a political party he must cease to be one on appointment. Subsequently, he must do nothing which could give rise to any suggestion of political partisanship. The Burgh House Principles on The Independence of International Judiciary set out the same requirements.
There is persuasive guidance from the Supreme Court of India which had occasion in 2002 to deal with a similar matter. The court noted that a Judge assigned an executive office could not have the right to revert to the Bench. Judges would have the right to revert to their positions on the Bench if say they have been appointed to head commissions of inquiry. Where judges have taken up executive offices, they must lose the right to reversion. Any subsequent return to the Bench should start with the usual appointment procedures. Unless we guard against these practices, what would stop the Executive from appointing a sitting judge as the Acting Commissioner of Police, Acting Minister of Security, etc?
The Indian Supreme Court further emphasised that; “Independence and impartiality are two basic attributes essential for a proper discharge of judicial functions. A judge of a High Court is, therefore, required to discharge his duties consistently with the conscience of the constitution and the laws and according to the dictates of his own conscience and he is not expected to take orders from anyone...He, therefore, belongs to the third organ of the State which is independent of the other two organs, the Executive and the Legislature. It is, therefore, plain that a person belonging to the judicial wing of the State can never be subordinate to the two other wings of the State. A Judge of the High Court, therefore, occupies a unique position under the constitution. He would not be able to discharge his duty without fear or favour, affection or ill will, unless he is totally independent of the Executive, which he would not be if he is regarded as a government servant. He is clearly a holder of a constitutional office and is able to function independently and impartially because he is not a government servant and does not take orders from anyone.”
It further emphasised that judicial independence was part of the basic structure of the constitution to secure the rule of law essential for the preservation of a democratic system.
Closer to home, the Lesotho Appeal Court was called upon in 1985 to decide a matter which raised issues similar to the appointment of Justice Patel. The King had appointed a Prosecutor as an Acting Judge of the High Court. The Court ruled that the appointment was inimical to independence of the judiciary. The Prosecutor had to resign his position before he could take up judicial office even in an acting capacity. It further noted that the Courts must be free and self-governing and not dependent upon the authority of another body nor be in a position of subordination or subject to external control. In declaring the appointment unlawful, the Court further noted that the public would not feel confident that the courts were independent of the Executive, even though they might in fact be so independent.
While the Lesotho matter dealt with an exact opposite of what has transpired in Zimbabwe, the principles remain the same. A Judging Prosecutor is as unlawful as a Prosecuting Judge!
Desirability of the Candidate
Justice Patel is a talented lawyer. He served the Attorney General's Office well over many years. He appeared and argued brilliantly in many cases before the superior courts of the country. He has previously been the Deputy Attorney General and acted as Attorney General when Andrew Chigovera left. As an individual, he is probably one of the most deserving of the position.
But the matter is not about desirability. Constitutional incompatibility of his role as a judge and his appointment to act as the Attorney General is the problem.
Justice Patel's sharp mind and judicial skills may well help in bringing some stability to the office of the Attorney General. He may have an independent mind that allows him to handle the challenges in an exceptional manner. He may be desirable in the light of the political drama surrounding the arrest and suspension of Gula-Ndebele. However, his appointment is unconstitutional unless he relinquishes the office of judge of the High court without any right of reversion.
Taking into account the suddenness of the appointment, I doubt whether Justice Patel has not left matters that are partly heard and judgments pending. Is he going to put on his gown and wig and deal with them as a judge, or the parties have to wait until his redeployment as Acting attorney General is over. He may able to write the judgments, but imagine an accused person being convicted in a criminal matter by the Acting Attorney General, who is in fact the Prosecuting Authority? This would appear to violate the elementary principles of natural justice that require clear separation between the prosecuting authority and the Judge.
Any action taken by Justice Patel if he continues to ride both horses faces the real risk of being declared illegal and invalid.
As was stated in the 1989 American case of Mistretta v United States, “[The Judicial Branch's] reputation may not be borrowed by political Branches to cloak their work in the neutral colors of judicial action”.
The constitutional imperative for a sitting judges to not take up posts that conflict with his work is long-established. As the US judge Justice Harlam F. Stone noted in his letter to Newton D. Baker some 80 years ago;
“It has been a long tradition of our Court that its members do not serve on committees or perform other services not having a direct relationship to the work of the Court”.
Put simply, a Premier League soccer referee can not play for Dynamos FC, even for a temporary period.
Conclusion
I earnestly hope that this embarrassingly untenable incestuous constitutional imbroglio will be immediately brought to an end. The Law Society must, like sister organisations in both India and Lesotho take the necessary legal action to ensure that this is untangled. More than anyone else they understand the danger that this situation poses for constitutionalism, human rights and the rule of law. Constitutional values cannot be sacrificed at the altar of political expediency.
Tererai Mafukidze is a Zimbabwean lawyer. He writes in his individual capacity.
When Justice Fails Orphaned Children
When Justice Fails Orphaned Children
Nherera inoguta musi unofa mai vayo, is a well known Shona saying. It means that an orphaned child faces a bleak future from the day it loses its mother. This must have been a heart-rending truism for the orphans of Batsirai Children’s Centre. The case I discuss in this article brings home the failure of our legal system to protect vulnerable children from Justice’s notorious delays!
Anyone who lived in Zimbabwe in 2005 will testify to the human suffering that was endured by many victims of what was named ‘Operation Murambatsvina’. If the inhuman operation was hard on families, imagine its impact on orphaned children relying on charity for their survival? The story of the orphaned children who lived at Batsirai Children’s Care in Hatcliffe is painful to read. It is worse that their attempt to vindicate for themselves some legal rights reveals a very sordid story of how the justice system in Zimbabwe works. It is particularly tragic that the High Court, which in law is the avowed ‘upper guardian of minor children’ is in fact guilty of failing them.
Background
In 2005, the Zimbabwe Lawyers for Human Rights approached the High Court on an urgent basis seeking to restore the staff and orphans to Batsirai Children’s Care, which had been destroyed during Operation Murambatsvina. It also sought to have despicable the Operation declared unlawful; stop the police and municipal police from ejecting them from the centre or destroying the property; and allow them to regain possession of the property. While the matter had been submitted on an urgent basis, it was dealt with as an ordinary application because by the time the application reached court, the property had already been destroyed; the children had, according to the judgment, ‘already been catered for at Caledonia farm’. The other reason provided was that the ‘structure which the applicant sought to re-erect is (was) not only illegal in that it was never approved by the...[City of Harare]...,but inhuman in that it is not fit for the intended use as a children’s home or care center (sic).’
The matter was heard by Justice Ben Hlatshwayo. The application was dismissed by the judge. The tragedy of this story is not simply the familiar suffering of victims of this operation. It is that it has taken 6 years for a judge of the High Court to deliver this judgment. This judgment was handed down on 29th September, 2011. The judge provides the reason for the delay in handing down judgment in a footnote as follows:
‘This judgment was completed and enrolled for handing down on June 21, 2006. However, because of the need to scan the photographs forming the last page of the judgment, there were delays as the High Court does not have the facilities. When the scanning was finally done, the record was misfiled and unfortunately forgotten. The follow-up was only made years later.’
This is no apology. Justice Hlatshwayo was a good teacher of tax law and practice. I am sure he would never have taken an excuse of the quality he gives from any of his students. Why should we take it from him?
Firstly, after reading the judgment one fails to understand why it was so vital for the two pictures- one of children eating outside and the other of children standing in front of a wooden cabin in a maize field- to be attached to the judgment. It is rare for court judgments to contain pictorial illustrations. They are usually reserved for cases involving infringements or passing-off of trademarks, where the picture is used to illustrate similarities or differences. Judges have always been content to describe the facts as they emerge from the evidence or their own observation. In fact, the learned judge aptly describes what he sought to illustrate with two colour pictures in these words on page 4 of the 6-paged judgment. He states:
‘The scanned pictures of the so-called children’s centre are attached at the end of this judgment. It consists of an open maize field with crops on two sides and bare ground in the centre and a wooden cabin at one end. The children sit on the dusty ploughed-up field and consume their rations in this most unhygienic environment. If they (sic) is anything to restore to them, it would be this bare, ploughed-up ground and wooden cabin.’
The fact that the learned judge was able to describe the supposed scene at the care centre should have concluded the matter. Yet according to the judge part of the delay in delivering the judgment was caused by the lack of scanning facilities at the High Court. The fact is it was not necessary to have pictorial representations for purposes of the judgment.
Secondly, if the High Court does not have facilities to scan, was it in the circumstances necessary for the judge to insist on providing the two pictures which are virtually of no aid? Strictly speaking, the photos are not even part of the judgment as they do not appear inside the text. They are mere attachments.
Thirdly, assuming for a moment that the pictures were indeed germane to the issues before him, could another solution have been arrived at seeing that the matter involved vulnerable minor children who are orphans? Was scanning the only suitable way of capturing the images even if the High Court did not have scanning facilities?
Fourth, the disappearance of the file remains to be fully explained. But in truth it is unlikely that the mystery goes beyond the judicial chambers. The judge says that ‘the record was misfiled and unfortunately forgotten.’ By whom, surely it has to be asked? Traditionally, a file in which a judge has prepared his judgment and awaits handing down must be kept under wraps. This is so because the judgment must only be publicly available when the judge is ready to hand it down. For the file to disappear with a ‘draft judgment’ is certainly odd and unacceptable. Many will recall the vicious attack that was directed towards the Supreme Court when a draft judgment circulated to fellow judges was reported in the press. The matter concerned the very emotive case of Dr McGowan. In fact, in most jurisdictions, including our own, serious secrecy procedures are followed with regards to draft judgments.
Fifth, as if to spread the blame, the judge states that the ‘follow-up was only made years later.’ It is not clear who made the follow-up. I presume it was one of the parties or their representatives. Unfortunately, this does not wash. A judge cannot say, it is partly your fault that you did not bother me enough! Would this have saved the file from being ‘misfiled’? For the record, several lawyers have complained to the Law Society about unanswered countless letters to judges enquiring about judgments.
Sixth, the child care centre involved has the right of appeal against the High Court judgment. What purpose would be served now by them appealing against this judgment to the Supreme Court some six years later? Have the children affected by this decision been spared the suffering occasioned by the delay? Can their rights be restored? Can the suffering, psychological, emotional and physical, be compensated if the Supreme Court were to decide otherwise?
Conclusion
This bizarrely delayed judgment has just shone some rare light into the dark corner of judicial poor performance and lack of accountability. We may never know how deep and dark the dungeon is. The Supreme Court has also set a poor example, with judgments outstanding for years in some cases. Lawyers are often reluctant to provide details of judgments that have been outstanding for inordinate periods for fear of upsetting our sometimes imperious judges. But complaints enhance rather than stifle judicial accountability, independence and public confidence. Records from the few lawyers who have had the courage to share reflect a shocking level of delays and neglect that would not be tolerated in any other occupation. Some countries have had to take a firm view of judicial indolence by setting strict standards on judgment delivery. In Kenya and Uganda, a maximum of 90 days is allowed. In India, judgment has to be delivered within 30 days and only in unusual and exceptional circumstances, should it go up to a maximum 60 days. In Guyana, a judge can be constitutionally removed from office for persistently not writing decisions or for continuously failing to give decisions and reasons therefor within the time limit set by parliament. In South Africa, no acting judge will be appointed to a substantive position if they have been guilty of delaying judgment delivery. Neither will a sitting judge be promoted if they are guilty of judicial indolence.
The cost to the society of delayed justice is immeasurable. It results in unnecessary suffering of litigants; poor recollection of evidence and issues; witnesses, lawyers and judges die; delay in the appeal process; loss of income in financial matters; loss of value in compensation cases; disappearance of records and files; deletion of transcription tapes; and a huge social and economic cost. Just delayed is justice denied. It is time for serious action in order to arrest this cancer of indolence.
Fiat justitia ruat caelum- let justice be done though the heavens may fall!
Tererai Mafukidze is a lawyer.
Nherera inoguta musi unofa mai vayo, is a well known Shona saying. It means that an orphaned child faces a bleak future from the day it loses its mother. This must have been a heart-rending truism for the orphans of Batsirai Children’s Centre. The case I discuss in this article brings home the failure of our legal system to protect vulnerable children from Justice’s notorious delays!
Anyone who lived in Zimbabwe in 2005 will testify to the human suffering that was endured by many victims of what was named ‘Operation Murambatsvina’. If the inhuman operation was hard on families, imagine its impact on orphaned children relying on charity for their survival? The story of the orphaned children who lived at Batsirai Children’s Care in Hatcliffe is painful to read. It is worse that their attempt to vindicate for themselves some legal rights reveals a very sordid story of how the justice system in Zimbabwe works. It is particularly tragic that the High Court, which in law is the avowed ‘upper guardian of minor children’ is in fact guilty of failing them.
Background
In 2005, the Zimbabwe Lawyers for Human Rights approached the High Court on an urgent basis seeking to restore the staff and orphans to Batsirai Children’s Care, which had been destroyed during Operation Murambatsvina. It also sought to have despicable the Operation declared unlawful; stop the police and municipal police from ejecting them from the centre or destroying the property; and allow them to regain possession of the property. While the matter had been submitted on an urgent basis, it was dealt with as an ordinary application because by the time the application reached court, the property had already been destroyed; the children had, according to the judgment, ‘already been catered for at Caledonia farm’. The other reason provided was that the ‘structure which the applicant sought to re-erect is (was) not only illegal in that it was never approved by the...[City of Harare]...,but inhuman in that it is not fit for the intended use as a children’s home or care center (sic).’
The matter was heard by Justice Ben Hlatshwayo. The application was dismissed by the judge. The tragedy of this story is not simply the familiar suffering of victims of this operation. It is that it has taken 6 years for a judge of the High Court to deliver this judgment. This judgment was handed down on 29th September, 2011. The judge provides the reason for the delay in handing down judgment in a footnote as follows:
‘This judgment was completed and enrolled for handing down on June 21, 2006. However, because of the need to scan the photographs forming the last page of the judgment, there were delays as the High Court does not have the facilities. When the scanning was finally done, the record was misfiled and unfortunately forgotten. The follow-up was only made years later.’
This is no apology. Justice Hlatshwayo was a good teacher of tax law and practice. I am sure he would never have taken an excuse of the quality he gives from any of his students. Why should we take it from him?
Firstly, after reading the judgment one fails to understand why it was so vital for the two pictures- one of children eating outside and the other of children standing in front of a wooden cabin in a maize field- to be attached to the judgment. It is rare for court judgments to contain pictorial illustrations. They are usually reserved for cases involving infringements or passing-off of trademarks, where the picture is used to illustrate similarities or differences. Judges have always been content to describe the facts as they emerge from the evidence or their own observation. In fact, the learned judge aptly describes what he sought to illustrate with two colour pictures in these words on page 4 of the 6-paged judgment. He states:
‘The scanned pictures of the so-called children’s centre are attached at the end of this judgment. It consists of an open maize field with crops on two sides and bare ground in the centre and a wooden cabin at one end. The children sit on the dusty ploughed-up field and consume their rations in this most unhygienic environment. If they (sic) is anything to restore to them, it would be this bare, ploughed-up ground and wooden cabin.’
The fact that the learned judge was able to describe the supposed scene at the care centre should have concluded the matter. Yet according to the judge part of the delay in delivering the judgment was caused by the lack of scanning facilities at the High Court. The fact is it was not necessary to have pictorial representations for purposes of the judgment.
Secondly, if the High Court does not have facilities to scan, was it in the circumstances necessary for the judge to insist on providing the two pictures which are virtually of no aid? Strictly speaking, the photos are not even part of the judgment as they do not appear inside the text. They are mere attachments.
Thirdly, assuming for a moment that the pictures were indeed germane to the issues before him, could another solution have been arrived at seeing that the matter involved vulnerable minor children who are orphans? Was scanning the only suitable way of capturing the images even if the High Court did not have scanning facilities?
Fourth, the disappearance of the file remains to be fully explained. But in truth it is unlikely that the mystery goes beyond the judicial chambers. The judge says that ‘the record was misfiled and unfortunately forgotten.’ By whom, surely it has to be asked? Traditionally, a file in which a judge has prepared his judgment and awaits handing down must be kept under wraps. This is so because the judgment must only be publicly available when the judge is ready to hand it down. For the file to disappear with a ‘draft judgment’ is certainly odd and unacceptable. Many will recall the vicious attack that was directed towards the Supreme Court when a draft judgment circulated to fellow judges was reported in the press. The matter concerned the very emotive case of Dr McGowan. In fact, in most jurisdictions, including our own, serious secrecy procedures are followed with regards to draft judgments.
Fifth, as if to spread the blame, the judge states that the ‘follow-up was only made years later.’ It is not clear who made the follow-up. I presume it was one of the parties or their representatives. Unfortunately, this does not wash. A judge cannot say, it is partly your fault that you did not bother me enough! Would this have saved the file from being ‘misfiled’? For the record, several lawyers have complained to the Law Society about unanswered countless letters to judges enquiring about judgments.
Sixth, the child care centre involved has the right of appeal against the High Court judgment. What purpose would be served now by them appealing against this judgment to the Supreme Court some six years later? Have the children affected by this decision been spared the suffering occasioned by the delay? Can their rights be restored? Can the suffering, psychological, emotional and physical, be compensated if the Supreme Court were to decide otherwise?
Conclusion
This bizarrely delayed judgment has just shone some rare light into the dark corner of judicial poor performance and lack of accountability. We may never know how deep and dark the dungeon is. The Supreme Court has also set a poor example, with judgments outstanding for years in some cases. Lawyers are often reluctant to provide details of judgments that have been outstanding for inordinate periods for fear of upsetting our sometimes imperious judges. But complaints enhance rather than stifle judicial accountability, independence and public confidence. Records from the few lawyers who have had the courage to share reflect a shocking level of delays and neglect that would not be tolerated in any other occupation. Some countries have had to take a firm view of judicial indolence by setting strict standards on judgment delivery. In Kenya and Uganda, a maximum of 90 days is allowed. In India, judgment has to be delivered within 30 days and only in unusual and exceptional circumstances, should it go up to a maximum 60 days. In Guyana, a judge can be constitutionally removed from office for persistently not writing decisions or for continuously failing to give decisions and reasons therefor within the time limit set by parliament. In South Africa, no acting judge will be appointed to a substantive position if they have been guilty of delaying judgment delivery. Neither will a sitting judge be promoted if they are guilty of judicial indolence.
The cost to the society of delayed justice is immeasurable. It results in unnecessary suffering of litigants; poor recollection of evidence and issues; witnesses, lawyers and judges die; delay in the appeal process; loss of income in financial matters; loss of value in compensation cases; disappearance of records and files; deletion of transcription tapes; and a huge social and economic cost. Just delayed is justice denied. It is time for serious action in order to arrest this cancer of indolence.
Fiat justitia ruat caelum- let justice be done though the heavens may fall!
Tererai Mafukidze is a lawyer.
Reserve Bank Corrupting Judges
RESERVE BANK CORRUPTING JUDGES
By Tererai Mafukidze
It boggles the mind that the judiciary, which should be the most venerable institution in our country can be so naïve and desperate to accept “donations” from the Reserve Bank clearly in breach of all known constitutional and ethical principles.
It was reported with great delight by the Herald of the 1st August 2008, that the central bank had “donated” a fleet of new vehicles, generators, sets of plasma televisions, and full sets of satellite dishes for the sitting judges to improve their conditions of service. The report would shock any jurist who cares about judicial independence. The “donations” are unlawful and unconstitutional.
The Law
Firstly, the Constitution of Zimbabwe states clearly that the remuneration of judges should be charged on the Consolidated Revenue Fund. It clearly states in Section 88 (1) that;
“There shall be charged upon and paid out of the Consolidated Revenue Fund to a person who holds the office of or is acting as Chief Justice, a judge of the Supreme Court, Judge President of the High Court or a judge of the High Court such salary and allowances as may from time to time be prescribed by or under an Act of Parliament.”
Parliament passed the Judges’ Salaries, Allowances and Pensions Act [Chapter 7:08] which empowers the president to set the conditions of service for the judges through a statutory instrument. The Minister of Finance is required to review salaries, pension benefits and allowances payable to judges whenever an increase is to be awarded to persons employed in the public service.
This is obviously an unsatisfactory and unconstitutional delegation of power by Parliament. It leaves the judiciary susceptible to control by the Executive through financial pressure. If the judges make judgments the Executive does not like, it punishes them by not paying competitively. Secondly, there is no relationship between the judges’ salaries and the salaries of civil servants. They perform different functions.
As observed by the Supreme Court of India:
“Judges are not ‘employees’ and judicial service is not service in the sense of ‘employment’. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as…Ministers and the Members of the Legislature.”
The responsibility to set the remuneration of judges in many progressive jurisdictions has now been given to commissions or bodies that are independent of the judiciary, parliament or the Executive. This achieves the necessary protection for judges from possible influence by the Executive through the use of financial means.
The Chief Justice of South Australia observed in 1997:
“Those who control the purse strings will always have some capacity to influence the actions of those who are dependent upon the contents of the purse . . . . . . There can be no doubt that executive government control over judicial salary fixation is always at least an incipient threat to judicial independence.”
Under the current Constitution, the central bank is not the custodian of the Consolidated Revenue Fund. It does not run the Treasury notwithstanding the grand-standing and improper splashing of state funds. Any payments from the Consolidated Fund must have statutory or constitutional permission. Judges are paid from the Treasury specifically because they are supposed to be independent. The charge on the Consolidated Fund ensures that there are funds always available to remunerate them. Their remuneration must be paid by the State. This also removes the danger of parties or other over-zealous entities making payments to judges on shaky philanthropic grounds.
How the central bank and its zealots end up “donating” various luxury goods and trinkets to the judges is beyond me. It sets a very dangerous precedent and poses a real threat to the rule of law, independence of judges and their impartiality. Their independence is the cornerstone of their impartiality.
International Standards
It is the international convention that no judge should receive any payment for his judicial work except as provided for under the necessary legislation. In other words, no matter how poorly-paid the judges maybe, Anglo American Corporation or Reserve Bank cannot pay them any salary or provide them with the necessities of life even if they are desperate. That responsibility lies with Treasury through the existing constitutional and statutory provisions.
“The Basic Principles on the Independence of the Judiciary” adopted by the United Nations General Assembly in 1985 clearly state that:
“The term of office of judges, their independence, security, adequate remuneration, and conditions of service, pensions and the age of retirement shall be adequately secured by law.”
The Latimer House Guidelines of the Commonwealth adopted with the full participation of Zimbabwe in 1998 provide under judicial funding that:
“Sufficient and sustainable funding should be provided to enable the judiciary to perform its functions to the highest standards. Such funds, once voted for the judiciary by the legislature, should be protected from alienation or misuse. The allocation or withholding of funding should not be used as a means of exercising improper control over the judiciary. Appropriate salaries and benefits, supporting staff, resources and equipment are essential to the proper functioning of the judiciary. As a matter of principle, judicial salaries and benefits should be set by an independent body and their value should be maintained.”
As was aptly put by the Indian Supreme Court in the All India Judges Association v. Union of India (AIR 1993 SC 2493) decision:
“Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is tried to say that those who are in want can not be free. Self -reliance is the foundation of independence. The Society has a stake in ensuring the independence of the judiciary, and no price is too heavy to secure it. To keep the judge in want of the essential accouterments and thus to impede them in the proper discharge of their duties is to impair and whittle away justice itself".
Improvement of Salaries and Benefits
It is the responsibility as the law stands of the President and the Minister of Finance to ensure that judges are adequately remunerated. Our judges are not and should never be a charity case. The salaries and benefits of judges must be set at the right levels and be known publicly in the same way changes to presidential or ministerial salaries and allowances is publicly gazetted. As Justice Francois-Beaudoil of Quebec, Canada observed:
“When you are reduced to begging for a decent salary, how can you be truly independent?”
Judicial office is a matter of great personal and professional sacrifice. It is very important that the benefits attract the best legal brains without making it difficult for them to maintain their families, earn and live a decent lifestyle. The structure of salaries and benefits must reflect the dignity of the judicial office. As Winston Churchill put it decades ago:
"Our aim is not to make our judges wealthy men, but to satisfy their needs to maintain a modest but dignified way of life suited to the gravity, and indeed, the majesty, of the duties they discharge."
We must make the remuneration of judges attractive so that we can defeat any temptation to corruption by the judiciary. This will not only be intended to benefit judges but the greater benefit is to the administration of justice itself. As was observed in March 1816 by Senator Henry Clay:
"The labourer is worthy of his hire; and if you do not give him the wages of honesty, it is to be apprehended the wages of corruption may, in process of time, come to be sought."
And yet while there is unanimity that the conditions of service for judges need improvement, it does not mean that our judges must resort to luxuries delivered outside constitutional and legal imperatives. Even then, benefits that appear designed to suit farmers are in fact obscene. 4 by 4 trucks have nothing to do with the judges’ ability to discharge their judicial function.
Donations and Independence
These so-called “donations” have heavily compromised the independence of the judiciary. How does a party who has a dispute against the Reserve Bank or its Governor believe that he will receive justice from a judge who is watching a plasma screen powered by a generator provided by one of the parties? Judges are not required to be independent only. They are required to be seen to be independent. Any perception that judges are in the pocket of one institution or a party to a dispute or that they have lost their ability to discharge their responsibilities without fear or favour, further harms the already tattered reputation of our legal system.
As it stands, all the judges who have received these donations are disqualified from hearing matters involving the Reserve Bank or its alter ego, “Our Governor”. You would expect those that demand high standards of corporate governance from bank directors to understand that a lot more is demanded of judges. The reputation of judges stands or falls on their moral authority. If this “donation” practice is not nipped in the bud, what stops accused persons or litigants donating groceries, cigarettes, and sanitary ware, fertilizer, whisky and Farmer shoes to the obviously underpaid judges?
The honour and principles of human beings are put at the greatest test in times of hardship. It is at these times that those who are principled must suppress the obvious temptation of luxury to uphold and defend the principles and ethos of our legal order.
Acceptable Donations to courts
It is common in developing countries for judiciaries to receive donor-funding. But that donor-funding is targeted towards the improvement of the institutions of administration of justice and not for the personal and family or farming comfort of judges. The funding is provided for specific projects and the purchase of books and equipment. The funding is secured from foreign entities and not from entities within the jurisdiction of Zimbabwean courts. This ensures that the independence of judges is not compromised by benefits received from potential litigants. The funds are managed in a transparent manner and usually through a public trust. Proper donations directed at improving the administration of justice can do wonders. When not done properly, they pose a serious danger to our constitutional values.
I therefore call upon the Honourable judges to return the “donations” received from the Reserve Bank. Any efforts to improve their conditions of service must be done in terms of the law as currently provided. It remains for the individual conscience of each judge to guide them on whether they can serve their oath of office as required by the Constitution while receiving alms from unlawful sources.
Legal Action
Should the learned judges not heed my call to return these unlawfully received luxuries, it is imperative for the Law Society to take legal action to protect the independence and integrity of the judiciary. The only difficulty they will face is that if all the judges have received these luxuries, none of them will be allowed by law to hear this matter. This will necessitate the employment of possibly foreign acting judges to hear the challenge. These judges will need to be paid in foreign currency. And the Reserve Bank (which is also the Exchange Control Authority), who will certainly be one of the defendants together will all the judges in the case will not be friendly to this cause.
There are too many vivid lessons in history that the corruption of the legal system is the last act in the destruction of the rule of law, democracy and human rights. The independence of our judges is the foundation of our constitution, our rights and our freedom. It cannot be compromised for personal comfort or political expediency. Once independent and impartial judges are gone, who will protect us?
Tererai Mafukidze is a lawyer. He writes in his personal capacity.
By Tererai Mafukidze
It boggles the mind that the judiciary, which should be the most venerable institution in our country can be so naïve and desperate to accept “donations” from the Reserve Bank clearly in breach of all known constitutional and ethical principles.
It was reported with great delight by the Herald of the 1st August 2008, that the central bank had “donated” a fleet of new vehicles, generators, sets of plasma televisions, and full sets of satellite dishes for the sitting judges to improve their conditions of service. The report would shock any jurist who cares about judicial independence. The “donations” are unlawful and unconstitutional.
The Law
Firstly, the Constitution of Zimbabwe states clearly that the remuneration of judges should be charged on the Consolidated Revenue Fund. It clearly states in Section 88 (1) that;
“There shall be charged upon and paid out of the Consolidated Revenue Fund to a person who holds the office of or is acting as Chief Justice, a judge of the Supreme Court, Judge President of the High Court or a judge of the High Court such salary and allowances as may from time to time be prescribed by or under an Act of Parliament.”
Parliament passed the Judges’ Salaries, Allowances and Pensions Act [Chapter 7:08] which empowers the president to set the conditions of service for the judges through a statutory instrument. The Minister of Finance is required to review salaries, pension benefits and allowances payable to judges whenever an increase is to be awarded to persons employed in the public service.
This is obviously an unsatisfactory and unconstitutional delegation of power by Parliament. It leaves the judiciary susceptible to control by the Executive through financial pressure. If the judges make judgments the Executive does not like, it punishes them by not paying competitively. Secondly, there is no relationship between the judges’ salaries and the salaries of civil servants. They perform different functions.
As observed by the Supreme Court of India:
“Judges are not ‘employees’ and judicial service is not service in the sense of ‘employment’. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as…Ministers and the Members of the Legislature.”
The responsibility to set the remuneration of judges in many progressive jurisdictions has now been given to commissions or bodies that are independent of the judiciary, parliament or the Executive. This achieves the necessary protection for judges from possible influence by the Executive through the use of financial means.
The Chief Justice of South Australia observed in 1997:
“Those who control the purse strings will always have some capacity to influence the actions of those who are dependent upon the contents of the purse . . . . . . There can be no doubt that executive government control over judicial salary fixation is always at least an incipient threat to judicial independence.”
Under the current Constitution, the central bank is not the custodian of the Consolidated Revenue Fund. It does not run the Treasury notwithstanding the grand-standing and improper splashing of state funds. Any payments from the Consolidated Fund must have statutory or constitutional permission. Judges are paid from the Treasury specifically because they are supposed to be independent. The charge on the Consolidated Fund ensures that there are funds always available to remunerate them. Their remuneration must be paid by the State. This also removes the danger of parties or other over-zealous entities making payments to judges on shaky philanthropic grounds.
How the central bank and its zealots end up “donating” various luxury goods and trinkets to the judges is beyond me. It sets a very dangerous precedent and poses a real threat to the rule of law, independence of judges and their impartiality. Their independence is the cornerstone of their impartiality.
International Standards
It is the international convention that no judge should receive any payment for his judicial work except as provided for under the necessary legislation. In other words, no matter how poorly-paid the judges maybe, Anglo American Corporation or Reserve Bank cannot pay them any salary or provide them with the necessities of life even if they are desperate. That responsibility lies with Treasury through the existing constitutional and statutory provisions.
“The Basic Principles on the Independence of the Judiciary” adopted by the United Nations General Assembly in 1985 clearly state that:
“The term of office of judges, their independence, security, adequate remuneration, and conditions of service, pensions and the age of retirement shall be adequately secured by law.”
The Latimer House Guidelines of the Commonwealth adopted with the full participation of Zimbabwe in 1998 provide under judicial funding that:
“Sufficient and sustainable funding should be provided to enable the judiciary to perform its functions to the highest standards. Such funds, once voted for the judiciary by the legislature, should be protected from alienation or misuse. The allocation or withholding of funding should not be used as a means of exercising improper control over the judiciary. Appropriate salaries and benefits, supporting staff, resources and equipment are essential to the proper functioning of the judiciary. As a matter of principle, judicial salaries and benefits should be set by an independent body and their value should be maintained.”
As was aptly put by the Indian Supreme Court in the All India Judges Association v. Union of India (AIR 1993 SC 2493) decision:
“Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is tried to say that those who are in want can not be free. Self -reliance is the foundation of independence. The Society has a stake in ensuring the independence of the judiciary, and no price is too heavy to secure it. To keep the judge in want of the essential accouterments and thus to impede them in the proper discharge of their duties is to impair and whittle away justice itself".
Improvement of Salaries and Benefits
It is the responsibility as the law stands of the President and the Minister of Finance to ensure that judges are adequately remunerated. Our judges are not and should never be a charity case. The salaries and benefits of judges must be set at the right levels and be known publicly in the same way changes to presidential or ministerial salaries and allowances is publicly gazetted. As Justice Francois-Beaudoil of Quebec, Canada observed:
“When you are reduced to begging for a decent salary, how can you be truly independent?”
Judicial office is a matter of great personal and professional sacrifice. It is very important that the benefits attract the best legal brains without making it difficult for them to maintain their families, earn and live a decent lifestyle. The structure of salaries and benefits must reflect the dignity of the judicial office. As Winston Churchill put it decades ago:
"Our aim is not to make our judges wealthy men, but to satisfy their needs to maintain a modest but dignified way of life suited to the gravity, and indeed, the majesty, of the duties they discharge."
We must make the remuneration of judges attractive so that we can defeat any temptation to corruption by the judiciary. This will not only be intended to benefit judges but the greater benefit is to the administration of justice itself. As was observed in March 1816 by Senator Henry Clay:
"The labourer is worthy of his hire; and if you do not give him the wages of honesty, it is to be apprehended the wages of corruption may, in process of time, come to be sought."
And yet while there is unanimity that the conditions of service for judges need improvement, it does not mean that our judges must resort to luxuries delivered outside constitutional and legal imperatives. Even then, benefits that appear designed to suit farmers are in fact obscene. 4 by 4 trucks have nothing to do with the judges’ ability to discharge their judicial function.
Donations and Independence
These so-called “donations” have heavily compromised the independence of the judiciary. How does a party who has a dispute against the Reserve Bank or its Governor believe that he will receive justice from a judge who is watching a plasma screen powered by a generator provided by one of the parties? Judges are not required to be independent only. They are required to be seen to be independent. Any perception that judges are in the pocket of one institution or a party to a dispute or that they have lost their ability to discharge their responsibilities without fear or favour, further harms the already tattered reputation of our legal system.
As it stands, all the judges who have received these donations are disqualified from hearing matters involving the Reserve Bank or its alter ego, “Our Governor”. You would expect those that demand high standards of corporate governance from bank directors to understand that a lot more is demanded of judges. The reputation of judges stands or falls on their moral authority. If this “donation” practice is not nipped in the bud, what stops accused persons or litigants donating groceries, cigarettes, and sanitary ware, fertilizer, whisky and Farmer shoes to the obviously underpaid judges?
The honour and principles of human beings are put at the greatest test in times of hardship. It is at these times that those who are principled must suppress the obvious temptation of luxury to uphold and defend the principles and ethos of our legal order.
Acceptable Donations to courts
It is common in developing countries for judiciaries to receive donor-funding. But that donor-funding is targeted towards the improvement of the institutions of administration of justice and not for the personal and family or farming comfort of judges. The funding is provided for specific projects and the purchase of books and equipment. The funding is secured from foreign entities and not from entities within the jurisdiction of Zimbabwean courts. This ensures that the independence of judges is not compromised by benefits received from potential litigants. The funds are managed in a transparent manner and usually through a public trust. Proper donations directed at improving the administration of justice can do wonders. When not done properly, they pose a serious danger to our constitutional values.
I therefore call upon the Honourable judges to return the “donations” received from the Reserve Bank. Any efforts to improve their conditions of service must be done in terms of the law as currently provided. It remains for the individual conscience of each judge to guide them on whether they can serve their oath of office as required by the Constitution while receiving alms from unlawful sources.
Legal Action
Should the learned judges not heed my call to return these unlawfully received luxuries, it is imperative for the Law Society to take legal action to protect the independence and integrity of the judiciary. The only difficulty they will face is that if all the judges have received these luxuries, none of them will be allowed by law to hear this matter. This will necessitate the employment of possibly foreign acting judges to hear the challenge. These judges will need to be paid in foreign currency. And the Reserve Bank (which is also the Exchange Control Authority), who will certainly be one of the defendants together will all the judges in the case will not be friendly to this cause.
There are too many vivid lessons in history that the corruption of the legal system is the last act in the destruction of the rule of law, democracy and human rights. The independence of our judges is the foundation of our constitution, our rights and our freedom. It cannot be compromised for personal comfort or political expediency. Once independent and impartial judges are gone, who will protect us?
Tererai Mafukidze is a lawyer. He writes in his personal capacity.
Michael Mugabe Cannot Prosecute Mukoko and Others
Michael Mugabe cannot prosecute Mukoko and others
May 8, 2009
By Tererai Mafukidze
MICHAEL Mugabe, a state prosecutor and son of President Robert Mugabe’s late brother Donato, recently appeared on behalf of the State in the matter involving Zacharia Nkomo, Jestina Mukoko and many other persons accused of sabotage, espionage, terrorism and recruiting terrorists for military training in order to destabilise the country and remove the incumbent President violently from office.
The recent decision by the State to get the accused persons remanded in custody on the grounds that they had already been indicted for trial has been adequately ventilated elsewhere, with the result that political pressure was exerted on the Attorney-General and the accused persons have had their bail reinstated.
Resorting to political influence to correct even blatant injustices in the courts is a controversial area which is not the subject of my concern in this paper. But I will do well to warn that this practice breeds more evil than good. My present gripe is why Michael Mugabe should be allowed to act as a prosecutor in the matter involving allegations about planned unconstitutional removal of his father’s brother from office.
We should never lose sight of the seriousness with which Michael Mugabe takes his relationship with the President. It will be recalled that sometime in early 2008, a lawyer, Harrison Nkomo, who represents some of the accused persons in this matter was arrested and charged with “insulting the President” after Michael Mugabe laid a complaint against the lawyer with the police. The gravamen of the complaint was that the lawyer had allegedly requested that Michael informs his “father” of the citizens’ desire that he retires from office!
By Shona custom, your father’s male siblings are also your fathers. In the case of death of your biological father, one of his brothers, in fact, becomes your father. This is the status that President Mugabe enjoys in Michael’s life. The harassment and threats to Nkomo’s life that followed prompted the lawyer to take precaution and leave the country for his own safety.
In addition, one of the accused persons is Zacharia Nkomo. Zacharia Nkomo is a blood brother to Harrison Nkomo. As a representative of the Attorney General (the public officer constitutionally charged with prosecuting criminal offences) Michael Mugabe is required to be independent of any political or other influence in making decisions relating to the prosecution of the accused persons. His soiled relationship with Zacharia’s brother is a matter of personal interest to him. Does the prosecutor not have a score to settle with one of the Nkomos at a personal level?
I am would be naïve to believe that the deployment of Michael Mugabe to deal with this matter is mere coincidence. Allocation of sensitive cases is a matter of serious consideration in the Attorney General’s Office. The incumbent Attorney General has publicly announced his political affiliation notwithstanding that he is required to discharge the functions of his office in the public interest, without fear or favour. As a proud member of the sole ruling party at the time, he has a personal interest in the matter and so does the prosecutor he has allocated the case.
Will justice be seen to be done in this scenario?
The right to a fair trial is clearly set out in Section 18 (2) of the Zimbabwean Constitution. The right encompasses many factors that are designed to ensure that a person charged with criminal offences enjoys a fair trial conducted by an impartial tribunal. One of the key persons involved in a criminal trial is the state prosecutor who presents charges on behalf of the State. Such a role is in our law is reserved for a state prosecutor who can objectively, with the necessary detachment and impartiality present the state case. The state case ought to be presented fairly.
The full meaning of the constitutional right to a fair trial in these circumstances was articulated by Chief Justice Gubbay as follows in the 1997 case, Smyth v Ushewokunze:
“Section 18(2) embodies a constitutional value of supreme importance. It must be interpreted therefore in a broad and creative manner, so as to include within its scope and ambit, not only the impartiality of the decision making body, but the absolute impartiality of the prosecutor himself whose function, as an officer of the court, forms an indispensable part of the judicial process. His conduct must of necessity reflect on the impartiality or otherwise of the court.”
And so it is trite in our law that the right to a fair trial is heavily compromised if the prosecutor’s absolute impartiality is not guaranteed.
Chief Justice Gubbay, in the case involving Smyth and Ushewokunze (Prosecutor) set out the qualities expected of a prosecutor in the most erudite terms. Need I add that the judgment in the matter has been accepted in many jurisdictions worldwide as the leading case on the subject! Smyth had approached the highest court in the land seeking the removal of Ushewokunze as the prosecutor in his case. He alleged, among other things, that the prosecutor was waging a vendetta against him, allowing false allegations to be presented in court, threatening his arrest and making spurious allegations which the prosecutor knew to be untrue. The learned former Chief Justice citing various authorities put it as follows:
“A prosecutor must dedicate himself to the achievement of justice. He must pursue that aim impartially. He must conduct the case against the accused person with due regard to the traditional precepts of candour and absolute fairness. Since he represents the State, the community at large and the interests of justice in general, the task of the prosecutor is more comprehensive and demanding than that of the defending practitioner. Like Caesar’s wife, the prosecutor must be above any trace of suspicion. As a “minister of the truth” he has a special duty to see that the truth emerges in court. He must produce all relevant evidence to the court and ensure, as best he can, the veracity of such evidence. He must state the facts dispassionately. If he knows of a point in favour the accused, he must bring it out. If he knows of a credible witness who can speak of facts which go to show the innocence of the accused, he must himself call that witness if the accused is unrepresented; and if represented, tender the witness to the defence. If his own witness substantially departs from his proof, he must, unless there is special and cogent reason to the contrary, draw the attention of the court to the discrepancy, or reveal the seriously contradictory passage in the statement to the defending practitioner.”
Considering the political shenanigans that surround the abduction, detention, torture and ill-treatment of the accused persons by faceless state agents, it is most shocking that the matter would be handled by a prosecutor closely related to the President.
Will Michael Mugabe, aware of the huge political interest his father’s brother has in the matter, exude the necessary objectivity desired of a state prosecutor? Will he readily present evidence essential for the investigation of the truth if that evidence favours the accused persons like Zacharia Nkomo and Jestina Mukoko.
Jestina’s detention has been a major point of discussion and debate between political figures in Harare including his relative. The huge interest his close relative has in the matter is obvious as Robert Mugabe would have been the biggest victim of any of the alleged actions against his government.
In the same way that Ushewokunze was ordered off Smyth’s case on the grounds that the prosecutor was biased against the accused person, Michael Mugabe must be immediately ordered off the case. His closeness to the President who has a significant interest in this matter is likely to affect his objectivity, detachment and impartiality required of those that prosecute crimes on our behalf. The fact that Harrison Nkomo’s brother is one of the accused persons may invite ulterior considerations in the prosecution of the matter. This will result in the trial of the accused persons becoming a charade that is conducted to satisfy subjective interests of other persons.
It may be that Mugabe will do his job well as his professional obligations require him to do. Yet it is hard to imagine his participation in this case escaping public doubt and suspicion in the circumstances of this case. It is difficult to imagine any other situation that merits the old cliche that justice must not only be done, but must be seen to be done.
As Chief Justice Gubbay eloquently put it for the full Supreme Court bench:
“Like Caesar’s wife, the prosecutor must be above any trace of suspicion.”
(Tererai Mafukidze is a Zimbabwean lawyer who lives in Johannesburg. He can be contacted on tereraim@gmail.com)
May 8, 2009
By Tererai Mafukidze
MICHAEL Mugabe, a state prosecutor and son of President Robert Mugabe’s late brother Donato, recently appeared on behalf of the State in the matter involving Zacharia Nkomo, Jestina Mukoko and many other persons accused of sabotage, espionage, terrorism and recruiting terrorists for military training in order to destabilise the country and remove the incumbent President violently from office.
The recent decision by the State to get the accused persons remanded in custody on the grounds that they had already been indicted for trial has been adequately ventilated elsewhere, with the result that political pressure was exerted on the Attorney-General and the accused persons have had their bail reinstated.
Resorting to political influence to correct even blatant injustices in the courts is a controversial area which is not the subject of my concern in this paper. But I will do well to warn that this practice breeds more evil than good. My present gripe is why Michael Mugabe should be allowed to act as a prosecutor in the matter involving allegations about planned unconstitutional removal of his father’s brother from office.
We should never lose sight of the seriousness with which Michael Mugabe takes his relationship with the President. It will be recalled that sometime in early 2008, a lawyer, Harrison Nkomo, who represents some of the accused persons in this matter was arrested and charged with “insulting the President” after Michael Mugabe laid a complaint against the lawyer with the police. The gravamen of the complaint was that the lawyer had allegedly requested that Michael informs his “father” of the citizens’ desire that he retires from office!
By Shona custom, your father’s male siblings are also your fathers. In the case of death of your biological father, one of his brothers, in fact, becomes your father. This is the status that President Mugabe enjoys in Michael’s life. The harassment and threats to Nkomo’s life that followed prompted the lawyer to take precaution and leave the country for his own safety.
In addition, one of the accused persons is Zacharia Nkomo. Zacharia Nkomo is a blood brother to Harrison Nkomo. As a representative of the Attorney General (the public officer constitutionally charged with prosecuting criminal offences) Michael Mugabe is required to be independent of any political or other influence in making decisions relating to the prosecution of the accused persons. His soiled relationship with Zacharia’s brother is a matter of personal interest to him. Does the prosecutor not have a score to settle with one of the Nkomos at a personal level?
I am would be naïve to believe that the deployment of Michael Mugabe to deal with this matter is mere coincidence. Allocation of sensitive cases is a matter of serious consideration in the Attorney General’s Office. The incumbent Attorney General has publicly announced his political affiliation notwithstanding that he is required to discharge the functions of his office in the public interest, without fear or favour. As a proud member of the sole ruling party at the time, he has a personal interest in the matter and so does the prosecutor he has allocated the case.
Will justice be seen to be done in this scenario?
The right to a fair trial is clearly set out in Section 18 (2) of the Zimbabwean Constitution. The right encompasses many factors that are designed to ensure that a person charged with criminal offences enjoys a fair trial conducted by an impartial tribunal. One of the key persons involved in a criminal trial is the state prosecutor who presents charges on behalf of the State. Such a role is in our law is reserved for a state prosecutor who can objectively, with the necessary detachment and impartiality present the state case. The state case ought to be presented fairly.
The full meaning of the constitutional right to a fair trial in these circumstances was articulated by Chief Justice Gubbay as follows in the 1997 case, Smyth v Ushewokunze:
“Section 18(2) embodies a constitutional value of supreme importance. It must be interpreted therefore in a broad and creative manner, so as to include within its scope and ambit, not only the impartiality of the decision making body, but the absolute impartiality of the prosecutor himself whose function, as an officer of the court, forms an indispensable part of the judicial process. His conduct must of necessity reflect on the impartiality or otherwise of the court.”
And so it is trite in our law that the right to a fair trial is heavily compromised if the prosecutor’s absolute impartiality is not guaranteed.
Chief Justice Gubbay, in the case involving Smyth and Ushewokunze (Prosecutor) set out the qualities expected of a prosecutor in the most erudite terms. Need I add that the judgment in the matter has been accepted in many jurisdictions worldwide as the leading case on the subject! Smyth had approached the highest court in the land seeking the removal of Ushewokunze as the prosecutor in his case. He alleged, among other things, that the prosecutor was waging a vendetta against him, allowing false allegations to be presented in court, threatening his arrest and making spurious allegations which the prosecutor knew to be untrue. The learned former Chief Justice citing various authorities put it as follows:
“A prosecutor must dedicate himself to the achievement of justice. He must pursue that aim impartially. He must conduct the case against the accused person with due regard to the traditional precepts of candour and absolute fairness. Since he represents the State, the community at large and the interests of justice in general, the task of the prosecutor is more comprehensive and demanding than that of the defending practitioner. Like Caesar’s wife, the prosecutor must be above any trace of suspicion. As a “minister of the truth” he has a special duty to see that the truth emerges in court. He must produce all relevant evidence to the court and ensure, as best he can, the veracity of such evidence. He must state the facts dispassionately. If he knows of a point in favour the accused, he must bring it out. If he knows of a credible witness who can speak of facts which go to show the innocence of the accused, he must himself call that witness if the accused is unrepresented; and if represented, tender the witness to the defence. If his own witness substantially departs from his proof, he must, unless there is special and cogent reason to the contrary, draw the attention of the court to the discrepancy, or reveal the seriously contradictory passage in the statement to the defending practitioner.”
Considering the political shenanigans that surround the abduction, detention, torture and ill-treatment of the accused persons by faceless state agents, it is most shocking that the matter would be handled by a prosecutor closely related to the President.
Will Michael Mugabe, aware of the huge political interest his father’s brother has in the matter, exude the necessary objectivity desired of a state prosecutor? Will he readily present evidence essential for the investigation of the truth if that evidence favours the accused persons like Zacharia Nkomo and Jestina Mukoko.
Jestina’s detention has been a major point of discussion and debate between political figures in Harare including his relative. The huge interest his close relative has in the matter is obvious as Robert Mugabe would have been the biggest victim of any of the alleged actions against his government.
In the same way that Ushewokunze was ordered off Smyth’s case on the grounds that the prosecutor was biased against the accused person, Michael Mugabe must be immediately ordered off the case. His closeness to the President who has a significant interest in this matter is likely to affect his objectivity, detachment and impartiality required of those that prosecute crimes on our behalf. The fact that Harrison Nkomo’s brother is one of the accused persons may invite ulterior considerations in the prosecution of the matter. This will result in the trial of the accused persons becoming a charade that is conducted to satisfy subjective interests of other persons.
It may be that Mugabe will do his job well as his professional obligations require him to do. Yet it is hard to imagine his participation in this case escaping public doubt and suspicion in the circumstances of this case. It is difficult to imagine any other situation that merits the old cliche that justice must not only be done, but must be seen to be done.
As Chief Justice Gubbay eloquently put it for the full Supreme Court bench:
“Like Caesar’s wife, the prosecutor must be above any trace of suspicion.”
(Tererai Mafukidze is a Zimbabwean lawyer who lives in Johannesburg. He can be contacted on tereraim@gmail.com)
Law, Like Love
Law, Like Love
Law, say the gardeners, is the sun,Law is the oneAll gardeners obeyTo-morrow, yesterday, to-day.Law is the wisdom of the old,The impotent grandfathers feebly scold;The grandchildren put out a treble tongue,Law is the senses of the young.Law, says the priest with a priestly look,Expounding to an unpriestly people,Law is the words in my priestly book,Law is my pulpit and my steeple.Law, says the judge as he looks down his nose,Speaking clearly and most severely,Law is as I've told you before,Law is as you know I suppose,Law is but let me explain it once more,Law is The Law.Yet law-abiding scholars write:Law is neither wrong nor right,Law is only crimesPunished by places and by times,Law is the clothes men wearAnytime, anywhere,Law is Good morning and Good night.Others say, Law is our Fate;Others say, Law is our State;Others say, others sayLaw is no more,Law has gone away.And always the loud angry crowd,Very angry and very loud,Law is We,And always the soft idiot softly Me.If we, dear, know we know no moreThan they about the Law,If I no more than youKnow what we should and should not doExcept that all agreeGladly or miserablyThat the Law isAnd that all know thisIf therefore thinking it absurdTo identify Law with some other word,Unlike so many menI cannot say Law is again,No more than they can we suppressThe universal wish to guessOr slip out of our own positionInto an unconcerned condition.Although I can at least confineYour vanity and mineTo stating timidlyA timid similarity,We shall boast anyvay:Like love I say.Like love we don't know where or why,Like love we can't compel or fly,Like love we often weep,Like love we seldom keep. WH Auden
Law, say the gardeners, is the sun,Law is the oneAll gardeners obeyTo-morrow, yesterday, to-day.Law is the wisdom of the old,The impotent grandfathers feebly scold;The grandchildren put out a treble tongue,Law is the senses of the young.Law, says the priest with a priestly look,Expounding to an unpriestly people,Law is the words in my priestly book,Law is my pulpit and my steeple.Law, says the judge as he looks down his nose,Speaking clearly and most severely,Law is as I've told you before,Law is as you know I suppose,Law is but let me explain it once more,Law is The Law.Yet law-abiding scholars write:Law is neither wrong nor right,Law is only crimesPunished by places and by times,Law is the clothes men wearAnytime, anywhere,Law is Good morning and Good night.Others say, Law is our Fate;Others say, Law is our State;Others say, others sayLaw is no more,Law has gone away.And always the loud angry crowd,Very angry and very loud,Law is We,And always the soft idiot softly Me.If we, dear, know we know no moreThan they about the Law,If I no more than youKnow what we should and should not doExcept that all agreeGladly or miserablyThat the Law isAnd that all know thisIf therefore thinking it absurdTo identify Law with some other word,Unlike so many menI cannot say Law is again,No more than they can we suppressThe universal wish to guessOr slip out of our own positionInto an unconcerned condition.Although I can at least confineYour vanity and mineTo stating timidlyA timid similarity,We shall boast anyvay:Like love I say.Like love we don't know where or why,Like love we can't compel or fly,Like love we often weep,Like love we seldom keep. WH Auden
Kana Wamutanga Musikana
KANA WAMUTANGA MUSIKANA
BY MORDECAI A. HAMUTYINEI
Ichokwadi kuti inenge nhamo zvayo
Iyo ine hama dzedu vanasikana.
Nyangwe rudo rwukamubaya mwoyo somunzwa
Haakwanisi kutanga iye kurupa kumukomana.
Anoita zvose zvishereketo zvokukwezva
Asi kuti agotanga iye zvinogozha.
Zviri mumwoyo make zviri muninga, angatozviburitsa chete
Kana wamutanga musikana.
Uchitanga kumuona chete hana yako inorova.
Unobvuma kuti itsvarakadenga yado mwoyo.
Kunonoka usati wasvika, chingoti, ‘Ndinokuda’,
Unoona mwana ovhunduka, vhudzi rake kuti nyanyanya!
Kwauri ruziso kape, ndiye ramutuku sehandira;
Shoko rake ndiro rimwe, ‘Handikudi’.
Chirega uchiona mazauone, matindingoma,
Kana wamutanga musikana.
Hoyo zvino mwanasikana washaya shoko.
Otarisa pasi, otarise divi, otarisa mudenga.
Chimuti chotorwa chombotsengwa-tsengwa.
Otora rushamhu opura mashizha zvenhando.
Ongovhuna gumbo mwene sokuzvida.
Kana zvadai chifarira, ndoozvaanoita
Kana wamutanga musikana.
Kungoti bhi nehope rwauya rugwaro,
Mashoko akanyorwamo gumi nefararira.
Rako riya rinongotenderedzwa nebwoni.
Kuti aritaure zvakone n’anga.
Pamwe pakanzi, ‘Mudiw…’, ndokudzimwa.
Pamwe pakanzi, ‘Ndinokud…’, ndokudzimwazve.
Ichokwadi anoshaya nezano rose
Kana wamutanga musikana.
Pamwe ramangwani chienda kwaari uone,
Uchinatsa kumubvunza kana auya kutsime.
“Ko, washinga kuramba uhosi hwandanga ndakupa here?”
Hapoka, chauya chazuro, chiona zvoitwa.
Anomboti pamupfuti, pamutondo, dzamara zvagombera,
Wozonzwa, “Bva, ah, ndada hangu!”
Kazhinji ndozvaanoita
Kana wamutanga musikana.
Zvino chirega uchiona chava chipatapata
Wabata chakati tende, mazangandari.
Woira woriswa semhou ine nhinjana.
Kungoti tsvenzu wotobvunzwa kwawaswera.
Rwava rudo zvino, hapachina kupokana.
Iwe maheu wonwa naanoera.
Vehama, ndozvazvinoita parudzi rwedu
Kana wamutanga musikana.
© M. A. Hamutyinei, pp 17-18, Mabvumira Enhetembo, Mambo Press.
BY MORDECAI A. HAMUTYINEI
Ichokwadi kuti inenge nhamo zvayo
Iyo ine hama dzedu vanasikana.
Nyangwe rudo rwukamubaya mwoyo somunzwa
Haakwanisi kutanga iye kurupa kumukomana.
Anoita zvose zvishereketo zvokukwezva
Asi kuti agotanga iye zvinogozha.
Zviri mumwoyo make zviri muninga, angatozviburitsa chete
Kana wamutanga musikana.
Uchitanga kumuona chete hana yako inorova.
Unobvuma kuti itsvarakadenga yado mwoyo.
Kunonoka usati wasvika, chingoti, ‘Ndinokuda’,
Unoona mwana ovhunduka, vhudzi rake kuti nyanyanya!
Kwauri ruziso kape, ndiye ramutuku sehandira;
Shoko rake ndiro rimwe, ‘Handikudi’.
Chirega uchiona mazauone, matindingoma,
Kana wamutanga musikana.
Hoyo zvino mwanasikana washaya shoko.
Otarisa pasi, otarise divi, otarisa mudenga.
Chimuti chotorwa chombotsengwa-tsengwa.
Otora rushamhu opura mashizha zvenhando.
Ongovhuna gumbo mwene sokuzvida.
Kana zvadai chifarira, ndoozvaanoita
Kana wamutanga musikana.
Kungoti bhi nehope rwauya rugwaro,
Mashoko akanyorwamo gumi nefararira.
Rako riya rinongotenderedzwa nebwoni.
Kuti aritaure zvakone n’anga.
Pamwe pakanzi, ‘Mudiw…’, ndokudzimwa.
Pamwe pakanzi, ‘Ndinokud…’, ndokudzimwazve.
Ichokwadi anoshaya nezano rose
Kana wamutanga musikana.
Pamwe ramangwani chienda kwaari uone,
Uchinatsa kumubvunza kana auya kutsime.
“Ko, washinga kuramba uhosi hwandanga ndakupa here?”
Hapoka, chauya chazuro, chiona zvoitwa.
Anomboti pamupfuti, pamutondo, dzamara zvagombera,
Wozonzwa, “Bva, ah, ndada hangu!”
Kazhinji ndozvaanoita
Kana wamutanga musikana.
Zvino chirega uchiona chava chipatapata
Wabata chakati tende, mazangandari.
Woira woriswa semhou ine nhinjana.
Kungoti tsvenzu wotobvunzwa kwawaswera.
Rwava rudo zvino, hapachina kupokana.
Iwe maheu wonwa naanoera.
Vehama, ndozvazvinoita parudzi rwedu
Kana wamutanga musikana.
© M. A. Hamutyinei, pp 17-18, Mabvumira Enhetembo, Mambo Press.
The Future of Legal Practice in Zimbabwe
THE FUTURE OF LEGAL PRACTICE IN ZIMBABWE—A BIRD’S EYE VIEW. HOW DO YOU STAY AHEAD?
A paper written for and presented at the Strategic Retreat for Messrs. Kantor & Immerman
Tererai Mafukidze
1/22/2011
Imba Matombo, Harare, Zimbabwe
Not for publication
Table of Contents
Table of Contents. 2
“THE FUTURE OF LEGAL PRACTICE IN ZIMBABWE—A BIRD’S EYE VIEW. WHO DO YOU STAY AHEAD?” 4
Introduction. 4
Is Law a Business?. 6
What is the legal landscape going to be like?. 9
An international perspective. 10
Globalisation. 11
Communication and Technology. 12
Shareholder drive for higher profits. 15
The Unhappy Young Lawyer 16
Advertising prohibition. 16
Tendering for services. 17
Sharing risk with clients. 18
Restricted business forms for lawyers. 19
Multi-disciplinary Practices. 19
Developing new skills, new and innovative services. 21
Teamwork. 22
Fees. 23
The Scourge of the Billable Hour 25
The Courts, Litigation and Justice Delivery. 27
SUMMARY OF THE FUTURE.. 28
How do you stay ahead?. 29
External Analysis. 29
Branding. 30
Price or should I refer to it as fees. 31
Place/Distribution. 32
Promotion. 32
Communications Planning. 32
Contagion. 33
And so what are the current realities in marketing?. 34
Recruitment of lawyers. 36
Firm management 37
Specialisation. 38
The Courts and the Legal System.. 40
CONCLUSION.. 41
Bibliography. 43
“THE FUTURE OF LEGAL PRACTICE IN ZIMBABWE—A BIRD’S EYE VIEW. WHO DO YOU STAY AHEAD?”[1]
By TR Mafukidze[2]
Introduction
It is for me a great pleasure to come and speak to you about the future of legal practice in Zimbabwe, and how you can stay ahead. As some of you know, I ran away from the private practice of law after only three years. Maybe you need one who is not immersed in the subject to tell you how it looks from out here. As Lord MacMillan put it;
‘The Lawyer does well from time to time to lift his eyes from his desk and look on the wider world beyond.’[3]
Peter Williamson (2003), the then President of the Law Society of England & Wales expressed his own fears about the legal profession’s failure to adapt to change as follows;
‘If this profession does not adapt itself and fall into line with what the consumer of the 21st century wants from legal services...(be it litigation, conveyancing, wills or whatever) it will be done some other way. We have therefore to adapt, and it is no good standing and saying that we have traditions, and the way we have always done it is best. That is a recipe for disaster for this profession.’[4]
I have been asked to look into the seeds of time, and tell which seed will grow and which will not. It is a hard prediction to make. The wrong predictions one makes will live after them. People love to remember the wrong predictions. Yet, my task is less onerous than that of a fortune-teller.
I have been asked again to educate you on ‘how to stay ahead’. This latter part is pregnant. It assumes that you are ahead—and so desire to just stay ahead. I will not argue whether you are ahead or not. I will go with your assumption, for now.
The world has changed dramatically over the last 10 years. It continues to change. I can do no better than to agree with Leonard S. Janosky when he stated 30 years ago that;
‘No profession will long exist if its members spend their time in rearguard action fighting for past methods that are no longer responsive to need or economically sound. A profession whose leadership is primarily concerned with maintaining the status quo and building protectionist rules and tariffs is a deteriorating profession.’[5]
Is Law a Business?
Talking about law as a business is frowned upon by many lawyers and judges. To refer to a law firm as a business is considered a heresy. ‘This is a profession and not a business’ goes the frequent retort. But business simply means the investment of human effort for profit. Law is a business. You can never be successful as a law firm unless you treat your law firm as a business. By business, I do not mean that you should ingest many of the unscrupulous business practices that infest our business community. No. Yours is a higher calling that demands different standards of conduct. But never fool yourself. If you do not run your law firm like a business you are set to fail. At the same time, the profession is there to serve the community. This is why lawyers are some of the few members of professions that are required by law to render their services for free in certain circumstances.
Learned friends, despite the often glowing and heart-warming description of the practice of law, throughout the ages, from William Shakespeare in Henry VI to Mario Puzo in the Godfather,[6] lawyers have been accorded the most callous of reputations. Sometimes, they have been called by the names of nature’s greatest predators or its most unashamed scavengers. In recent times they have been called some of the vilest wealth-seekers.
Jonathan Swift was similarly scathing when he defined lawyers’ thus;
‘Lawyers, a society of men, bred up from their youth in the art of proving words, multiplied for the purpose and in a jargon of their own that no other mortal can understand that white is black and black is white, according as they are paid.’[7]
But there are some redeeming voices. Justice O’Connor of the United States Supreme Court said it eloquently in Shapero v Kentucky Bar Association in the following words;
‘One distinguishing feature of any profession, unlike other occupations that may be equally respectable, is that membership entails an ethical obligation to temper one’s selfish pursuit of economic success by adhering to standards of conduct that could not be enforced either by legal fiat or through the discipline of the market. There are sound reasons to continue pursuing the goal that is implicit in the traditional view of professional life. Both the special privileges incident to membership in the profession and the advantages those privileges give in the necessary task of earning a living are means to a goal that transcends the accumulation of wealth.’[8]
I may add that the American justice was opining this in the minority in a judgment dealing with restrictions on lawyer’s advertising in the State of Kentucky.
In his speech, ‘Examining Values’, delivered to the Australasian College of Surgeons,[9] the then Chief Justice of Australia, Mr. Murray Gleeson, noted that there is a world of difference between a profession and a business. In his view, the difference lay in that ‘professional people accept certain restraints on their capacity to pursue personal gain -restraints that go beyond the requirements of honesty and fair dealing that are accepted by decent people in any occupation.’
This is true with the legal profession in this country. The legal profession carries exacting responsibilities in our pursuit of a society that is free and open, where every person enjoys their human rights. The legal profession must be in the service of the public. For that reason, those who are called to serve in the legal profession are expected to serve with the highest standards of professional conduct. The highest standards of ethical conduct lie in the ability of lawyers to maintain the values that underlie the practice of law. The maintenance and sustenance of these values is a matter of great concern to us all. These values are honesty, integrity, sense of public duty and the desire to see justice done according to law. But professional values are constantly under strain. As Justice Gleeson put it;
‘The rules of professional practice, which impose restraints on the pursuit of self-interest, cannot be sustained merely by custom. This is an age that questions every rule and challenges every authority. Those questions and challenges cannot be met by an appeal to tradition. Tradition cuts no ice. Self-interest is clearly understood; but I am talking about restraints on the pursuit of enlightened self-interest. How can they be explained? They can be justified only in terms of values; and if the values are not shared, the justification carries no weight. It all comes back to values. That is the common challenge to our professions: to identify and maintain our values.’[10]
It must be emphasised that the legal profession is built a foundation of moral responsibilities. Legal ethics and professional responsibility are not mere rules. They ‘are also a commitment to honesty, integrity and service in the practice of law.’[11] While the practice of law is indeed done with an expectation of earning a reasonable income for the service, the legal profession can never be regulated as if it were another business in the service industry. Lawyers are not mere agents of the clients who have employed their skill and knowledge. They ‘are involved in the administration of justice according to law, a function on which a free and democratic society depends.’[12]
I must say something about the commitment to public service. We are a country of great of huge inequalities. Many of them are historical, and many we have manufactured for ourselves. Despite the strides we have made in seeking to bridge the gap between those that are wealth and citizens who live in constant deprivation, a lot of work remains. The differences in wealth are reflected no less in the challenges the poor face in accessing justice and, with that, access to legal advice and representation. The cost of accessing the legal services is prohibitive. The legal aid services are not working efficiently and cannot accommodate everyone. If I may borrow from Sir Anthony Mason, unless the legal profession ‘dedicates itself to the ideal of public service, it forfeits its claim to treatment as a profession in the true sense of the term. Dedication to public service demands not only attainment of a high standard of professional skill but also faithful performance of duty to client and court and a willingness to make the professional service available to the public.’[13]
But learned friends, can any lawyer meet these responsibilities on an empty stomach?
What is the legal landscape going to be like?
An international perspective
The leading law firm Eversheds have studied what they have termed ‘the client’s revolution’. They have published two reports entitled the Law Firm of the 21st Century. The second of the reports was published was as an analysis of the post-recession legal sector in 2010. The report is highly recommended. In his foreword, Bryan Hughes, the Chief Executive of Eversheds LLP notes;
‘General Counsel (corporate lawyers) are under pressure to deliver more for less. In turn, they are demanding reduced costs and greater value from the legal advisers. Quite rightly they want accountability when it comes to how their budgets are being spent and more imagination when it comes to fee structures. For law firms this has meant facing up to the challenge and change. Whilst some are holding fast, hoping that the boom times will return soon, the smarter ones are adapting for the longer term.’[14]
Eversheds identify four main drivers for change, namely globalisation (look east), increasing professionalism and status of General Counsel (corporate lawyers), technology and the Legal Services Act in the UK. According to Eversheds the ‘aftermath of the perfect storm’ is a revolution whereby the stakeholders in the legal market are properly aligned. These are their findings;
· Clients take centre stage- ‘balance of power shifts to clients and the legal sector enters the modern world; fee levels are set for long-term overall decline or stasis; General Counsel have increased status and expanded role in business’[15]
· Delivery of legal services is geared up to efficiency and value: ‘recession drives efficiency; legal services are increasingly unbundled, also contributing to efficiency; strategic resourcing through outsourcing and technology dramatically increased; the hourly rate is simply one billing tool among many; value enters the client-lawyer relationship through increased use of value billing and the development of value resourcing.’[16]
· Law firm market in flux: ‘law firm peer groups and categorisations re-align; less premium work means there is a new optimal size for large international law firm with less headcount and lower leverage; moderate growth will continue for mid-sized firms, at least in the medium term future; loyalty to partnership model continues to decline; other models develop; UK law firm leaders begin to see opportunities in the LSA.’
Globalisation
Firstly, no matter how much we parrot ‘sovereignty’, we are not an island. We will never be an island. The winds that blow in China, India, Brazil will find their way through our borders. Global business is having a huge impact on the way we provide services and manufacture products. Today, business seeks the cheapest sources of labour. We are constantly buying goods made in China and Vietnam, despite them carrying genuine iconic American logos. Accounting and consulting firms have opened offices across the entire globe, or have their presence through other means. Big law firms are doing the same. Consulting firms have shown their ability to draw on experiences derived from previous assignments wherever in the world they were undertaken. They have strategic assets like brand name, capital, technology and research and development capabilities to defeat local competition.[17]
Nearly 10 years ago, I was a member of Trust Bank Corporate Finance team that were local advisors on the proposed privatisation of Tel-One. We were working at risk. The external legal advisors were Clifford Chance, while the local ones were Sawyer & Mkushi. Clifford Chance walked away with USD 1m in legal fees. PwC were external financial advisors and they walked away with similar riches. The privatisation bid was stopped at the last leg. We walked away with nothing. We did a lot of work. Clifford Chance often sent one senior partner and a young South African lawyer to the assignment.
The lesson from that experience was that: global law firms and global accounting firms will compete in your territory, with better brands, more capital, more muscle and still feed in your trough. No law society has the ability to stop them. Money is not made through a right of appearance in court. By the time the matter goes to court, the clever ones would have long fed.
Taking this to a local level, do not be surprised to see South African law firms doing work in Zimbabwe. All they will need is a big business that believes in their brand, capital, technology and ability to deliver value. As we speak now, I am aware of at least one big SA law firm that has a department that deals with African work—this is work across the continent!
Communication and Technology
A story is told about how the arrival of the fax machine astounded legal secretaries. This brought demands for relatively instant communication and everything that came by fax was urgent. Now, observe what the arrival of email, text and the internet has done to communication. If I email you at 9am and ask;
‘Is there a right of appeal against a decision of the Commissioner of Taxes?’
I want an acknowledgment of that email immediately. I then expect the answer within hours. If you are silent, I will email another lawyer. By the time you get back to me after three days with 5 page ‘opinion’ citing 23 decisions of the Supreme Court, you are too late. I will neither accept nor pay for your time! This is the new world guys!
Physical proximity is no longer necessary for doing business. And so, a person seeking legal assistance in settling an acknowledgment of debt may receive electronic assistance from many places across the globe. Price will drive this.
‘The Internet increases buyer power by facilitating a customer’s comparison of services offered and prices charged by different providers.’[18]
In South Africa, a website www.hippo.co.za allows customers to compare insurance quotes for themselves before they decide on who to approach. A similar one www.autoworld.co.za allows a person looking to purchase a car to compare different models, calculate repayments, compare brand new and used cars and even pick dealers who have stock. It will not be long before clients are able to compare fees by visiting a middlemen service that offers comparative quotes on say, consensual divorce, maintenance applications, due diligences, criminal appeals etc. Similar middlemen services relating to legal services are available in Australia.
When I joined Messrs. Calderwood, Bryce-Hendrie and Partners of Bulawayo, in December 1996, I could not work a computer. My secretary had a typewriter. She was a shared resource. When I joined Scanlen and Holderness a year later, I had a secretary with a computer. I still could not make use of it in her absence. When I joined Old Mutual in August, 1999, I was presented with an office with a Compaq computer and a printer. The secretary for the department would come to my office a few times in a week to restart the machine after a few cock-ups. In 6 months, I had taught myself to use a computer. It was a painful exercise I would not wish anyone. But today, I rarely draft anything in long hand for anyone to type for me. I have spent a good part of the last 4 years of my career working on a project to provide free access to law via the internet. I have been to courts in the region and spoken to lawyers and judges and top civil servants. I have seen how information technology has driven major changes in the law. This is not change by choice it is imposed by the necessities of the law.
After my computer challenged years in I realised that computers should be compulsory subject in law school or at least for anyone over the age of 10! More than 14 years since I left law school, the university is still churning out lawyers who cannot work computers. If you cannot use a computer, you will be useless in ten years’ time! Clients are also expecting service delivery via the use of information technology. You will be required to answer clients’ queries via video conferencing, Skype etc to board meetings in progress.
This is not to say technology is going to eliminate the need for personal service provided by lawyers. As Harcup puts it;
‘Clients will still require the influencing, analytical and creative skills of human lawyers. Empathy and our use of language are the traits that distinguish us as humans from animals, or indeed computers. These skills will still be in demand from clients in the 21st century and will become even more important. On the other hand, less legal work will be available for solicitors because of the availability of online legal services for basic transactions.’[19]
Shareholder drive for higher profits
I am aware that your firm is seen as a corporate firm-one that places greater resources on serving corporate clients and doing commercial work. In the modern business world, you will not see Jack Welchs anymore. CEO will be replaced at quick pace. There is a strong drive by shareholders for higher returns and growth. CEO in turn have been driving towards the reduction of costs. Cost cutting initiatives are affecting legal work too. Your clients are scrutinizing your bills more than ever before.[20] As a result, there has been a major change in the way global business views legal services. They have segmented legal services into two broad categories, which are;
a. Commodity work
b. Value-added services
Commodity work is normally given to local firms, but we are beginning to see a trend whereby it is even farmed out to cheaper jurisdictions. Local firms are retaining a good part of the litigation work. But still, local firms are expected to provide good service at a low cost.[21]
Value-added services such as mergers and acquisitions and capital market transactions are being reserved for huge global firms. The clients are willing to pay top dollar for the best and will pay a premium to get the best law firm.[22]
So, you may well achieve the status of a corporate or commercial law firm, but you will not necessarily be earning the top dollar unless you can do not only the commodity services but also the value added work.
The Unhappy Young Lawyer
One of the worrying trends in the legal world today is that young lawyers are not prepared to wait for many years to become partners with equity in the law firm. Young lawyers are more married to their work than to the employer. Dunstone says that they ‘see each new position as a way of acquiring experience to equip them for their next ‘gig’. They also value flexibility, lifestyle and leisure time.’[23]
So the challenge is to put together a formidable team of legal professionals and yet you have challenges in recruiting and retaining them. We need not look beyond the ‘big law firms’ of the 1990s to see what poor succession planning and motivation culture can harm the future of a law firm.
Advertising prohibition
We have retained some of the most archaic professional rules of conduct in this country, in the same way we have continued with rules of court that have been discredited and abandoned in countries that gave birth to them in the first place. One such relic of the past is the prohibition on advertising. Many countries have accepted that legal practice is like any other business. It must be allowed to advertise for so long as the advertisement is truthful, in good taste and not misleading. I foresee in the near future either a change in legislation to allow for advertising or at least a legal challenge to the prohibition. In countries where the challenges have been made, the prohibition has been considered to be unconstitutional for being an unnecessary infringement on the right to receive and impart information. Yet in this country to approach a client of a rival to pitch is considered an abomination. It is considered touting. You cannot even indiscriminately hand out business cards at a function. The size of the lettering you put on your firm’s signage is regulated!
Frankly, this is ridiculous. It may even infringe upon fair competition. How do you expect a start-up firm to get known?
I must state that I asked the Minister of Justice Cde Chinamasa at the Victoria Falls Winter School about this prohibition. He categorically stated that he supported the removal of s23 of the Legal Practitioners Act. It was up to the lawyers to approach his office for this to be effected.
What are the implications of the removal of this prohibition?
· You will see more and more law firms gaining visibility
· Clients will be able to compare service providers, their price and services and make an informed choice.[24]
Tendering for services
In 1999, a huge Zimbabwean state entity had suffered losses due to the conduct of a law firm. It enlisted the services of a more established law firm to help in resolving the matter. The latter firm gave outstanding service to the entity. The entity decided to fire its offending legal practitioners and put its work out to tender. A few hours before the tender had closed, the entity was worried that the established firm had not put in a tender. It phoned to enquire about the apparent snub. The preferred law firm responded by pointing out to the organisation that it would NOT tender for legal work and that any law firm that had responded to their advertised tender may have been in breach of the law!
Today, competitive tendering is not only in vogue for everything but it is a means through which organisations procure good value from service providers. In the public sector, it is an efficient and effective tool against corruption. And so, what is so special with lawyers that excuses them from being subjected to a transparent and accountable appointment process?
I foresee in the near future more organisations putting their work out to tender. In Australia, clients have been demanding fixed fees for commodity work, faster service and value-adds (which is a euphemism for free services). It is not uncommon for some of the government tenders to demand that certain levels of pro bono work to be scored on the tender adjudication process.[25]
Sharing risk with clients
Clients are now demanding full or partial success fees or offering remuneration in the form of equity.[26] This is a very important development which you can use to lure new work and to earn a good return. If you act for a client in a listing, share issue, recapitalisation, mergers and you are the principal legal advisers, why should you not take equity in place of fees? If you advise on suing for a huge sum of damages, why not take risk on the success of the claim?
Billing clients by the hour is already being strongly resisted in many parts. Clients want you to share in the value you generate. As Dunstone notes;
‘This way of working is fairly new for lawyers, but has long been a way of life for consulting firms. A recent survey of consultants found that one third of their large clients insist on performance-based or results-based fees.’[27]
Restricted business forms for lawyers
In terms of the law in Zimbabwe, a law firm can only operate as a sole trader or as a partnership. You cannot even be a legal practice company, limited as that form is. You can therefore not have the benefits of limited liability. You can only manage your business risk through insurance and being careful.[28]
Secondly, lawyers cannot share profits with other professionals. This limits your ability to form cross-professional teams to perform special and highly rewarding work.
Thirdly, you are prohibited from operating another business under the same banner. This means that you cannot gain competitive advantage through differentiation.[29] If you are a law firm that specialises in conveyancing, why should you not be able to run a property sales business as well?
Fourth, you cannot raise capital from the public. This means you cannot make a public offer to the public to subscribe to your shares. If this was possible, you would have the benefits of huge sources of capital to run and build bigger firms which are well equipped.
Multi-disciplinary Practices
Law firms are structured as sole owner or partnership businesses supposedly to maintain professional standards. In Australia, for example, the Law Council has decided to do away with the traditional restrictions. Business structures are no longer considered important and necessary to the maintenance of professional standards.[30] Multi-disciplinary practices (MDPs) are now allowed. It is not even necessary for lawyers to be the majority in a MDP. A lawyer in such a practice remains subject to the same professional standards as a lawyer in a law firm. The change has enabled legal service to be provided by entities other than traditional law firms. In effect, other professionals like accountants may practice law. There is however some core work that remains reserved for lawyers.[31]
A MDP could take any of the following forms;
· ‘A law firm that add non-law services by bringing in a non-lawyer partner
· A law firm adds non-law services, which are provided either by the lawyers or by employed non-lawyers.
· A non-law firm adds law services by bringing in a lawyer partner
· A non-law firm adds law services by employing lawyers.’[32]
MDPs are considered better forms of business. They bring many advantages, some of which are;
· MDP can serve clients better by bundling services up with non-legal services which gives them greater scope.[33]
· Allows lawyers to provide a seamless service rather than have a client go through a network of service providers.[34]
· It provides new ways of differentiating a firm. New services can be marketed together with the traditional ones.[35]
· There is a huge cost saving on administrative costs of running two or more separate businesses.[36]
A mental shift is required of lawyers. You cannot simply be problem solvers. You have to look at yourselves as business support services. Many accounting firms have changed the way they look at their services. They have added to their usual accounting services new services like financial planning, strategic and business planning, change management and marketing. They now charge retainers to look after a client’s business on a monthly basis rather simply charge a fee for helping a client resolve a particular problem. This continuous client interface offers the lawyer the advantage of understanding the business of the client and with it the opportunity to detect business needs. You will also be able to anticipate the needs of the client.[37] Clients increasingly expect not to simply receive legal opinions. They want legal advice to be embedded with other information relevant to the business. As Dunstone puts it;
‘Lawyers are the only people who see legal issues as “separate”. Our training teaches us to spot the “legal issues”, break them off and analyse them separately. Anything that is not a “legal issue” is regarded as someone else’s business. Yet clearly problems do not really come in labelled boxes, and issues must be examined in their context.’ [38]
Developing new skills, new and innovative services
Dunstone encourages lawyers to learn new skills and stop living off the existing skills only. The environment is changing. She cites the example given by Maister, that ‘if all you work on is what you already know how to do, you’ll eventually be overtaken by someone younger who will learn how to do what you do, and will probably be willing to do it for less than you get paid.’[39] Maister classifies legal work as either asset-milking or asset-building. With asset-milking, you will be ‘taking advantage of and exploiting existing skills, relationships, and reputation’, while asset-building is ‘offering the opportunity to develop new skills by working on frontier innovative projects, building new and stronger client relationships that will pay dividends in future years, and creating a reputation in new fields or market segments.’[40]
In order for you to be able to develop new ideas, there is need for a major shift in our thinking. As Dunstone articulates;
‘Law firms do not usually provide an environment in which new ideas can thrive and grow. On the contrary, stress is endemic, risk is discouraged and failure is not well tolerated. Lawyers are trained to object, refute and win argument, but this approach is not conducive to the development of new ideas...Developing new services should be a response to client needs, but clients cannot always articulate what they need or want. We need to move beyond problem solving to needs-identification.’[41]
In addition, we need to look less viciously at fee spending initiatives that seek to develop new products.
‘Research and development is a hard bullet to bite, because it looks like fee-spending rather than fee-earning. It requires a change to the “eat what you kill” culture that often exists in law firms. What’s worse, some of the experiments won’t work, giving the impression of wasted time.’[42]
Teamwork
Firms need to look less like individual playfields. More teamwork is required and it must be visible to your clients. If you rely too much on individual efforts, it limits the potential of the firm. The firm’s goodwill and brand is built on teamwork.[43] And this must be a deliberate firm policy. As Maister suggests;
‘A firm that can supplement the skills of individual professionals by bringing to bear its collective experience regarding each individual client problem is going to be more valuable in the marketplace than otherwise. It therefore behoves every firm to ensure that there is value in the firm itself.’[44]
Learned friends, this is how you ensure that your firm is able to collect as much skills and experience from senior lawyers as possible. It is not an accidental process, it is a deliberate.
Fees
In the UK and in South Africa, there is pressure on the legal profession from competition authorities who are keen to open up the market and break down monopolies being enjoyed by the legal profession.
Clients have become more demanding. They are demanding high quality service at less cost. In the commercial sector, the well known cash cow for the legal profession, there is a greater demand for fees to be fair and transparent. The clients want value for money.
Your clients are continuously reviewing your role as legal advisers. You have to continuously worry whether you meet the expectations of your clientele. Richard Bennett, the HSBC general legal counsel notes that his legal team is an integral to the bank achieving its objectives. The legal team like other sections has to account for the ‘overall cost of things’.[45] Internal legal counsels are nowadays continuously concerned about how to reduce costs. In order to achieve this, they will ensure that they are very careful about what work to farm out to external legal advisors and what to do internally. They will consider how to manage the external advisors. They will ask questions like…’[A]re we paying too much? Can we cut costs by finding quicker, better ways of doing things?’[46]
Spencer cites the example of the US manufacturing giant Tyco which has done away with the briefing of external firms and paying fees at an hourly rate. It has entered into a partnership with the firm Eversheds in terms of which Tyco pays a flat annual fee of 8million pounds.[47] He adds that the Swiss Bank, UBS is now ranking legal service provided by external lawyers in order to determine the quality of the service.[48] The software giant Cisco has achieved standardisation of patent applications and contract renewals. It has forced its suppliers, including law firms, to find cost cuts of 20% per year. As of 2007, HSBC was looking at outsourcing routine legal work to cheaper countries. Its core external legal suppliers could then concentrate on ‘value added’ tasks.[49]
Richard Susskind has spent considerable time researching on the future of the legal profession and comes to the conclusion that the legal profession is ‘on the brink of fundamental transformation.’[50] In his view, two major forces will drive this transformation: ‘ a market pull towards commoditisation and by pervasive development and uptake of information technology. Commoditisation and IT will shape and characterise 21st century legal service.’[51]
The practice of the law is fast changing. Our territorial jurisdictions will not provide a wind cheater against the winds of change. Lawyers and their clients must now think ‘think more creatively, imaginatively, and entrepreneurially about the way in which lawyers can and should contribute to our rapidly changing economy and society.’[52] In summary, the new challenge is to re-examine our law firms and say;
‘what elements of …current workload could be undertaken differently—more quickly, cheaply, efficiently, or to a higher quality—using alternative methods of working. In other words, the challenge for legal readers is to identify their distinctive skills and talents, the capabilities that they possess that cannot, crudely, be replaced by advanced systems or by less costly workers supported by technology or standard process, or by lay people armed with online self-help tools.’[53]
The market conditions
‘… the market is increasingly unlikely to tolerate expensive lawyers for tasks (guiding, advising, drafting, researching, problem-solving and more) that can equally or better be discharged, directly or indirectly, by smart systems and processes. It follows that the jobs of many traditional lawyers will be substantially eroded and often eliminated. At the same time, I foresee new law jobs emerging which may be highly rewarding, even if very different from those of today.’[54]
The Scourge of the Billable Hour
Billing by the hour is a practice that is most common in Zimbabwe and many countries across the globe. There is an assumption that we make that the work that the lawyer has done is reflected by the hours the lawyer has spent on that client’s work. As noted in the Report of the CBA Young Lawyers’ Conference in Canada (2000);
‘The fundamental problem with hourly billing is that it assumes that time spent is uniformly an adequate measure of value delivered to a client...The point of any fee should be to attach an appropriate value to the lawyer’s service. A successful lawyer is one who can provide a service at a fee which is reasonable to the client, but which exceeds the lawyer’s costs of performing that service. The fee, therefore, should be an attempt to charge what the service is worth. An hourly rate should be a technique to help calculate what that value is.’[55]
The result of the billable hour is that a brilliant or competent lawyer will charge less than a less capable one for solving the same problem. The billable hour rewards the one who spent the most time without necessarily looking at the value delivered. As the CBA YLC report puts it;
‘Hourly billing creates a “productivity paradox”. By one measure, a lawyer who can accomplish a task twice as quickly as another lawyer is more productive and more efficient: that ought to be a good thing, and would be desirable from the client’s point of view. But if that lawyer’s performance is measured by hours billed, on paper he or she has been less productive, by billing only half as many hours.’[56]
But it is not going to be easy to simply do away with the billable hour. The billable hour is embedded in legal practice. The tariff recommended by the Law Society is based on billable hour. It is an easy estimate of costs to a client. It determines targets for lawyers and ultimately, pseudo as is, it is the measure of productivity and a costing tool.
Some of the alternatives are (1) task based billing- where a lawyer charges for various tasks in the legal action (eg. Drafting pleadings, attending negotiations etc). The client is upfront aware of the costs of each stage.[57] The risk for the lawyer is that if more time is spent, no additional remuneration is received.
Another method could be fixed fee billing. In this instance, the entire file is treated as a task. It is a workable method for tasks that are standard like preparation of wills.[58] The Law Society tariff makes provision for this, I think. For the hourly billing to be effective, the lawyer must be able to determine what will be profitable in the long run and still be attractive to a potential client.[59] This is quite ideal in services that could be achieved by most lawyers, the so-called commodity services. While it promotes efficiency, it similarly may encourage the cutting of corners where insufficient volumes have been generated.[60]
There could be hybrid billing systems that incorporate hourly rates and flat fees. This is possible where fees are capped to a maximum or where a lawyer and client agree on a lower fee level provided the lawyer can get a higher fee if success is delivered or the party and party costs recovered.
The Courts, Litigation and Justice Delivery
The state of our justice delivery system is disappointing, to say the least. The court system has virtually collapsed. The quality of the judicial appointments has deteriorated. Courts will pose a major challenge for a while in the future until there is serious commitment to the resolution of justice delivery by our courts. This is likely to continue in the future;
· Poorly paid judges and magistrates
· Serious teething problems with the setting up of the Judicial Service as separate from public service
· Lack of public confidence in the judiciary
· Poor appointments or candidature for judicial office
· Constitutional law will grow in importance once a new constitution has been passed
· Criminal law will be a growing area of practice, as well as immigration.
· Government lawyers and prosecutors will remain of poor quality, compromising justice delivery
· IT will be introduced in the courts but will face institutional resistance due to poor training and skills
· More specialized courts will emerge but will have little impact in improving justice delivery
SUMMARY OF THE FUTURE
The future will see the following features;
ü Increased competition from regional and international firms and local substitutes for legal services
ü Challenges to the traditional way of doing legal business
ü Unfriendly operating environment in the courts
ü Unhappy young lawyer will continue to be a challenge to future stability of law firms
ü IT will take centre stage
ü Billing will change dramatically
ü Clients will want to see commodity vs. value distinction in charges
ü Law firm regulation will move away from self-regulation
ü New areas of the law like competition law, mining law, energy law, IT law, environmental law will become lucrative practice niches.
I now turn to the next question...
How do you stay ahead?
According to Eversheds, a premium law firm which is successful and sustainable will have the following characteristics;
a. Resourcing: efficiency and technology
b. Legal practice: well hedged (‘a hedged well rounded legal practice arranged around an industry sector focus’), present in emerging jurisdictions like China and India; ‘as regulation increases and is reformulated a regulatory practice is crucial.’
c. Human capital: Lean (‘low leverage, emphasis on quality lawyers’); commercial, generalist lawyers (‘continued investment in training and development of generalist lawyers with more than legal skills-MBAs, leadership training, etc.’
d. Client relationships: collaboration (‘accepts the law firm is a service provider which can provide genuine collaboration with clients, willing to share risk and reward’); Billing (‘provides a tool box of fee arrangements, including fixed fees and value billing’)
Like I said in the beginning of my presentation, I assume that you are ahead and all I am required to do is tell you how you can stay there! In order for your firm to maintain its position ahead of the pack, it must be positioned strategically. The development of that business strategy involves an internal and external analysis.
External Analysis
· Political- the political environment has had a major impact on the conduct of business in Zimbabwe.
· Economic-law firms are affected by the same economic policies that prevail and affect other players in the economic sector.
· Social-cultural- what social and cultural factors influence the practice of law in Zimbabwe? Are the prevailing attitudes towards women or members of a particular tribe or race impacting on your business?
· Technological-what are the technological advances that are impacting on your business? Cell-phone network, internet, email, video conferencing etc.
· Legal-what legal regime affects your business? Labour? Law society?
· Ecological-what environmental factors are impacting on your business? Can you still afford to produce the huge volumes of paper lawyers are famed for?
For your internal analysis, you will need to understand the following;
· S-build on your strengths
· W-you must find ways to overcome your weaknesses and exploit those of your competitors
· O-Identify market opportunities
· T-Plan to circumvent external threats
Branding
‘Kantor and Immerman, Legal Practitioners’, so says your letterhead! What does this convey in the minds of judges, fellow lawyers, law students, prosecutors, state attorneys, advocates, the Deeds Office, the Companies Office, prison officers, police officers and the general public? A Jewish firm? Black Jews (Varemba)? Gentiles?
Scott Bedbury has said;
‘The best brands never start out with the intent of building a great brand. They focus on building a great—and profitable—product or service and an organization that can sustain it.’[61]
Branding is about the traditional Ps in marketing: product (in your case service), place (distribution channel), price and promotion.[62] Others add a prayer to this, but Kawasaki prefers proselytisation-‘which is the process of converting others to your belief, doctrine, or cause.’[63]
Price or should I refer to it as fees
Lawyers’ fees have been and will continue to a major source of controversy. How do you set your fees? Do you follow the Law Society tariff that assumes that because you are an old lawyer you must therefore charge more irrespective of your ability and the quality of service? A fee, like any price must be set in a very deliberate way. A number of factors affect pricing. Some of these are;[64]
a. How does the clientele perceive the value of what you are offering?
b. How are you positioning yourself?
c. What are the costs of providing the service?
d. What are the competitive forces at play?
e. What value does your firm expect to gain?
You then have to decide whether you want to pursue cost based pricing or value-based pricing. With cost-based pricing, you look at the service/product—cost—price—value—customers. With value-based pricing, you look at customers—value—price—cost—service/product.[65] Customers will pay your price if the total benefits outweigh or match the total price. A client will look and say, what were the features of the service; of what quality was it; how was the service; how is the availability; usability and how much personal satisfaction have I received. They will weigh this against your total fee.
Place/Distribution
How, when and where do you make your services available to your clients? Do you send letters and faxes, do you sit and consult one-on-one, do you use the internet? Do you visit clients at their offices and give assistance or you want your clients to come to your offices and sit for hours in reception? Learn from chartered accountants. Clients will pay for an advisor who cares for them and goes to their offices to serve them.
Promotion
This is a broad term that refers to a range of activities and communication channels that are used reach customers. What the firm would be trying to achieve is influencing how you clients think, feel and act toward a brand or a service on offer. The most common channels used are:
a. Advertising- gets messages to large audiences efficiently
b. public relations- positive image and strengthen ties with stakeholders
c. sales promotions- stimulates immediate purchase and rewards repeat business
d. personal selling-one to one selling, builds and strengthens relationships
e. direct marketing-reach targeted audiences, encourage direct response
f. digital-web/mobile- brand engagement, dialogue, strengthens relationships
Communications Planning
In order for you to plan your communication properly, you need to ask and resolve the following questions;
1. What- what specific proposition or message?
2. Which-which channels to reach the clients, and how much money will be spent on each?
3. When-when, in what mood and frame of mind, with what deployment strategy?
4. How-who will it all be stitched together to create the big picture?[66]
Kawasaki succinctly puts art of branding in modern parlance by describing it thus;
‘The art of branding requires creating something contagious that infects people with enthusiasm, making it easy for them to try it, asking them for help in spreading the word, and building a community around it.’[67]
Branding, contrary to what some money-wasting marketers think, is not about having a posh letterhead and adverts in every place. Great brands start with a great service.[68] I may visit your nice and well presented website, I may have your glossy letterhead, I can see your beautiful support staff in elegant and short dress, I can see your modern offices freshly painted but if Kantor & Immerman does not have a great service for its clientele, all the perfumes of Arabia cannot sweeten your name.
There is great wisdom in the old aphorism, that; the taste of the pudding lies in the eating! The lesson is this, if you want to have a great brand, provide great service. As Kawasaki puts it;
‘If you have something that’s gold, you can make a lot of mistakes with it and still succeed. If you don’t, you have to do almost everything right. So make it easy on yourself and create or find products and services that are inherently contagious.’[69]
Contagion
In other words, if you are a great law firm with great services, you may mess up a client’s work but the client will return. If you have poor service, you do not get a second chance. If you want your clients to find you irresistible, create contagion. Contagiousness has the following key elements;[70]
a. Cool. Create something different but cool. Anything that is cool is contagious.
b. Effective. You cannot brand rubbish.
c. Distinctive. ‘A contagious product is easy to notice and advertises itself. It leaves no doubt that it is different from the competition.’[71] Eg. The Hummer.
d. Disruptive. ‘Contagious products are disruptive. They upset the status quo or make them go into denial.’[72]
e. Emotive. ‘A contagious...service exceeds expectations, and by exceeding expectations, it makes you joyful.’[73]
f. Deep. It must be deep in its usability. The more you use it, the more you discover its capabilities.
g. Indulgent. ‘Purchasing a contagious product or service makes you feel as if you’ve indulged yourself. This may be because it costs more than the alternatives, it’s cooler, or it’s more that you really need. Thus it enables you to escape the mundane.’[74]
h. Supported. ‘Providing exemplary service makes a product or service contagious.’[75]
And so what are the current realities in marketing?
These are the realities to marketing in the 21st century;[76]
a. The pace of change is swift and dramatic
b. There is increased competition
c. There is shorter time to market eg. Surf-pick-a-box shows are gone
d. End of mass communication- people want personal communication.
e. There is a deluge of information-there are too many people saying too much already.
f. There is a constant constrain on budgets- advertising and marketing in general are expensive.
g. There is growth of digital technology-digital technology has changed the way we communicate.
Marketing is facing new challenges. Some marketers call this the marketing catch-22. This is how the catch-22 works: the challenge is the law firm wants to market its services; the problem is that there is marketing resistance; the response from the market is that there is more marketing saturation; the result is that there is more marketing resistance.[77]
A strategic marketing planning process consists of two main elements: Situation analysis and marketing communication programme. I will briefly touch on the situation analysis:
1. First do the research and market analysis
2. Secondly, understand markets and customers
3. Thirdly, segmentation, targeting, and positioning must be done.
Then you move to the communication programme, and do it as follows;
1. Goals (long term targets), objectives (shorter-term targets) and marketing support. Effective objectives must be specific, time defined and measurable, realistic (but challenging), consistent with mission and overall goals, consistent with external and internal environmental analysis. They must be appropriate when considered in the light of opportunities and threats. Your marketing objectives must target the management of relationships. This includes the acquisition of new clients, retention of clients you already have, customer satisfaction, etc.[78]You must watch the dollar. There is need to set financial targets as well. This must be aligned to the marketing objectives. This is where profitability targets come in. How well is the business projected to do?
2. Marketing strategies, programmes and tactics
3. Implementation control and measurement
Recruitment of lawyers
The University of Zimbabwe and the Midlands State University produce the lawyers. Are they producing the lawyers that we want? Is Dougie Chinawa and his accomplices meeting the demands of the market? Let me start by saying that it has never been possible for law schools to produce ready-made products. Law schools are incapable of producing lawyers for the market who meet our requirements. We have as law firms to invest in the training and mentoring of young lawyers to become able lawyers who can work efficiently and intelligently in our law firms. The ideal attributes often sought in your candidates are;[79]
· Good legal knowledge
· Good communication skills
· Hard-working-willing to do both interesting and boring work
· Practical/commercial
In addition, most law firms highly rate professionalism, mature attitude, enthusiasm, being a team player, well organised and use of initiative as good attributes.[80] But I can safely assume that our law schools do not have the facilities to produce what we are expecting of them. The dearth of academic staff, lack of basic books, lack of information technology etc have negatively impacted on the quality of the lawyer we want. In addition, the curriculum has not been revamped continuously to ensure that the law schools produce graduates who are able to meet the needs of the market. The ideal lawyer you want who has a very good grasp of substantive law, has good analytical skills, research and other technical skills while at the same time possessing very good interpersonal skills you have to make yourselves. You have to endeavour to develop lawyers who are capable of retention of the black letter of the law and at the same time able to do serious legal research and have the autonomous ability to take responsibility for his or her own learning.[81]
If you want your firm to stay ahead of the pack, you must ensure that you get involved in the training of lawyers at the school and hire the most promising. Once they are in your firm, you must invest in their training. This training must cease to be the accidental anecdotal training by senior lawyers. It must be a deliberate curriculum that is developed to meet the needs of the firm and ultimately the commercial and practical needs of the general public/clientele.
In addition, have clear-cut career plans for your young lawyers. They must know when partnership is to be expected. They must know the standards that will be used to judge their work when the decision is to be made. Our young lawyers are mobile. They will leave if there is no hope of progress.
Firm management
The only real business subject taught in Law School remains possibly ‘Accounting for Legal Practitioners’. Most lawyers believe that armed with that subject they have miraculously become business managers. Please disabuse yourselves of that mentality. You do not become an able law firm manager because you are a lawyer. Law firms must employ able, talented and trained business managers. The idea that firms appoint a managing partner from amongst their number or that the most senior lawyer is for some reason the most competent is discredited. This is why the growth of law firms has been severely hampered. Hire managers who may be CA’s etc to run your business. Do not waste invaluable legal training on doing mundane tasks like ordering stationery, hiring secretaries, etc. Let managers manage your practice.
Harcup argues that law firms today ‘must provide excellent client service as well as market to new clients. Manage their staff and finances to be successful. To do so, they require not only excellent legal knowledge and legal skills, but also good interpersonal and management skills.’[82] The importance of these skills have been acknowledged by UK solicitors, who now invest in extensive internal training programmes which cover topics from drafting and negotiating skills, leadership, supervision skills and networking skills. Learning and personal development have become important in building and managing modern law firms.[83]
Specialisation
Specialisation in one or more fields of law is fast becoming unavoidable. Some law firms have built big enough specialist practices. It not uncommon to find law firms like Adams & Adams in South Africa majoring in intellectual property law. Some law firms just deal with personal injury cases only. This in my view is the narrow specialisation. Many law firms in Zimbabwe and in other countries strive to have a reputation as ‘commercial law firms’. This based on the belief that commercial law pays better. Big business does not fail to pay fees. The work is cleaner and does not involve having to deal with the police, prison officers, rude and underpaid prosecutors etc.
The complexity of laws being passed on a regular basis, globalisation, international regulation, cross-border practices, regional co-operation, among others, have created an environment for lawyers who prefer to work as specialists to create thriving practices. Specialisation in Zimbabwe, of a narrow kind, is still difficult because the economic shrinkage has limited growth. This may be a misstatement as some law firms seem to specialise in bail and such other criminal practices. But for many of them, this is not a deliberate strategic choice. It is a survival instinct determining economic activity.
Some firms still accept general work but have specialised units that deal with certain type of work. This would be ideal in an environment like Zimbabwe. It would allow the firm to survive on income from several sources, while at the same time affording its clients an array of legal services. Financially, this is good for diversity in sources of income. Should there be a slump in the mining law section, human rights litigation maybe able to carry the ken.
Pro Bono Work
As I said at the beginning of my presentation, practicing law is a public service—a service to the community. It is a commitment to work for justice. We live in a country of inequalities. Lawyers have a special role to play in ensuring that the poor members of the community access legal services. As a law firm, I would urge you to set aside hours every month to provide pro bono services. This service will go a long way in promoting your own firm and in serving your own community. When well supervised, it will an important tool in training young law students and detecting future legal resources. With the new constitution, this is a good field for picking up good challenging work.
The Courts and the Legal System
I have until now ignored a major issue regarding the success or failure of your legal practices. This issue concerns the delivery of justice by our courts. Are our courts capable of delivering justice—quality justice? Do our legal system and our judiciary in particular enjoy public confidence? Do we have able judges? Can you guarantee quality delivery of justice by our courts? Do our courts have the necessary infrastructure to deliver justice? How about the endless delays and the undelivered judgments?
Learned friends, we face a major handicap. Our courts are not yet ready to work in tandem with a legal practice that is ready to deliver value to its clientele. We should expect frustrations. We may have to consider ADR a major force in ensuring delivery of justice to our clients, particularly in matters in which arbitration is permitted by law. Negotiation skills are important. They may give you the ability to settle and negotiate settlements in litigation to the advantage of your clients.
UNDERSTAND YOUR CLIENT
It is very important for you to understand your clients. You need to have a full understanding of their business in order for you to serve them well. In order to understand your client, you need to understand the whole organization structure; vision and mission, strategic goals, five year plan, long term aspirations of the client, how they do business, assets and resources, changes affecting them, products and services, competitors, problems they are experiencing etc.[84]
Aspire too to understand the industry they are in, the markets they operate in, the competition they face and market share, general environmental circumstances, etc.[85] In this analysis, the firm must continuously update its knowledge in order to fully anticipate client needs. Ultimately, a proper understanding of clients will generate ideas on;
· Where can we help more?
· How can we help better?
· How can we add more value?
· How can we increase the strength of our relationship?
· Do we need to change to reflect these changes?[86]
CONCLUSION
No doubt the world has dramatically changed. Clients have become increasingly sophisticated; demand more; have higher expectations; measure value for money more; more inclined to use tenders; shop around more; subject legal work to regular re-tender; more careful in scrutinizing bills; monitor the performance of legal professionals more; prefer proactive lawyers; want creativity and innovation and desire tailor-made services.[87]
As a result, a lot more is now demanded of lawyers. Lawyers are supposed to marry their services to the commercial goals and objectives of their clients; offer commercially viable solutions; know and understand the client very well; trustworthy; enthusiastic; reliable; and competent.[88]
We have to adapt in order to survive!
If you cannot identify or develop distinctive capabilities as lawyers and a law firm you will soon be history.[89] I think the words of Susskind poignantly reflect the challenge that legal practice will face in Zimbabwe and conquering the challenges will determine who will succeed and who will be vanquished;
‘I do not believe lawyers are self-evidently entitled to profit from the law…the law is not there to provide a livelihood for lawyers any more than ill-health exists to offer a living for doctors. Successful legal business may be a bi-product of law in society, but it is not the purpose of law. And, just as numerous other industries and sectors are having to adapt to broader change, so too should lawyers.’[90]
Bibliography
1. Leonard S. Janofsky ‘The Future of the Legal Profession and the Role of the American Bar Association’ speech published in 11 U.Tol.L.Rev 201 (1979-1980) at page 214
2. Chris Maina Peter cites at page 368 the Private Practice Reform Committee of the Law Reform Commission of Tanzania (the Shivji Committee) in its Working Paper No. 1 of 1985
3. Mario Puzo in his book The Godfather
4. William Shakespeare, Henry VI
5. Peter Williamson, Law Society of England and Wales, speech to the 2003 Annual Conference
6. Chris Maina Peter, Human Rights in Tanzania,
7. Private Practice Reform Committee of the Law Reform Commission of Tanzania (the Shivji Committee)
8. Shapero v Kentucky Bar Association, (1988) 486 US 466
9. Mr. Justice Murray Gleeson, Chief Justice of Australia, ‘Examining Values’ a paper delivered to the Australasian College of Surgeons, St Mary’s Cathedral, Sydney, 14 May 2006
10. Ross Cranston ‘Legal Ethics and Professional Responsibility’ published collection of essays by the same title, Clarendon Press
11. Chief Justice Brennan of Australia, ‘Profession or Service Industry: The Choice’ delivered as an opening address to the Australian Bar Association Conference, San Francisco, 18-21 August, 1996
12. Sir Anthony Mason ‘The Independence of the Bench (1993) 10 Aust. Bar Review 1
13. Eversheds ‘Law Firm of the 21st Century: the Client’s Revolution, An Eversheds Report on the post-recession legal sector, 2010’
14. Shelley Dunstone ‘The Future of the Legal Profession’ a paper presented at the Southern Australian Legal Convention, July 2002
15. Maister ‘True Professionalism, 1997 Touchstone
16. Alex Spencer ‘Richard Bennett: Every Industry Changes’ www.timesonline.co.uk, October 29, 2007
17. Richard Susskind ‘Legal Profession is on the brink of fundamental change’ www.timesoline.co,uk
18. ‘The Future of the Legal Profession: The Challenge of Change’ A Report of the Canadian Bar Association Young Lawyers Conference, August 2000
19. Guy Kawasaki ‘The Art of the Start: The time-tested, battle-hardened guide for anyone starting anything’ Penguin Books, 2004
20. Luiza, Gibbs Business School, Joburg
21. Joy Harcup, Head of Training, Berwin Leighton Paisner ‘The Future of Legal Profession and Learning: A View from Practice’
22. Pippa Blakemore ‘Developing your practice—Increase the value of current clients: The Rainbow Strategy’ A Paper presented at the 2005 Conference of the International Bar Association
23. Richard Susskind: The End of Lawyers? Rethinking the Nature of Legal Services, Oxford Press 2008
[1] This paper was prepared and presented by TR Mafukidze at a strategic retreat for Messrs. Kantor & Immerman, Imba Matombo, Harare, Zimbabwe on the 22nd January, 2011. It is not for publication.
[2] Tererai Rector Mafukidze holds a Bachelor of Laws (Honours) [LL.B (Hon.)] from the University of Zimbabwe awarded in 1996. He is due to complete his Master of Laws (LL.M) in Corporate Law with the University of the Witwatersrand, Johannesburg at the end of June 2011. He is majoring in Competition Law, Banking and Finance and Company Law. He was admitted as a Legal Practitioner, Notary-Public and Conveyancer in the High Court of Zimbabwe in February 1997. He practised law in private law firms in Bulawayo (Calderwood, Bryce Hendrie and Partners) and Harare (Scanlen & Holderness) for three years before he joined Old Mutual as Legal Advisor. He later joined the Trust Group, a listed financial services company as Legal Manager of Trust Bank. He became Group Company Secretary in April 2005. He left Trust in October 2006 and moved to South Africa to take up a position with the Constitutional Court Trust of South Africa as the Co-ordinator/Secretary of the Southern African Judges Commission (latterly Southern African Chief Justices Forum). He subsequently combined this responsibility with the Directorship of the Southern African Legal Information Institute (www.saflii.org). Tererai left the employ of the Constitutional Court Trust at the end of March 2010. He works for the African Legal Information Institute (AFRICANLII). He is a co-founder of the AFRICANLII. He is involved in the establishment of legal information institutes across the Continent. He has attended and spoken at many international and regional conferences on Free Access to Law, constitutional law, judicial independence, human rights and corporate law. He also works part-time in the Office of the Chief Justice of South Africa as a researcher responsible for writing speeches and papers for Chief Justice Ngcobo.
[3] Cited by Leonard S. Janofsky ‘The Future of the Legal Profession and the Role of the American Bar Association’ speech published in 11 U.Tol.L.Rev 201 (1979-1980) at page 214
[4] Speaking at the 2003 Law Society Conference, cited by Harcup at page 5
[5] Ibid at 214-215
[6] Chris Maina Peter cites at page 368 the Private Practice Reform Committee of the Law Reform Commission of Tanzania (the Shivji Committee) in its Working Paper No. 1 of 1985 as reporting that;
‘There is street talk circulating around that private advocacy is a means to easy and quick riches and that privately engaged lawyers are fast-talking, money-grabbing lot. The saying by Mario Puzo in his book The Godfather has a lot to do with this image when he said “A lawyer with a briefcase can steal more than a hundred men with guns.” To the Don, saying lawyer and robber, are one and the same thing.’
[7] Qouted by Chris Maina Peter at page 367
[8] (1988) 486 US 466 at 488-489
[9] Delivered at St Mary’s Cathedral, Sydney, 14 May 2006
[10] At page 3
[11] Ross Cranston ‘Legal Ethics and Professional Responsibility’ published in a collection of essays by the same title, Clarendon Press,
[12] Chief Justice Brennan of Australia in his paper ‘Profession or Service Industry: The Choice’, delivered as an opening address to the Australian Bar Association Conference, San Francisco, 18-21 August, 1996 at page 4
[13] Sir Anthony Mason, ‘The Independence of the Bench’ (1993) 10 Aust. Bar Review 1 at page 9, cited by Chief Justice Brennan in his paper ‘Profession or Service Industry: The Choice’, delivered as an opening address to the Australian Bar Association Conference, San Francisco, 18-21 August, 1996 at page 4
[14] ‘Foreword’ Eversheds ‘Law Firm of the 21st Century: The Client’s Revolution, An Eversheds report on the post-recession legal sector in 2010’
[15] Eversheds ‘Law Firm of the 21st Century: The Client’s Revolution, An Eversheds report on the post-recession legal sector in 2010’ at page 3
[16] ibid
[17] Shelley Dunstone, ‘The future of the legal profession’ page 1 of paper presented at the Southern Australian Legal Convention, July 2002
[18] Shellye Dunstone, Ibid
[19] Harcup at page 5
[20] Ibid
[21] ibid
[22] ibid
[23] Ibid
[24] ibid
[25] ibid
[26] ibid
[27] Dunstone at page 4
[28] Ibid at page 5
[29] Ibid
[30] Dunstone at page 5
[31] ibid
[32] Ibid, Dunstone suggests that joint venture arrangements may provide further possibilities
[33] ibid
[34] ibid
[35] ibid
[36] ibid
[37] Ibid at page 6
[38] Dunstone at page 6
[39] Ibid, at page 7
[40] Cited by Dunstone at page 7 [Maister, True Professionalism, 1997 Touchstone]
[41] Ibid
[42] Ibid at page 8
[43] Ibid
[44] Maister, at page 98-99 cited by Dunstone, ibid
[45] Alex Spencer “Richard Bennett: ‘Every industry changes’”www.timesonline.co.uk October 29, 2007
[46] Ibid
[47] ibid
[48] Ibid
[49] Ibid
[50] Richard Susskind ‘Legal Profession is on the brink of fundamental change’, www.timesonline.co.uk the first of his six draft excerpts from his then forthcoming book at page 1.
[51] ibid
[52] Ibid
[53] Ibid
[54] Ibid
[55] ‘The Future of the Legal Profession: The Challenge of Change’ A Report of the Canadian Bar Association Young Lawyers Conference, August, 2000 Page 53
[56] Ibid at page 54
[57] Ibid
[58] Ibid
[59] Ibid
[60] Ibid
[61] Quoted in Guy Kawasaki’s, The Art of the Start: The time-tested, battle-hardened guide for anyone starting anything, Penguin Books, 2004 at page 167
[62] Ibid at page 167
[63] Ibid
[64] Luiz
[65] ibid
[66] Luiz
[67] ibid
[68] Ibid at 168
[69] Ibid
[70] Ibid 168-169. As set out by Guy Kawasaki
[71] Ibid
[72] Ibid
[73] At 169
[74] Ibid
[75] Ibid
[76] Based on a presentation by Luiza of Gibbs Business School, Johannesburg
[77] Luiza
[78] Luiz, ibid
[79] Joy Harcup, Head of Training, Berwin Leighton Paisner, ‘The future of the legal profession and learning: a view from practice’ at page 3
[80] ibid
[81] Harcup at page 4
[82] Harcup at page 2
[83] ibid
[84] Pippa Blakemore, BSc PGCE, ‘Developing your practice-Increase the value of current clients: The rainbow strategy’ A paper presented at the 2005 Conference of the International Bar Association at page 10
[85] Ibid
[86] Ibid at page 11
[87] Ibid
[88] Ibid
[89] Ibid
[90] Richard Susskind, first draft extract, www.timesonline.co.uk
A paper written for and presented at the Strategic Retreat for Messrs. Kantor & Immerman
Tererai Mafukidze
1/22/2011
Imba Matombo, Harare, Zimbabwe
Not for publication
Table of Contents
Table of Contents. 2
“THE FUTURE OF LEGAL PRACTICE IN ZIMBABWE—A BIRD’S EYE VIEW. WHO DO YOU STAY AHEAD?” 4
Introduction. 4
Is Law a Business?. 6
What is the legal landscape going to be like?. 9
An international perspective. 10
Globalisation. 11
Communication and Technology. 12
Shareholder drive for higher profits. 15
The Unhappy Young Lawyer 16
Advertising prohibition. 16
Tendering for services. 17
Sharing risk with clients. 18
Restricted business forms for lawyers. 19
Multi-disciplinary Practices. 19
Developing new skills, new and innovative services. 21
Teamwork. 22
Fees. 23
The Scourge of the Billable Hour 25
The Courts, Litigation and Justice Delivery. 27
SUMMARY OF THE FUTURE.. 28
How do you stay ahead?. 29
External Analysis. 29
Branding. 30
Price or should I refer to it as fees. 31
Place/Distribution. 32
Promotion. 32
Communications Planning. 32
Contagion. 33
And so what are the current realities in marketing?. 34
Recruitment of lawyers. 36
Firm management 37
Specialisation. 38
The Courts and the Legal System.. 40
CONCLUSION.. 41
Bibliography. 43
“THE FUTURE OF LEGAL PRACTICE IN ZIMBABWE—A BIRD’S EYE VIEW. WHO DO YOU STAY AHEAD?”[1]
By TR Mafukidze[2]
Introduction
It is for me a great pleasure to come and speak to you about the future of legal practice in Zimbabwe, and how you can stay ahead. As some of you know, I ran away from the private practice of law after only three years. Maybe you need one who is not immersed in the subject to tell you how it looks from out here. As Lord MacMillan put it;
‘The Lawyer does well from time to time to lift his eyes from his desk and look on the wider world beyond.’[3]
Peter Williamson (2003), the then President of the Law Society of England & Wales expressed his own fears about the legal profession’s failure to adapt to change as follows;
‘If this profession does not adapt itself and fall into line with what the consumer of the 21st century wants from legal services...(be it litigation, conveyancing, wills or whatever) it will be done some other way. We have therefore to adapt, and it is no good standing and saying that we have traditions, and the way we have always done it is best. That is a recipe for disaster for this profession.’[4]
I have been asked to look into the seeds of time, and tell which seed will grow and which will not. It is a hard prediction to make. The wrong predictions one makes will live after them. People love to remember the wrong predictions. Yet, my task is less onerous than that of a fortune-teller.
I have been asked again to educate you on ‘how to stay ahead’. This latter part is pregnant. It assumes that you are ahead—and so desire to just stay ahead. I will not argue whether you are ahead or not. I will go with your assumption, for now.
The world has changed dramatically over the last 10 years. It continues to change. I can do no better than to agree with Leonard S. Janosky when he stated 30 years ago that;
‘No profession will long exist if its members spend their time in rearguard action fighting for past methods that are no longer responsive to need or economically sound. A profession whose leadership is primarily concerned with maintaining the status quo and building protectionist rules and tariffs is a deteriorating profession.’[5]
Is Law a Business?
Talking about law as a business is frowned upon by many lawyers and judges. To refer to a law firm as a business is considered a heresy. ‘This is a profession and not a business’ goes the frequent retort. But business simply means the investment of human effort for profit. Law is a business. You can never be successful as a law firm unless you treat your law firm as a business. By business, I do not mean that you should ingest many of the unscrupulous business practices that infest our business community. No. Yours is a higher calling that demands different standards of conduct. But never fool yourself. If you do not run your law firm like a business you are set to fail. At the same time, the profession is there to serve the community. This is why lawyers are some of the few members of professions that are required by law to render their services for free in certain circumstances.
Learned friends, despite the often glowing and heart-warming description of the practice of law, throughout the ages, from William Shakespeare in Henry VI to Mario Puzo in the Godfather,[6] lawyers have been accorded the most callous of reputations. Sometimes, they have been called by the names of nature’s greatest predators or its most unashamed scavengers. In recent times they have been called some of the vilest wealth-seekers.
Jonathan Swift was similarly scathing when he defined lawyers’ thus;
‘Lawyers, a society of men, bred up from their youth in the art of proving words, multiplied for the purpose and in a jargon of their own that no other mortal can understand that white is black and black is white, according as they are paid.’[7]
But there are some redeeming voices. Justice O’Connor of the United States Supreme Court said it eloquently in Shapero v Kentucky Bar Association in the following words;
‘One distinguishing feature of any profession, unlike other occupations that may be equally respectable, is that membership entails an ethical obligation to temper one’s selfish pursuit of economic success by adhering to standards of conduct that could not be enforced either by legal fiat or through the discipline of the market. There are sound reasons to continue pursuing the goal that is implicit in the traditional view of professional life. Both the special privileges incident to membership in the profession and the advantages those privileges give in the necessary task of earning a living are means to a goal that transcends the accumulation of wealth.’[8]
I may add that the American justice was opining this in the minority in a judgment dealing with restrictions on lawyer’s advertising in the State of Kentucky.
In his speech, ‘Examining Values’, delivered to the Australasian College of Surgeons,[9] the then Chief Justice of Australia, Mr. Murray Gleeson, noted that there is a world of difference between a profession and a business. In his view, the difference lay in that ‘professional people accept certain restraints on their capacity to pursue personal gain -restraints that go beyond the requirements of honesty and fair dealing that are accepted by decent people in any occupation.’
This is true with the legal profession in this country. The legal profession carries exacting responsibilities in our pursuit of a society that is free and open, where every person enjoys their human rights. The legal profession must be in the service of the public. For that reason, those who are called to serve in the legal profession are expected to serve with the highest standards of professional conduct. The highest standards of ethical conduct lie in the ability of lawyers to maintain the values that underlie the practice of law. The maintenance and sustenance of these values is a matter of great concern to us all. These values are honesty, integrity, sense of public duty and the desire to see justice done according to law. But professional values are constantly under strain. As Justice Gleeson put it;
‘The rules of professional practice, which impose restraints on the pursuit of self-interest, cannot be sustained merely by custom. This is an age that questions every rule and challenges every authority. Those questions and challenges cannot be met by an appeal to tradition. Tradition cuts no ice. Self-interest is clearly understood; but I am talking about restraints on the pursuit of enlightened self-interest. How can they be explained? They can be justified only in terms of values; and if the values are not shared, the justification carries no weight. It all comes back to values. That is the common challenge to our professions: to identify and maintain our values.’[10]
It must be emphasised that the legal profession is built a foundation of moral responsibilities. Legal ethics and professional responsibility are not mere rules. They ‘are also a commitment to honesty, integrity and service in the practice of law.’[11] While the practice of law is indeed done with an expectation of earning a reasonable income for the service, the legal profession can never be regulated as if it were another business in the service industry. Lawyers are not mere agents of the clients who have employed their skill and knowledge. They ‘are involved in the administration of justice according to law, a function on which a free and democratic society depends.’[12]
I must say something about the commitment to public service. We are a country of great of huge inequalities. Many of them are historical, and many we have manufactured for ourselves. Despite the strides we have made in seeking to bridge the gap between those that are wealth and citizens who live in constant deprivation, a lot of work remains. The differences in wealth are reflected no less in the challenges the poor face in accessing justice and, with that, access to legal advice and representation. The cost of accessing the legal services is prohibitive. The legal aid services are not working efficiently and cannot accommodate everyone. If I may borrow from Sir Anthony Mason, unless the legal profession ‘dedicates itself to the ideal of public service, it forfeits its claim to treatment as a profession in the true sense of the term. Dedication to public service demands not only attainment of a high standard of professional skill but also faithful performance of duty to client and court and a willingness to make the professional service available to the public.’[13]
But learned friends, can any lawyer meet these responsibilities on an empty stomach?
What is the legal landscape going to be like?
An international perspective
The leading law firm Eversheds have studied what they have termed ‘the client’s revolution’. They have published two reports entitled the Law Firm of the 21st Century. The second of the reports was published was as an analysis of the post-recession legal sector in 2010. The report is highly recommended. In his foreword, Bryan Hughes, the Chief Executive of Eversheds LLP notes;
‘General Counsel (corporate lawyers) are under pressure to deliver more for less. In turn, they are demanding reduced costs and greater value from the legal advisers. Quite rightly they want accountability when it comes to how their budgets are being spent and more imagination when it comes to fee structures. For law firms this has meant facing up to the challenge and change. Whilst some are holding fast, hoping that the boom times will return soon, the smarter ones are adapting for the longer term.’[14]
Eversheds identify four main drivers for change, namely globalisation (look east), increasing professionalism and status of General Counsel (corporate lawyers), technology and the Legal Services Act in the UK. According to Eversheds the ‘aftermath of the perfect storm’ is a revolution whereby the stakeholders in the legal market are properly aligned. These are their findings;
· Clients take centre stage- ‘balance of power shifts to clients and the legal sector enters the modern world; fee levels are set for long-term overall decline or stasis; General Counsel have increased status and expanded role in business’[15]
· Delivery of legal services is geared up to efficiency and value: ‘recession drives efficiency; legal services are increasingly unbundled, also contributing to efficiency; strategic resourcing through outsourcing and technology dramatically increased; the hourly rate is simply one billing tool among many; value enters the client-lawyer relationship through increased use of value billing and the development of value resourcing.’[16]
· Law firm market in flux: ‘law firm peer groups and categorisations re-align; less premium work means there is a new optimal size for large international law firm with less headcount and lower leverage; moderate growth will continue for mid-sized firms, at least in the medium term future; loyalty to partnership model continues to decline; other models develop; UK law firm leaders begin to see opportunities in the LSA.’
Globalisation
Firstly, no matter how much we parrot ‘sovereignty’, we are not an island. We will never be an island. The winds that blow in China, India, Brazil will find their way through our borders. Global business is having a huge impact on the way we provide services and manufacture products. Today, business seeks the cheapest sources of labour. We are constantly buying goods made in China and Vietnam, despite them carrying genuine iconic American logos. Accounting and consulting firms have opened offices across the entire globe, or have their presence through other means. Big law firms are doing the same. Consulting firms have shown their ability to draw on experiences derived from previous assignments wherever in the world they were undertaken. They have strategic assets like brand name, capital, technology and research and development capabilities to defeat local competition.[17]
Nearly 10 years ago, I was a member of Trust Bank Corporate Finance team that were local advisors on the proposed privatisation of Tel-One. We were working at risk. The external legal advisors were Clifford Chance, while the local ones were Sawyer & Mkushi. Clifford Chance walked away with USD 1m in legal fees. PwC were external financial advisors and they walked away with similar riches. The privatisation bid was stopped at the last leg. We walked away with nothing. We did a lot of work. Clifford Chance often sent one senior partner and a young South African lawyer to the assignment.
The lesson from that experience was that: global law firms and global accounting firms will compete in your territory, with better brands, more capital, more muscle and still feed in your trough. No law society has the ability to stop them. Money is not made through a right of appearance in court. By the time the matter goes to court, the clever ones would have long fed.
Taking this to a local level, do not be surprised to see South African law firms doing work in Zimbabwe. All they will need is a big business that believes in their brand, capital, technology and ability to deliver value. As we speak now, I am aware of at least one big SA law firm that has a department that deals with African work—this is work across the continent!
Communication and Technology
A story is told about how the arrival of the fax machine astounded legal secretaries. This brought demands for relatively instant communication and everything that came by fax was urgent. Now, observe what the arrival of email, text and the internet has done to communication. If I email you at 9am and ask;
‘Is there a right of appeal against a decision of the Commissioner of Taxes?’
I want an acknowledgment of that email immediately. I then expect the answer within hours. If you are silent, I will email another lawyer. By the time you get back to me after three days with 5 page ‘opinion’ citing 23 decisions of the Supreme Court, you are too late. I will neither accept nor pay for your time! This is the new world guys!
Physical proximity is no longer necessary for doing business. And so, a person seeking legal assistance in settling an acknowledgment of debt may receive electronic assistance from many places across the globe. Price will drive this.
‘The Internet increases buyer power by facilitating a customer’s comparison of services offered and prices charged by different providers.’[18]
In South Africa, a website www.hippo.co.za allows customers to compare insurance quotes for themselves before they decide on who to approach. A similar one www.autoworld.co.za allows a person looking to purchase a car to compare different models, calculate repayments, compare brand new and used cars and even pick dealers who have stock. It will not be long before clients are able to compare fees by visiting a middlemen service that offers comparative quotes on say, consensual divorce, maintenance applications, due diligences, criminal appeals etc. Similar middlemen services relating to legal services are available in Australia.
When I joined Messrs. Calderwood, Bryce-Hendrie and Partners of Bulawayo, in December 1996, I could not work a computer. My secretary had a typewriter. She was a shared resource. When I joined Scanlen and Holderness a year later, I had a secretary with a computer. I still could not make use of it in her absence. When I joined Old Mutual in August, 1999, I was presented with an office with a Compaq computer and a printer. The secretary for the department would come to my office a few times in a week to restart the machine after a few cock-ups. In 6 months, I had taught myself to use a computer. It was a painful exercise I would not wish anyone. But today, I rarely draft anything in long hand for anyone to type for me. I have spent a good part of the last 4 years of my career working on a project to provide free access to law via the internet. I have been to courts in the region and spoken to lawyers and judges and top civil servants. I have seen how information technology has driven major changes in the law. This is not change by choice it is imposed by the necessities of the law.
After my computer challenged years in I realised that computers should be compulsory subject in law school or at least for anyone over the age of 10! More than 14 years since I left law school, the university is still churning out lawyers who cannot work computers. If you cannot use a computer, you will be useless in ten years’ time! Clients are also expecting service delivery via the use of information technology. You will be required to answer clients’ queries via video conferencing, Skype etc to board meetings in progress.
This is not to say technology is going to eliminate the need for personal service provided by lawyers. As Harcup puts it;
‘Clients will still require the influencing, analytical and creative skills of human lawyers. Empathy and our use of language are the traits that distinguish us as humans from animals, or indeed computers. These skills will still be in demand from clients in the 21st century and will become even more important. On the other hand, less legal work will be available for solicitors because of the availability of online legal services for basic transactions.’[19]
Shareholder drive for higher profits
I am aware that your firm is seen as a corporate firm-one that places greater resources on serving corporate clients and doing commercial work. In the modern business world, you will not see Jack Welchs anymore. CEO will be replaced at quick pace. There is a strong drive by shareholders for higher returns and growth. CEO in turn have been driving towards the reduction of costs. Cost cutting initiatives are affecting legal work too. Your clients are scrutinizing your bills more than ever before.[20] As a result, there has been a major change in the way global business views legal services. They have segmented legal services into two broad categories, which are;
a. Commodity work
b. Value-added services
Commodity work is normally given to local firms, but we are beginning to see a trend whereby it is even farmed out to cheaper jurisdictions. Local firms are retaining a good part of the litigation work. But still, local firms are expected to provide good service at a low cost.[21]
Value-added services such as mergers and acquisitions and capital market transactions are being reserved for huge global firms. The clients are willing to pay top dollar for the best and will pay a premium to get the best law firm.[22]
So, you may well achieve the status of a corporate or commercial law firm, but you will not necessarily be earning the top dollar unless you can do not only the commodity services but also the value added work.
The Unhappy Young Lawyer
One of the worrying trends in the legal world today is that young lawyers are not prepared to wait for many years to become partners with equity in the law firm. Young lawyers are more married to their work than to the employer. Dunstone says that they ‘see each new position as a way of acquiring experience to equip them for their next ‘gig’. They also value flexibility, lifestyle and leisure time.’[23]
So the challenge is to put together a formidable team of legal professionals and yet you have challenges in recruiting and retaining them. We need not look beyond the ‘big law firms’ of the 1990s to see what poor succession planning and motivation culture can harm the future of a law firm.
Advertising prohibition
We have retained some of the most archaic professional rules of conduct in this country, in the same way we have continued with rules of court that have been discredited and abandoned in countries that gave birth to them in the first place. One such relic of the past is the prohibition on advertising. Many countries have accepted that legal practice is like any other business. It must be allowed to advertise for so long as the advertisement is truthful, in good taste and not misleading. I foresee in the near future either a change in legislation to allow for advertising or at least a legal challenge to the prohibition. In countries where the challenges have been made, the prohibition has been considered to be unconstitutional for being an unnecessary infringement on the right to receive and impart information. Yet in this country to approach a client of a rival to pitch is considered an abomination. It is considered touting. You cannot even indiscriminately hand out business cards at a function. The size of the lettering you put on your firm’s signage is regulated!
Frankly, this is ridiculous. It may even infringe upon fair competition. How do you expect a start-up firm to get known?
I must state that I asked the Minister of Justice Cde Chinamasa at the Victoria Falls Winter School about this prohibition. He categorically stated that he supported the removal of s23 of the Legal Practitioners Act. It was up to the lawyers to approach his office for this to be effected.
What are the implications of the removal of this prohibition?
· You will see more and more law firms gaining visibility
· Clients will be able to compare service providers, their price and services and make an informed choice.[24]
Tendering for services
In 1999, a huge Zimbabwean state entity had suffered losses due to the conduct of a law firm. It enlisted the services of a more established law firm to help in resolving the matter. The latter firm gave outstanding service to the entity. The entity decided to fire its offending legal practitioners and put its work out to tender. A few hours before the tender had closed, the entity was worried that the established firm had not put in a tender. It phoned to enquire about the apparent snub. The preferred law firm responded by pointing out to the organisation that it would NOT tender for legal work and that any law firm that had responded to their advertised tender may have been in breach of the law!
Today, competitive tendering is not only in vogue for everything but it is a means through which organisations procure good value from service providers. In the public sector, it is an efficient and effective tool against corruption. And so, what is so special with lawyers that excuses them from being subjected to a transparent and accountable appointment process?
I foresee in the near future more organisations putting their work out to tender. In Australia, clients have been demanding fixed fees for commodity work, faster service and value-adds (which is a euphemism for free services). It is not uncommon for some of the government tenders to demand that certain levels of pro bono work to be scored on the tender adjudication process.[25]
Sharing risk with clients
Clients are now demanding full or partial success fees or offering remuneration in the form of equity.[26] This is a very important development which you can use to lure new work and to earn a good return. If you act for a client in a listing, share issue, recapitalisation, mergers and you are the principal legal advisers, why should you not take equity in place of fees? If you advise on suing for a huge sum of damages, why not take risk on the success of the claim?
Billing clients by the hour is already being strongly resisted in many parts. Clients want you to share in the value you generate. As Dunstone notes;
‘This way of working is fairly new for lawyers, but has long been a way of life for consulting firms. A recent survey of consultants found that one third of their large clients insist on performance-based or results-based fees.’[27]
Restricted business forms for lawyers
In terms of the law in Zimbabwe, a law firm can only operate as a sole trader or as a partnership. You cannot even be a legal practice company, limited as that form is. You can therefore not have the benefits of limited liability. You can only manage your business risk through insurance and being careful.[28]
Secondly, lawyers cannot share profits with other professionals. This limits your ability to form cross-professional teams to perform special and highly rewarding work.
Thirdly, you are prohibited from operating another business under the same banner. This means that you cannot gain competitive advantage through differentiation.[29] If you are a law firm that specialises in conveyancing, why should you not be able to run a property sales business as well?
Fourth, you cannot raise capital from the public. This means you cannot make a public offer to the public to subscribe to your shares. If this was possible, you would have the benefits of huge sources of capital to run and build bigger firms which are well equipped.
Multi-disciplinary Practices
Law firms are structured as sole owner or partnership businesses supposedly to maintain professional standards. In Australia, for example, the Law Council has decided to do away with the traditional restrictions. Business structures are no longer considered important and necessary to the maintenance of professional standards.[30] Multi-disciplinary practices (MDPs) are now allowed. It is not even necessary for lawyers to be the majority in a MDP. A lawyer in such a practice remains subject to the same professional standards as a lawyer in a law firm. The change has enabled legal service to be provided by entities other than traditional law firms. In effect, other professionals like accountants may practice law. There is however some core work that remains reserved for lawyers.[31]
A MDP could take any of the following forms;
· ‘A law firm that add non-law services by bringing in a non-lawyer partner
· A law firm adds non-law services, which are provided either by the lawyers or by employed non-lawyers.
· A non-law firm adds law services by bringing in a lawyer partner
· A non-law firm adds law services by employing lawyers.’[32]
MDPs are considered better forms of business. They bring many advantages, some of which are;
· MDP can serve clients better by bundling services up with non-legal services which gives them greater scope.[33]
· Allows lawyers to provide a seamless service rather than have a client go through a network of service providers.[34]
· It provides new ways of differentiating a firm. New services can be marketed together with the traditional ones.[35]
· There is a huge cost saving on administrative costs of running two or more separate businesses.[36]
A mental shift is required of lawyers. You cannot simply be problem solvers. You have to look at yourselves as business support services. Many accounting firms have changed the way they look at their services. They have added to their usual accounting services new services like financial planning, strategic and business planning, change management and marketing. They now charge retainers to look after a client’s business on a monthly basis rather simply charge a fee for helping a client resolve a particular problem. This continuous client interface offers the lawyer the advantage of understanding the business of the client and with it the opportunity to detect business needs. You will also be able to anticipate the needs of the client.[37] Clients increasingly expect not to simply receive legal opinions. They want legal advice to be embedded with other information relevant to the business. As Dunstone puts it;
‘Lawyers are the only people who see legal issues as “separate”. Our training teaches us to spot the “legal issues”, break them off and analyse them separately. Anything that is not a “legal issue” is regarded as someone else’s business. Yet clearly problems do not really come in labelled boxes, and issues must be examined in their context.’ [38]
Developing new skills, new and innovative services
Dunstone encourages lawyers to learn new skills and stop living off the existing skills only. The environment is changing. She cites the example given by Maister, that ‘if all you work on is what you already know how to do, you’ll eventually be overtaken by someone younger who will learn how to do what you do, and will probably be willing to do it for less than you get paid.’[39] Maister classifies legal work as either asset-milking or asset-building. With asset-milking, you will be ‘taking advantage of and exploiting existing skills, relationships, and reputation’, while asset-building is ‘offering the opportunity to develop new skills by working on frontier innovative projects, building new and stronger client relationships that will pay dividends in future years, and creating a reputation in new fields or market segments.’[40]
In order for you to be able to develop new ideas, there is need for a major shift in our thinking. As Dunstone articulates;
‘Law firms do not usually provide an environment in which new ideas can thrive and grow. On the contrary, stress is endemic, risk is discouraged and failure is not well tolerated. Lawyers are trained to object, refute and win argument, but this approach is not conducive to the development of new ideas...Developing new services should be a response to client needs, but clients cannot always articulate what they need or want. We need to move beyond problem solving to needs-identification.’[41]
In addition, we need to look less viciously at fee spending initiatives that seek to develop new products.
‘Research and development is a hard bullet to bite, because it looks like fee-spending rather than fee-earning. It requires a change to the “eat what you kill” culture that often exists in law firms. What’s worse, some of the experiments won’t work, giving the impression of wasted time.’[42]
Teamwork
Firms need to look less like individual playfields. More teamwork is required and it must be visible to your clients. If you rely too much on individual efforts, it limits the potential of the firm. The firm’s goodwill and brand is built on teamwork.[43] And this must be a deliberate firm policy. As Maister suggests;
‘A firm that can supplement the skills of individual professionals by bringing to bear its collective experience regarding each individual client problem is going to be more valuable in the marketplace than otherwise. It therefore behoves every firm to ensure that there is value in the firm itself.’[44]
Learned friends, this is how you ensure that your firm is able to collect as much skills and experience from senior lawyers as possible. It is not an accidental process, it is a deliberate.
Fees
In the UK and in South Africa, there is pressure on the legal profession from competition authorities who are keen to open up the market and break down monopolies being enjoyed by the legal profession.
Clients have become more demanding. They are demanding high quality service at less cost. In the commercial sector, the well known cash cow for the legal profession, there is a greater demand for fees to be fair and transparent. The clients want value for money.
Your clients are continuously reviewing your role as legal advisers. You have to continuously worry whether you meet the expectations of your clientele. Richard Bennett, the HSBC general legal counsel notes that his legal team is an integral to the bank achieving its objectives. The legal team like other sections has to account for the ‘overall cost of things’.[45] Internal legal counsels are nowadays continuously concerned about how to reduce costs. In order to achieve this, they will ensure that they are very careful about what work to farm out to external legal advisors and what to do internally. They will consider how to manage the external advisors. They will ask questions like…’[A]re we paying too much? Can we cut costs by finding quicker, better ways of doing things?’[46]
Spencer cites the example of the US manufacturing giant Tyco which has done away with the briefing of external firms and paying fees at an hourly rate. It has entered into a partnership with the firm Eversheds in terms of which Tyco pays a flat annual fee of 8million pounds.[47] He adds that the Swiss Bank, UBS is now ranking legal service provided by external lawyers in order to determine the quality of the service.[48] The software giant Cisco has achieved standardisation of patent applications and contract renewals. It has forced its suppliers, including law firms, to find cost cuts of 20% per year. As of 2007, HSBC was looking at outsourcing routine legal work to cheaper countries. Its core external legal suppliers could then concentrate on ‘value added’ tasks.[49]
Richard Susskind has spent considerable time researching on the future of the legal profession and comes to the conclusion that the legal profession is ‘on the brink of fundamental transformation.’[50] In his view, two major forces will drive this transformation: ‘ a market pull towards commoditisation and by pervasive development and uptake of information technology. Commoditisation and IT will shape and characterise 21st century legal service.’[51]
The practice of the law is fast changing. Our territorial jurisdictions will not provide a wind cheater against the winds of change. Lawyers and their clients must now think ‘think more creatively, imaginatively, and entrepreneurially about the way in which lawyers can and should contribute to our rapidly changing economy and society.’[52] In summary, the new challenge is to re-examine our law firms and say;
‘what elements of …current workload could be undertaken differently—more quickly, cheaply, efficiently, or to a higher quality—using alternative methods of working. In other words, the challenge for legal readers is to identify their distinctive skills and talents, the capabilities that they possess that cannot, crudely, be replaced by advanced systems or by less costly workers supported by technology or standard process, or by lay people armed with online self-help tools.’[53]
The market conditions
‘… the market is increasingly unlikely to tolerate expensive lawyers for tasks (guiding, advising, drafting, researching, problem-solving and more) that can equally or better be discharged, directly or indirectly, by smart systems and processes. It follows that the jobs of many traditional lawyers will be substantially eroded and often eliminated. At the same time, I foresee new law jobs emerging which may be highly rewarding, even if very different from those of today.’[54]
The Scourge of the Billable Hour
Billing by the hour is a practice that is most common in Zimbabwe and many countries across the globe. There is an assumption that we make that the work that the lawyer has done is reflected by the hours the lawyer has spent on that client’s work. As noted in the Report of the CBA Young Lawyers’ Conference in Canada (2000);
‘The fundamental problem with hourly billing is that it assumes that time spent is uniformly an adequate measure of value delivered to a client...The point of any fee should be to attach an appropriate value to the lawyer’s service. A successful lawyer is one who can provide a service at a fee which is reasonable to the client, but which exceeds the lawyer’s costs of performing that service. The fee, therefore, should be an attempt to charge what the service is worth. An hourly rate should be a technique to help calculate what that value is.’[55]
The result of the billable hour is that a brilliant or competent lawyer will charge less than a less capable one for solving the same problem. The billable hour rewards the one who spent the most time without necessarily looking at the value delivered. As the CBA YLC report puts it;
‘Hourly billing creates a “productivity paradox”. By one measure, a lawyer who can accomplish a task twice as quickly as another lawyer is more productive and more efficient: that ought to be a good thing, and would be desirable from the client’s point of view. But if that lawyer’s performance is measured by hours billed, on paper he or she has been less productive, by billing only half as many hours.’[56]
But it is not going to be easy to simply do away with the billable hour. The billable hour is embedded in legal practice. The tariff recommended by the Law Society is based on billable hour. It is an easy estimate of costs to a client. It determines targets for lawyers and ultimately, pseudo as is, it is the measure of productivity and a costing tool.
Some of the alternatives are (1) task based billing- where a lawyer charges for various tasks in the legal action (eg. Drafting pleadings, attending negotiations etc). The client is upfront aware of the costs of each stage.[57] The risk for the lawyer is that if more time is spent, no additional remuneration is received.
Another method could be fixed fee billing. In this instance, the entire file is treated as a task. It is a workable method for tasks that are standard like preparation of wills.[58] The Law Society tariff makes provision for this, I think. For the hourly billing to be effective, the lawyer must be able to determine what will be profitable in the long run and still be attractive to a potential client.[59] This is quite ideal in services that could be achieved by most lawyers, the so-called commodity services. While it promotes efficiency, it similarly may encourage the cutting of corners where insufficient volumes have been generated.[60]
There could be hybrid billing systems that incorporate hourly rates and flat fees. This is possible where fees are capped to a maximum or where a lawyer and client agree on a lower fee level provided the lawyer can get a higher fee if success is delivered or the party and party costs recovered.
The Courts, Litigation and Justice Delivery
The state of our justice delivery system is disappointing, to say the least. The court system has virtually collapsed. The quality of the judicial appointments has deteriorated. Courts will pose a major challenge for a while in the future until there is serious commitment to the resolution of justice delivery by our courts. This is likely to continue in the future;
· Poorly paid judges and magistrates
· Serious teething problems with the setting up of the Judicial Service as separate from public service
· Lack of public confidence in the judiciary
· Poor appointments or candidature for judicial office
· Constitutional law will grow in importance once a new constitution has been passed
· Criminal law will be a growing area of practice, as well as immigration.
· Government lawyers and prosecutors will remain of poor quality, compromising justice delivery
· IT will be introduced in the courts but will face institutional resistance due to poor training and skills
· More specialized courts will emerge but will have little impact in improving justice delivery
SUMMARY OF THE FUTURE
The future will see the following features;
ü Increased competition from regional and international firms and local substitutes for legal services
ü Challenges to the traditional way of doing legal business
ü Unfriendly operating environment in the courts
ü Unhappy young lawyer will continue to be a challenge to future stability of law firms
ü IT will take centre stage
ü Billing will change dramatically
ü Clients will want to see commodity vs. value distinction in charges
ü Law firm regulation will move away from self-regulation
ü New areas of the law like competition law, mining law, energy law, IT law, environmental law will become lucrative practice niches.
I now turn to the next question...
How do you stay ahead?
According to Eversheds, a premium law firm which is successful and sustainable will have the following characteristics;
a. Resourcing: efficiency and technology
b. Legal practice: well hedged (‘a hedged well rounded legal practice arranged around an industry sector focus’), present in emerging jurisdictions like China and India; ‘as regulation increases and is reformulated a regulatory practice is crucial.’
c. Human capital: Lean (‘low leverage, emphasis on quality lawyers’); commercial, generalist lawyers (‘continued investment in training and development of generalist lawyers with more than legal skills-MBAs, leadership training, etc.’
d. Client relationships: collaboration (‘accepts the law firm is a service provider which can provide genuine collaboration with clients, willing to share risk and reward’); Billing (‘provides a tool box of fee arrangements, including fixed fees and value billing’)
Like I said in the beginning of my presentation, I assume that you are ahead and all I am required to do is tell you how you can stay there! In order for your firm to maintain its position ahead of the pack, it must be positioned strategically. The development of that business strategy involves an internal and external analysis.
External Analysis
· Political- the political environment has had a major impact on the conduct of business in Zimbabwe.
· Economic-law firms are affected by the same economic policies that prevail and affect other players in the economic sector.
· Social-cultural- what social and cultural factors influence the practice of law in Zimbabwe? Are the prevailing attitudes towards women or members of a particular tribe or race impacting on your business?
· Technological-what are the technological advances that are impacting on your business? Cell-phone network, internet, email, video conferencing etc.
· Legal-what legal regime affects your business? Labour? Law society?
· Ecological-what environmental factors are impacting on your business? Can you still afford to produce the huge volumes of paper lawyers are famed for?
For your internal analysis, you will need to understand the following;
· S-build on your strengths
· W-you must find ways to overcome your weaknesses and exploit those of your competitors
· O-Identify market opportunities
· T-Plan to circumvent external threats
Branding
‘Kantor and Immerman, Legal Practitioners’, so says your letterhead! What does this convey in the minds of judges, fellow lawyers, law students, prosecutors, state attorneys, advocates, the Deeds Office, the Companies Office, prison officers, police officers and the general public? A Jewish firm? Black Jews (Varemba)? Gentiles?
Scott Bedbury has said;
‘The best brands never start out with the intent of building a great brand. They focus on building a great—and profitable—product or service and an organization that can sustain it.’[61]
Branding is about the traditional Ps in marketing: product (in your case service), place (distribution channel), price and promotion.[62] Others add a prayer to this, but Kawasaki prefers proselytisation-‘which is the process of converting others to your belief, doctrine, or cause.’[63]
Price or should I refer to it as fees
Lawyers’ fees have been and will continue to a major source of controversy. How do you set your fees? Do you follow the Law Society tariff that assumes that because you are an old lawyer you must therefore charge more irrespective of your ability and the quality of service? A fee, like any price must be set in a very deliberate way. A number of factors affect pricing. Some of these are;[64]
a. How does the clientele perceive the value of what you are offering?
b. How are you positioning yourself?
c. What are the costs of providing the service?
d. What are the competitive forces at play?
e. What value does your firm expect to gain?
You then have to decide whether you want to pursue cost based pricing or value-based pricing. With cost-based pricing, you look at the service/product—cost—price—value—customers. With value-based pricing, you look at customers—value—price—cost—service/product.[65] Customers will pay your price if the total benefits outweigh or match the total price. A client will look and say, what were the features of the service; of what quality was it; how was the service; how is the availability; usability and how much personal satisfaction have I received. They will weigh this against your total fee.
Place/Distribution
How, when and where do you make your services available to your clients? Do you send letters and faxes, do you sit and consult one-on-one, do you use the internet? Do you visit clients at their offices and give assistance or you want your clients to come to your offices and sit for hours in reception? Learn from chartered accountants. Clients will pay for an advisor who cares for them and goes to their offices to serve them.
Promotion
This is a broad term that refers to a range of activities and communication channels that are used reach customers. What the firm would be trying to achieve is influencing how you clients think, feel and act toward a brand or a service on offer. The most common channels used are:
a. Advertising- gets messages to large audiences efficiently
b. public relations- positive image and strengthen ties with stakeholders
c. sales promotions- stimulates immediate purchase and rewards repeat business
d. personal selling-one to one selling, builds and strengthens relationships
e. direct marketing-reach targeted audiences, encourage direct response
f. digital-web/mobile- brand engagement, dialogue, strengthens relationships
Communications Planning
In order for you to plan your communication properly, you need to ask and resolve the following questions;
1. What- what specific proposition or message?
2. Which-which channels to reach the clients, and how much money will be spent on each?
3. When-when, in what mood and frame of mind, with what deployment strategy?
4. How-who will it all be stitched together to create the big picture?[66]
Kawasaki succinctly puts art of branding in modern parlance by describing it thus;
‘The art of branding requires creating something contagious that infects people with enthusiasm, making it easy for them to try it, asking them for help in spreading the word, and building a community around it.’[67]
Branding, contrary to what some money-wasting marketers think, is not about having a posh letterhead and adverts in every place. Great brands start with a great service.[68] I may visit your nice and well presented website, I may have your glossy letterhead, I can see your beautiful support staff in elegant and short dress, I can see your modern offices freshly painted but if Kantor & Immerman does not have a great service for its clientele, all the perfumes of Arabia cannot sweeten your name.
There is great wisdom in the old aphorism, that; the taste of the pudding lies in the eating! The lesson is this, if you want to have a great brand, provide great service. As Kawasaki puts it;
‘If you have something that’s gold, you can make a lot of mistakes with it and still succeed. If you don’t, you have to do almost everything right. So make it easy on yourself and create or find products and services that are inherently contagious.’[69]
Contagion
In other words, if you are a great law firm with great services, you may mess up a client’s work but the client will return. If you have poor service, you do not get a second chance. If you want your clients to find you irresistible, create contagion. Contagiousness has the following key elements;[70]
a. Cool. Create something different but cool. Anything that is cool is contagious.
b. Effective. You cannot brand rubbish.
c. Distinctive. ‘A contagious product is easy to notice and advertises itself. It leaves no doubt that it is different from the competition.’[71] Eg. The Hummer.
d. Disruptive. ‘Contagious products are disruptive. They upset the status quo or make them go into denial.’[72]
e. Emotive. ‘A contagious...service exceeds expectations, and by exceeding expectations, it makes you joyful.’[73]
f. Deep. It must be deep in its usability. The more you use it, the more you discover its capabilities.
g. Indulgent. ‘Purchasing a contagious product or service makes you feel as if you’ve indulged yourself. This may be because it costs more than the alternatives, it’s cooler, or it’s more that you really need. Thus it enables you to escape the mundane.’[74]
h. Supported. ‘Providing exemplary service makes a product or service contagious.’[75]
And so what are the current realities in marketing?
These are the realities to marketing in the 21st century;[76]
a. The pace of change is swift and dramatic
b. There is increased competition
c. There is shorter time to market eg. Surf-pick-a-box shows are gone
d. End of mass communication- people want personal communication.
e. There is a deluge of information-there are too many people saying too much already.
f. There is a constant constrain on budgets- advertising and marketing in general are expensive.
g. There is growth of digital technology-digital technology has changed the way we communicate.
Marketing is facing new challenges. Some marketers call this the marketing catch-22. This is how the catch-22 works: the challenge is the law firm wants to market its services; the problem is that there is marketing resistance; the response from the market is that there is more marketing saturation; the result is that there is more marketing resistance.[77]
A strategic marketing planning process consists of two main elements: Situation analysis and marketing communication programme. I will briefly touch on the situation analysis:
1. First do the research and market analysis
2. Secondly, understand markets and customers
3. Thirdly, segmentation, targeting, and positioning must be done.
Then you move to the communication programme, and do it as follows;
1. Goals (long term targets), objectives (shorter-term targets) and marketing support. Effective objectives must be specific, time defined and measurable, realistic (but challenging), consistent with mission and overall goals, consistent with external and internal environmental analysis. They must be appropriate when considered in the light of opportunities and threats. Your marketing objectives must target the management of relationships. This includes the acquisition of new clients, retention of clients you already have, customer satisfaction, etc.[78]You must watch the dollar. There is need to set financial targets as well. This must be aligned to the marketing objectives. This is where profitability targets come in. How well is the business projected to do?
2. Marketing strategies, programmes and tactics
3. Implementation control and measurement
Recruitment of lawyers
The University of Zimbabwe and the Midlands State University produce the lawyers. Are they producing the lawyers that we want? Is Dougie Chinawa and his accomplices meeting the demands of the market? Let me start by saying that it has never been possible for law schools to produce ready-made products. Law schools are incapable of producing lawyers for the market who meet our requirements. We have as law firms to invest in the training and mentoring of young lawyers to become able lawyers who can work efficiently and intelligently in our law firms. The ideal attributes often sought in your candidates are;[79]
· Good legal knowledge
· Good communication skills
· Hard-working-willing to do both interesting and boring work
· Practical/commercial
In addition, most law firms highly rate professionalism, mature attitude, enthusiasm, being a team player, well organised and use of initiative as good attributes.[80] But I can safely assume that our law schools do not have the facilities to produce what we are expecting of them. The dearth of academic staff, lack of basic books, lack of information technology etc have negatively impacted on the quality of the lawyer we want. In addition, the curriculum has not been revamped continuously to ensure that the law schools produce graduates who are able to meet the needs of the market. The ideal lawyer you want who has a very good grasp of substantive law, has good analytical skills, research and other technical skills while at the same time possessing very good interpersonal skills you have to make yourselves. You have to endeavour to develop lawyers who are capable of retention of the black letter of the law and at the same time able to do serious legal research and have the autonomous ability to take responsibility for his or her own learning.[81]
If you want your firm to stay ahead of the pack, you must ensure that you get involved in the training of lawyers at the school and hire the most promising. Once they are in your firm, you must invest in their training. This training must cease to be the accidental anecdotal training by senior lawyers. It must be a deliberate curriculum that is developed to meet the needs of the firm and ultimately the commercial and practical needs of the general public/clientele.
In addition, have clear-cut career plans for your young lawyers. They must know when partnership is to be expected. They must know the standards that will be used to judge their work when the decision is to be made. Our young lawyers are mobile. They will leave if there is no hope of progress.
Firm management
The only real business subject taught in Law School remains possibly ‘Accounting for Legal Practitioners’. Most lawyers believe that armed with that subject they have miraculously become business managers. Please disabuse yourselves of that mentality. You do not become an able law firm manager because you are a lawyer. Law firms must employ able, talented and trained business managers. The idea that firms appoint a managing partner from amongst their number or that the most senior lawyer is for some reason the most competent is discredited. This is why the growth of law firms has been severely hampered. Hire managers who may be CA’s etc to run your business. Do not waste invaluable legal training on doing mundane tasks like ordering stationery, hiring secretaries, etc. Let managers manage your practice.
Harcup argues that law firms today ‘must provide excellent client service as well as market to new clients. Manage their staff and finances to be successful. To do so, they require not only excellent legal knowledge and legal skills, but also good interpersonal and management skills.’[82] The importance of these skills have been acknowledged by UK solicitors, who now invest in extensive internal training programmes which cover topics from drafting and negotiating skills, leadership, supervision skills and networking skills. Learning and personal development have become important in building and managing modern law firms.[83]
Specialisation
Specialisation in one or more fields of law is fast becoming unavoidable. Some law firms have built big enough specialist practices. It not uncommon to find law firms like Adams & Adams in South Africa majoring in intellectual property law. Some law firms just deal with personal injury cases only. This in my view is the narrow specialisation. Many law firms in Zimbabwe and in other countries strive to have a reputation as ‘commercial law firms’. This based on the belief that commercial law pays better. Big business does not fail to pay fees. The work is cleaner and does not involve having to deal with the police, prison officers, rude and underpaid prosecutors etc.
The complexity of laws being passed on a regular basis, globalisation, international regulation, cross-border practices, regional co-operation, among others, have created an environment for lawyers who prefer to work as specialists to create thriving practices. Specialisation in Zimbabwe, of a narrow kind, is still difficult because the economic shrinkage has limited growth. This may be a misstatement as some law firms seem to specialise in bail and such other criminal practices. But for many of them, this is not a deliberate strategic choice. It is a survival instinct determining economic activity.
Some firms still accept general work but have specialised units that deal with certain type of work. This would be ideal in an environment like Zimbabwe. It would allow the firm to survive on income from several sources, while at the same time affording its clients an array of legal services. Financially, this is good for diversity in sources of income. Should there be a slump in the mining law section, human rights litigation maybe able to carry the ken.
Pro Bono Work
As I said at the beginning of my presentation, practicing law is a public service—a service to the community. It is a commitment to work for justice. We live in a country of inequalities. Lawyers have a special role to play in ensuring that the poor members of the community access legal services. As a law firm, I would urge you to set aside hours every month to provide pro bono services. This service will go a long way in promoting your own firm and in serving your own community. When well supervised, it will an important tool in training young law students and detecting future legal resources. With the new constitution, this is a good field for picking up good challenging work.
The Courts and the Legal System
I have until now ignored a major issue regarding the success or failure of your legal practices. This issue concerns the delivery of justice by our courts. Are our courts capable of delivering justice—quality justice? Do our legal system and our judiciary in particular enjoy public confidence? Do we have able judges? Can you guarantee quality delivery of justice by our courts? Do our courts have the necessary infrastructure to deliver justice? How about the endless delays and the undelivered judgments?
Learned friends, we face a major handicap. Our courts are not yet ready to work in tandem with a legal practice that is ready to deliver value to its clientele. We should expect frustrations. We may have to consider ADR a major force in ensuring delivery of justice to our clients, particularly in matters in which arbitration is permitted by law. Negotiation skills are important. They may give you the ability to settle and negotiate settlements in litigation to the advantage of your clients.
UNDERSTAND YOUR CLIENT
It is very important for you to understand your clients. You need to have a full understanding of their business in order for you to serve them well. In order to understand your client, you need to understand the whole organization structure; vision and mission, strategic goals, five year plan, long term aspirations of the client, how they do business, assets and resources, changes affecting them, products and services, competitors, problems they are experiencing etc.[84]
Aspire too to understand the industry they are in, the markets they operate in, the competition they face and market share, general environmental circumstances, etc.[85] In this analysis, the firm must continuously update its knowledge in order to fully anticipate client needs. Ultimately, a proper understanding of clients will generate ideas on;
· Where can we help more?
· How can we help better?
· How can we add more value?
· How can we increase the strength of our relationship?
· Do we need to change to reflect these changes?[86]
CONCLUSION
No doubt the world has dramatically changed. Clients have become increasingly sophisticated; demand more; have higher expectations; measure value for money more; more inclined to use tenders; shop around more; subject legal work to regular re-tender; more careful in scrutinizing bills; monitor the performance of legal professionals more; prefer proactive lawyers; want creativity and innovation and desire tailor-made services.[87]
As a result, a lot more is now demanded of lawyers. Lawyers are supposed to marry their services to the commercial goals and objectives of their clients; offer commercially viable solutions; know and understand the client very well; trustworthy; enthusiastic; reliable; and competent.[88]
We have to adapt in order to survive!
If you cannot identify or develop distinctive capabilities as lawyers and a law firm you will soon be history.[89] I think the words of Susskind poignantly reflect the challenge that legal practice will face in Zimbabwe and conquering the challenges will determine who will succeed and who will be vanquished;
‘I do not believe lawyers are self-evidently entitled to profit from the law…the law is not there to provide a livelihood for lawyers any more than ill-health exists to offer a living for doctors. Successful legal business may be a bi-product of law in society, but it is not the purpose of law. And, just as numerous other industries and sectors are having to adapt to broader change, so too should lawyers.’[90]
Bibliography
1. Leonard S. Janofsky ‘The Future of the Legal Profession and the Role of the American Bar Association’ speech published in 11 U.Tol.L.Rev 201 (1979-1980) at page 214
2. Chris Maina Peter cites at page 368 the Private Practice Reform Committee of the Law Reform Commission of Tanzania (the Shivji Committee) in its Working Paper No. 1 of 1985
3. Mario Puzo in his book The Godfather
4. William Shakespeare, Henry VI
5. Peter Williamson, Law Society of England and Wales, speech to the 2003 Annual Conference
6. Chris Maina Peter, Human Rights in Tanzania,
7. Private Practice Reform Committee of the Law Reform Commission of Tanzania (the Shivji Committee)
8. Shapero v Kentucky Bar Association, (1988) 486 US 466
9. Mr. Justice Murray Gleeson, Chief Justice of Australia, ‘Examining Values’ a paper delivered to the Australasian College of Surgeons, St Mary’s Cathedral, Sydney, 14 May 2006
10. Ross Cranston ‘Legal Ethics and Professional Responsibility’ published collection of essays by the same title, Clarendon Press
11. Chief Justice Brennan of Australia, ‘Profession or Service Industry: The Choice’ delivered as an opening address to the Australian Bar Association Conference, San Francisco, 18-21 August, 1996
12. Sir Anthony Mason ‘The Independence of the Bench (1993) 10 Aust. Bar Review 1
13. Eversheds ‘Law Firm of the 21st Century: the Client’s Revolution, An Eversheds Report on the post-recession legal sector, 2010’
14. Shelley Dunstone ‘The Future of the Legal Profession’ a paper presented at the Southern Australian Legal Convention, July 2002
15. Maister ‘True Professionalism, 1997 Touchstone
16. Alex Spencer ‘Richard Bennett: Every Industry Changes’ www.timesonline.co.uk, October 29, 2007
17. Richard Susskind ‘Legal Profession is on the brink of fundamental change’ www.timesoline.co,uk
18. ‘The Future of the Legal Profession: The Challenge of Change’ A Report of the Canadian Bar Association Young Lawyers Conference, August 2000
19. Guy Kawasaki ‘The Art of the Start: The time-tested, battle-hardened guide for anyone starting anything’ Penguin Books, 2004
20. Luiza, Gibbs Business School, Joburg
21. Joy Harcup, Head of Training, Berwin Leighton Paisner ‘The Future of Legal Profession and Learning: A View from Practice’
22. Pippa Blakemore ‘Developing your practice—Increase the value of current clients: The Rainbow Strategy’ A Paper presented at the 2005 Conference of the International Bar Association
23. Richard Susskind: The End of Lawyers? Rethinking the Nature of Legal Services, Oxford Press 2008
[1] This paper was prepared and presented by TR Mafukidze at a strategic retreat for Messrs. Kantor & Immerman, Imba Matombo, Harare, Zimbabwe on the 22nd January, 2011. It is not for publication.
[2] Tererai Rector Mafukidze holds a Bachelor of Laws (Honours) [LL.B (Hon.)] from the University of Zimbabwe awarded in 1996. He is due to complete his Master of Laws (LL.M) in Corporate Law with the University of the Witwatersrand, Johannesburg at the end of June 2011. He is majoring in Competition Law, Banking and Finance and Company Law. He was admitted as a Legal Practitioner, Notary-Public and Conveyancer in the High Court of Zimbabwe in February 1997. He practised law in private law firms in Bulawayo (Calderwood, Bryce Hendrie and Partners) and Harare (Scanlen & Holderness) for three years before he joined Old Mutual as Legal Advisor. He later joined the Trust Group, a listed financial services company as Legal Manager of Trust Bank. He became Group Company Secretary in April 2005. He left Trust in October 2006 and moved to South Africa to take up a position with the Constitutional Court Trust of South Africa as the Co-ordinator/Secretary of the Southern African Judges Commission (latterly Southern African Chief Justices Forum). He subsequently combined this responsibility with the Directorship of the Southern African Legal Information Institute (www.saflii.org). Tererai left the employ of the Constitutional Court Trust at the end of March 2010. He works for the African Legal Information Institute (AFRICANLII). He is a co-founder of the AFRICANLII. He is involved in the establishment of legal information institutes across the Continent. He has attended and spoken at many international and regional conferences on Free Access to Law, constitutional law, judicial independence, human rights and corporate law. He also works part-time in the Office of the Chief Justice of South Africa as a researcher responsible for writing speeches and papers for Chief Justice Ngcobo.
[3] Cited by Leonard S. Janofsky ‘The Future of the Legal Profession and the Role of the American Bar Association’ speech published in 11 U.Tol.L.Rev 201 (1979-1980) at page 214
[4] Speaking at the 2003 Law Society Conference, cited by Harcup at page 5
[5] Ibid at 214-215
[6] Chris Maina Peter cites at page 368 the Private Practice Reform Committee of the Law Reform Commission of Tanzania (the Shivji Committee) in its Working Paper No. 1 of 1985 as reporting that;
‘There is street talk circulating around that private advocacy is a means to easy and quick riches and that privately engaged lawyers are fast-talking, money-grabbing lot. The saying by Mario Puzo in his book The Godfather has a lot to do with this image when he said “A lawyer with a briefcase can steal more than a hundred men with guns.” To the Don, saying lawyer and robber, are one and the same thing.’
[7] Qouted by Chris Maina Peter at page 367
[8] (1988) 486 US 466 at 488-489
[9] Delivered at St Mary’s Cathedral, Sydney, 14 May 2006
[10] At page 3
[11] Ross Cranston ‘Legal Ethics and Professional Responsibility’ published in a collection of essays by the same title, Clarendon Press,
[12] Chief Justice Brennan of Australia in his paper ‘Profession or Service Industry: The Choice’, delivered as an opening address to the Australian Bar Association Conference, San Francisco, 18-21 August, 1996 at page 4
[13] Sir Anthony Mason, ‘The Independence of the Bench’ (1993) 10 Aust. Bar Review 1 at page 9, cited by Chief Justice Brennan in his paper ‘Profession or Service Industry: The Choice’, delivered as an opening address to the Australian Bar Association Conference, San Francisco, 18-21 August, 1996 at page 4
[14] ‘Foreword’ Eversheds ‘Law Firm of the 21st Century: The Client’s Revolution, An Eversheds report on the post-recession legal sector in 2010’
[15] Eversheds ‘Law Firm of the 21st Century: The Client’s Revolution, An Eversheds report on the post-recession legal sector in 2010’ at page 3
[16] ibid
[17] Shelley Dunstone, ‘The future of the legal profession’ page 1 of paper presented at the Southern Australian Legal Convention, July 2002
[18] Shellye Dunstone, Ibid
[19] Harcup at page 5
[20] Ibid
[21] ibid
[22] ibid
[23] Ibid
[24] ibid
[25] ibid
[26] ibid
[27] Dunstone at page 4
[28] Ibid at page 5
[29] Ibid
[30] Dunstone at page 5
[31] ibid
[32] Ibid, Dunstone suggests that joint venture arrangements may provide further possibilities
[33] ibid
[34] ibid
[35] ibid
[36] ibid
[37] Ibid at page 6
[38] Dunstone at page 6
[39] Ibid, at page 7
[40] Cited by Dunstone at page 7 [Maister, True Professionalism, 1997 Touchstone]
[41] Ibid
[42] Ibid at page 8
[43] Ibid
[44] Maister, at page 98-99 cited by Dunstone, ibid
[45] Alex Spencer “Richard Bennett: ‘Every industry changes’”www.timesonline.co.uk October 29, 2007
[46] Ibid
[47] ibid
[48] Ibid
[49] Ibid
[50] Richard Susskind ‘Legal Profession is on the brink of fundamental change’, www.timesonline.co.uk the first of his six draft excerpts from his then forthcoming book at page 1.
[51] ibid
[52] Ibid
[53] Ibid
[54] Ibid
[55] ‘The Future of the Legal Profession: The Challenge of Change’ A Report of the Canadian Bar Association Young Lawyers Conference, August, 2000 Page 53
[56] Ibid at page 54
[57] Ibid
[58] Ibid
[59] Ibid
[60] Ibid
[61] Quoted in Guy Kawasaki’s, The Art of the Start: The time-tested, battle-hardened guide for anyone starting anything, Penguin Books, 2004 at page 167
[62] Ibid at page 167
[63] Ibid
[64] Luiz
[65] ibid
[66] Luiz
[67] ibid
[68] Ibid at 168
[69] Ibid
[70] Ibid 168-169. As set out by Guy Kawasaki
[71] Ibid
[72] Ibid
[73] At 169
[74] Ibid
[75] Ibid
[76] Based on a presentation by Luiza of Gibbs Business School, Johannesburg
[77] Luiza
[78] Luiz, ibid
[79] Joy Harcup, Head of Training, Berwin Leighton Paisner, ‘The future of the legal profession and learning: a view from practice’ at page 3
[80] ibid
[81] Harcup at page 4
[82] Harcup at page 2
[83] ibid
[84] Pippa Blakemore, BSc PGCE, ‘Developing your practice-Increase the value of current clients: The rainbow strategy’ A paper presented at the 2005 Conference of the International Bar Association at page 10
[85] Ibid
[86] Ibid at page 11
[87] Ibid
[88] Ibid
[89] Ibid
[90] Richard Susskind, first draft extract, www.timesonline.co.uk
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