Page | 33
PRESIDENT’S REPORT
BLACK LAWYERS ASSOCIATION GENERAL MEETING
HELD IN POLOKWANE, LIMPOPO
ON 15 MAY 2010.
INTRODUCTION
· Branch Chairpersons,
· Members of the Branch Executive Committees of the nine BLA branches,
· Councillors serving in Law Societies,
· Leaders of the Student Chapter,
· ladies and gentlemen.
It gives me great pleasure to present this NEC report under my leadership as the President of the Black Lawyers Association.
Allow me to welcome Judges who are present among us. We will acknowledge them by name in during our meeting.
Allow me to extend my greatest gratitude and appreciation in advance to the Chairperson of BLA Limpopo and members of the Branch Executive Committee for the braai and drinks that we will be enjoying this evening if we manage to finish our meeting before 12 pm tonight.
May I request members that we stand and pay our respects to Mr Moeketsi Magabane, who passed on in office as the Chairperson of BLA Limpopo including those of our members who passed on after our Annual General Meeting in Cape Town.
This report is less about our performance and more about what we would like to achieve between now and October 2011 if we will still be in office.
The report also seeks members to pass resolutions that the NEC requires on certain important matters. Of course members as of right are entitled to take resolutions arising from the deliberations that will take place today on important issues.
I will now turn to the challenges that confronted the NEC and how the NEC dealt with such challenges.
EASTERN CAPE
The NEC withdrew comrades Maseti, Mgxaji and Manxiwa from the Cape Law Society (CLS) and other structures that the 3(three) comrades occupied on the ticket of BLA. I have dealt with this matter in the newsletter and furnished reasons for our action.
After the NEC’s withdrawal of the three comrades from the Cape Law Society the three comrades sought protection of the statutory component of the CLS. The three comrades and the CLS challenged the decision of the NEC on the basis that the NEC did not have the power to withdraw the three comrades from the CLS. In other words the BLA’s members in the CLS are at the mercy, control and supervision of the statutory component of the CLS. The President of the CLS, Mr Phumzile Majeke, and members of NADEL made it clear to the statutory component and the three comrades that NADEL did not have the power to choose leadership for the BLA stressing that neither component in the CLS has the authority to interfere in the other component’s own affairs. Had NADEL not adopted this approach, correctly so in my view, BLA would have had representation in the CLS imposed on it since the signing of the LSSA agreement 14(fourteen) years ago.
For those who may not have read all the three issues of ALUTA CONTINUA you need to know the history of the defiance campaign by the three comrades.
Representation of councillors on the CLS was on the basis that the Eastern Cape Branch had 3(three) council members, the Western Cape and Northern Cape 1(one) each.
During the AGM of the CLS held in Kimberley in 2009, the BLA Northern Cape, BLA Western Cape and BLA Eastern Cape branches failed to reach agreement on who should serve as the BLA Vice President in the CLS. The Western Cape and Northern Cape branches agreed that Dali Mjila should be the Vice President.
The Eastern Cape opposed the candidacy of Mr. Mjila and insisted that Mr. Mkhululi Manxiwa is its choice of candidate for the Vice Presidency and that the two branches should accept its choice by virtue of a majority vote of all the BLA councillors in the CLS.
Constitutionally this disagreement/dispute had to be referred to the NEC for resolution as the three branches failed to reach agreement. The Northern Cape and Western Cape branches referred this matter to the NEC. Pending the resolution of the dispute by the NEC the CLS was advised that comrade Manxiwa, who was chosen as the Vice President candidate for Eastern Cape, has not been approved by the BLA as its candidate and advised the CLS of its preferred candidate.
The Western Cape branch further informed the NEC that Adv Ntsebeza SC was representing the Western Cape branch on the CLS and when he left the attorneys profession, the Eastern Cape branch replaced him with its own candidate. This caused an imbalance. In addition the Eastern Cape had an alternate in council. These facts were verified and the NEC redressed the imbalance. As I am speaking to you, fellow members, the Eastern Cape and Western Cape are now on par. The Northern Cape has one representation in the CLS and an alternate.
The Chairperson of Eastern Cape Branch and the (3) three comrades are demanding that you, fellow members, should today review and set aside the decision of the NEC. They are, at the same time, also appealing the decision of the NEC. As lawyers we know that you cannot appeal and review at the same time. The view of the NEC is that its decision is neither appealable nor reviewable.
These members were deployed to the CLS by the NEC. They were not elected by the members of BLA as councillors of the CLS. The demand of the Eastern Cape and the three comrades make a mockery of the BLA constitution and good governance. Their demand if (unlawfully) carried out by the members will render the constitution of BLA toothless. Third parties will refuse to conclude agreements with the NEC as such agreements may be rescinded at the instance of members. That is bad corporate governance. The effect of this is that all decisions of the NEC do not have the force of law. We may as well not elect members in the NEC but leave the members to run the day to day operations of the organisation. What an absurdity. This is Eastern Cape[1] for you, fellow members.
You are called upon to review the decision of a structure that has a full mandate to make decisions on such matters. If the three comrades were elected representatives the NEC would not have the power to recall them.
What could the reason be for this demand by the branch and the three comrades? What immediately comes to mind is that the comrades have been entrenched in the Cape Law Society for a long period of time.[2] In such a situation it is difficult for the comrades to think of themselves outside the CLS. Does this mean that their branch has no competent and capable leaders to replace them? Why has their branch not recommended competent and capable leaders for deployment in the CLS as other BLA branches have done over the years?
Frankly speaking I thought that the comrades would welcome their withdrawal as a sign of relief. Fellow Eastern Cape members of over two hundred in number (as advised by their chairperson) would have been given an opportunity to sit in the CLS and build new and fresh leadership in the Eastern Cape.
In conclusion, fellow members, the General Meeting does not have the power or authority to set aside the decision of the NEC as these powers are constitutionally reserved to the NEC. Only a Court of law can do this. The NEC is however holding the view that all its actions are in the best interest of the organisation and legally beyond reproach.
There is another danger or risk related to challenging the decisions of the NEC when such decisions fall within the powers of the NEC. The organisation stands a risk of its future leadership demanding indemnity from all members (or insurance) before accepting any nomination for office.
The three comrades forget that as serving Councillors in the CLS they enjoy indemnity in terms of the Attorneys Act, 1979.
WESTERN CAPE
The BLA Western Cape Branch elected a new Branch Executive Committee on the 13th March 2010.
The former Chairperson of the Branch Ms Babalwa Mantame lodged a complaint with the NEC on the basis that as the Chairperson of the branch she was not part of the calling of the meeting for the election of the new BEC and that the election of a new BEC was tantamount to a coup.
The Western Cape Branch was requested to submit a report in response to this complaint.
Upon perusal of the report from the Western Cape branch it became clear to me that Ms Babalwa Mantame did not have a valid complaint and I advised that she should withdraw the complaint.
I am happy to announce that Ms Mantame did withdraw her complaint.
PIETERMARITZBURG BRANCH
Until such time that the BLA has Rules for the election of office bearers and a Voters Roll, this organisation will not be at peace with itself.
The Pietermaritzburg Branch complaint related to the election process. The intervention of the NEC was not palatable to the Pietermaritzburg BEC but we had no choice but to act as we did.
I am however pleased to announce that we were able to resolve the problem.
The complaint related to the electoral process.
GAUTENG
Pietermaritzburg and other branches may draw lessons from the Gauteng Branch which has formulated its own rule and has developed Voters Roll.
Gauteng held its elections last week and for the first time in the history of BLA Gauteng, nominations of members were agreed upon before the holding of an Annual General Meeting.
Let me not say more lest I be accused of being biased.
PROPOSED CONSTITUTIONAL AMENDMENTS
I have received the proposed constitutional amendments from Comrade Ngubane who was appointed to lead this process. The proposed Constitutional amendments are as follows:
“EXPLANATORY NOTE”
Suggested amendments will bear consequentially to the number already appearing in the constitution e.g. if the clause in the constitution has its last clause and sub-clause as 3(e) the amendment will be 3(f) onwards.
If there is no sub-clause the amendment will appear as a number appearing in the constitution followed by a capital letter e.g. if clause in the constitution does not have a sub-clause, the new insertion will be 4A.
PROPOSALS:
7.4(v) insolvency
9.1A A member of the BLA is obliged to defend the organization and to refrain from speaking ill or criticizing the BLA in public or outside the established structures of the BLA.
9.3 The provisions of Clause 9.2 apply to all meetings of the BLA including those of the National Executive Committee and the National Working Committee.
9.3 A notice of a meeting of less than fourteen days shall only occur in instances of extreme urgency.
12.4 The branches shall have exclusive powers to deploy their members to various positions in their provinces.
12.5 In the event of there being a dispute regarding any provincial deployment, the NEC shall be entitled to intervene. The NEC's decision, which shall be taken after consideration of submissions, shall be final.
12.6 Despite the NEC's decision being final, the General meeting or Annual General Meeting shall have the power to review the decision of the NEC, not with the view to set aside the decision, but with a view to map the way forward in case any member or structure places the matter on the agenda. No discussion of the matter shall be entertained unless a notice of less than 21 (twenty one) days of placing the matter on the agenda is submitted in writing to the NEC and the NEC dispatches such notice to the branches not less than 14 (fourteen) days of the meeting.
12.7 In the event of there being more than one branch in the province, the branches shall agree on a matter affecting them by consensus. If there is no consensus the matter shall be decided by the majority vote of member branches. If the majority is impossible to attain, the NEC, after considering the matter, shall have a casting vote on the matter.
12.8 No member or structure of the BLA shall be competent to litigate against any structure of the BLA in any court of law or any other dispute resolution body outside the BLA. All disputes shall be resolved internally by the structures set up by the BLA from time to time and the decision of the highest hierarchy of those structures shall be final and not reviewable or appealable.
15.6 The Student Chapters shall be entitled to form the national structure of the Student Chapter.
15.6 The national structure shall be entitled to send a delegate to the NEC or NWC meeting of the BLA. The delegate shall be entitled to participate in discussions but shall not be entitled to vote.
15.7 All structures of the Student Chapter shall be entitled to make rules and regulations which are not in conflict with the Constitution. Such rules and regulations shall in no way be construed as an amendment, supplement or override of the constitution but shall be meant to regulate the in-house functionality of the Student Chapter.
18(viii) The requirement that at least two women shall hold office in the NEC shall apply to all the structures of the BLA including the Student Chapters.
18.6(i) It is suggested that this clause should read "The NEC shall call at least one (instead of two) ordinary General meeting. The clause as it stands is being constantly breached as we only hold one general meeting in May.
19.4.4 A member present at the meeting shall be entitled to carry only one proxy in respect of each position or issue being voted upon.
19.4.4 Only members who have been in good standing for more than a year immediately preceding the date of voting shall be entitled to vote by proxy.
19.4.4 A certificate by the General Secretary shall be required to validate the proxy certifying that the member voting by proxy has been in good standing for not less than a year immediately preceding the date of voting.