JUDICIARY We remember them ... Judge Denis Gower Fannin

when he joined his father's old regiment, man in 1979 when he was appointed an the Umvoti Mounted Rifles. honorary life governor. He was also the He was commissioned as intelligence chairman of the education specialist officer of the UMR and the Fourth South working group ofthe Buthelezi Commis­ African Brigade before leaving for North sion appointed by the Chief Minister of Africa. He was mentioned in despatches K waZulu to enquire into and report on The late Judge Denis Fannin for his part in the campaign which re­ various matters concerning the constitu­ sulted in the capture of Bardia by the tional future of this province. HE Judge President of the Natal Second SA Division and was later Denis was also vitally concerned with Provincial Division, Judge awarded the Military Cross. He was cap­ the needs of returned servicemen, and TGeorge Howard, paid tribute to tured at Tobruk and spent the rest of the he served as chairman of the Durban the late Judge Fannin, who died on 9 War in prison camps in Italy and Ger­ education committee of an organisation March 1997. The following is an edited many, during which time he did much caring for their needs. He was later version of his tribute: to bolster the morale of his fellow pris­ chairman of the National War Fund, a "Mr Gordon, Mr Attorney, Mr Von oners, who included Neville Holmes and member of its Natal executive and an Klemperer Taffy Harcourt who also survived to honorary national vice-president. He was We have gathered here to pay tribute serve on this Bench. a former chairman ofthe Pietermaritzburg to our friend and colleague Denis Gower After his return to Durban Denis went and Natal Midlands committee of the Fannin who died on Sunday in his nine­ back to the Bar and soon built up a busy Simon van der Stel Foundation, and was tieth year. He was appointed a judge of and successful practice. He took silk in the president of the Heart Foundation the Natal Provincial Division of the Su­ 1950 and held office as chairman of the in 1981. His abiding interest in wild life preme Court in March 1959 and retired South of Advocates of Natal and then of conservation led to many years' service as fIrst puisne judge at the end of July General Council of the Bar of South Af­ as a member of the Natal Parks Board, 1977. rica before his elevation to the Bench. and he was its deputy chairman until Everything that Denis Fannin did in He also found time during that period to November 1980. his life was well done. After matriculat­ contest and win for the United Party the Denis Fannin led a truly full and rich ing at Hilton College he qualifIed in law Durban Point seat in the Natal Provin­ life in the service of his fellowman. His with BA and LLB degrees at Natal Uni­ cial Council. He was a provincial coun­ accomplishments were many and var­ versity College in Pietermaritzburg. At cillor from 1949 to 1954, and he had ied but our purpose today is to pay trib­ university he was a member of the SRC several spells as an acting judge. ute to his achievements as a judge of and also of the university's first rugby Denis's interests were notconfmed to this COUlt: In his nineteen years on this team and the debating team. Later he law and politics. After 1945 he resumed Bench he displayed great wisdom, un­ was a member of the Council of the his involvement in education, becoming failing courtesy and a 'compassion for Natal University College for five years, a member of the board of governors of the underdog'. He was one of the finest and for two years was the first President Adams College at Amanzimtoti and its judges ever to grace the Bench of the of Convocation of the new University chairman for four years. At the same time Natal Provincial Division of the Su­ of Natal. He served articles in Pieter­ he was associated with the American preme Court. maritzburg and first practised as an at­ Board of Commissioners for Foreign We extend our deepest sympathy to torney in Durban. He was admitted as Missions. Until the time of his death he his wife Helen to whom he was married an advocate in 1930 and practised at the was a member of the board of governors for 66 years, and to his son and daugh­ Bar until the outbreak of World War II of Hilton College, having retired as chair­ ter and their families." • • • N his tribute DA GOt·don SC, chair­ "He was a connoisseur of life and derdog, his humanity, his commitment man of the Society of Advocates of living and a superb advocate and kindly to deal with every argument raised, his I KwaZulu-Natal, extended his con­ judge. The law reports abound with il­ considerable legal ability and his clar­ dolences and concluded: lustrations of his concern for the un­ ity of style." W

MAY 1997, CONSULTUS 25 REPORTS General Council of the Bar Executive Committee meeting

Nazeer Cassim, honorary secretary

HE agenda of the first Executive ing programme is now prescribed mate­ Committee meeting of the GCB rial for the pupils. The major patt of the T for this year on 25 January 1997 funding for training members as instruc­ reflects the adaptability of the Bar to the tors and courses conducted for pupils by changing contours of the practice of law. barristers from the United Kingdom has Rigidity and non-compromise belong to been borne by the Overseas Development the museum of social and legal antiqui­ Agency of the United Kingdom. Never­ ties. The blacklist system is not the law theless, for the period May to December ofthe Medes and Persians: ironically the 1996, the direct costs to the GCB amount ALS has not put up alternative propos­ to R 149 238,00. R43 563,13 was spent als. At the 26th Biennial Conference in on workshops for trainers and pupils, the Berlin in October 1996, the Chairman administrative costs of the Advocacy of the GCB, Wallis SC, was elected Centre in Durban were R96 688,75 and Deputy Secretary-General for Southern R9 986,13 was spent on meetings of the Africa. The 2002 IBA Conference is to Members are advised to place their names training committee. These costs are likely be held in Durban and will be co-hosted on the roster for Legal Aid work. The to increase in the future and, on a practi­ by the GCB and the ALS. Ipp J, from Board has adopted a practical and speedy cal note, a policy decision has to be made Australia, and Friedman J P were lead method to resolve fee disputes. as to whether the GCB funds training or speakers in a one-day seminar on case The GCB is determined to test cer­ whether pupils (as elsewhere) pay for management sponsored by the GCB for tain practices of certain members of the their training. better and more effective management "independent bar", in particular taking of the courts. The proposals emanating money directly from members ofthe pub­ Public interest from the seminar are to be subjected to lic, in the courts. The MMF White Paper Members of the Pretoria Bar have taken more detailed scrutiny by working is under scrutiny: the GCB resolved to a stand to participate in public life. groups established to work in conjunc­ take opinion on the constitutionality of Prinsloo SC proposed that the GCB ex­ tion with the Rules Board. Chief Justice the ability ofthe State to abolish the com­ press its dismay at the level of lawless­ Mohamed was appointed Honorary mon law claim against an individual who ness and crime and the inability of the President of the GCB. has committed a delict. The advocacy authorities to govern in that regard. programme is in full swing. A number There is clearly a need for our members Members'interests of members visited London and the Fac­ to engage actively in assisting the state The interests of members are, as always, ulty of Advocates in Edinburgh in Janu­ to maintain respect for life and prop­ paramount. Grobler SC and Epstein SC ary 1997, and Grobler se's findings are erty, and thereby attempt to avoid a state presented reports on their respective that there is much to learn - not only for of anarchy. The challenge to the profes­ meetings with the Legal Aid Board. From pupils and junior members, but also the sion is its ability to be meaningfully in­ all accounts, members are paid more more experienced advocates - regarding volved in combatting crime and restor­ promptly by the Legal Aid Board and the the developments abroad. Dit is nie te ing a nation where people respect the tariff is more generous than previously. laat om te leer nie! The advocacy train­ rights of others. III GCBNews

Nasionale Balie-eksamenraad IE bedanking van Lotter Wepe­ raad is veel dank aan horn verskuldig vir eksaminator in hierdie vak aangestel. ner SC as eksaminator in straf­ die uitstekende werk oor die jare verrig. Nog 'n nu we aanstelling as mede­ D en bewysreg is met spyt ontvang. Koos van Vuuren word in sy plek as eksaminator is Soraya Hassim in die Die ABR en die Nasionale Balie-eksamen- eksaminator en Dali Mpofu as mede- vak siviele verhore.

26 CONSULTUS, MAY 1997 REPORTS

Tydens die eerste inname van 1997 • The Intellectual Property Laws Ra­ ing at the end of the first sentence of het 131 pupille met hul pupilskap be­ tionalisation Bill., 1996 Rule 5.8.1: "except in the case of a mem­ gin en hulle sal die Nasionale Balie­ • National Road Traffic Bill, 1996 ber receiving an instruction from a for­ eksamen van 31 Mei tot 3 Junie 1997 • Wreck and Salvage Bill, 1996 mal arbitration body recognised by the afie. • Proposed Termination of Pregnancy General Council of the Bar". Bill, 1996 It was also resolved that AFSA and Laws and administration • Safety Matters Rationalisation Bill, IMMSA be recognised as formal arbi­ committee 1996 tration bodies for purposes of Rule 5.8.1. This committee is currently attending • Implementation of the Justice Laws to: Rationalisation Act, 1996 International Bar Project 94 - Arbitration: A draft • Proposed amendment to section Association international arbitration act for 276A(l) of the Criminal Procedure Malcolm Wallis SC, chairman of the South Africa. Act 1997 (Act 51 of 1997) GCB, has been appointed as deputy sec­ • Proposed amendment to section 2 retary general for Southern Africa of Supreme Court Rules and 2A of the Attorneys Act, 1997 the International Bar Association. He committee (Act 53 of 1997) has also been invited to act as co-chair­ This committee considered and com­ • Witness Protection Programme Bill, man of the newly established Barris­ mented on a draft set or new rules for 1997 ters' Forum of the IBA (see the report the Supreme Court of Appeal on behalf • National Prosecuting Authority Bill, on page 28 of this issue). of the General Council of the Bar of 1997 South Africa. • First draft of the new Correctional Bill: Honorary president of the Department of Correctional Services. General Council of the Bar Parliamentary committee Chief Justice Ismail Mahomed has Since October 1996 to date this sub­ GCB Professional Rules of been elected as honorary president of committee has considered and com­ Ethics: arbitrations the General Council of the Bar. The mented on the following legislation on The GCB resolved at its recent meeting president of the Constitutional Court, behalf of the GCB: that the Professional Rules of Ethics be Judge Arthur Chaskalson, is also an • Proceeds of Crime Bill, 1996 amended by the insertion of the follow- honorary president of the GCB.

Growth of the Bar GENERAL COUNCIL OF THE BAR OF S.A. 1600 1400 ~ ~ ;i

~ 1200 ~ :: 1000 f--­ IT 'J------l::;' lI 'IH ~ 800 ­ - 600 TTTT

400 --I------rT1i,.,.,l::rr------l1 :I------li TI !iil t------f ., ii! I; ­ m rrT !q! ii ;i .i it [! 200 J! 'i re: Ilill---p----.J:;' !\li' I:'f---p ---l1,li il'l re :' :!·f------fr ii ­ o I 1948 1956 1966 1976 1986 1996

Senior Members Junior Members lil!!ll!:!1 TOTAL

The above graph illustrates the growth of the Bar during the period 1948 to 1996. Total members as at December 1996 were 238 seniors and 1 218 juniors. W

MAY 1997, CONSULTUS 27 REPORTS IBA Conference, Berlin, October 1996

Malcolm Wallis SC, chairman of the GCB

ETER Hodes SC and Malcolm been invited to act as chairman of that Discrimination in legal Wallis se attended the confer­ gathering together with Robert Owen practice Pence on behalf of the General QC, the new chairman of the General The other element which I found of Council of the Bar. It was preceded by a Council of the Bar of England and particular interest were the sessions on conference on human rights (see page Wales. It is hoped that the first meet­ discrimination in legal practice. These 29 of this issue). ing of this body will take place at the flowed from a questionnaire which The principal feature of the formal 50th Anni versary Meeting of the IBA had been circulated to Bars around the meeting was the election of new of­ in New York in June 1997. world concerning their policies on is­ fice bearers for the IBA for the forth­ sues of discrimination. coming two years. They are Desmond Training To the South African lawyer two Fernando PC (Sri Lanka), President; A characteristic of the conference was things are of particular interest from Dr Klaus Bohlhoff (Germany), Vice­ the increasing stress on matters concern­ these discussions. President; Francis Neate (England), ing broad human rights and constitu­ The first is the extent to which vari­ Treasurer; and Dianna Kempe QC tional issues. ous forms of discrimination, particu­ (Bermuda), Secretary General. There is also an increasing focus on larly on grounds of race and gender, training for the legal profession, the remain endemic. It is clear that these Barristers' Forum function of universities and the like. are problems with which the legal The principal initiative arising from Insofar as training is concerned, the community internationally is going to the conference flowed from discus­ uni versal view is that the profession have to continue to grapple for some sions between myself, Frank Clarke needs to be involved in and take respon­ time to come. QC representing the Irish Bar and sibility for some elements of practical The second element was the debate Andrew Hardie QC, Dean of the Fac­ training of members of the legal pro­ over the usefulness and value of codes ulty of Advocates in Scotland and fession. of conduct directed at avoiding gen­ myself. We had noted that a large pro­ There are differing views as to the der and racial discrimination in the portion of the activities of the IBA re­ extent to which such training can course of practice. The South African lating to the practice of law focused properly be given or should be given Bar does not have such a code, al­ upon its practice in the context of what at universities. Some academics adopt though the English Bar and, as far as we would regard as firms of attorneys. the approach that practical training of I could gather, most other associations There is no separate discussion of legal practitioners is not their concern of lawyers, particularly in Europe and the problems of practitioners who, like at all. This appears, however, to be an North America do. Since my return to the Bars in various countries includ­ extreme position and the more gen­ South Africa I have had discussions ing our own, practise as a referral pro­ eral view is that some elements of with various people on the potential fession. From these discussions sprang practical training can and should take usefulness of such a code in South the idea of establishing under the aus­ place in the universities at least to Africa. Those discussions have re­ pices of the IBA a Barristers' Forum place the academic portion of the le­ vealed a variety of areas where dis­ where organisations representing advo­ gal programme in an appropriate con­ criminatory practises may exist ­ cates and barristers who practise on a text. However, once the student particularly of the type known as en­ referral basis could meet and discuss emerges from the university there is vironmental discrimination - and I problems, changes to the profession, general acceptance that the profession think it will be necessary for the GCB training and other initiatives. should be involved in practical train­ to consider these questions in the fu­ Subsequently I discussed this with ing almost invariably as far as I can ture and decide what approach we the chairman of the English Bar, see with an examination component should take in that regard. David Penry-Davey QC, and the in­ and some control, as a result thereof, Our attendance at the conference coming president of the IBA. Some over admission to the legal profession. was, I think, valuable and useful. The correspondence has passed amongst This is particularly interesting and contacts which were made there and the the interested parties since the confer­ relevant in the context of the debate ideas generated from participation in the ence and the establishment of such a in South Africa at present over debates are a useful spur to new and forum, initially on an informal basis, changes in education for legal practi­ creative thinking about the functioning has been approved by the IBA. I have tioners. of the Bar in this country. ID

28 CONSULTUS, MAY 1997 REPORTS Human Rights Seminar, IBA Conference, Berlin, October 1996

Milton Seligson se ttended the Human Rights semi­ Cape Bar nar which was held at the Estrel 1otel in Berlin, Germany, from 17 Africa a judiciary which was on the to 19 October 1996 as a representative road to becoming truly representative, of the GCB, in my capacity as a com­ impartial and competent. He men­ mittee officer of the Human Rights In­ tioned that the creation of a judicial stitute (HRI) of the IBA, having been service commission and a magistrate's invited to co-chair one of the sessions. commission was helping to make the The seminar was organised jointl y by judiciary more representative and had the HRI and the General Professional also increased the confidence of the Programme Committee of the IBA. It public in the courts. The minister also was attended by some 130 lawyers and stated that the representativity of the judges from 61 countries. Of the many judiciary had been further broadened IBA human rights seminars I have at­ because appointments to the high court tended over the years, this was certainly Milton Seligson se bench are no longer made from the the most focused and constructive. "narrow pool" of senior advocates The participants from South Africa - well-trained, people-friendly and practising at the Bar, attorneys and formed one of the largest delegations at representative auxiliary personnel; academics having become eligible for the seminar. The keynote address was - a representative network ofcompe­appointment as judges. He mentioned given by the Minister of Justice, Or tent trainers; and that plans to draw magistrates into Dullah Omar, who left soon after deliv­ - community outreach to facilitate "the pool" were also under considera­ ering his speech. Other South African meaningful public participation. " tion. lawyers present included Mr. Justice With regard to corruption the min­ Ralph Zulman, the Director-General: Access to justice ister expressed the view that extraor­ Justice, Mr 11 Noeth, Mr Michael The minister mentioned that his depart­ dinary measures were needed to deal Pinnock of the Association of Law So­ ment had produced a 100 page docu­ with this problem. He stated that a new cieties, Mr Peter Leon, attorney, of Jo­ ment entitled "Justice Vision 2000" law, The Institution of Special Inves­ hannesburg and Adv E Bertelsmann SC which was at present being widely dis­ tigating Units and Special Tribunals of the Pretoria Bar. cussed in South Africa. According to Bill, was under consideration by Par­ The conference focused on four is­ this "vision document" the goals in re­ liament. The proposed special inves­ sues connected with human rights - the spect ofmore meaningful access to jus­ tigating unit will be headed by ajudge provision of legal education, access to tice are as follows: of the high court with wide powers of justice, independence of the judiciary "- making legal advice and legal rep­ investigation within the framework of and corruption. In his keynote address resentation available to all who the fundamental rights enshrined in the Minister of Justice sketched the need it; the Constitution. Any justiciable dis­ progress that had been made since the - using language which is understood pute emanating from the investigation elections in April 1994. by all users of the justice system, will be adjudicated upon by a special including plain, simple language; tribunal headed by a judge of the high Legal education - ensuring the availability and afford­court, assisted by not more than five The minister stated that the broad goals ability of alternative dispute reso­additional members appointed from which it was sought to achieve with re­ lution mechanisms and procedures the ranks of judges, magistrates or gard to legal education included the es­ (ADR); and lawyers. tablishment of - developing a coherent and human "- a competent, representative and hu­ rights-based legal system." Human rights issues man rights-driven judiciary, There was a lively discussion led by a - legal and semi-legal professionals Independent judiciary number of legal academics as to the who are well-trained and human The minister pointed out that there ways in which lawyers and judges rights-driven; was now for the first time in South could be made more alive to and >

MAY 1997, CONSULTUS 29 REPORTS conversant with human rights issues, [Ms Lee Witte, one of the speak­ adequate remuneration and facilities. both in their law school training and ers, who is the executive director of Another session dealt with corrup­ through continuing legal educational the Chicago Volunteer Legal Services, tion and the prejudicial impact which programmes. The role of the media in prepared a pamphlet promoting the the corruption of lawyers and judges educating the public and the need for concept of volunteer legal services can have on the rights of those affected media reporters to receive basic train­ which are apparently highly success­ by decisions or favours obtained by ing in human rights were emphasised. ful in her juris- diction, but which have corrupt means. been slow to take root at the Bar in During the course of the seminar Legal aid South Africa.] mention was made of the IBA Dollar Experts in legal aid from the United I am of the view that we can and per Lawyer for Human Rights Appeal States and the Netherlands discussed should do more as advocates in provid­ in terms of which the Bar Associations the various ways in which legal aid ing, on a pro bono basis, legal advice of all countries are being asked to con­ can be provided and a variety of prob­ and assistance to the needy in impor­ tribute an amount of 1 US dollar from lems and solutions in this regard. The tant cases where legal aid is unavailable each member of their association. This general consensus was that, while or inadequate. is a "one-off" appeal designed to raise state-funded legal aid was an essen­ a substantial amount of capital to fund tial component of access to justice, Other sessions the activities of the HR!. supplementary measures such as vol­ In the session on the independence of I would recommend to the GCB that unteer pro bono services and recourse the judiciary the speakers included it continues to support and participate to alternative dispute resolution Judge Zulman who outlined the con­ in the activities of the HR!. Measured mechanisms where possible, were stitutional position of the judiciary in by the interest shown in the Berlin semi­ equally necessary in working towards South Africa and various aspects of nar and the importance attached to the meaningful access to justice. In a judicial independence. What emerged HR! by the IBA, the HR! is destined to number of countries members of the from the general discussion was that, play an increasingly important role in Bar contribute their services on a vol­ particularly in developing countries, promoting the cause of human rights untary basis or make financial contri­ the independence of the judiciary is and in identifying and monitoring hu­ butions towards legal aid. meaningless without the provision of man rights abuses. III

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30 CONSULTUS, MAY 1997