Commerical Law Training Programme 2013

Eithne Lynch and Anna Hickey

Last month I was invited to travel to South Africa as part of IRLI’s Commercial Law Training delegation, with Michael Irvine (director of IRLI), David Barniville SC, Jarlath Ryan BL, Cillian MacDomhnaill of the Law Society and Eithne Lynch, Programme Lawyer with IRLI’s Malawi project.  I was delighted to be part of the team and as the newest member I thought I would share my experience of the programme and of this year’s preliminary course in Pretoria.

Overview

IRLI and the Law Society of South Africa (LSSA) have jointly run the Commercial Law Training Programme since 2002, with the support of Irish Aid.  The objective of the programme is to provide education and training in commercial law to black lawyers, with the aim of eroding the economic imbalance prevalent in the practice of commercial law in South Africa and contributing to economic development.

In 2012 the programme was expanded to run over a full year.  It was felt that as well as formal legal training, participants would benefit from an increased emphasis on business development and on skills transfer through mentorship and placement. The legal training aspect now has a greater practical component and involves continuous learning through an online platform.

The course participants

On the Monday morning we received a warm welcome at the LSSA’s Legal Education headquarters in Pretoria. We met the 20 participants who had been selected from over 100 applicants, coming from all parts of the country and as far as Cape Town and Port Elizabeth.  I was struck by the variety among the

Jarlath Ryan with some of the participants

participants’ background– some were sole practitioners, some in-house lawyers and others working for the State in areas including legal aid, insurance and rural community development.  What all had in common was a desire to gain expertise in commercial law and to develop their practice towards more commercial work.

The April course was the first time the participants had met in person.  Beginning in February, participants undertake a distance learning Corporate Law Certificate with the University of South Africa (UNISA).  This is followed by two week-long training courses at the LSSA in Pretoria – the Preliminary Course in April and the Drafting Course in August.  Eight participants are selected to go on placement with a commercial law firm or business in Ireland or South Africa, with the remaining 12 receiving intensive mentoring from commercial law practitioners. Lastly, participants are asked to plan and deliver a introductory business law seminar within their community bringing their knowledge to small and burgeoning businesses.

Preliminary Course

The preliminary course takes place over five days with a concluding exam on the Saturday. Teaching is a mixture of lectures, tutorials and interactive sessions, with guest lecturers invited from South African firms to add insight from daily practice.  As this was the preliminary course we began with an introduction to company law and company structures in South Africa, from the sole trader up to the public company. A Johannesburg practitioner came to speak to us about changes to South African company law following its recent root and branch reform. This reform is particularly interesting for Irish lawyers, given that many of the changes mirror those in our Companies Consolidation and Reform Bill.  We also invited one of the past programme participants, Mmoledi Malokane of Newton Attorneys Inc, to present on the new Act.

A thread running throughout the week was an examination of the basic share purchase transaction, which also gave us an opportunity to teach some core concepts of company and commercial law.  We dissected a share purchase agreement clause by clause and used it as a discussion template for commercial law generally.

On day 2, our accounting expert Cillian gave an overview of the main financial statements for companies and their importance.  On days 3 and 4, we took participants through the due diligence process for the sale of a company and the drafting of warranties and disclosure letters.  Further sessions focused on directors’ duties and corporate governance, including the holding of meetings.  Throughout the week the level of class participation and the standard of questions was impressive.  The participants also entered wholeheartedly into the spirit of our role-plays, with the AGM nearly turning into a minority shareholder mutiny.

The final day focused on alternative dispute resolution and an attorney/client roleplay. Cillian and Jarlath played two attorneys in negotation scenes that explored key aspects of the attorney/client relationship.  We also welcomed Safiyya Patel of Webber Wentzel who presented to us on black economic empowerment (BEE) legislation in South Africa and its impact on commercial practice. This includes, for example, the requirements of BEE legislation in terms of permitted shareholdings and directorships in companies and how this affects the structuring of transactions.

Throughout the week members of the IRLI and LSSA teams conducted interviews with the participants to assess their interest and suitability for placements.  Participants also carried out an in-class test and homework assignments that helped us gauge their drafting skills and their understanding of the materials.

Certainly I think we all learned a lot about corporate and commercial law – both from the guest lecturers and the participants, who were never afraid to ask tough questions and challenge assumptions.  I never thought I would find myself having to defend the concept of limited liability!

It wasn’t all hard work, and the social aspect of the course was an important part. Between tutorials and lectures we got to know the participants better and had some lively discussions, in particular about the direction of the country with elections coming up in 2014. The breaks were also an opportunity to try South African dishes such as stews, malva pudding and home baked cakes – the LSSA certainly did not let us go hungry.

LSSA Reception

Ambassador Brendan Rogers, Nic Swart of the LSSA and Stephanie Brown

A highlight of the week was the reception in Johannesburg hosted by the LSSA and sponsored by Shell.  This was an open evening to present and showcase the Commercial Law Training Programme, with guests invited from the business community, commercial law firms and stakeholders in the programme.  As well as publicising the training programme, the aim of the evening was to strengthen links with the private sector.

The keynote speaker at the evening was the Irish Ambassador, Brendan McMahon, who has been a great friend of the programme and has often hosted the IRLI team.  Mr McMahon called on the private sector to support the programme in particular by providing placements and becoming involved in mentoring. Stephanie Brown, Head of Legal at Shell Marketing, continued the theme with an engaging talk on the importance of mentoring in building a career.  We also heard a former participant, Manku Sehoana, tell us about his experience on the programme and his placement in Cork.  Afterwards, we had the opportunity to chat to guests over some canapés and enjoy the end of the warm evening.  For me it was a pleasure to get to know the charismatic Ambassador and to chat to Stephanie about life in South Africa.

Ceremony and Next Steps

The final exam was held on the Saturday morning, and was passed by all.  We then held a parchment ceremony to award certificates of completion to the participants and prizes for participation.  One of the past participants, Tshepo Mothoa, came to address the class.  A teacher turned lawyer, he described how his placement in Eversheds (now Routledge Modise) enabled him to gain experience in commercial and mining law. Since then he has gained clients in the mining sector and is expanding his practice.  His message was very much that the rewards of the programme are there for the taking.  I found Tshepo’s talk inspiring, and a reminder that whether in Ireland or Africa, education can only bring you so far and beyond that it is one’s own responsibility to make opportunities happen.

Afterwards we had a last lunch together and said our goodbyes, with a number of friendships having been forged during the week.  We didn’t leave before taking some class photos – where I was introduced to a new lawyers custom – to say “fees” instead of “cheese”…

The next step is the process of selecting participants for placements.  Already a number of commercial law firms have offered placements, as well as South African mining firm Xstrata. Some of the Irish delegation will be going back out in August as tutors on the Commercial Law Drafting Course.  As part of that trip it is hoped the Irish delegation will become involved in the mentoring process, including visits to the practices of participants.

It was a wonderful experience to travel to South Africa with IRLI and in particular to get to know the 2013 class.  We will see some of them again in Ireland in the autumn, and we also hope the LSSA team will visit Dublin and allow us to return their hospitality.

Lastly, many thanks to all the participants, my fellow tutors, Irish Aid, and to all at LSSA.

Anna Hickey is a solicitor in the Corporate department of Matheson, currently on secondment to Lloyds Banking Group in Edinburgh.