Respected human rights lawyer George Bizos has used a submission by late chief justice Arthur Chaskalson to argue against the Legal Practice Bill.
Public hearings on the proposed Bill in Parliament have exposed the sharp differences between law practitioners; some have warned the profession would lose its independence to politicians, but others said the Bill was important when taking into account the untransformed nature of the profession.
The Bill proposes the creation of a "legal practice council", which will regulate the affairs of attorneys and advocates, and in effect replace law societies. This, some feel, would erode the independence of the legal profession, as the minister would, among other things, appoint an ombudsman and determine fees for the profession. The minister would also be able to appoint some members of the council, as well as dissolve it if it was deemed not to be performing effectively.
Bizos, speaking on behalf of the Legal Resources Centre, based his oral submission on one that was written by Chaskalson before his death last year.
Bizos called for a reassessment of those aspects of the Bill related to the minister's regulatory powers and the role of the council, saying he was opposed to a situation where the executive would be granted far-reaching powers to control important aspects of the functioning of the profession.
"We cannot have a statutory body conducting the affairs of an independent profession," he said.
Chaskalson had argued that the Bill did not respect the freedom of lawyers to form and join self-governing associations to represent their interests, promote their continued education and training, and protect their professional integrity.
"To avoid this, the drafters need to return to the Bill so as to ensure it achieves what its preamble says it should be: to ensure the values underpinned in the Constitution are achieved," said Bizos.
He said the Bill as it was framed did little to ensure the retention of those ethics or the commitment to the values underpinned in the Constitution, because the profession would become subject to a council that could be dissolved by a minister. He also criticised the position of the ombud, who would report annually to the minister and be financially dependent on the department of justice and constitutional development.
He warned: "I don't think that Parliament should sign off its rights to a minister in a piece of legislation."
The Black Lawyers Association had a different view. Its president, Busani Mabunda, said the profession did not reflect the demographics of South Africa, and that only 30% of the legal profession was black.
Mabunda argued that there was nothing untoward with the minister having an active participatory role. "The reason for that is that, much as independence is valued and necessary, political oversight with the view of healing or regularising a society which is not perfect is instructive."
Krish Govender, a state law adviser, who spoke in his capacity as co-chairperson of the Law Society of South Africa, argued that lawyers themselves would not do enough to police themselves, adding that an intervention by the state was "absolutely necessary".
He said that South Africa was still a developmental state and its legal practice still needed an intervention by the state. "We can't talk about competition law and competition commissions in isolation. We import these concepts from the United States and Europe, which have evolved in a different way, and apply it in South Africa willy-nilly…"
His Law Society co-chair, Jan Stemmet, disagreed.
Stemmet, who said he was speaking for attorneys outside of the Black Lawyers Association, acknowledged they differed among themselves, notably in relation to the independence of the profession.
He said self-regulation was important for the sake of the independence of the judiciary and proposed minimal government interference. "The government should provide a framework, but not run the profession," he said.
In its submission, the Competition Commission criticised the Bill for its failure to address transformation in the profession.