Khadija Magardie
The Supreme Court of Appeal this week upheld the golden rule of traditional legal practice that advocates may only represent clients who have been to an attorney first.
The two judgements, written by acting supreme court Judge Joos Hefer and supreme court Judge Edwin Cameron, appear a timely affirmation of disquiet within the legal profession over the government’s controversial draft Legal Practice Bill.
The draft legislation has ruffled feathers in several legal circles primarily because it proposes placing the profession and its regulation under the control of the government.
Though the draft Bill does not clearly spell out the destruction of the system of referral for advocates, it does not make any express provision for its retention either.
Last week’s judgement involved an independent advocate from KwaZulu-Natal, Joaquim de Frietas, who appealed against a finding of unprofessional conduct against him in 1997 for ignoring the ”referral rule”. De Frietas accepted a case directly from a client without being briefed by an attorney first.
The Natal Provincial Division of the High Court suspended him for six months, and dismissed a counter- application by the Independent Association of Advocates of South Africa (Iaasa), for an order declaring the referral rule invalid for Iaasa members.
In handing down judgement, Judge Hefer dismissed the appeal, saying the referral practice was ”in the public interest” quoting a previous judgement that described the demarcation of skills between the two professions.
”The advocate,” Judge Hefer’s judgement read, ”is, broadly speaking, the specialist in forensic skills and in giving expert advice on legal matters, whereas the attorney has more general skills.”
Judge Hefer said it would be ”foolish” for the court to interfere with the referral rule in the way in which Iaasa was suggesting, adding that it would ”force South Africa out of step with comparable Commonwealth countries”. He also said it would not be appropriate for the legislature to intervene either.
In the past few years academically or practically qualified attorneys have been appearing in the high courts, especially when instructed by the Legal Aid Board.
The country’s ”two tier” legal system is inherited from both Holland and England. It makes provision for advocates and attorneys to conduct work on a parallel yet separate basis. Each province has its own Bar representing the advocates of the region and falling under the national umbrella body, the General Council of the Bar of South Africa.
Also in existence are various ”independent” advocacy associations, which permit members to accept instructions from the public.
Critics of the divided Bar system say upholding the tradition of referral in the name of ”expertise” in certain branches of the law is tantamount to protectionism, because it directly bars the inexperienced and newcomers from making a success out of the profession.
They also say that members of the Bar are not partial to having their livelihood threatened by attorneys encroaching on their ”turf”.
Judge Cameron agreed with the judgement, but mostly on grounds relating to administration of trust accounts being held by advocates on behalf of clients. In his judgement he said the rule was necessary to curtail the possibility of theft. He added that the referral rule was not immutable; and that the Bar should investigate possibilities of broadening its access to members of the public, especially the indigent.
The chair of the General Council of the Bar, advocate Jeremy Gauntlett, said the judgements were ”a vindication of the Bar’s commitment both to its continued existence and its independence”. He concurred with Judge Cameron’s suggestion that the Bar examine ways of making its services available to the needy.
The court dismissed De Frietas’s application with costs.