Sergeant at the Bar
Why is Cheryl Loots (an associate professor in the School of Law at Wits University) arguably one of the two most influential academic lawyers around? The answer is simple. She advises the Ministry of Justice and is the chief architect of the draft Legal Practice Bill. This is the Bill that has caused concern among the country’s professional bodies and, more recently, the United Nations’s special rapporteur for the independence of judges and lawyers, Dato’ Param Cumaraswany.
In a recent statement, Cumaraswany writes of the Bill: “It is the legal profession which cradles and nurtures appointees for judicial office. When the practicing profession is not perceived as independent but is seen as subservient to the executive how could the judiciary be perceived as independent?”
These allegations raise the question of their validity. The answer is to be found in the Bill. Briefly, the Bill sets out to establish a system of registration, enrolment and regulation of legal practitioners and paralegals.
A Legal Practice Council will be established and will regulate the legal profession, determining appropriate standards of professional practice and ethical conduct for both practitioners and paralegals as well as training. To this end the council will have the function of enrolling persons so qualified as either practitioners or paralegals or removing them from the roll.
Given these powers, the composition of the council becomes crucial. It will consist of a chair, who will be a judge, retired judge “or person of similar calibre”. There will be eight nominees from professional organisations, two from organisations representing paralegals, one from the registered public service lawyers, one from the conveyancers, one from the National Prosecution Authority, or its nominee and two law teachers. From the nominees, the minister will select the members of the council.
The minister will also be able to appoint two persons nominated from consumer organisations or organisations which he considers to be so representative.
Any person registered as a legal practitioner will be entitled to appear in any court. It appears that both the courts and the council will have a say in this admission.
The Bar is recognised indirectly in that voluntary associations can be established under the Bill, and must meet its requirements. This could mean that the Bar’s insistence on a referral system will be hit by the Bill.
Unquestionably, the Bill has far-reaching consequences for legal practice. Critics of the Bill say the existence of an independent Bar could be placed under statutory attack, corporations will be able to hire top litigators to do their bidding, the council will become the custodian to admission as a legal practitioner and the possibility will always exist that a minister will be able to fashion the council in his or her own image.
The defenders of the draft Bill correctly maintain that transformation of the profession is vital. Both the Bar and particularly large firms of attorneys are made up of white males. Change is needed to ensure representativeness in the profession. But of equal importance is the point made by Judge Pius Langa: “The real debate must relate to finding the best way, in our circumstances, to deliver effective legal services to South Africa’s diverse community.”
There is no apparent answer to why the Bill will answer this challenge better than would a form of self-regulation undergirded by the supervisory jurisdictions of the courts. Wouldn’t it be preferable to have a statutory council that would be the arbiter of the profession but within a framework, in which self-regulatory bodies micro manage the practising of law? This will rebut the kind of accusation of the special rapporteur that the independence of the judiciary will be compromised by the proposed system.
There is another question raised by the contents of the Bill. In whose interests will this Bill work? Will it promote cheaper and more accessible legal services for the poor? There is a danger that the Bill will have the opposite result. If the effect of the Bill is to decimate the Bar, small rural firms, for example, will struggle to gain access to specialist legal advice.
There is much good in the Bill, particularly in respect of the recognition of paralegals and the training requirements for candidate practitioners. Sadly, Loots and her team have over-egged their legislative pudding.
It is not too late to change the recipe.