Lawyers must embrace and support reform

Professions are powerful actors in any society, but especially in a society in transformation. The big traditional professions – medicine, engineering, finance, accountancy and law – are hugely influential as gatekeepers and drivers of change.

A government’s ability to navigate the vested interests of these grand professions is a test of its resolve and political dexterity. So, when a government decides to take them on it is always a big moment.

One of those big moments happened on Monday when, in the shadow of The Spear, so to speak, Justice Minister Jeff Radebe opened up a second front on the legal profession.

It is a pity that he chose the setting of a sponsored breakfast rather than Parliament to make the announcement, but the policy framework for the transformation of the state’s legal services should be enthusiastically welcomed nonetheless, because it seeks to reform the way in which the government is advised on the law and about how and, more importantly, by whom it is represented.

It is about time. The government keeps going to court and it keeps losing. It fights cases it should never even consider fighting. In the process it wastes millions of rands of public money that could be spent on other, more useful, things.

Bad legal advice
Self-evidently, the government has been giving itself bad legal advice. The state law adviser’s department has been getting it repeatedly wrong for nearly 20 years. Reform is overdue. Radebe’s proposal is to create a new position for a head of state legal services, who will occupy the same position that a solicitor general occupies in other, older democracies.

Radebe also announced that the state would be far more assertive in using its economic power to encourage change by briefing more black advocates. Although the role of the attorney is generally conducted “in-house” by the government, the state will turn to the Bar for legal representation.

Black advocates are struggling to break into a white-dominated profession, especially in the lucrative realm of commercial law. In a market economy this is predictable: those who control the juiciest bits of the marketplace will resist enhanced competition.

In South Africa, race enters the game and racist attitudes make it even harder for young advocates to break through. Speaking from experience, the best – probably the only – way for a young advocate to develop expertise is on the job. You cannot make progress without getting the briefs. The level of mistrust is so great that black advocates do not get briefed. The majority of attorneys and their corporate clients continue to brief mainly white advocates. It is a classic catch-22.

The knock-on effects are serious. Because judges are now drawn almost entirely from the Bar, the composition of that body matters greatly in terms of who gets appointed to the Bench. But if black advocates are unable to break into certain areas of the law, such as commercial law, it has a negative impact on their prospects and, even more importantly, on the quality of the judiciary.

Skills set on the Bench
Entirely appropriately, an increasing number of black judges must be appointed. If their opportunities to practise law as advocates has been limited by a skewed market, it will diminish the skills set on the Bench.

A parallel legal system has emerged over the past 15 years. Check the financial disclosures of former judges and you will see that they are boosting their pensions by conducting arbitrations.

It happens like this: a case gets listed in front of a black judge and, fearful that he (and it almost entirely is “he” not “she”) does not have the requisite experience or expertise, the corporate parties to the litigation abandon the courts and run off to private arbitration to be conducted by a retired (white) judge.

This is a privatisation of the law. Never mind the presidential penis – this is where the historical divisions and pain of the past bite deepest: on the integrity of the public character of the legal system.

Yet watch the reactionary defenders of the “independence of the legal profession”, such as Paul Hoffman, jump up and down. Their self-interested myopia is so intense that they cannot think it through; they see only a short-term assault on their economic interests.

Resisting reform
Yes, the quality of the legal profession matters greatly. Of course it must adhere to the highest professional standards. But that is not an excuse for resisting reform. The legal profession is a part of a capitalist economy and in a democracy it needs to be regulated by the government to advance the broader public interest.

Like bread-makers, lawyers collude unfairly with their pricing, limiting access to the rich and denuding many of their right of access to justice. 

This was the “second front”. The first front was opened a few days earlier, with the tabling of the Legal Practice Bill, which purports to restructure the governance of the legal profession by replacing its Bar councils and law societies with an overarching South African legal practice council, three of whose 21 members will be appointed by the minister of justice – to the immediate consternation of some knee-jerk critics of the Bill.

It has been a long time in the making. I remember the late Dullah Omar telling me, with a twinkle in his eye, that he would ease the rules for the admission of foreign lawyers to the Bar here if I could prove to him that it would serve to break up the conservative cabals that controlled the various provincial Bar councils.

The challenge for Radebe will be to build sufficient trust in the motive that lies behind his proposals. This will not be straightforward at a time when powerful parts of the profession – the Johannesburg Bar, for example – are greatly concerned by recent developments on the Judicial Service Commission. Radebe is blamed by some for the increasingly partisan discord in the judicial appointment process.

Even Margaret Thatcher, having reformed the City of London and all the other grand English professions, failed with the Bar. She wanted to fuse the legal profession and end the distinction between barristers (advocates) and solicitors (attorneys). Eventually she was forced to back down.

Lawyers know how to fight and they are trained to argue every point – as this government already knows to its cost.

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Richard Calland
Richard Calland is an associate professor in public law at the University of Cape Town and a founding partner of the Paternoster Group.

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