The National Assembly has passed the Legal Practice Bill
The National Assembly passed the controversial Legal Practice Bill on Tuesday, which seeks to regulate and restructure the country's legal 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 say, would erode the independence of the legal profession as it brings an end to the long tradition of self-regulation by the legal fraternity.
The Bill was opposed by the opposition parties but was passed through a vote with 227 members of Parliament voting for it and 81 voting against it. The National Assembly has 400 members.
Speaking before the vote, Justice and Constitutional Development Minister Jeff Radebe said: "Today [Tuesday] we, as a nation, stand at the threshold of a complete renewal of the South African legal system – a system that will not only be anchored on the rule of law and democratic values and principles enshrined in our democratic Constitution, but also that which will be embraced by all our people of our beloved country."
Radebe said the legal profession has always been a tightly regulated profession, because it operates in a much regulated space.
"What to do, how to do it and when to do it, is regulated by different forms of legislation and prescripts, including the Admission of Advocates Act, the Attorneys Act, rules of court made by the Rules Board for Courts of Law, practice directives made by the judges president, and rules made by the bar councils and statutory law societies."
He said different role-players, including the government, will and must therefore always have a right to have their say on how people who go about their business in the courts and who conduct their profession in a public space, in the pursuit of access to justice for all.
'Transformation of the legal profession'
The legal profession therefore does not only operate in its own space, but also operates in a space where all people, rich and poor, converge in pursuit of justice, said Radebe.
He said the roles of government and the profession must be seen against this backdrop, with particular reference to government's legitimate interest to ensure that constitutional imperatives are complied with.
"Transformation of the legal profession is one of these constitutional imperatives," he added.
Radebe said the premise for the regulation of the profession stemmed from the Constitution, which enjoins the state to regulate any occupation, trade or profession.
The Bill of Rights guarantees every citizen the right to choose any trade, occupation or profession freely and entrusts this democratic Parliament the legislative authority to make laws for the regulation of such trade, occupation or profession, he said.
Radebe said democratic principles that should govern the legal profession are geared to ensuring that our people not only blindly contribute to the revenue of those who represent them, but also have a voice in the policies and practices that affects their daily life.
One of the original aims of the legislation was to bring about fusion in the legal profession in which there would be a single category of legal practitioners and in which there would no longer be attorneys or advocates.
Hopes and aspirations
The Bill, before it was introduced into Parliament, was adapted to accommodate the urgent pleas of the profession in order to retain the attorneys' and advocates' professions as distinct categories of legal practitioners, each continuing to provide the legal services traditionally rendered by each of them.
Radebe said the enactment of the Legal Practice Bill carries with it the hopes and aspirations of many people on either side of the court yard.
"On the one side, the Bill extends to legal practitioners and aspirant jurists whose unrelenting desire to be freed from the shackles of apartheid to become true agents of the rule of law has been a long-drawn out journey with several stop streets; and on the other side, it brings hope to millions of our people whose quest for true justice is beyond measure.
"This Bill advances the transformative goal of our Constitution and complements the institutional reforms already introduced into our system by the Constitution Seventeenth Amendment Act and the Superior Courts Act.
"These triple Acts, all of which have taken time to find their way into this democratic Parliament, collectively seek to enhance access to justice, strengthen the independence of the judiciary and safeguard the rule of law which underpin our constitutional democracy," said Radebe.
Ineffective professional disciplinary mechanisms
In opposing the Bill, Democratic Alliance (DA) spokesperson on justice and constitutional development, Dene Smuts said South Africa should be addressing problems like affordability and access, choice, competition and consumer protection, especially against ineffective professional disciplinary mechanisms.
But the Bill instead forces advocates and attorneys into one governing body, the Legal Practice Council, and puts the attorneys in charge, she said.
"Why has this happened? Because the ANC, to borrow the title of Prof Sampie Terreblanche's latest book, is 'lost in transformation'."
Smuts said the advocates' profession had been sold down the river, because the ANC is lost in transformation.
She said significant progress had been made in deracialising the legal professions. "This is no longer 1994. As at March 2013, 64% of our 21 463 attorneys were white and 36% black.
"Black law graduates started outnumbering whites from 2005 onwards, and black articled clerks from 2009.
"At the GCB [General Council of the Bar of South Africa], white males represented 1 379 of the 2 471 members at April 2013. The black professional bodies have long been integrated with the GCB and LSSA [Law Society of South Africa] respectively."
Justice for South Africans
She said the policy making and operational power will lie at the centralised national level, in the Legal Practice Council, which will consist inter alia of 10 attorneys and six advocates. "There is no guarantee that advocates will be able to elect their own half dozen. This is so because the council will be preceded by a carefully constructed interim National Forum whose first order of business will be to create an election procedure for the actual council.
"Also on the order of business, wasting no time, is to write one code of conduct for both professions. In other words, attorneys will, by majority, make regulatory policy for advocates. The chair and deputy of this interim body are chosen by the minister after consultation with the National Forum, and if they become vacant, he calls the shots again. The chair has a casting vote."
"Just to rub in the Bill's levelling fusionist intent, the DA's previously acceptable proposal that the chair and deputy of the Legal Practice Council should represent both professions – if an attorney was chosen as chair, the deputy should be an advocate, and vice versa – was thrown out at the last minute," said Smuts.
She said attorneys, especially small firms (75% of South Africa's attorneys firms) should be the frontline of access to justice for South Africans.
She said fusion worked against the interests of small attorneys because it is typical of fusion that law firms become enormous in order to offer a full range of services.
"By contrast, when the professions are split, even small attorneys' firms can take on complex cases because they can call on the expert services of independent advocates.
"We should have been working on alternative business models, so that the small attorneys can make a living while serving South Africans," said Smuts.
Opposition to the Bill
The government is interested neither in the welfare of the professions nor the real interests of clients.
Parts of the Bill have been opposed by many in the legal profession including human rights lawyer George Bizos, who in February used a submission by late chief justice Arthur Chaskalson to argue against the Bill.
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 at the time.
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.
The Bill will be sent to the National Council of Provinces for concurrence.