By Kim Hawkey
The impact of the Legal Practice Bill (B20 of 2012) was the topic of a forum hosted by financial services provider PPS in Johannesburg in late July.
Retired Supreme Court of Appeal Judge Peet Nienaber chaired the panel, which was made up of Law Society of South Africa (LSSA) co-chairperson Jan Stemmett; President of the Black Lawyers Association (BLA) Busani Mabunda; chairperson of the General Council of the Bar (GCB) Ishmael Semenya, director of the Institute of Accountability in Southern Africa, advocate Paul Hoffman; advocates Rusty Mogagabe and Dali Mpofu from Advocates for Transformation (AFT); and advocate Jeremy Gauntlett.
Mr Stemmett opened the forum by providing an overview of the 2012 Bill, in which he highlighted some of its main features, including:
Mr Stemmett highlighted certain of the Justice Minister’s powers in respect of the Bill, which include appointing three members of the council, dissolving and replacing the council in certain circumstances and determining the jurisdiction of the regional councils.
Mr Hoffman said that as South Africa was a constitutional democracy under the rule of law, parliament could not ‘do as it pleases’ as it was constrained by s 2 of the Constitution, which provides that it is the supreme law in the country.
Mr Hoffman said that, in his view, the Bill was inconsistent with the Constitution and the rule of law. It was, he said, ‘bad for the public, bad for the legal profession and even worse for an impartial, independent judiciary’. He added that it was essential that the legal profession was independent as it was from the profession that the judiciary was drawn. ‘The independence of legal practitioners is vital to the upholding of the rule of law,’ he said.
Mr Hoffman said that if the Bill was put before the Constitutional Court, he did not believe it would pass constitutional muster, and he was of the opinion that the Bill appeared to be ‘the first step on a slippery slide’.
He said that the drafters ought to ‘go back to the drawing board’ and question why they were changing a system that worked.
Mr Semenya said that the GCB supported parts of the Bill and acknowledged that the advocates’ and the attorneys’ professions were currently not representative of the demographics of South Africa and that access to legal services was limited.
However, he added that he did not believe the Bill would be published in its current form and that it would be amended following the engagement process.
He said: ‘I am inviting a measured approach to the issues. That will help the profession achieve the independence it is entitled to under the Constitution. This will avoid the disaster that is sometimes being forecast.’
Mr Semenya said that one of the ‘difficulties’ in the gestation of the Bill had been public utterances that were, at times, unfortunate, as were some of the retaliatory comments.
He said that criticisms such as those highlighted by Mr Hoffman ‘may well be accurate descriptions’, but before such criticisms were made, it was important to understand the reasons that led to those conclusions. ‘It is important that our criticism is well articulated. The debate will find improvement if we deal with the substance of the charge,’ he said.
He added that the rights of professionals were protected under the Constitution and he would be ‘surprised’ if these were disturbed because of the agenda of a particular political organisation.
Mr Semenya said that he wished to make two observations in this respect.
‘No one who is a lawyer will claim that the only entity that has a responsibility to protect the public is the judiciary or the legislature,’ he said, adding that the executive played a role in matters of public interest.
‘They too should know there are hurdles to anything that goes beyond their powers,’ he said.
‘My next observation is that it would be foolhardy of any government to try to seek to govern the profession. … The governance of the profession will remain the business of the profession. Regulation to protect the public interest is a different matter,’ he said.
Mr Mogagabe said that AFT did not view the Bill as ‘a first step on a slippery slide’ as indicated by Mr Hoffman, but rather viewed the legislation as the ‘first step to transforming the legal profession’.
‘Our approach is one that is trying to be constructive and supports endeavours to transform the profession,’ Mr Mogagabe said.
He said that some of the problems the Bill sought to address were access to affordable legal services; entry into the profession – which currently depended on compliance with overly restricted prescripts – and that the profession was not representative of the country’s demographics.
He added that AFT had taken a resolution to support the Bill in principle and to engage with all relevant stakeholders to address the concerns of the profession relating to the Bill, as well as with the executive and the legislature to ensure that the Legal Practice Act addresses the problems identified in the preamble to the Bill.
Mr Mpofu said that a number of ‘hyperbolic statements’ had been made about the Bill, but that most of these were not based on what the Bill stated, but were based on ‘scare tactics’ that were ‘postulated’.
‘If you look at the Bill, the fact that AFT supports it in principle should come as no surprise; how would an organisation like ours oppose a Bill which in the first line states that it aims “[t]o provide a legislative framework for the transformation and restructuring of the legal profession in line with constitutional imperatives”?’
In terms of ministerial representation, Mr Mpofu said: ‘To suggest that the mere fact of having ministerial representation means that there will be hegemonic control is not substantiated by fact or experience,’ adding that the types of engagement the profession should be having related to, for example, why there was only one representative from Legal Aid South Africa on the council if the Bill was about access to justice for ordinary people and whether paralegals should have representation on the council.
In response to a question from the floor, Mr Mpofu said that it was necessary to regulate the profession as the legal profession practised in the public interest.
‘Democracy would collapse without the legal profession and all it embraces. Like media freedom is not that of the journalists and is that of the citizens, the same applies here: The independence of the profession is for the benefit of society. This is the reason for regulation,’ he said.
Mr Mabunda said that the current model on which the regulation of the legal profession was based was one with ‘more of an English orientation’. However, he said that times had changed and even England and Wales were not ‘clinging to the current system in South Africa’.
‘Eighteen years down the line, after nearly two decades in a constitutional democracy, we are still debating whether or not we need a new Legal Practice Act which aligns itself with the ethos and object as enunciated in the Constitution. Eighteen years down the line, this is extremely shameful,’ Mr Mabunda said.
He added that while lawyers had played a role in advising those in various other professional areas which had transformed and which had new Acts aligned with the Constitution, they were ‘lamenting and griping’ about the contents of the Legal Practice Bill.
Mr Mabunda said that the objects of the Bill should be supported and that the profession should be focusing its energy on considering whether the content of the Bill adequately deals with those objects.
He said that the profession was being given an opportunity to make submissions on the Bill while it was in parliament. ‘Now is the time for consultation,’ he said.
He added that certain views about the Bill had been expressed in the media – such as that the Bill was the ‘single biggest threat to the independence of the profession in history’. He said these views were purported to be the ‘alpha and the omega’ of the views of the profession in South Africa, but this was ‘patently wrong’.
‘This cannot be correct and I invite legal practitioners not to accept this. We distance ourselves from this type of language. It does not capture what is expected of us. It is an indictment on us as lawyers,’ he said.
Mr Gauntlett said that he believed the Bill was a threat for a number of reasons, including:
‘If assets and staff are to be taken, and if their autonomy will be taken, we cannot presume that members will take on the same volunteer positions,’ he said.
Mr Gauntlett said that he was not calling for a regulation-free profession, but that the Bill ‘should not be in the form it is’, adding that ‘there are fundamentals that need to be amended’.
‘The critical thing is how we address these aspects,’ he said, adding that lawyers should be analysing the Bill and that those who criticise it should not be seen as unpatriotic.
Mr Gauntlett questioned some of the objects the Bill aimed to achieve, for example he questioned how the council would make legal services more affordable, especially in light of the fact that many members of the profession already did pro bono work.
In terms of transformation and demographic representation, Mr Gauntlett said that certain societal problems needed to be addressed and that the ‘waving of a statutory wand’ by enacting the Legal Practice Bill would not solve these problems.
‘I hope that, through leadership, the Justice Department will understand that there are big holes in the Act and that it is asking us to create an Act where the independence of the profession will not be enhanced,’ he said.
Kim Hawkey, kim.hawkey@derebus.org.za
This article was first published in De Rebus in 2012 (Sept) DR 7.
