Speech by Steve Smart MP, ACDP spokesperson on justice, in the Second Reading debate on the Legal Practice Bill, National Assembly, November 12 2013

ACDP concerned about impact of Legal Practice Bill on independence of legal profession

 Chairperson/ Speaker,

The Commonwealth (Latimer House) Principles on the Three Branches of Government (Nov 2003) IV Independence of the Judiciary, to which South Africa is a signatory states that, ‘An independent, effective and competent legal profession is fundamental to the upholding of the rule of law and the independence of the judiciary.'

One of the top South African advocates practising in London, Sydney Kentridge said, ‘there are few things as essential to the maintenance of liberty in a state as the existence of an independent body of advocates ready to appear for every person in every kind of case.'

To protect this independence, governance and management of the profession may not be done by the state. The minister may only provide the statutory framework within which the legal profession is to be regulated. Minister Radebe is on record as saying that he doesn't want to control the profession. That we in the ACDP accept. However, as Chairman Llewellyn Landers is often at pains to explain, we legislate for the future and need to consider a dictator-type person being in control.

The possibility of undue ministerial control most definitely exists when one adds up the various powers that the minister has, including making regulations on a wide range of issues, having three ministerial representatives on the Council, and dissolving the Council.

As former Chief Justice Arthur Chaskalson said last year, about the Bill, ‘A structure is being proposed which opens the door to important aspects of the profession being controlled by the executive and that is inconsistent with an independent legal profession.'

Additionally, although I am an attorney (on the non-practising roll), I share the Honourable Dene Smuts' concerns that the advocates' profession will now become the junior partner in this statutory arrangement.  No one can deny that there are fundamental differences between the attorneys' and advocates' professions. That is why we argued for a separate chamber for attorneys and advocates at national level. This regrettably was not agreed upon.

While the ACDP's fall-back position of separate chambers at provincial level was agreed to, we still support the honourable Dene Smuts' position - separate chambers at national level. The ANC has argued that to agree to that position would be to retain the status quo. We respectfully disagree. These separate chambers would have been subject to the directives of the Legal Practice Council.

The ACDP also objected to the lack of parity on the Legal Practice Council. The interim National Forum has an equal number of advocates and attorneys represented. We don't understand why this parity was not extended to the Legal Practice Council. Would this not have encouraged the advocates' profession to support this model? One could have had parity on the Council, but proportionate representation on Provincial Councils, understanding that in certain Provinces there are very few advocates. Again, this was not agreed to, with the advocates seen as a lesser partner.

The ACDP also opposed the Ministers' powers to dissolve the Legal Practice Council and appoint seven persons to run the profession. We understand that this clause did not serve before Cabinet and was a late insertion. While the Minister now has to obtain a court order to dissolve the Council, we still feel uncomfortable with this power. Again we need to legislate for the future and our concerns are not to be seen as any reflection on Minister Radebe.

In all fairness, the Bill has a number of commendable provisions seeking to ensure that access to legal services is more affordable and that the legal profession itself is more accessible. It also makes the disciplinary process more open and transparent - where many clients lay complaints which are never dealt with. The provision of a legal ombud, a retired judge, will enhance the dealing of such complaints from the public. An independent institution to review disputed claims against the profession is not unwelcome as it offers a check against self-regulation being driven by self-interest, or a perception.

The clause relating to cost agreements, was suggested by honourable Smuts, and will ensure, as far as practicable, that clients know what they are facing when engaging an attorney. The ACDP is also pleased that its suggestion that a client should be able to negotiate a higher or lower fee when engaging a legal practitioner in both litigious and non-litigious work is to be welcomed. We heard compelling arguments from large legal firms, such as Adams and Adams, who are involved in complex trade mark and intellectual property matters, and whose clients are multinationals who are more than willing to pay fees in excess of any proposed set tariffs. Similarly, the clause allows clients to negotiate lower tariffs than those to be regulated.

We in the ACDP are also extremely concerned about the Ministers' powers to set a maximum for the amount chargeable for work done for the state. The state is by far the biggest litigant in the country with billions of rands at stake. Why should a state department have to settle for less than the best private advocates available in complex matters where millions or even billions of rands are at stake.  This is a very serious matter that should be reconsidered as it has huge implications for the state.

At the same time, we need to be mindful of excessive fees charged by certain silks and are in agreement with the views of Owen Rogers SC (now judge Rogers) said that the ‘granting of silk was tantamount to a licence to print money, and that ‘silks' inflated fees became the benchmark for junior fees... As members of an honourable profession, we should be distinguished by our absence, not our presence at the feeding trough.'

The ACDP agrees that legal services should be available to all who need them, and in particular, to those who look to the profession as an institution that will uphold the rights of everyone , and not only the rich.

While there are thus substantial improvements to the Bill from the version tabled, the ACDP will regrettably not be able to support it.

I thank you.

Issued by the ACDP, November 12 2013

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