Serious concerns about proposed racial and gender quotas in relation to the composition of the Legal Practice Council under the New Legal Practice act

10 January 2017

It has come to our knowledge that the National Forum which is currently engaged in discussions with regard to the composition of the Legal Practice Council (LPC) due to be established in pursuance of the Legal Practice Act 28 of 2014 is considering to recommend to the Minister of Justice that the LPC be composed in accordance with strict racial and gender quotas.

We regard South Africa as a plural society made up of a multitude of cultural and linguistic communities. We also acknowledge that race is still an important and relevant factor in the South African legal discourse. We therefore acknowledge the need that national bodies such as the envisaged Legal Practice Council should in its composition account for this plurality as also envisaged in the Act.

At the same time, however, we are strongly opposed to the idea that racial or any form of quotas be applied as a principle determining the composition of the Council and that the election procedure be tailored accordingly. Such quota system would be glaringly incongruent with the Act itself, the Constitution and the very idea of the free exercising of choices in democratic elections.

1. First, according to the Act “the racial and gender composition of South Africa must as far as practicable” be taken into account as a factor determining the composition of the Council. This formulation in itself clearly does not lend itself to an interpretation calling for or justifying quotas of any kind.

2. Secondly, the national racial and gender composition is one of five factors that have to be considered in the composition of the Council. Hence, the imposition of a quota formula would amount to the other factors being ignored and nullified, as if they do not exist. That would be glaringly inconsistent with the basic tenets of legislative interpretation and therefore simply illegal.

3. Thirdly, according to binding judicial precedent of the Constitutional Court the imposition of quotas is inconsistent with the Constitution.

4. Fourthly, according to the Act 16 of the 23 members of the envisaged Council (ten attorneys and six advocates) will be elected from among the ranks of these two categories of the legal profession respectively. The quintessence of democratic election is the exercising of a free choice. An impairment of such freedom as to who one may vote for is grossly incompatible with the very idea of a democratic election and the independence of the profession. This is precisely what the imposition of quotas to be proposed will do. It nullifies the very idea of freedom of election. In the context of the envisaged Council the effect is that the 16 members who have to be elected will in fact not be elected since the quota system would nullify the exercising of free choice in such “election”.

In the premises we appeal to the National Forum to abandon the notion of racial and gender quotas as part of the election procedure in their recommendation to the Minister as either the exclusive or the primary consideration in the composition of the Council and to ensure that all factors to be considered as prescribed by the Legal Practice Act for the composition of the Council be taken into consideration in a balanced manner. We call upon the Forum to reconsider the matter on the basis of sound principles that will stand the test of the Act, the Constitution, the principle of free choice in elections and of South Africa being a pluralist society.

In keeping with our subscribing to the view that South Africa is pluralist society made up of a multitude of communities, to whom equal due recognition is owed, and acknowledging the pertinence of race in our society, we are strongly in favour that all communities be represented in the envisaged Council. A flexible formula, instead the impugned notion of quotas should, however, be considered. We are prepared to make a constructive contribution to that end.

Issued by Tiaan CJ van Dyk, Chairperson, VRA, 10 January 2017