Jeremy Gauntlett on the govt's efforts to break the back of the independent legal profession
Minister of Justice Jeff Radebe has chosen a sponsored breakfast to announce that the Legal Practice Bill, 2012 is imminently to go through Parliament. It is the biggest single threat to an independent legal profession, and so to the courts, in South Africa's legal history.
Crying wolf? An exaggeration? Consider the following.
The allure to government of state control of advocates and attorneys (like controls on the media, universities and even churches) is not new. Radebe even has recent local precedent to follow. But it puts him in bad company. In the 1960s the Nationalist Government directly flirted with the notion. Fearing international outcry, it drew back. Sir Sydney Kentridge QC recalls:
"During the years of apartheid in South Africa there were frequent threats from the government to place the Bar under the control of a central council with government-nominated members. This proposal was consistently and successfully resisted by the whole of the Bar, including those many members who normally supported the government in policies and legislation. It was well understood that to remove the control of the profession from the provincial Bar Councils and the General Council of the Bar would have meant the end of independence of the profession. What was also well understood was that the independence of the Bench was inextricably linked with the independence of the Bar".
That is for a very simple reason. Without a viable profession of specialist pleaders in court, bound - whatever the personal repercussions - to accept briefs, in the spirit of Isie Maisels at the Treason Trial, the Rivonia defence team or Sydney Kentridge at the Biko inquest, the courts themselves cannot function as the rule of law requires. Nor can the courts themselves be independent if the judges are not to be appointed from the ranks of those in whom the rigour of independent representation has been inculcated by years of proficient practice. Falcons, as Justice Kriegler has put it, do not come from henhouses.
All this Radebe would now sweep away. The Bill states as its primary purpose the creation of "a unified body to regulate the affairs of legal practitioners". This body is to be state-controlled. It is not to have parity in its membership as between attorneys and advocates - although the Law Society of South Africa and the General Council of the Bar had themselves agreed upon this - but a two-thirds preponderance of attorneys. They will be elected - but in accordance with a procedure the Council determines.
The Council is to be created by dissolving law societies and bar councils and taking their assets. Clause 97(2) provides, in language absurd to any lawyer, that a transitional council "must negotiate with and reach an agreement" with "the attorneys' and advocates' professions" for the "transfer" of all their assets and staff. If there is no agreement, "any party may refer the matter to arbitration in terms of the Arbitration Act, 1965".
Arbitration under the Arbitration Act cannot determine status, constitutional or otherwise. Nor can the Arbitration Act be a vehicle for compulsory arbitration. Surely if the Minister has not read the Act his advisers have. Or are they the same advisers he blamed at the same breakfast for the fact that he loses 62% of his cases?
The problem is not merely a brazen seizure of assets and staff. It is the statutory extinction of a profession as it has evolved in South African civil society, including two decades of democracy. It is the naïveté of thinking that a Council meeting four times a year in Pretoria and its regional offshoots can do what law societies and bar councils across the country do daily. They provide bursaries, stock libraries, employ administrative staff, train members, subject them to professional examinations, and discipline delinquents, applying to court, if needs be, to strike off . They do so at no cost to the state.
This is all to go. The Council is now to draw up its own code of conduct. Its regional councils must establish disciplinary bodies. Who is to serve on them is left to the regional councils: they must however achieve "representivity" as regards race, gender, "national and regional demographics" and "the inclusion of lay persons". Appeal tribunals are to be constituted by the Council, also achieving "representivity" according to these inexact criteria. Who will be found to serve on these structures is not considered. In 2000 the Department was invited to cost it. This has still not happened.
That is what we face. Despite the swift turn of events, it is no sudden development. For 14 years the law societies, General Council of the Bar and other groupings of lawyers have met with each of the post-democratic Ministers of Justice. It has to be said that with Ministers Omar, Maduna and Surty common ground was found. But the draft legislation tabled by both national bodies, the Law Society of South Africa and the General Council of the Bar has been rejected out of hand.
When matters came to a head again more recently, in the presence of the GCB leadership the Minister (on 7 August 2009) instructed his officials to ensure that the latest draft of the Bill (which by then had not yet been circulated) made provision for the independence of the Bar and to ensure that the Government did not, in his words, govern the profession.
By April 2010 it was apparent (several abortive meetings intervening) that the Bill had not been amended, as had been promised. Indeed, the provisions relating to dissolution, seizure and abolition of senior counsel (silk) status - despite the latter being before the courts now - go back on what had been negotiated before.
Why? At his sponsored breakfast the Minister rolled forth three populist justifications for his model. New is his promise that his Bill will cut fees. Not one of his predecessors - I speak from knowledge, because I negotiated with each bar one - raised it as a rationale. How will his Council achieve that? For whom? Members of the Bar and attorneys are already subject not only to the Competition Act, but the regulatory fee review powers of their professions. We are obliged to give time to pro bono cases. Some of us charge high fees in heavy commercial litigation.
If our clients do not like that, they have over 2 000 other counsel and 15 000 attorneys to get at a better rate. Some of us make a point of charging nothing at all when we think that right, and do that often. Others do arduous work for the Legal Aid Board; nightly practitioners across the country staff the Small Claims Courts, unpaid. Radebe should know better than to trot out the fees card.
Secondly he promises greater access to justice. An Act which makes most law firms unviable (they will be levied to pay for the elaborate new edifice) and encourages even more law graduates to go into commerce will not do that.
Thirdly he presents the dissolution of the law societies and bar councils as the achievement of "unity". Lawyers may be fractious, but they are not fractured. The functional divide between attorneys and advocates is no more "disunity" than professional differences - with necessary differences in training and the like - between engineers and architects. Law societies and bar councils are no longer led, as they once were, by white males. True, addressing past inequalities remains a long march - but who better to lead it than those elected by their colleagues, not in terms of a procedure the Council itself will lay down?
The first section of the Constitution binds the Minister to the rule of law. That it specifically includes the independence of the legal profession is not open for rational discussion. Already in 1955 the International Commission of Jurists issued its Athens Declaration making the point. There have been similar enunciations since. The serious concern must be: trained at Leipzig in Ulbricht's time, then Moscow, and never himself having practised law in South Africa, is the Minister as little concerned about that as Vorster was?
The Bill, if adopted, will be an affront to the rule of law and infringe the Constitution in multiple respects. It will not enhance access to justice, which is what matters. It will weaken the courts. It will give the Minister the docile henhouse he seems to desire.
Is there a way (other than yet another constitutional challenge to what the Minister does) of averting the calamity the Bill represents ? What the Bar has consistently propounded as a regulatory regime consistent with the Constitution has been this:
· As the departure point, the recognition of independent legal professions of attorneys and of advocates
· Admission and removal of practitioners must be a matter for the courts alone
· Training, examinations and discipline must fundamentally be a matter for bars and law societies
· Bars and law societies should be registered with an independent regulatory council, chaired by a senior judge or retired judge appointed by the Chief Justice, the membership equally divided between the advocates' and attorneys' professions, and elected by them
· Automatic transitional registration should apply to existing bars (and law societies), registration to be renewed thereafter by the Council on compliance with statutory requirements of lodging constitutions, audited financial and annual reports, rules of conduct and training programmes etc compliant with the Act. If they fail to do so, they are deregistered.
There is no particular reason to believe that such a scheme, intended to ensure continued existence and independence, will find favour. The attempted passage through Parliament of media controls and secrecy legislation suggests that. The statist control of important parts of civil society, driven off time and again during the apartheid years, again looms. As Harry Truman said: "there is nothing new in the world except the history we do not know".
Jeremy Gauntlett is a senior counsel, Bencher of the Middle Temple, and former chairman of the General Council of the Bar. He writes in his personal capacity. An edited version of this article first appeared in Business Day.
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