The Rule of Law and an Independent Legal Profession

Advocate Jeremy Gauntlett SC of the Cape Bar discusses the impact on the independence of the legal profession of the new Legal Services Bill, tabled in May 2010. This address was first given at the Middle Temple & South African Conference in September 2010 in Cape Town. The blog that follows is a truncated version of that address, which can be downloaded in pdf form in full.

On the morning of 5 May 2010 the Minister of Justice of South Africa tabled in Cabinet a Legal Practice Bill.   It was approved immediately.  The Minister announced in his Budget Speech to Parliament its tabling that same afternoon.

The Bill states its primary purpose as the creation of “a unified body to regulate the affairs of legal practitioners”.  Its preamble refers to a need to “transform and unite the legal profession” and to “regulate the legal profession, in the public interest, by means of a single statute”.

The “unified body to regulate the affairs of legal practitioners” is of course the key to the new dispensation. This body is to be “the South African Legal Practice Council”. 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.  Neither branch of the wider profession is to have the right to elect its own representatives: the Minister will select them, in his discretion, from nominations.

Law societies shall cease to exist and their assets are to be transferred to new Regional Councils.   That the notion of “law society” – not defined in the Bill – is intended to include the Bars is suggested by a blunt provision that all employees of the General Council of the Bar “or an existing society” shall be transferred to the service of the Council.

The Bill takes 96 pages and 124 clauses to provide for the winding up of the legal profession which has evolved in South Africa over the past four centuries, to provide for a transitional regime, and thereafter for regulation by the Council.  True, it does allow that “[t]he Council may recognise a voluntary association” with a compliant code of conduct and financial controls.   If the association is recognised, it must exercise discipline over its members in accordance with its code of conduct.  Of course, existing bodies having lost their assets and their employees, associations would have to start from scratch.

The Council is to draw up a code of conduct.   This “may contain different provisions for different categories of legal practitioners”.   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.

That is what we face. Despite the swift turn of events on 5 May this year, it is no sudden development. At the Mafeking congress of the governing party in 1997 it was resolved that the legal profession should be “unified” – by which was meant, fused – and since then a litany of discussion papers, meetings of the recognised profession, and meetings of the recognised profession with the four post-democratic Ministers of Justice and officials has taken place.  I shall not weary you with the details of these.  But you should know that when matters came to a head again last year, 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 this year it was apparent (several abortive meetings intervening) that the Bill had not been amended, as had been promised. It is the unchanged text which has now been tabled for enactment.

What would be the effect of the Bill, if adopted, on the independence of the South African Bar, and the rule of law ?

[To read the complete address in PDF form, click here.]

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