Legal Practice Bill: one step forward, two steps back

The ANC in the Justice Committee this morning agreed to consider the inclusion in the Legal Practice Bill of a costs disclosure clause proposed by the DA based on the Australian example. The DA is determined to achieve greater access to legal services, and therefore to justice, for South Africans.

Such a clause would require a written fee agreement between lawyer and client, billing arrangements based on cost per hour, and an estimation of costs. A client's right to negotiate fees would therefore become law, and soon.

To his credit Minister of Justice and Constitutional Development, Jeff Radebe, included the question of legal costs for the first time when this decade-old Bill was finally sent to Parliament. But the proposal to create a fee structure is inadequate and the Bill in its entirety fails to address the question of the economics of the legal sector. By contrast, many other common law jurisdictions have embarked on regulation aimed at improving access to justice by protecting and promoting the interests of consumers and promoting competition in the provision of legal services.

The DA has also suggested a clause, already contained in the 5th draft of the Bill that the proposed Legal Practice Council should conduct an enquiry which establishes:

• whether legal fees are placing legal services beyond the reach of most consumers, and if so, what the effects on both lawyers and clients are; and 
• whether there are other factors impeding the efficient operation of legal services within the potential legal services market.

This morning's agreement by the ANC to apply their minds to the new clause reverses the position of Dr Mathole Motshekga, who on the first occasion the DA proposed the Australian example rejected the idea outright on the grounds that Australia is far away.

The ANC has also reversed Dr Motshekga's admirable agreement with my proposal, already contained in the 4th draft, that each province should send an advocate and an attorney to the Legal Practice Council. This arrangement would have achieved parity between the two professions instead of making advocates the "junior partner" as Judge Arthur Chaskalson described the arrangement. The ANC has now reverted to the original Bill's 10 attorneys and 6 advocates.

My proposal, supported by Dr Motshekga, was that the Bill should rationalise the legal profession organisationally in the same way the courts have now been rationalised (in terms of Schedule 6 (16) 6 of the Constitution) to align with the Constitution's geo-political arrangements.

Instead, the justification of the creation of the Legal Practice Council and its regional emanations remains the "transformation" of the legal profession, and the ANC has finally refused to contemplate the separate chambers or committees (with original powers) which we insist should regulate attorneys and advocates respectively.

This is fusion by stealth.

Although the Bill does not fuse the professions, and perpetuates the different forms of legal practice, it is crystal clear from committee discussions that ANC members are inspired by a vision of collapsing the two professions into one. Dr Motshekga, for example, cited Zimbabwean fusion in 1981. He ignores, or is unaware, of the fact that 99% of advocates in Zimbabwe at the time were white, and had sole rights of appearance in superior courts.

By contrast, the General Council of the Bar has 2 471 members, of whom 1 379 are white males. (A racial breakdown of the 4 000 advocates outside the GCB is not available). He also ignores, or is unaware, of the fact that the number of black attorneys admitted has roughly equalled the number of whites since 2004. 

Fusion is a delusion in any case. Nearly every jurisdiction which has introduced it has seen advocates and their Bars come up again, like mushrooms. We need them, just as we need especially the small attorneys' firms which are typically swallowed up by big firms under fusion.

The Legal Practice Bill is the last thing South Africa needs, but the ANC is blindly pursuing its illusions.

Statement issued by Dene Smuts MP, DA Shadow Minister of Justice and Constitutional Development, October 3 2013

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