Speech by Dene Smuts MP, DA Shadow Minister of Justice and Constitutional Development, Legal Practice Bill, Second Reading Debate, National Assembly, November 12 2013

Lost in Transformation

A wave of regulatory reform of the legal professions has been washing over the common law countries. Always, the reasons are the same: affordability and access, choice, competition and consumer protection, especially against ineffective professional disciplinary mechanisms. Another feature of reform is a departure from rigid practice models and the creation of new business structures.

These are the same problems we should be addressing. The new regulators created elsewhere to address them are typically small bodies composed of lay persons with relevant expertise, a few advocates and attorneys, and sometimes government representatives. Form follows function.

Instead, what is South Africa doing? The Legal Practice Bill forces advocates and attorneys into one governing body, the Legal Practice Council, and puts the attorneys in charge (see here - PDF).

Why has this happened? Because the ANC, to borrow the title of Prof Sampie Terreblanche's latest book, is Lost in Transformation.

At transition, there was some consideration given, as the Chair of the General Council of the Bar Adv Ishmael Semenya says,  to "what might be called ‘naked fusion' (and) for so long as that was the case the role for a Legal Practice Council in the governance and regulation of lawyers was clear." The idea of fusing the advocates' and attorneys' professions outright was abandoned, but the Legal Practice Council and this Bill has stubbornly survived through five Justice Ministries. It is fusion in disguise.

The thinking behind the Legal Practice Bill has been perfectly honest stated by ANC members of the Justice Committee: it is still what it originally was, namely fusion, now by other means. The Hon Dr Motshekga cited the case of Zimbabwe, where he was present when fusion was effected at transition. But he does not say, or remember, that 99% of advocates in Zimbabwe were white, and had sole right of appearance in the higher courts.

That is why a unified profession was the stated goal of the Bill at earlier stages of the legislative process. Because the Bill does not discontinue the statutory recognition of the advocates' and attorneys' professions, a "unified regulator" was chosen instead and some attempts made to create tasks for such a regulator after the fact. But the essential goal remaining for the unified regulator is "transformation" and the broad reflection of diversity and demography.

The truth is that significant progress has been made in deracialising the legal professions. This is no longer 1994. As at March 2013, 64% of our 21 463 attorneys were white and 36% black. Black law graduates started outnumbering whites from 2005 onwards, and black articled clerks from 2009. At the GCB, white males represented 1 379 of the 2 471 members at April 2013.  The black professional bodies have long been integrated with the GCB and LSSA respectively.

The position of the General Council of the Bar (having tried in good faith to work with a single Legal Practice Council) was that there should be two separate chambers for advocates and attorneys at the national and regional level. The position of the Law Society of SA was that policy should be set by the majority at the national level - that is 10 attorneys against six advocates - but that given the significant regulatory differences characterising the two professions, there should be separate chambers at regional level for implementation. The Departmental response to these submissions was a dead give-away: this (the chambers) "boils down to the retention of the current arrangements. The Department is of the view that this will perpetuate the issues that the Bill seeks to transform".

And so it was when the ANC guillotine fell on almost all the DA proposals: there are no chambers at any level, not even the "committees" with original, non-delegated powers we proposed as a compromise.

The policy making and operational power lies at the centralised national level, in the Legal Practice Council. This consists inter alia of 10 attorneys and six advocates. There is no guarantee that advocates will be able to elect their own half dozen. This is so because the Council will be preceded by a carefully constructed interim National Forum whose first order of business will be to create an election procedure for the actual Council.

It is thought that this will be based on a voter's roll of all legal practitioners. Also on the order of business, wasting no time, is to write one Code of Conduct for both professions. In other words, attorneys will by majority make regulatory policy for advocates. The Chair and Deputy of this interim body are chosen by the Minister after consultation with the National Forum, and if they become vacant, he calls the shots again. The Chair has a casting vote.

Just to rub in the Bill's levelling fusionist intent, the DA's previously acceptable proposal that the Chair and Deputy of the Legal Practice Council should represent both professions - if an attorney was chosen as Chair, the Deputy should be an advocate, and vice versa - was thrown out at the last.  In addition, the further five members of the executive need only as far as is practicable be representative of both attorneys and advocates, gender and race.

The advocates' profession has been sold down the river, because the ANC is lost in transformation. And yet fusion is a delusion: even in countries where full fusion was introduced, the Bars arose again. 

We believe that South Africa needs the split or divided profession. An advocate practising on the traditional independent basis will take on politically or socially unpopular cases, and this remains as necessary now as it was in the old South Africa. In addition, the quality of advocacy has a direct effect on the quality of judgements handed down by the Bench. (And no, the relaxation of the referral rule had no effect on the advocates' profession elsewhere, neither will it destroy it here.)

Attorneys, especially small firms (75% of South Africa's attorneys firms) should be the frontline of access to justice for South Africans. We are confident (on excellent authority) that a significant number of attorneys share our views on separate chambers.

Fusion works against the interests of small attorneys because it is typical of fusion that law firms become enormous in order to offer a full range of services. By contrast when the professions are split, even small attorneys' firms can take on complex cases because they can call on the expert services of independent advocates.

We should have been working on alternative business models, so that the small attorneys can make a living while serving South Africans.

But the government is interested neither in the welfare of the professions nor the real interests of clients. A  Ministerial power of dissolution will allow the Minister to dissolve the Council and install seven handpicked people for six months. No matter how many safeguards are built in, this power is in itself inimical to the independence of the legal professions, as Judge Chaskalson said in his last speech.

It is also an admission of the fact that government is fully aware that the Legal Practice Council will institutionalise the same tensions which caused its negotiations over the life of four former Ministries to fail. You are legislating for failure. We oppose.

Issued by the DA, November 12 2013

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