THE RULE OF LAW AND AN INDEPENDENT LEGAL PROFESSION:

A SOUTH AFRICAN PERSPECTIVE

MIDDLE TEMPLE AND SOUTH AFRICAN CONFERENCE

CAPE TOWN

23-26 SEPTEMBER 2010

On the morning of 5 May 2010 the Minister of Justice of South Africa tabled in Cabinet a Legal Practice Bill.[1][1]  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.[2][2]

Law societies shall cease to exist and their assets are to be transferred to new Regional Councils.[3][3]  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.[4][4]

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.[5][5]  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.[6][6]  This "may contain different provisions for different categories of legal practitioners".[7][7]  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.[8][8]

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?

First our visitors may want some understanding of our legal setting, our origins and how we function. (Those to whom what follows is no useful background are invited to read with particular celerity).  I offer this in the spirit of that astute haberdasher and unexpected President from Missouri, Harry Truman: "There is nothing new in the world except the history we do not know".

South Africa is, par excellence, one of the mixed legal systems of the world.  Of course every system of law to some extent (in Roscoe Pound's description[9][9]) can largely be described as a "history of borrowings" of legal materials from other legal systems.  But what the term "mixed legal system" has really been taken to connote is those countries where a substantial fusion of civil and common law has taken place: notably Botswana, Canada (insofar as Quebec is concerned), Lesotho, Louisiana, Mauritius, Namibia, Scotland, South Africa, Swaziland and Zimbabwe.  In only two of these - Louisiana and Quebec - has the principal vehicle been codification.  The rest have achieved their current state of integration through a mixture of judge-made law and statutes.

But first a short word on South Africa's legal history.  It used to be customary to start any account of the South African legal system with Dutch settlement at the Cape of Good Hope in 1652.  But in recent time there has been greater awareness of the fact that Southern Africa was no terra nullius, in the colonial fiction applied first to North America and then Australia.   For millennia it had been populated by gatherer-hunters, some of whom in time became pastoralists.[10][10]

As might be expected, they had systems of indigenous law which, our highest courts have recently found, in significant measure survived colonisation.[11][11]  From 200 AD on, Bantu-speaking Iron Age communities settled in the more northerly parts of what is now South Africa, gradually moving southwards.  The Cape itself continued to be occupied up to the time of Dutch settlement by the Khoikhoi pastoralists.   The scene was set for conflict between Nguni tribes moving south and the early European settlers.  Issues of land and language loom large still today.

The Dutch settlement in 1652 was not by conception a colony, but an intended vegetable garden for the Dutch plying their lucrative trade with the East.  Indeed, the early rule of the Cape was by the VOC, or Dutch East India Company, operating under charter of the Netherlands Estates-General.  The company instituted a rudimentary judicial system which applied the legal system of the most influential member province of the Netherlands, Holland.  That legal system in turn was derived from Roman law, as it had been received in Holland, and developed and adapted in that brilliant period of philosophical, artistic and juristic creativity Simon Schama has aptly termed an embarras de riches.[12][12] The local government at the Cape during the years of Dutch occupation also issued decrees, or placaaten.  The net result was Roman-Dutch law which at its zenith had its own Reader at Oxford[13][13] and stretched from Guiana across Southern Africa to Sri Lanka.

British occupation of the Cape took place in 1795.  Eight years later, in a division of spoils at the end of the first Napoleonic war, it reverted to Batavian rule.  But the Vin de Constance (which even Jane Austen praises) had become an acquired taste; a second British invasion took place in 1806. British rule endured until the creation of the Union of South Africa in 1910.  Yet Roman-Dutch law was not ousted.  What happened instead was an extensive borrowing from English law, not so much in the law of persons, delict or contract, but in broadly commercial areas, the law of evidence, procedure and constitutional and administrative law.

South Africa, a republic since 1961, became a constitutional democracy on 27 April 1994, when the first national elections took place on the basis of universal adult suffrage. At the same time, the interim Constitution of 1993 - transacted through an arduous negotiating process - became the country's supreme law.  This introduced a justiciable Bill of Rights.  It was only an interim Constitution, because its intention was to allow the first democratic

Parliament, sitting as a Constitutional Assembly, to produce a "final" Constitution.   The draft of this Constitution would have to meet a list of constitutional principles set out in the interim Constitution, being so certified by South Africa's new Constitutional Court. That duly happened, through two judgments of the Court.[14][14]  The legal system remained intact, save for any laws inconsistent with the Constitution.  The scene was set for a sustained effort to change the imbalance in the racial and gender mix of the judiciary.  In 1994 only two women and one person of colour were members of the judiciary (with two Black judges in the so-called independent homelands).  Of a total of 134 appointments ensuing in the next ten years, 83 were Black and 51 White.[15][15]  There are now 167 men and 54 women serving as superior court judges.  Some idea of the racial mix is illustrated by the current makeup of women on the superior courts Bench: seven are Coloured people, 11 of Indian extraction, 17 White and 19 African. On, for example, the Western Cape High Court Bench 28 judges now serve: only 12 are White. Seven of the 28 are women.

The first South African advocate seems to have been admitted to practice by the Governor and Council of Policy 36 years after the landing by Van Riebeeck in 1652, and the next in 1706.[16][16] Early regulation was limited.  The first rules of conduct were derived from a placaat in Van Diemen's Code (the "Statutes of Batavia") of 1642.  They were terse: essentially "counsel were to lodge security against malpractice, plead bareheaded, and to refrain from contingent fees, verbose pleadings, chasing clients and taking on an excess of work".[17][17] This  brevity was not long sustained.  In 1781, similar but more detailed rules were framed "after complaint by the Raad van Justitie of the ‘onkundigheid' [ignorance] en nonchalance" of practitioners, [18][18] complaints which echo down the centuries.

By the end of the nineteenth century Bars existed in the Cape and Natal colonies and in the Boer Republics of the Transvaal and the Orange Free State. The divided Bar was firmly entrenched.[19][19]

It was only in 1911 that a Society of Advocates of South Africa was established, but it did not include all the advocates in the country because its membership was only open to White advocates.  That was unacceptable to the members of the Cape and Griqualand West (Kimberley) Bars who therefore refused to join the Society.  The Natal Bar likewise took the approach that its members would not join the Society whilst it retained the colour bar.  The result was that the Society was largely ineffectual.[20][20]

In 1946 all Bars were invited to a meeting of the Society of Advocates of South Africa and the meeting was reconstituted on the basis of a conference to establish a fully representative national professional body.  The Cape, Natal and Griqualand West Bars were opposed to restrictions on membership on racial grounds. It appears probable that by this stage they had been joined in that stance by the Johannesburg Bar, which abolished racial restrictions on membership after separating from the Pretoria Bar during the 1930s (records are incomplete so a precise date cannot be given).  The Eastern Cape Bar had no racial restrictions on membership.  However the Pretoria and Orange Free State Bars excluded people of colour from membership.

The result was a compromise.  The General Council of the Bar of South Africa was formed in 1946 as a national body to represent the advocates' profession in South Africa. It became a full member of the IBA at its meeting in The Hague in 1948.  The individual Bars, each constituted as a separate voluntary association, in the major cities of South Africa (Pietermaritzburg and Durban (jointly), Cape Town, Kimberley, Grahamstown, Bloemfontein, Pretoria and Johannesburg - their location being determined by the fact that those cities were the seats of the various provincial and local divisions of the Supreme Court), remained in existence.

The GCB was established as a federal body, its members being the individual Bars, whilst individual advocates remained members of the Bar in the city in which they practised.  In effect therefore the GCB was able to represent all advocates in South Africa but each separate constituent Bar set its own requirements for membership. In this way those Bars insistent on a lack of a colour bar were able to retain an open membership.  In time the Pretoria and Free State Bars abolished their racial restrictions.

The makeup of the South African Bar today may be of interest to our visitors, and for that reason I attach a schedule reflecting this.  There are currently ten Bars in South Africa, the Cape Bar, Eastern Cape, KwaZulu-Natal,[21][21] Northern Cape, Free State, Pretoria, Witwatersrand, Bhisho, Transkei and North-West Bars.  Their membership is restricted to advocates practising in private practice, under uniform (GCB) rules of conduct obliging members to occupy chambers together at a place or places determined by their respective societies. The referral principle (now with certain qualifications), the cab-rank rule and a prohibition on partnerships are fundamental features.  Membership is also regulated by individual constitutions.  The admission of counsel and their removal from the roll of advocates is governed by the Admission of Advocates Act.[22][22] The courts have always been insistent that it is for them to admit or remove practitioners from the roll, and that their conduct is ultimately regulated by the courts.

That, then, is the South African setting for our discussion.

Before however I return to the Bill and what it does, I am required by our theme to state my concept of the rule of law.  Lord Bingham has recently reminded us of those who see no life or meaning in the precept.[23][23]  Professor Judith Shklar, for instance has said that "[n]o intellectual effort need therefore be wasted on this bit of ruling class chatter".  Professor Jeremy Waldron, commenting on the five-four division in the US Supreme Court along the lines of party-appointment in Bush v Gore,[24][24] said the invoking of the rule of law by both legal teams meant little more than "Hurrah for our side".[25][25]

The scepticism is not new.  In November 1962 the then Minister of Justice of South Africa, Adv B.J. Vorster, later Prime Minister and State President, responded to a public statement by the President of the Institute of Race Relations, former appeal court Judge Oliver Schreiner[26][26], criticising house-arrest of activists opposing apartheid as an infringement of the rule of law.  The Minister's answer was that there are as many interpretations of the rule of law as there are people, and that the rule of law is very easily used as a pretext for attempts to frustrate action against communism.[27][27]  An elected Parliament - he did not go so far as to suggest that it was representative - had mandated him to maintain law and order to secure the safety of the State.  Substitute "terrorism" for "communism" and you have the same assertion in recent years by political leaders in both the United States and the United Kingdom.

You might expect no such controversy now in South Africa.  The opening section of the 1996 Constitution stipulates as a founding value the supremacy of the Constitution and, explicitly, of the rule of law.

But what does it mean ?  Simply and ultimately that democracy itself is under the law.  Over seven hundred years ago, Bracton expressed the notion when he said: "The king ought not to be under any man, but he ought to be under God and the law, since the law makes the king".[28][28] In other words, the Rechtstaat entails not simply rule, or rule by law, but rule under the law.

The penumbral reach of the principle may fairly still be debated.  But that it includes, specifically, the independence of the legal profession is not now open for rational discussion.  The International Commission of Jurists issued a declaration in 1955 at Athens making the point.  There have been similar enunciations since.

Viewed in this light, the Bill, if adopted, will be an affront to the rule of law.  The existing Bars stand to be stripped of their assets and employees.  They may, of course, says the Bill, start again: but the decision to recognise them will be discretionary.   As I have shown, the discretion will be that of a Council whose members the Executive (through the Minister) will appoint - again exercising a discretion, choosing as he or she will, from nominations. The regional councils will be creatures of the Council, constituted by discretion according to vague notions of representivity, and exercising far-reaching powers over the conduct of practitioners.

In 1998 Sir Sydney Kentridge QC, discussing changes then mooted in the United Kingdom, recalled:

"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".[29][29]

The point need not be laboured.  Without a viable profession of specialist pleaders in court, bound by their rules of conduct to accept briefs, in the spirit of Erskine QC at the trial of Tom Paine, the courts themselves cannot function as the rule of law requires.  Nor can the courts 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, it has been said, do not come from henhouses.

Is there a way of averting the calamity the Bill represents ?  What the Bar has consistently propounded as a regulatory regime consistent with the Constitution recognises:

• As the departure point, an independent wider legal profession, and within it, a profession of advocates working as independent court specialists

• That admission and removal of practitioners must be a matter for the courts alone

• That training, examinations and discipline must fundamentally be a matter for Bars

• That 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

• That automatic transitional registration 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.

There is no particular reason to believe that such a scheme, intended to ensure continued existence and independence, will now find favour. We have argued for it for a decade.  We watch the current passage through Parliament of media controls with foreboding.  The statist control of important parts of civil society, driven off time and again during the apartheid years, again looms.  We return to Harry Truman: there is nothing new in the world except the history we do not know.

JEREMY GAUNTLETT*

* SC BA LLB (Stell) BCL (Oxon); Member of the Cape and Johannesburg Bars, and of the Bar of England and Wales; Barrister of Gray's Inn. Chair of the Cape Bar (1997-8) and of the General Council of the Bar of South Africa (1999-2002).

GENERAL COUNCIL OF THE BAR OF SOUTH AFRICA RACE & GENDER STATISTICS AS AT 30 APRIL 2010

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