Mr Speaker
Today we, as a nation, stand at the threshold of a complete renewal of the South African legal system – a system that will not only be anchored on the rule of law and democratic values and principles enshrined in our democratic Constitution, but also that which will be embraced by all our people of our beloved country.
The legal profession has always been a tightly regulated profession, because it operates in a much regulated space. What to do, how to do it and when to do it, is regulated by different forms of legislation and prescripts, including the Admission of Advocates Act, the Attorneys Act, rules of court made by the Rules Board for Courts of Law, practice directives made by the Judges President, and rules made by the Bar Councils and statutory Law Societies. Different role-players, including Government, will and must therefore always have a right to have their say on how people who go about their business in our courts and who conduct their profession in a public space, in the pursuit of access to justice for all.
The legal profession therefore does not only operate in its own space, but also operates in a space where all people, rich and poor, converge in pursuit of justice.
The roles of Government and the profession must be seen against this backdrop, with particular reference to Government’s legitimate interest to ensure that constitutional imperatives are complied with. Transformation of the legal profession is one of these constitutional imperatives. The legal profession constitutes part of the judicial machinery that provides services aimed at promoting access to justice.
Advocates and attorneys are different in many respects, just as they are similar in many others:
(a) They belong to different regulatory bodies, some statutorily entrenched for instance the provincial law societies regulating attorneys, and some voluntary, for instance the General Council of the Bar of South Africa and the Law Society of South Africa;
(b) They undergo different vocational training programmes, compulsory in the case of attorneys, but voluntary in the case of advocates;
(c) They prefer different names, titles and status (some entitling the bearers thereof to higher fees for the same services); and
(d) They charge different fees and use different methods to recover the fees - attorneys directly from clients, some advocates through attorneys and some through direct charges.
Yet, they all have exactly the same academic qualifications, they can appear in the same courts and represent the same people before the same judges and magistrates.
The premise for the regulation of the profession stems from the Constitution which enjoins the state to regulate any occupation, trade or profession. The Bill of Rights guarantees every citizen the right to choose any trade, occupation or profession freely and entrusts this democratic Parliament the legislative authority to make laws for the regulation of such trade, occupation or profession. Democratic principles that should govern the legal profession are geared to ensuring that our people not only blindly contribute to the revenue of those who represent them, but also have a voice in the policies and practices that affects their daily life.
The Legal Practice Bill has a long history, a history that has been dominated by compromises or concessions in order to get where we are today.
One of the original aims of this long outstanding legislation was to bring about fusion in the legal profession in which there would be a single category of legal practitioners and in which there would no longer be attorneys or advocates.
The Bill, before it was introduced into Parliament, was adapted to accommodate the urgent pleas of the profession in order to retain the attorneys’ and advocates’ professions as distinct categories of legal practitioners, each continuing to provide the legal services traditionally rendered by each of them.
Honourable Members,
Lessons from our painful past are important in shaping the future envisioned by our Constitution. The intolerable suffering endured by our legal stalwarts describes the history of what has become known as a “noble profession made up of learned friends”. The agonizing experiences of Duma Nokwe, the first Black Advocate to be admitted by the Johannesburg Bar, and those of Bram Fischer, sum up what life was like in the advocates’ profession under apartheid rule. The somewhat fearless fight put by the Johannesburg Bar in 1956 to allow Bram Fischer to have chambers in Johannesburg fell on deaf ears as the Government of the day refused bluntly to accede to the request. Ironically a decade later the same Bar moved for the Bram Fischer to be struck off the roll for his involvement in the struggle for justice and freedom.
The humiliation and anguish endured by our iconic and world statesman, President Nelson Mandela and one of our greatest leaders, Oliver Tambo who opened their legal practice in Chancellor House in downtown Johannesburg, mirrors the hardship of an African attorney at the time.
The Transvaal Law Society moved for Nelson Mandela to be struck off the roll which application was turned down by the Supreme Court. It was through a combination of the oppressive policies of the Government of the day and the ill-fated policies of the profession that the lawyers of the generation of Oliver Tambo, Nelson Mandela, Duma Nokwe, Bram Fischer and Griffiths and Victoria Mxenge and others were deprived of the opportunity to practise their profession freely. The practitioners of yesterday did not have the protection of the rule of law and some members of the judiciary were also against them. The lack of the rule of law and the system of “rule by law” made the acts of the apartheid government legitimate in the eyes of the law then.
Mr Speaker,
We tell these unpleasant stories of our past because we want to learn from our past in order to strive to perfect our future. The enactment of the Legal Practice Bill provides the opportunity to redeem our sad past and lay the foundation of a promising future for advocates and attorneys. The enactment of this Bill carries with it the hopes and aspirations of many of our people on either side of the court yard. On the one side the Bill extends to legal practitioners and aspirant jurists whose unrelenting desire to be freed from the shackles of apartheid to become true agents of the rule of law has been a long-drawn out journey with several stop streets; and on the other side, it brings hope to millions of our people whose quest for true justice is beyond measure.
This Bill advances the transformative goal of our Constitution and complements the institutional reforms already introduced into our system by the Constitution Seventeenth Amendment Act and the Superior Courts Act. These triple Acts, all of which have taken time to find their way into this democratic Parliament, collectively seek to enhance access to justice, strengthen the independence of the judiciary and safeguard the rule of law which underpin our constitutional democracy.
As we begin the countdown to our fifth general elections and the celebration of 20 years of our constitutional democracy, we also take stock of the gains we have made in our transition from a turbulent apartheid era to a stable constitutional democracy. The enactment of the Legal Practice Bill and other Bills which are before Parliament presently, add to our successful transition. As we forge ahead as a nation, we remain resolute that the rule of law is an indispensable bulwark of our constitutional democracy and a fortress of our independent judiciary during the transition and beyond.
The National Development Plan articulates a clear programme to create full employment, eliminate poverty and significantly reduce inequality. In respect of the legal profession the NDP in particular advocates for measures aimed at increasing the intake of female practitioners within the legal profession. I am certain that Government and the legal profession will, within the space provided by the NDP, work together for the common good of the nation. By so doing, we would have fulfilled our constitutional mandate to redress the legacy of the past.
The idea of a Consultative Forum signifies a fundamental breakthrough in addressing contentious aspects of the Bill. The Bill is still not a consensus Bill in all respects. Complete consensus became an impossible task and this is borne out by the almost twenty years of negotiations. We have reached the stage where we simply have to forge ahead.
It is in this context that I want to thank all statutory and organised formations in the legal profession for remaining part of the deliberations to this end. I wish to mention in particular the General Council of the Bar and constituent Bars, Independent Bars, statutory law societies and our social partners, amongst them Nadel to which I will for ever be grateful for giving me employment opportunity in my earlier career in the legal sphere, BLA and Advocate for Transformation.
In conclusion let me take this opportunity to thank the Chairperson of the Portfolio Committee and his fellow members for their guidance and sterling leadership in navigating this complex Bill. I also want to thank the Director-General and her team for providing the technical support to the legislative process.
Of course, Deputy Minister Jeffery has played an important role in harnessing the objectives sought to be achieved through this Bill and his contribution from the side of the Executive will enrich the implementation of the Bill upon its enactment.
I trust that the Bill will receive the support it deserves at the end of this debate.
I thank you.
