To say that the Legal Practice Bill is complex and complicated is an understatement. The Legal Practice Bill is 120-clauses long. The bill seeks to transform an extremely conservative and yet fragmented sector of our society. Twenty years in the making, the legal profession has, until now, successfully resisted change and transformation.
During the committee’s deliberations on the bill it received written and oral submissions from a large cross-section of members and organizations from the legal profession and other sectors of civil society. We will make reference to some of these submissions during this debate.
The opinions, views and positions put forward during today’s debate reflect the diverse and conflicting positions within the legal profession on transformation. You will hear the view expressed that the status quo should remain; that the legal profession does not need transforming, and that any attempt to do so will adversely affect the independence of the profession; and, therefore, by extension, any transformatory measures provided for in the bill also adversely affect the independence of the judiciary.
This is borne out by the fact that when the committee agreed to a provision allowing advocates to accept briefs directly from the public, it was described by the GCB chairperson, Advocate Ismael Semenya as the beginning of the end for the advocates profession.
The ANC firmly rejects the view that the transformation of the legal profession and that any transformatory measures provided for in this bill will adversely affect the independence of the legal profession.
Of course at the public hearings conducted by the committee we had no less a person than the esteemed Advocate George Bizos SC remind the members of the legal profession who were present that for so many years people like him had warned them to get their house in order, and to bring about the long overdue changes they had stubbornly resisted; that failure to do so would result in transformation being imposed on them by Members of Parliament.
There were other significant submissions made to the committee. One of these was from the independent association of advocates who proposed that members of the Advocates profession be allowed to accept briefs directly from members of the public.
The committee agreed to this proposal. Consequently clause 34(2) sets out how this is done. As motivation for its position the independent association of advocates made the point that direct briefing of advocates or barristers is allowed in Britain, from whom South Africa inherited its legal system.
Another significant submission was made by the competition commission through Mr Thembinkosi Bonakele, who felt strongly that the public disclosure of briefing patterns by super-users of the legal profession (for example banks) will force the diversification that is so desperately needed in the profession. An example of this can be found in New York.
The fragmented nature of the profession was demonstrated when the Law Society of South Africa appeared before the portfolio committee. On the one-hand you had elements in the Law Society lamenting the fact that the bill fails to provide for a single body representing the legal profession in South Africa, as is the case in all other SADC countries.
On the other hand, Jan Stemmett’s approach was that government should merely provide for the framework in which the profession should exist, but that government should not run the legal profession.
Needless to say, government has no intention of running the profession. Jan Stemmett then went on to say that the proposed legal services Ombud should be appointed by the Chief Justice, but he failed to set out how this should happen. We reject this proposal. However, the Committee has conceded to the Ombud being appointed from the ranks of Judges who are retired from active service.
Probably one of the most revealing submissions made to the committee came from the chief executive officer of the Attorneys Fidelity Fund, Mr. Motlatsi Molefe, who pointed out that 60% of the fidelity fund went towards propping up the law society in 2012.
More importantly, the CEO stated that theft by legal practitioners in South Africa is growing exponentially. Aside from ensuring adequate policing of the profession, the CEO believes the fund must be given the independence it needs failure to do so could result in the fidelity fund being rendered bankrupt, as has occurred in New Zealand. Chapter 6 of the Bill seeks to address Mr. Molefe’s concerns which are shared by most, if not all Committee members.
Other notable features of the Bill that will be addressed in more detail during the course of this debate are, amongst others:
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Community service for legal practitioners;
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The fact that all disciplinary matters involving complaints against legal practitioners must be conducted in an open, transparent forum where the complainant, the public and the media can follow the proceedings, including the publishing of particulars of such matters on the legal practice council’s website;
- Advocates who opt to accept briefs directly from the public must be registered as such with the legal practice council and have to obtain a fidelity fund certificate. Consequently, such advocates will have to contribute to the legal practitioners’ fidelity fund (to give it its proper title) in the same way that attorneys do.
