The Legal Practice Bill was an illconsidered, badly thought-through, poorly drafted piece of political brinkmanship, Grahamstown Senior Counsel Izak Smuts charged last week.
Speaking at a debate on the bill hosted by the Rhodes University Law Faculty, Smuts said if passed into law it would spell the end of an independent advocates’ profession.
Smuts recently resigned as deputy chairman of the General Council of the Bar because of the GCB’s backing of the controversial bill.
He warned that the current selfregulation of the profession would be exchanged for executive control at the pleasure of the justice minister.
“It would remove us from the ranks of independent legal professions in the world, and would undermine the rule of law and the independence of the judiciary. It is unconstitutional and cannot be permitted.”
The bill does away with the Law Societies, the GCB and affiliate bars, and replaces them with a new statutory body, the South African Legal Practice Council – which would be the controlling body for both attorneys and advocates.
The Justice Minister nominates three of the 21-member body.
Just a month before he died last year, former Chief Justice Arthur Chaskalson warned that the bill opened the door to important aspects of the profession being controlled by the executive and said it was calculated to erode the independence of the legal profession.
But attorney Max Boqwana, who is also president of the National Association of Democratic Lawyers, said the single, united strong profession envisaged in the objectives of the bill was necessary.
He said the legal profession was currently deeply divided, extremely weak, struggling to claim its independence and battling to play a critical role in sustaining constitutional democracy.
“As a profession we have failed to progress with everything else in this country and failed to organise ourselves collectively so that we can have a common voice to deal with the issues of this restless nation,” said Boqwana.
The legal profession was locked in a colonial past and completely centred on what apartheid had bestowed on it in terms of its divisions.
Boqwana said much progress had been made to reach the current draft of the bill – which he estimated was the 13th draft in 16 years. But issues of concern remained.
These included its failure to guarantee independence of the profession. It allowed the minister to dissolve the council tasked with regulating and governing the profession, which he said was “clearly not right”.
The bill also specified that the ombudsman, which had extensive powers, would be appointed by the president rather than the chief justice.
Boqwana warned that “what is happening is giving politicians an opportunity to take over the direction the profession must go”.
He called for constructive dialogue between the GCB and the Law Society – the two bodies governing the advocates and attorneys professions.
A collective approach by the two powerful bodies was necessary to give direction to the justice minister and parliamentary portfolio committee.
By: Adrienne Carlisle
Image sourced from City Press
Source: Daily Dispatch