Mr Speaker, Deputy President, hon members, today we, as a nation, stand at the threshold of the complete renewal of the South African legal system, a system that will not only be anchored in the rule of law and democratic values and principles enshrined in our Constitution, but also in those embraced by all people of our beloved land.
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 Judges President, and rules made by the Bar Councils and other statutory bodies.
Different role-players, including our government, will and must therefore always have a right to have their say on how people go about their business in our courts and conduct their profession in a public space in the pursuit of justice for all. The legal profession not only operates 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 that of 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 respects. They belong to different regulatory bodies, some statutorily entrenched, for instance, the provincial law societies regulating attorneys, and some voluntary, like the General Council of the Bar of SA and the Law Society of SA. They undergo different vocational training programmes, compulsory in the case of attorneys, but voluntary in the case of advocates. They prefer different names, titles, and status, some entitling the bearers thereof to higher fees for the same services. 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 magistrates and the same judges.
The premise for the regulation of the profession stems from our 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 or occupation or profession freely and entrusts to 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 ensure 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 lives.
The Legal Practice Bill has a long history - a history that has been characterised by compromises and concessions in order to get us where we are today. One of the original aims of this long outstanding legislation was to bring about fusion in the legal profession that would result in a single category of legal practitioners which no longer distinguishes between attorneys and advocates.
This Bill before Parliament today was adapted to accommodate the urgent pleas of the profession 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.
Hon 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 to 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 up by the Johannesburg Bar in 1956 to allow Bram Fisher 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 Bram Fisher to be struck off the roll for his involvement in the struggle for justice and freedom.
The humiliation and anguish endured by our iconic 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 that 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 lawyers of the generation of Oliver Tambo, Nelson Mandela, Duma Nokwe, Bram Fischer, 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 so-called law then.
We tell these unpleasant stories of our past because we want to learn from our past in order to strive for a perfect future. The enactment of this Bill provides the opportunity to redeem our past - sad as it was - and lays a firm foundation for 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 has been a long, drawn- out journey with several stop streets towards the opportunity to become true agents of the rule of law. On the other hand, it brings hope to millions of our people whose quest for true justice is beyond measure.
This Bill advances the transformation 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 took 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 underpins our constitutional democracy.
As we begin the countdown to our fifth general elections and the celebration of 20 years of our constitutional democracy, we must also take stock of the gains we have made in our transition from a turbulent apartheid past to a stable constitutional democracy. The enactment of all these Bills before Parliament adds to this 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 this period of transition and beyond.
The National Development Plan, NDP, our plan, articulates a very clear programme to create full employment, eliminate poverty and significantly reduce inequality. In respect of the legal profession, the National Development Plan advocates measures aimed at increasing the intake of female practitioners within the legal profession. I'm certain government and the legal profession will, within the space provided by the NDP, work together for the common good of the nation.
The idea of a consultative forum signifies a fundamental breakthrough in addressing contentious aspects of this Bill. The Bill is still not a consensus Bill in all respects. Complete consensus became impossible and this is borne out by almost 20 years of negotiations. Now 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 these deliberations to this end. I wish to mention the General Council of the Bar, all other Bars, independent statutory law bodies, Nadel - to whom I'm very grateful for giving me employment in my earlier career in law - the Black Lawyers Association, and Advocates for Transformation.
In conclusion, I want to thank the chairperson of the portfolio committee and all fellow members for their guidance and sterling leadership in navigating this Bill; the director-general for providing technical support; and, of course, Deputy Minister Jeffery who played an important role in harnessing the objectives of this Bill.
I trust that this House will support this Bill, which has been a long time coming. Thank you. [Applause].
Hon Speaker, hon Deputy President, hon Ministers, hon members, it is always an honour to follow on the hon Minister of Justice. The ANC will vote in favour of the Legal Practice Bill.
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, the committee received written and oral submissions from a large cross section of members and organisations from the legal profession and other sectors of civil society. We will make reference to some of these submissions during the course of this debate.
The opinions, views and positions put forward during today's debate reflect the diverse and conflicting positions within the legal profession on the matter of transformation. Today 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 our 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 chairperson of the General Council of the Bar, GCB, advocate Ishmael 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 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 Adv George Bizos 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 also other significant submissions made to the committee. One of these was from the Independent Association of Advocates of South Africa, which 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 of South Africa made the point that direct briefing of advocates, or barristers as they are called there, is allowed in Britain, from whom South Africa had inherited its legal system.
Another significant submission was made by the Competition Commission through a certain Mr Bonakela, who felt strongly that the public disclosure of briefing patterns by super users of the legal profession, for example banks, would force the diversification that is so desperately needed in the profession. An example of this can be found in New York. Regrettably, hon Speaker and hon Minister, this aspect was not dealt with by the portfolio committee.
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, unified body representing the legal profession in South Africa, as is the case in all other SADC countries. On the other hand, Jan Stemmet'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, and I do not intend to speak on behalf of government, it is common cause that government has no intention of running the profession. Jan Stemmet 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 rejected 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 Mhlatsi 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 that the fund must be given the independence it needs and that failure to do so could result in the fidelity fund being rendered bankrupt, as has occurred in New Zealand. I wish that the hon Richard Mdakane will take note of that. Chapter six 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, community service for legal practitioners; 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, together with the code of conduct for the legal profession which the Legal Practice Council will draw up.
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.
Entry into the legal profession is a serious challenge for many aspirant practitioners who face restricted and outdated prescripts compounded by disparate laws that only apply in different parts of South Africa. Access by members of the public to obtain legal services from the profession is also limited.
The Constitutional Court's pronouncements on the exorbitant fees charged by certain members of the profession also compound this challenge. However, when you put to the organised profession this particular challenge, they respond in unison: Legal aid, pro bono; pro bono, legal aid.
We want to use this occasion to call on the legal profession to draw together and embrace this Bill to ensure meaningful and proper implementation of all its provisions. A two-year intervening period leading to the establishment of the proposed Legal Practice Council will serve as a challenge to the legal profession to demonstrate its willingness to embrace transformation. The legal profession dare not fail.
Allow me, hon Speaker, to express my appreciation, firstly, to all the members of the portfolio committee, and a particular word of thanks to the hon Deputy Minister of Justice, Mr John Jeffery. He was appointed as Deputy Minister whilst he was a member of the portfolio committee and had made some crucial amendments to the Bill before us. We also want to convey our thanks to Mr Lawrence Bassett, Mr Raj Daya, Mrs Wilma Louw and Ms Bongiwe Lufuno from the Chief State Law Adviser's office for the invaluable assistance they accorded the portfolio committee during its deliberations. I thank you. [Applause.]
Mr Speaker, a wave of regulatory reform of the legal profession has been washing over the common law countries. The reasons are always the same: affordability and access, choice, competition and consumer protection, especially against ineffective professional disciplinary mechanisms.
Now we have scratched the surface and legislated some improvements: transparent disciplinaries; appeals, also appeals for complainants; an ombud who is a discharged judge; and cost estimates for clients. This last was the DA's proposal so that clients will know what they are in for in respect of the costs. The discharged judge is there at the insistence of the DA. We have therefore made some improvements. But what we should have done was to set up an appropriate regulator. The new regulator was created elsewhere to address these same problems we are faced with. It should typically be composed of small bodies of lay persons with relevant expertise, a few advocates, attorneys and sometimes government representatives - form follows function.
Instead, what is South Africa doing? Here is what South Africa is doing. The Legal Practice Bill forces advocates and attorneys into one governing body, the Legal Practice Council, and it puts the attorneys in charge. Why has this happened? It has happened because the ANC is, to borrow the title of Prof Sampie Terreblanche's latest book, "Lost in Transformation". You are lost in transformation.
To transition, and the hon Minister has alluded to this, some consideration was given. But let me now use the words of the chairperson of the General Council of the Bar, Advocate Ishmael Semenya, and I quote:
There was some consideration given 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, as we have also heard, but the Bill with its Legal Practice Council has stubbornly survived through five Justice Ministries. It is fusion in disguise.
The thinking behind this fusion by stealth has been perfectly and honestly stated by the ANC members of the Justice committee. Hon Dr Motshekga cited the case of Zimbabwe, where he was present when fusion was effected at transition. But he does not say - maybe he doesn't remember - that 99% of advocates in Zimbabwe were white and they had the sole right of appearance in the higher courts.
Hon J B Sibanyoni has twice recounted how, at transition in South Africa, the then statutory municipal formations sat on one side of the negotiating table and the extra-parliamentary local government groups on the other side; negotiations resulted in what he called "wall-to-wall local government". Discussions on fusion, he said, then followed in Nadel. To hon Sibanyoni the divided legal profession is the inherited old order. The logic and applicability of his argument is not clear and I look forward to perhaps hearing from him on the subject again today. The logic is not clear unless advocates are assumed to be the embodiment of the inherited old order.
That, sir, is no doubt why a unified profession was the stated goal of the Bill at earlier stages of the legislative process. But because the Bill does not discontinue the statutory recognition of the advocates' and attorneys' professions, a unified regulator was chosen instead of a unified profession. Some attempts were made to create tasks for such a thing after the fact. But the essential goal remaining for the unified regulator is, and I quote from the Bill - ... transformation and the broad reflection of diversity and demography.
However, the truth is that significant progress has been made in deracialising the legal profession since 1994. As at March 2013, 64% of our 21 463 attorneys were white and 36% were black. Black law graduates started outnumbering whites from 2005 onwards; black articled clerks from 2009. At the General Council of the Bar, GCB, white males represented 1 379 - you may call it 1 400 - of its 2 400 plus members in April 2013. The black professional bodies have long been integrated with the GCB and the Law Society of South Africa, 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. That is logical. The position of the Law Society of South Africa was that policy should be set by the majority at the national level, that is, by them. That is 10 attorneys as against six advocates. They quite liked that. But given the significant regulatory differences characterising the two professions, there should be separate Chambers at regional level for implementation.
The departmental response, obviously speaking on behalf of the political heads, to these submissions was a dead giveaway. It said that this, meaning the Chambers, and I quote -
... 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.
In other words, the Bill seeks to transform the advocates' and attorneys' professions. They can't go around regulating themselves, because that's too much like being two separate professions. So it was.
The ANC's guillotine fell on almost all of the DA's proposals; there are no Chambers at any level, not even the committees with original nondelegated powers we proposed as a compromise; nothing. The policy-making and operational power lies at the highly centralised national level, in the Legal Practice Council. This consists, inter alia, of 10 attorneys and 6 advocates. I argued in vain for parity. There was a moment when Dr Motshekga and I between the two of us actually achieved parity, but somebody stepped in and he reneged.
There is no guarantee that advocates will be able to elect their own halfdozen. This is so because the council will be preceded by a carefully constructed and controlled 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 the deputy of this interim body are chosen by the Minister after consultation with the national forum. If they become vacant, he calls the shots again. The chair has the casting vote.
Just to rub in the Bill's levelling, fusionist intent, the DA's previously acceptable proposal - there was no sign that it was not going to be written into the Bill - that the chair and deputy of the Legal Practice Council should represent both professions, in other words, if an attorney was chosen as chair, the deputy should be an advocate and vice versa, was simply thrown out at the last minute. In addition, the further five members of the executive need only be, as far as is practicable, 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. Yet fusion is a delusion. Even in countries where full fusion was introduced, the bars arose again. We need the advocates. We believe South Africa specifically needs the split or divided profession. An advocate practicing on the traditional independent basis will take on politically and socially unpopular cases. This remains as necessary now as it was in the old South Africa. We can recite the sins of the old South Africa as often as we want. You need the independent advocate as much now as then for the politically and socially unpopular cases.
In addition, the quality of advocacy has a direct effect on the quality of judgments handed down by the Bench. And no, the relaxation of the referral rule had neither effect on the advocates' profession elsewhere nor will it destroy it here. I am in favour of the relaxation of the referral rule.
Seventy-five percent of our attorneys' firms are small. They are firms made up of one man, two men and up to a maximum of nine. Those little firms should be the frontline of access to justice for South Africans. We are, by the way, confident - on excellent authority - that a significant number of attorneys share our views on separate Chambers. There should at least have been separate Chambers if you insist on fooling around with a single Legal Practice Council.
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 professions are split, even the 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 - that is what the regulators in all the other common law countries are also doing - so that the small attorneys can make a living while serving South Africans. But we need to have a real regulator looking at the real factors at play to see why the legal services market is not finding the legal service providers. They are not finding each other, so the attorneys feel they can hardly make a living, and the clients not only feel, they know they can't afford legal services. Something is wrong with the economics and that needs to be looked at by a proper regulator.
I regret to say that I have come to the conclusion that the ANC 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. I think that is shocking. We are dealing with an independent profession here. A power of dissolution will allow him to dissolve the council and to install seven hand-picked people for six months, no matter how many safeguards are built in; and yes, the courts have been written in. This power is in itself inimical to the independence of the legal professions, as Judge Chaskalson said in his last speech.
I think that the power of dissolution is your own admission that you are fully aware, hon Minister, that the Legal Practice Council will institutionalise the same tensions which caused its negotiation over the life of four former Ministries over 20 years to fail. What makes you think it will work now that we legislate a thing that nobody wanted?
Hulle wil nie bymekaar wees nie; hulle hoort nie bymekaar nie. [They do not want to be together; they do not belong together.]
What makes you think it is going to work? I believe that we are here legislating for failure, and we oppose the Bill. [Applause.]
Hon Speaker, hon members, Cope supports all the transformative principles and clauses of the Bill. The transformation of the legal profession, coupled with access to justice, must be supported by all of us at all costs, but not at any cost. However, Cope cannot support the erosion and tampering with the independence of the legal profession as envisaged in this Bill.
Section 22 of the Constitution provides that the practice of a trade, occupation or profession may be regulated by law. This section obviously includes the legal profession. However, as in the case of the General Council of the Bar, GCB, it is Cope's submission that, whilst it is the prerogative of the Minister to provide the statutory framework within which the legal profession needs to be regulated by professional bodies, the state may not be involved in the governance and management of the profession.
In the case of this Bill it is the intention of the Minister to both provide the statutory framework for the function of the legal profession and to be involved in the governance and management of same. If it was not the government's intention to govern the profession, then why was it he deemed it necessary to include a dissolution clause? Cope cannot support this intention of the Minister.
The current clause 7 of the Bill is unconstitutional and it interferes with the independence of the legal profession in a number of aspects. Firstly, the insistence by the Minister of Justice and Constitutional Development to have three persons designated by him to sit on this legal council is plainly known as interference. Secondly, the independence of the advocacy is interfered with since the advocates will now be regulated by 17 non practising advocates who have not been elected by the advocates' profession.
On 7 August 2009, in a meeting between the Minister of Justice and Constitutional Development and the leaders of the General Council of the Bar, the Minister assured these leaders that the Legal Practice Bill will not allow the government to govern the legal profession. After four years, we are still waiting for this promise to become a reality in this Bill.
Once this Bill is passed today, the legal profession will be governed by the government. The message to the legal profession in this Bill is quite clear: you either shape up or ship out. You report to the Minister and satisfy his mandate or you will be dissolved and replaced by individuals who want to be instructed by the Minister.
Die gogga maak nou vir die baba bang. [Here comes the bogeyman.]
The UN's basic principles on the role of lawyers clearly state that lawyers shall be entitled to form and join self-governing professional associations. As long as the Bill does not provide for a Chamber of Advocates and a Chamber of Attorneys, then these legal councils cannot be regarded as self-governing bodies. South Africa will thus not comply with this UN principle.
The principle continues to state that the executive body of professional associations shall be elected by its own members and shall exercise its functions without external interference. Again, this Bill flies in the face of this UN principle because the legal council can be dissolved at any time the Minister so wishes. That is called external interference. The discretionary powers of the Minister in this Bill will erode the independence of the legal profession.
In addition to this interference by the Minister, the legal council must annually report to the Minister on a number of issues. This reporting to the Minister makes the legal council dependent on the Minister, especially since the Minister's discretionary powers can determine the future existence of that legal council.
Fifty-one years ago, in November 1962, the President of the SA Institute of Race Relations made a public statement, stating that house arrest of political activists opposing apartheid was an infringement of the rule of law. Adv B J Vorster, the then Minister of Justice of South Africa, responded to this statement by saying that "there are as many interpretations of the rule of law as there are people and the rule of law is very easily used as a pretext for attempts to frustrate action against communism". He went further to state that "an elected parliament had mandated him to maintain law and order to secure the safety of the state".
The apartheid government had no respect for the rule of law and that is why the South African citizens, including the legal profession, got rid of that government. Fast-forward to today, 13 November 2013, and in a democratic state the current Minister of justice through this Bill is advancing the same argument as that of Adv Vorster, only this time around the argument is that the rule of law is very easily used as a pretext for attempts to frustrate transformation in the legal profession and access to justice.
Any person advocating the independence of the legal profession is against the transformation of this profession. If there are any former political prisoners in this House today, then he or she should know that the independence of the legal profession was the reason why he or she was represented in court during apartheid by an independent advocate.
Judge Willers makes reference to the above and says that it is largely because of those traditions of independence that we were able to reconstruct our legal system after apartheid and create legal institutions that function in the democratic society under the rule of law.
I want to reiterate that this current government has no respect for the rule of law, and that is why the South African citizens, including the legal profession, must get rid of this government. [Applause.] The most loved President of South Africa, Mr Nelson Mandela, said in 1993 in his address to the Cosatu congress that "if the ANC does to you what the apartheid government did to you, then you must do to the ANC what you did to the apartheid government". Cope will not support this Bill. [Applause.]
Mr Speaker, I agree with the previous speaker that it is time to get rid of this government. But I want to say to the hon Minister that when the IFP becomes the government next year, we will keep you as the Minister of Justice. [Laughter.] I also thought that hon Landers and hon Smuts have made excellent contributions. They analysed the Bill and they mentioned many comments about it. I enjoyed listening to both of them, although they don't agree with each other.
My colleague, Dr Ambrosini, attended the meetings of the justice committee in respect of this Bill. I therefore do not have the benefit of all the discussions and will thus only make some basic statements, in particular why we do not support the Bill.
The Bill has been a major source of contention within the legal industry with proponents and detractors. It is common cause that our legal profession requires some review and the committee has tried to find the thin line between what was in the best interests of the public and the profession.
I now want to deal with some of our important objections. Firstly, the independence of lawyers is under attack, and the Minister gets the power to effectively control the judicial system. Secondly, the soon to be established South African Legal Practice Council will, in terms of clause 4, "exercise jurisdiction over all legal practitioners" and candidate legal practitioners. This council therefore effectively centralises control of the judiciary in the hands of the ANC executive.
Thirdly, the creation of provincial councils will have a huge cost effect, not only in respect of money but also administration. And I wonder where the money will come from, because a proper and an in-depth budget has not been prepared. Fourthly, as far as legal costs are concerned, the limitation thereof may assist some clients, but fees are market-related. If you want to brief the Jeremy Gauntletts, you pay them R40 000 a day or they do not accept your brief.
In conclusion, the Bill has good clauses, but the objections I have raised make it impossible for the IFP to support the Bill. The IFP will therefore oppose the Bill. Sorry, Minister. [Laughter.] [Applause.]
Hon Speaker, hon Deputy President, Ministers, hon Members of Parliament, I will start by saying the ANC supports this Bill. [Applause.] The angle of my debate is transformation of the legal profession. This has been a long road to where we are today, standing on this podium debating the Legal Practice Bill.
My first encounter with the topic was around 1985, during the days of the launch of organisations such as the Democratic Lawyers Congress, DLC, by hon Motshekga, which was eventually disbanded and became the Pretoria branch of the National Association for Democratic Lawyers, Nadel. We dabbled with the calls for fusion of the bar and the side bar, but we moved away from that.
Nadel, the Black Lawyers Association, BLA, and other lawyers' formations pursued the struggle. There were calls for disbanding the law societies, at the beginning, and the General Council of the Bar, GCB. Is it not absurd that about 28 years down the line, the bar and the side bar are still intact? My learned friend and colleague, Pretoria attorney Nano Matlala, has this to say. I quote:
The problem with South Africa under black rule is that the elites do not see South Africa as part of Africa, but an extension of the colonial masters. It is disingenuous to state that a single legal profession will not be independent. The distinction between attorney and advocate is academic given similar university qualifications, unlike in the past, when the minimum qualification of attorney was a diploma or a junior degree in law. It is for this reason that the Constitution provides for appointment to the judiciary a fit and proper person who can be an attorney or an advocate. There is no judge attorney or judge advocate. They are all members of the judiciary. The same should be the case with legal practitioners. Attorneys and advocates both appear in High Courts. Post-1994, a majority of black judges have been appointed from the attorneys' profession and some are Judges President and Judges of the Supreme Court of Appeal, SCA, and the Constitutional Court. The USA is a good example of an independent and single legal profession. Its judiciary is appointed from a single legal profession. The GCB does not qualify to state that it is in the public interest to leave the advocates' profession intact and to regulate itself.
Attorney Nano Matlala also has this to say: Over the last fifteen years I have asked many members of the public in rural areas and townships what the difference is between an advocate and an attorney and the answer has always been wrong. The answer I always got is an advocate is a big lawyer and an attorney reports to an advocate.
Matlala goes on to say:
When I was co-Chair of the Law Society of South Africa, LSSA, I caused the LSSA to undertake research on the legal profession in Namibia, Kenya and Uganda. In all these countries the legal profession is regulated as a single legal profession. In Kenya, legal practitioners are advocates regulated by the Law Society and the Advocates Act. They all take direct instructions from the public and hold a fidelity fund certificate. There are no attorneys. Kenya has severed the umbilical cord with the colonial masters and this is underscored by the fact that the Chief Justice of Kenya, Willie Mutunga, has never been an advocate or a judge before he was appointed and the nation never made a noise about his appointment. Maybe we should follow the example of Kenya and other African countries and call everyone an advocate. The difference will be whether one chooses to take direct instructions or not as in the position of Namibia or in the medical profession.
Now let me come to the work of Ministers. I think you will all remember this. The late Comrade Dullah Omar was the first Justice Minister who tabled a Bill whose objects were to transform the legal profession. There was resistance.
Yaqala inkathazo. [And the trouble began.]
There were extended discussions and engagements. No agreement was reached. His term of office expired. The next Minister was the hon Penuell Maduna, and again engagements followed. His term expired. Next in tline was the hon Brigitte Mabandla. Her term also ended. There were colloquiums, conferences and the like. Hon Enver Surty also came in and quickly criss-crossed the country as an attorney, talking to his learned friends. His term also expired. Now, hon Jeff ...
... Thamsanqa Radebe, Bhungane sithi mayingapheleli ezandleni zakho njengamanzi. Bathi abakwaBhungane, oMthimkhulu, umfazi omabele amade ancelisa umntwana ngaphesheya komfula sesithembele kuwe. [Uhleko.] (Translation of isiZulu paragraph follows.)
[... Thamsanqa Radebe, Bhungane [clan name] you must resolve this issue before your term of office expires. The Bhunganes say, oMthimkhulu, umfazi omabele amade ancelisa umntwana ngaphesheya komfula [clan name], that all their hopes and our hope are in you.] [Laughter.]]
Why is the legal practice legislation needed? At the present moment, the law dealing with the matters of attorneys and advocates is fragmented and such laws are applied in different parts of South Africa. Currently the legal practice is called a noble profession, which i agree, but it does not reflect the demographics of our country and entry into this profession is often determined by unnecessary restrictions, thus limiting access to the profession, specifically to the poor.
When one looks at the preamble of the Bill, one finds a clear explanation of the objectives of this Bill. Among other things - I will not quote them all - it is stated that it is to provide a legislative framework for the transformation and restructuring of the legal profession that embraces the values underpinning the Constitution and ensures that the rule of law is upheld. Further it is intended to protect and promote public interest; and to protect and promote the interests of consumers of legal services by the establishment of an Office of the Legal Servies Ombud.
The SA Legal Practice Council is being established to exercise jurisdiction over all legal practitioners and candidate legal practitioners. As mentioned, the Bill establishes the Office of the Legal Services Ombud in the Republic. For instance, there is provision for the objectives of the ombud, and the protection and promotion of the public interests, which I have just stated.
Now, to end my contribution to the debate, I want to quote attorney Nano Matlala again, when he says:
Today South Africa is making history, as it did on 27 April 1994 when, for the first time, all South Africans determined the destiny of this country at the ballot box. That historical event was captured by the world in all media. It was preceded by many years of struggle and loss of life by many South Africans of all races, not to mention imprisonment, torture, forced exile outside and within South Africa.
He continues to say:
They are all the products of this Bill which seeks to repeal by establishment of a united legal profession under one roof. This was also a long process and is historical.
South Africa has a transformative Constitution. It provides for three arms of the state, Parliament, Cabinet and the judiciary. This goes along with the doctrine of separation of powers. No one arm should encroach on the territory of another. The Constitution requires all three arms of the state to transform South African society.
To the judiciary, and to the ANC comrades, I want to say, we put our trust in you to pass this Bill today. Vandag is die dag. [Today is the day.]
Thank you. [Applause.]
Hon Speaker, hon Deputy President, hon Ministers and hon members, the UDM welcomes the purpose of this Bill, which seeks to transform our skewed legal profession. It is skewed to the extent that this piece of legislation is long overdue. We also welcome the establishment of the council. Previously there was a willy-nilly striking of the names of attorneys, especially black attorneys, from the roll until they stood up and fought it by becoming part of the law societies.
The objectives of the council and its functions, amongst other things, deal with the exorbitant fees that are at times charged, which make justice to come at a very high price to the majority of South Africans. Clause 27 seeks to regulate the payment of remuneration, allowances or stipends of candidate legal practitioners. If hon members know how much some of these candidate legal practitioners receive from their principals, you will be astonished. It is just incredible.
However, the UDM has reservations about the conversion of enrolments. For legal practitioners to accept or receive money from clients or members of the public, they need training how to handle such funds. Legal practitioners, who at present are referred to as trust account practitioners, are attorneys who, amongst the requirements to be admitted as such, must have been trained in accounting and passed accounting examinations. This is not the situation with advocates. So, to just convert their enrolment to that of an attorney, only on applying and payment of the fees, without being trained how to handle the funds in the trust accounts, will at times create problems. However, the UDM supports the Bill. [Applause.]
Chairperson, I agree with the hon Smuts that this Bill is lost in transformation. This Bill is just another slew of laws generated by the ANC to transform the South African society into a reracialised one where government controls everything, whether directly or indirectly, at the cost of individual and communal liberty. Equality at all costs, even in freedom - that is the ANC's mantra - is in the end undermined.
Die wetsontwerp oor regspraktisyns is nog 'n poging van die ANC om die regsprofessie te transformeer tot ANC-beheer. Die wetsontwerp het dit ten doel om 'n enkele landswye regsliggaam tot stand te bring om die bestaande prokureursordes en balierade te vervang. Hierdeur word prokureurs en advokate se grondwetlike regte van vryheid, assosiasie en beroep, en die eiendomsregte van bestaande prokureursordes en balierade tot niet gemaak.
Die VF Plus sien dit as 'n kwalik verbloemde poging van die ANC om groter beheer te kry oor die regsberoep - net soos die regbank ook moet transformeer om die ANC gedienstig te wees.(Translation of Afrikaans paragraphs follows.)
[The Legal Practice Bill is another attempt by the ANC to transform the legal profession into ANC control. The Bill aims to establish a single countrywide legal body in order to replace the existing law societies and bar councils. In this way the constitutional rights of the freedom, association and occupation of attorneys and advocates, and the property rights of existing law societies and bar councils, are abolished.
The FF Plus regards this as a thinly disguised effort by die ANC to obtain greater control over the legal profession - just as the bench also needs to transform in order to serve the ANC.]
The current system of law societies and bar councils were established over centuries and serve the interests of the public very well, despite high costs in higher courts. However, we do agree that costs are one of the major factors that inhibit access to courts. We also agree that it must be addressed, but not by attacking the legal profession as such. Instead government could have looked at some form of legal insurance structure to assist the public. Merely forcing legal professionals to charge less will only ensure that substandard services will be delivered. In short, you pay for the best professional service. Even government does, if one looks at the legal counsel it uses. The South African National Road Agency Ltd, Sanral, used Adv Jeremy Gauntlett for instance.
Indien die wetsontwerp deurgevoer word, sal dit uiteintlik negatief inwerk op die regsprofessie van Suid-Afrika en sal dit tot nadeel wees van al die mense in ons land. Dankie. [If the Bill is passed, it will eventually have a negative effect on the legal profession of South Africa and this will be to the detriment of all the people in our country. Thank you.]
Hon Deputy Speaker, hon Deputy President, Minister of Justice and Constitutional Development, hon members of the House and guests in the gallery, the ANC supports this Bill.
My focus is going to be on fees in respect of legal services. The purpose of the Legal Practice Bill is to provide a legislative framework for the transformation and restructuring of the legal profession that embraces the values underpinning the Constitution. The committee is aware of the many fees-related complaints.
The Bill recognises the importance of access to affordable legal services for realisation by South Africans of freedoms enshrined in the Constitution of the Republic of South Africa. While seeking to attain these objectives, the Bill recognises the independence of the legal profession and seeks to strengthen independence that should entrench the principles of transparency and accountability.
Clause 35 of the Legal Practice Bill focuses on fees in respect of litigious and nonlitigious legal services rendered by legal practitioners, juristic entities, law clinics and Legal Aid South Africa. In terms of the provision of this Act, fees must be in accordance with the tariffs established by the Rules Board for Courts of Law as established in section 2 of the Rules Board for Courts of Law Act of 1985. The Rules Board for Courts of Law must, when determining, for example, the tariffs, look at the importance, significance, complexities and expertise of the legal services required; the seniority and experience of the legal practitioners concerned; the volume of work required and the time spent in respect of the legal services rendered; and the financial implications of the matter at hand.
The Bill also supports the idea that nothing precludes any user of litigious or nonlitigious legal services, on his or her own initiative, from agreeing with a legal practitioner in writing to paying fees for services in excess of or below any tariff determined as contemplated in clause 35 of the Bill.
Within two years after the commencement of this Act, the South African Law Reform Commission must investigate and report back to the Minister with recommendations on the following: The manner in which to address the circumstances giving rise to legal fees that are attainable to most people, which is a point of contention; legislative and other interventions in order to improve access to justice by the members of the public; the desirability of establishing a mechanism which will be responsible for determining fees and tariffs payable to legal practitioners; the composition of the mechanism contemplated and processes to be followed in determining fees and tariffs; the desirability of giving users of legal services the option of voluntarily agreeing to pay fees for legal services, less or in access of any amount that may be set by the contemplated mechanism; and the obligation by the legal practitioner to conclude a mandatory fee agreement with a client, when he or she secures that legal practitioner's service. This is quite a good mechanism to ensure that the public is protected in respect of the type of fees that will be charged when they seek legal services.
In conducting this investigation into fees, the SA Law Reform Commission must take the following into consideration: The best international practices; public interests; and the interests of the legal profession itself. This is something that we need to note, because the impression has been created that the Bill itself is taking away the independence of the legal profession.
The Bill also makes provision for the Minister to determine maximum tariffs payable to legal practitioners who are instructed by any state department, provincial or local government in any matter. This is done just to control fees in that area. An attorney or advocate who is rendering litigious or nonlitigious legal services must provide the client with cost estimates in writing, specifying all particulars relating to the envisaged costs of legal services, including fees, charges, disbursements, hourly rates and an explanation to the client of his or her right to negotiate the fees payable.
The attorney must also outline work to be done in respect of each stage of the litigation process, and the likelihood of engaging an advocate, as well as an explanation of different fees that can be charged by different advocates. This should be done in writing or explained verbally by an attorney.
All these indicate that things are now changing in South Africa. We are now reaching a stage where legal services will be affordable. People will not enter into agreements with lawyers for fees that they do not understand and on processes that will unfold, that will end up being processes that are costly and that they did not actually know of or anticipate.
A client must agree to the envisaged legal services in writing. Noncompliance by an attorney or advocate to do that constitutes a misconduct, and the client will not be required to pay any legal costs to that attorney or advocate until the council has reviewed the matter and made a determination regarding the amounts to be paid. This provision does not preclude the use of contingency fee agreements as provided for in the Contingency Fees Act of 1997.
In conclusion, any change is stressful, and that is why the opposition is wary, but not of the unknown, because the Bill has been elaborately deliberated on by all parties in the committee over a very long time. Numerous written and verbal submissions from the public and the legal fraternity were received and engaged on. Best practices throughout the world were looked at. The change that will be brought about by this Bill is for fairness and the betterment of the lives of South Africans.
Of course, we will continue to acknowledge selective amnesia caused by manipulation of parliamentary debates to create a campaign platform for parties like Cope that want to give an impression that things aren't fine, in so doing creating an opportunistic platform that tries to turn the good that the ANC is doing into bad. The ANC supports the Bill. [Applause.]
Deputy Speaker and Deputy President, the Commonwealth principles on the three branches of government relating to the independence of the judiciary, and to which South Africa is a signatory, states that, and I quote:
An independent, effective and competent legal profession is fundamental to the upholding of the rule of law and the independence of the judiciary.
One of South Africa's most well-known advocates practising in London, Sydney Kentridge, stated that there are few things as essential to the maintenance of liberty in a state as the existence of an independent body of advocates, ready to appear for every person in every kind of case.
To protect this independence, governance and the management of the legal profession may not be done by the state. The Minister may only provide the statutory framework within which the legal profession is to be regulated. Hon Minister Radebe is on record as saying that he does not wish to control the profession. That we in the ACDP accept. However, as chairman Llewellyn Landers is often at pains to explain, we legislate for the future, for that unknown time when there might be another dictatorial Minister in control.
Therefore, the possibility of ministerial interference most definitely exists when one adds up the various powers that the Minister is given in terms of this Bill, including making regulations on a broad range of issues, having three ministerial representatives on the council and, most importantly, the power to dissolve it, albeit following a court process.
As former Chief Justice Arthur Chaskalson said last year about the Bill - just before his death:
A structure is being proposed which opens the door to important aspects of the profession being controlled by the executive and that is inconsistent with an independent legal profession.
Additionally, although I am an attorney, I share the hon Dene Smuts' concerns that the advocates' profession will now become the junior partner in this statutory arrangement and, in effect, the advocates have been sold down the tubes. No one can deny that there are fundamental differences between the attorneys' and advocates' professions. That is why we argued for separate Chambers for attorneys and advocates at national level. Regrettably, this was not agreed upon. As the hon Smuts has pointed out, we clearly have fusion by stealth.
Whilst the ACDP's fall-back position of separate Chambers at provincial level was agreed to to a certain degree, we still support the separate Chambers at national and regional level. The ANC has argued that to agree to that position would be to retain the status quo. Clearly, we in the ACDP respectfully disagree. These separate Chambers would have been subject to the directives of the Legal Practice Council. There is no situation that it is business as usual. The status quo is different and changed.
The ACDP also objected to the lack of parity on the Legal Practice Council. The interim national forum has an equal number of advocates and attorneys represented. We don't understand why this parity was not extended to the Legal Practice Council. Again, the advocates have been sold down the tubes.
The ACDP will not support this Bill. I thank you. [Time expired.] [Applause.]
Hon Deputy Speaker, Deputy President and hon members, we are now en route to the decolonisation and Africanisation of the South African legal system and the judiciary. This was long overdue. We must rid our legal system of racism, wealth and privilege as criteria for access to justice and legal services that allows unfettered self-regulation of the legal profession and a deeply divided Bar that escalates fees and makes justice inaccessible to the majority of the people.
A legal system must also be informed by the people's value system. It cannot be explained why today, 20 years after freedom, we still have to go to Roman Dutch law and English law to find out what is in the best interests of our people's aspirations for justice. We believe that the concept of ubuntu, which transcends race, colour and creed, is enough to provide a basis for a South African and African common law.
It is a matter of grave concern that on the eve of the 20th anniversary of our freedom from apartheid colonialism, political parties in this House are not yet at one on the transformation of the judiciary and the legal profession.
The DA and some sections of the Bar and Side Bar do not even accept the term "transformation". They want to change the form, not the substance of the legal system and the legal profession. Thus they prefer the term "restructuring", not "transformation".
The ANC made many compromises in good faith to enable the parties to reach consensus so that this Parliament can pass this Bill. These compromises notwithstanding, the DA rejected this Bill in its entirety, showing that they negotiated in bad faith. However, the ANC remains committed to this Bill, because it provides a framework for the transformation of the legal profession and the judiciary in line with our Constitution.
The Legal Practice Bill gives the Minister of Justice and Constitutional Development and the unified legal profession the authority to drive the transformation of the legal profession, which is a prerequisite for the transformation of the judiciary itself. This will open the door for the Africanisation or indigenisation of the law. Ubuntu values and principles must be infused in our legal system to ensure that once and for all we eradicate the dispensation of justice on the basis of race, colour or creed. The DA and its supporters lose sight of the fact that the state has a primary responsibility to ensure that all citizens, regardless of race, class and gender, have access to justice and legal services. The legal profession represents its own interests, not the interests of the downtrodden who want to receive their due. The state is a custodian of the interests of the citizenry, not the legal profession.
The independence of the profession is an important element of the rule of law, but it cannot and should not take precedence over access to justice and legal services.
It must also be the responsibility of the attorneys and advocates to train a new crop of lawyers. It is difficult to understand why the DA and its fellow travellers would argue that people serving pupillage should not be paid by the advocates, which means that the majority of young black graduates will not be able to enter the profession and therefore swell the ranks of those who must be appointed judges in this country. Therefore, we will remain with a white judiciary and white Bar for many years to come.
The DA sought to import an Australian legal fee structure lock, stock and barrel, in total disregard of the fact that in South Africa we have two worlds: the First and the Third World. The DA lives in the First World and legislates for the elites. It has no regard for the overwhelming majority of the people, who have not tasted freedom since 1652. [Applause.]
South Africa and Africa at large must indigenise the law. In essence, the DA wants a system of co-governance between the executive and the legal profession that has not yet been transformed. Under apartheid colonialism, the criteria for access to justice and legal services were race and wealth. Under the DA government, it would be wealth and privilege. [Interjections.] This would bar thousands of black graduates, in particular, from entering into the legal profession.
The policy of the DA on the legal profession shows that the DA falsely makes itself a champion of job creation for the youth. Thousands of law students and graduates will soon see through the DA and respond appropriately. The DA has proven beyond reasonable doubt that its old- fashioned liberalism is a great impediment to its own transformation to include the black middle-class. The DA is pro-corporate and is hell bent on defending the social and economic privileges of the few. South Africans, especially the youth, would be nave to believe that a party that cannot transform itself would be able to transform the legal profession, the judiciary and the country. [Applause.]
I can assure you, Mrs Dene Smuts, that when we return in 2014, with an increased majority, we will transform the legal profession and ensure that we have a progressive legal profession. I hope that you will have retired by that time, otherwise you will faint. Thank you very much. [Applause.]
Deputy Speaker, Deputy President and hon members, I'm not a member of the Justice committee ...
... mme fela jaaka motho yo o goletseng kwa magaeng, e re fa o fitlhela go buiwa kgomo o be o ntsha thipa ya gago le wena o be o bua. [... however, as someone who grew up in the rural areas, when you find people busy, you also join in to help.]
Concrete steps towards a transformed legal profession are long overdue. As such, the necessity of this Bill cannot be overemphasised. The instructive tone in the Bill is understandable as well, even though understandable does not really translate into being correct or right.
If the status quo is to continue, it is likely to take a century before we see substantial transformation in the legal profession, and we cannot allow this to happen.
We welcome the levelling of the playing field in the legal playground, which we have no doubt will make all feel their South Africanness.
There is a mechanism in place should the Minister lose confidence in the ability of the council to perform its functions effectively and efficiently. In line with due process, there are steps to follow and observe and even involve the ombud to investigate the recommendations that were made. Should the Minister still have a lump in his throat, he will be at liberty to approach the High Court and, should it give him the benefit of the doubt, only then may the Minister appoint an interim council within 21 days of dissolution, whose tenure may not exceed six months.
As the late former Chief Justice, Arthur Chaskalson, commented when the Bill was introduced:
It would serve all concerned and affected well if there were to be a concerted effort towards reaching a consensus in these matters instead of dictating what must be done.
The Republic, being a unitary state, has to ensure that justice is meted out evenly. That the legal profession is not representative of the demographics of South Africa cannot be denied. So there is a need to ameliorate and regulate the different laws which apply in different parts of this country.
We note and appreciate that this Bill strives to ensure that access to legal services should not be the privilege of the high and mighty only. The poor also have a right to be heard without compromising the independence of the legal profession.
The UCDP hopes that this is just one step towards ensuring that the third arm of the state, the Office of the Chief Justice, will sooner rather than later be afforded the opportunity to handle its own budget, as is the case with the Electoral Commission. The UCDP supports the Legal Practice Bill. [Applause.]
Deputy Speaker, now we know who in this Parliament supports transformation to the full extent of the term and who supports it only if it maintains the status quo. [Applause.]
Hon Deputy Speaker and hon Deputy President, Ministers, inkosi eziphakathi kwethu [Chiefs who are amongst us], hon members, I join those who spoke before me in support of the Legal Practice Bill. This is a Bill that seeks to transform the attorneys' and advocates' professions with a view to helping them promote access to justice by the people of our land, while at the same time promoting the interests of the practitioners.
It goes without saying that the profession of legal practitioners is a vital cog in the machinery responsible for the administration of justice, as these are the people who are trained in the knowledge of the law in order to interpret it for the very ordinary citizens. It should therefore be self-evident that our legal practitioners must be independent in the manner in which they carry out their vocation.
It is in alignment with this basic principle that the Legal Practice Council will be composed of 10 practicing attorneys, six practicing advocates, two teachers of law, one person designated by Legal Aid SA, one person who need not be a legal practitioner, but who is designated by the Legal Practitioners' Fidelity Fund board, as well as a mere three persons designated by the Minister of Justice and Constitutional Development.
So, out of a council of 23 members, 20 are designated by members of the profession themselves.
The passage of this Bill by Parliament has been long in the making. As is the nature of transformation, a great deal of resistance from and division within the profession were responsible for such delays. The legal profession is divided between attorneys and advocates, as well as along racial and gender lines. As in most professions and careers whose origins stem from our colonial and apartheid past, the profession is dominated by white males, much more so my profession, the advocate's profession.
In our quest for an egalitarian, nonsexist and nonracial society, it is imperative that this particular profession is assisted to undergo the changes necessary for the attainment of this goal. Clearly, those who benefit from the status quo cannot be expected voluntarily to effect the required changes. It would be nave and unfair of us to have such expectations of the beneficiaries of the current state of affairs.
The structures that this Bill will establish will ensure that the profession is independent, professional, racially and gender diverse, and accountable and accessible to the public itself through, among others, a fair determination of the fees charged. It is imperative that all those principles are met without anyone being elevated above the others.
Alongside all other bodies established by the Bill, namely the Legal Services Ombud, the Legal Practitioners' Fidelity Fund Board and the National Forum on the Legal Profession, the SA Legal Practice Council and its provincial bodies will ensure that the legal profession is the service provider of choice for all South Africans, not just for those who have access to unlimited financial resources.
In the event that the Legal Practice Council fails to function effectively and efficiently, as a result of which it loses the confidence of the Minister of Justice and Constitutional Development, the Bill facilitates the dissolution of the council by the Minister. Such power to dissolve the council, contrary to what we have been told, is subject to an elaborate process involving the consultation of the council by the Minister, the requesting of the ombud to conduct an investigation and, ultimately, an application to the High Court for the requisite order.
Some of us in the committee would have preferred that, as part of the transformation and especially with regard to the high fees charged to those who seek the services of lawyers, the attorneys' and advocates' professions be merged. After all, attorneys and advocates serve the same constituency. There can be no doubt that the benefits accruing from this division are enjoyed more by the practitioners than by the clients who pay for the services. For one case alone, a single client could be required to pay fees that are due to an attorney as well as those due to an advocate. Sometimes there will also be a junior and a senior advocate.
Whilst in the course of our interaction with the attorneys and the advocates, some of the attorneys were amenable to the idea of a merger. The bulk of the advocates were not so keen. In the interests of peace and the need to move forward, we agreed for the time being to let the status quo remain.
We also took note of the fact that a large body of advocates takes briefs directly from clients, without the medium of attorneys. The Bill provides that they continue to do so provided that they are first issued with Fidelity Fund certificates, as is the case with practicing attorneys. This is in order to protect the interests of clients. Such an arrangement will contribute in some small way to the reduction of legal costs.
Historically and traditionally, judges of the High Court were selected from the ranks of senior advocates. Transformation and democratic imperatives demanded that there be a departure from this approach. As a result, our current judges - who are proving to be quite capable of discharging their responsibilities - come from the ranks of advocates, junior and senior, attorneys and teachers of law.
The lawyers that our universities produce study for the same LLB degree. The junior degrees of B Juris and B Proc - which were required mostly for prosecutors, magistrates and attorneys - are no longer offered. All are now required to have the same Bachelor of Law, LLB, degree. The justification for the continuation of the division between attorneys and advocates is therefore gradually fading. There shall therefore come a time when Parliament will have to amend this law to accommodate this reality.
We are legislating for success. The ANC, as has been said, fully supports the passage of this Bill. [Applause.]
Madam Deputy Speaker, it is a pity this debate comes so close to an election, because it seems as if a number of parties are electioneering in this House. [Interjections.]
I am quite surprised at some of the comments made, namely that the Bill is going to interfere with the independence of the profession and that it is going to interfere and allow government to control the judiciary and so on. With respect, I think that anyone who has those arguments, either has not read this version of the Bill before the House or has been smoking their socks. [Laughter.]
As far as government or ministerial control over the council is concerned, only 3 people out of 22 is appointed by the Minister; that's all. The rest are appointed by the different constituent parties. The dissolution of the council - which was raised as another example of ministerial control - has been dealt with by Mr Mfundisi and Nkosi Holomisa.
The issue of the Minister making regulations is governed by those regulations being subject to approval by Parliament. So, I think it is absurd to claim that this Bill will enable government to control the legal profession.
The main issue is really the question of convergence. Now, for those who are nonlawyers, the former British Commonwealth countries have attorneys and advocates or solicitors and barristers. The issue is about their separation. It has been alleged that this Bill is fusion by stealth. It is not fusion by stealth. You still have advocates. They still have their own training - that's after they get the same law degree as attorneys - and they still have their own representation on the council.
However, advocates and attorneys had been doing more of the same work. So, in 1995, attorneys got the right to appear in the High Courts, in which only advocates could appear before. This Bill brings it a little bit closer by allowing advocates to take direct briefs. So their work is overlapping more and more. Why must you then have two separate codes or separate disciplinary processes? An advocate appears in the High Court, messes up the case; why must they be dealt with differently from an attorney who does the same?
What is interesting is that a number of Commonwealth countries on this continent - some of them, like Nigeria, Kenya, Zimbabwe and Namibia were mentioned - upon independence, abolished the distinction between attorneys and advocates. Now, I know that for the DA those are only African countries so you don't regard them that highly ... [Interjections.] ... but that also applied to New Zealand, which I know you regard more highly ... [Interjections.] ... and Australia. So what is the big issue? [Interjections.]
I want to quote from what the president of the UK Law Society said:
The new modes of practice will increasingly challenge the norms under which lawyers practice under the separate titles of barrister and solicitor. I believe this development will lead inevitably to the need to revisit the question of whether these two professions should continue to be trained separately, represented and regulated as they have been over the past 180 years. I envisage that the time is coming when the barrister- solicitor distinction will a more decorative than a functional aspect of our legal constitution.
Now this is from England, a country you regard very highly. [Interjections.]
It does not surprise me that the DA has this position on this Bill, because the DA represents conservative, established interests and their opposition to the Legal Practice Bill is just another indication of that. [Interjections.]
A lot of work has been put into this Bill ... [Interjections.] If the DA members can listen and not just barrack ... [Interjections.]
We have produced a very good Bill. I think it will finally, 20 years after democracy, ensure that the legal profession accelerates its transformation, because out of 473 senior counsel only 4 are African women.
I want to mention just one thing on the parity between attorneys and advocates and the issue of equal representation. There are 2 000 advocates and 21 000 attorneys. So, to want equal representation really reminds one of what things were like in the constitutional negotiations in 1994, when protecting minority white interests was sought.
I think we have a good Bill. It is a pity that the DA had to show its true colours. It's a pity that Cope had to resort to politicking.
I thank everybody for the debate and hope that the House supports the Bill.
Debate concluded.
Question put: That the Bill be read a second time.
Division demanded.
The House divided:
AYES - 226: Abram, S; Adams, P E; Ainslie, A R; Bam-Mugwanya, V; Beukman, F; Bhengu, F; Bhengu, N R; Bhengu, P; Bikani, F C; Bogopane-Zulu, H I; Bonhomme, T; Booi, M S; Borman, G M; Boshigo, D F; Botha, Y R; Bothman, S G; Burgess, C V; Carrim, Y I; Cele, M A; Chabane, O C; Chili, D O; Chiloane, T D; Chohan, F I; Coleman, E M; Cronin, J P; Cwele, S C; Dambuza, B N; Daniels, P N; De Lange, J H; Diale, L N; Dikgacwi, M M; Dlakude, D E; Dlodlo, A; Dlomo, B J; Dlulane, B N; Dubazana, Z S; Dube, M C; Duma, N M; Dunjwa, M L; Ebrahim, E I; Fransman, M L; Frolick, C T; Fubbs, J L; Gaehler, L B; Gasebonwe, T M A; Gaum, A H; Gcwabaza, N E; Gelderblom, J P; Gina, N; Godi, N T; Gololo, C L; Goqwana, M B; Gumede, D M; Hajaig, F; Hanekom, D A; Holomisa, S P; Huang, S-B; Jeffery, J H; Joemat-Pettersson, T M; Johnson, M; Kekana, C D; Kenye, T E; Khoarai, L P; Kholwane, S E; Khumalo, F E; Khunou, N P; Koornhof, G W; Kota-Fredericks, Z A; Kubayi, M T; Landers, L T; Lekgetho, G; Lesoma, R M M; Line-Hendriks, H; Lishivha, T E; Luyenge, Z; Maake, J J; Mabasa, X; Mabedla, N R; Mabudafhasi, T R; Mabuza, M C; Madlala, N M; Madlopha, C Q; Mafolo, M V; Magagula, V V; Magama, H T; Magubane, E; Magwanishe, G; Mahomed, F; Makasi, X C; Makhubela- Mashele, L S; Makhubele, Z S; Makwetla, S P; Malgas, H H; Maluleka, H P; Maluleke, J M; Manamela, K B; Manana, M C; Manganye, J; Mangena, M S; Mapisa-Nqakula, N N; Maserumule, F T; Mashatile, S P; Mashigo, R M; Mashishi, A C; Masilo, J M; Masutha, T M; Mathale, C C; Mathebe, D H; Mathibela, N F; Matshoba, J M; Maunye, M M; Mavunda, D W; Mayatula, S M; Maziya, A M; Mdaka, M N; Mdakane, M R; Mfulo, A; Mfundisi, I S; Mgabadeli, H C; Mjobo, L N; Mkhize, H B; Mlambo, E M; Mmusi, S G; Mnisi, N A; Mocumi, P A; Moepeng, J K; Mohai, S J; Mohale, M C; Mohorosi, M M; Mokoena, A D; Molebatsi, M A; Molewa, B E E; Moloi-Moropa, J C; Moloto, K A; Moni, C M; Morutoa, M R; Moss, L N; Motlanthe, K P; Motsepe, R M; Motshekga, M S; Mthethwa, E N; Mushwana, F F; Muthambi, A F; Nchabeleng, M E; Ndabandaba, L G B; Ndabeni, S T; Ndebele, J S; Ndlazi, A Z; Nelson, W J; Nene, N M; Newhoudt-Druchen, W S; Ngcengwane, N D; Ngcobo, B T; Ngcobo, E N N; Ngele, N J; Ngubeni-Maluleka, J P; Ngwenya, W; Nhlengethwa, D G; Nkwinti, G E; Ntapane, S Z; Ntuli, B M; Ntuli, Z C; Nxesi, T W; Nxumalo, M D; Nyalungu, R E; Nyanda, S; Nyekemba, E; Nzimande, B E; Oliphant, G G; Oliphant, M N; Pandor, G N M; Peters, E D; Petersen-Maduna, P; Phaliso, M N; Pilane- Majake, M C C; Pilusa-Mosoane, M E; Pule, D D; Radebe, G S; Radebe, B A; Radebe, J T; Ramathlodi, N A; Ramodibe, D M; Saal, G; Schneemann, G D; Segale-Diswai, M J; Selau, G J; September, C C; Shabangu, S; Sibanyoni, J B; Sibiya, D; Sindane, G S; Sisulu, L N; Sithole, S C N; Sizani, P S; Skosana, J J; Smith, V G; Snell, G T; Sogoni, E M; Sonto, M R; Sosibo, J E; Sotyu, M M; Suka, L; Sulliman, E M; Sunduza, T B; Swanepoel, D W; Thobejane, S G; Thomson, B; Tinto, B; Tlake, M F; Tobias, T V; Tsebe, S R; Tseke, G K; Tshabalala, J; Tshwete, P; Tsotetsi, D R; Turok, B; Twala, N M; van Rooyen, D D; Van Schalkwyk, M C J; Van Wyk, A; Wayile, Z G; Williams, A J; Williams-De Bruyn, S T; Xasa, T; Ximbi, D L; Xingwana, L M; Yengeni, L