Advocate breaks ranks with General Council of Bar

2013-02-17 10:00

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Advocate Izak Smuts thinks he is standing up for what he believes in – the independence of the legal profession and judiciary in South Africa.

This is what caused him to break ranks with the General Council of the Bar over the controversial Legal Practice Bill, a move that sent shock waves through the legal fraternity and appears to have divided advocates across the country.

Smuts last weekend resigned from his position as deputy chairman of the General Council of the Bar, the umbrella body to which most South African advocates belong.

He said he would not support the council’s endorsement of the proposed bill.

“(The bill) to me is anathema to the continued existence of an independent legal profession and, concomitantly, to the independence of the judiciary and the rule of law,” Smuts told City Press this week.

Both the independence of the judiciary and the rule of law are entrenched in South Africa’s Constitution.

At the core of Smuts’ rebellion is the notion that the bill “is aimed at effecting governmental control of the legal profession”, something the Eastern Cape advocate calls a “most disturbing phenomenon”.

Among Smuts’ concerns are that the bill, if adopted in it’s current form, will mean the end of the legal profession as it is known today.

A legal practice council, consisting of 16 lawyers – six of whom must be practising advocates, a teacher of law, three people appointed by the justice minister and a Legal Aid SA representative – will regulate the legal profession.

The major sticking points for those who oppose it include that it allows the justice minister to dissolve the council if he “loses confidence in its ability to perform its functions effectively and efficiently or on any reasonable grounds”.

Another is that the bill creates the office of a legal ombudsman, appointed by the president and whose salary is determined by the president.

Smuts said that the authors of the bill “don’t care” what it costs to set up the large bureaucratic institution the bill envisages.

“The cost won’t be carried by the fiscus, it will be inflicted on the legal profession, which means the costs will have to be transferred to the general public.” In this way, said Smuts, the “bill pretends to be about access to justice – but in fact it does the opposite”.

Similarly, he said, the bill also mentioned transformation, but rising cost burdens would, in reality, create barriers to entry for newly qualified, young advocates.

Smuts will this week make an independent submission to Parliament’s portfolio committee on justice and constitutional development to outline his objections.

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