Legal eagles at war with themselves

2013-02-24 10:00

The proposed Legal Practice Bill drives a wedge between practitioners on both sides of the profession.

With tears in his eyes, veteran human rights lawyer and struggle icon George Bizos this week pleaded with lawyers to pull together in the name of justice for vulnerable South Africans.

Bizos’ emotional plea came as the legal profession deadlocked over the controversial Legal Practice Bill.

The bill envisions the creation of a Legal Practice Council, a super body that will regulate the affairs of both attorneys and advocates.

This is a drastic departure from the current situation where the Law Society of SA regulates attorneys and the General Council of the Bar regulates most advocates.

Silence descended on Parliament’s portfolio committee on justice on Tuesday as Bizos made his submission on the bill.

His voice cracked with emotion as he quoted parts of a speech his lifelong friend, former Chief Justice Arthur Chaskalson, made shortly before his death.

“Many of us are concerned about what’s good for us or our group, not what is good for the legal profession as a whole, or for the people of South Africa – particularly those who look forward to having their fundamental rights protected.

“And having fundamental rights means you require lawyers who are able to go to court and if that doesn’t happen (the rights) remain worthless, written on a piece of paper,” he said.

Bizos, who was part of Nelson Mandela’s defence team in the Rivonia Trial, said the independence of the profession meant that, “in the very darkest days of the most authoritarian aspects of South Africa’s history, there were always lawyers who were able to act in the public interest”.

Chaskalson, said Bizos, was opposed to the bill because he believed it infringed on an independent legal profession.

The solemn tone was broken soon after Bizos’ speech when various bodies governing attorneys and advocates presented their views – and revealed deep divisions in the legal profession.

Many black attorneys believed welcoming the executive in through the front door would be a cure for an industry known as an “old (mostly white) boys’” club, as one submission put it.

Some of the most bitter acrimony created by the bill is its provision for the justice minister to appoint three members of the council, which also consists of 10 attorneys, six advocates, a teacher of law and a Legal Aid SA representative. It also allows the minister to dissolve the council “on any reasonable grounds”.

In his organisation’s submission, Busani Mabunda, president of the Black Lawyers’ Association (BLA), said that if South Africa was the society people “yearned for”, the answer to the question of whether the minister should have the power to appoint three people to the council would be no.

Instead, he said, political will behind ensuring transformation “could not be left to the profession”.

Both the BLA and the National Association of Democratic Lawyers support the powers conferred by the bill on the minister.

But the transformative power of the bill is viewed sceptically by many.

In its submission to the portfolio committee, the Johannesburg Bar Council said the bill “does not contain any substantive provisions concerning the goal of transformation”.

It notes that while the bill mentions transformation four times, it only empowers the minister to create a “mechanism to provide transformational legal education and training”.

Similarly, there is much disagreement over whether the bill facilitates access to justice or “legal services that are affordable and within the reach of the citizenry”.

The “thorny issue of fees”, which the bill places in the hands of the justice minister, cropped up continuously during the two days of hearings.

In an article in the industry title Advocate, in April last year, Advocate Owen Rodgers noted that leading silks earned about R40?000 per day or R4?000 per hour, placing their services well out of reach of most ordinary South Africans.

The committee, which must now deliberate on the bill, has left a door open for the legal profession to come together and make another submission on the bill.

It’s not clear whether Bizos’ passionate plea will be ringing in the committee’s ears during its deliberations.

The veteran lawyer said on Tuesday: “What I hope will not happen is that any one of the parties is going to dig its heels in?.?.?.?let’s try and get this thing together.

“We agree in principle, we agree this is the Constitution, this is the judiciary, these are the principles we want?.?.?.?don’t let personal fears prevent us from doing a good job.”

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