Legal Practice Council: another threat to judicial independence

Anthea Jeffery

The elections currently being held among practising advocates and attorneys for representatives to serve on the new Legal Practice Council – which is to be charged with regulating the legal profession in various ways – raise at least three profound questions of principle.

First, a rigid racial quota system is being applied, under which the ten attorneys now being voted on to the council must comprise "four black women, three black men, one white woman, and two white men". For advocates, "two black women, two black men, one white woman and one white man" must be chosen. (In each instance, the candidates with the highest number of votes in their respective racial categories will be chosen.)

These arbitrary racial criteria were introduced in August 2018 by ministerial regulation under the Legal Practice Act of 2014. They are likely to exclude many seasoned practitioners, both black and white, because they do not fit these predetermined racial parameters. 

As Advocate Mark Oppenheimer points out, the regulations allow only six black women attorneys and advocates to be elected on to the new council. If the electorate (which is made up of practising attorneys and advocates) chooses a seventh black woman, she will have to be excluded from serving on the council because of her skin colour. Those who voted for her will have their democratic choices nullified as well.

These quotas go against normal electoral principles, under which the candidates who win the most votes are the ones elected. They also conflict with the Constitutional Court's ruling against rigid racial quotas in a recent case. Here, the court warned that "remedial measures" must not be "arbitrary" or "capricious" or amount to "a quota system, or one so rigid as to be substantially indistinguishable from a quota". 

Second, the Legal Practice Council will replace the independent bar associations (for advocates) and law societies (for attorneys) that have successfully regulated the legal profession for decades and kept it free from state control. In doing so, these institutions have helped maintain a "strong and independent legal profession" – which the International Bar Association recognises as a vital factor in upholding the rule of law.

Third, the Legal Practice Council provides yet another example of the ANC's determination to bring the judiciary under its control. This objective stems from the ANC's long-standing commitment to a Soviet-inspired national democratic revolution (NDR), which aims to take South Africa by incremental steps from a capitalist to a socialist and then communist system.

A communist system requires totalitarian state control over both the economy and society. It has no room for judicial autonomy, or for a system of judicial review in which independent judges can strike down unconstitutional laws and/or executive acts. 

However, this system of judicial review is precisely what South Africa's Constitution mandates. This is anathema to the ANC, which has been seeking for many years to erode both this system of judicial review and the judicial autonomy on which it depends.

As part of this process, the ANC has long been trying to "transform the collective mindset of the judiciary" (as President Thabo Mbeki put it back in 2005). It wants to make the country's judges accountable "to the masses" – no doubt as represented by the ANC – rather than to the Constitution and the law, as Section 165 of the Constitution requires.

The replacement of South Africa's independent professional bodies by the Legal Practice Council is part of that "transformative" project. In the graphic words of Advocate Paul Hoffman SC, "it is a form of state capture" that seeks to "secure state control" over the legal profession, which is undoubtedly a key "lever of power". 

Adds Advocate Hoffman: "That the state should be allowed to control [the legal profession] is deeply and darkly at odds with the liberal and progressive ethos of the constitutional order in place in South Africa since 1994."

If South Africans want to safeguard and preserve the freedoms they finally won in 1994, they need to wake up to the NDR – and the incremental threat it poses to judicial independence, the rule of law, and virtually every facet of our democracy and constitutional order.

- by Dr Anthea Jeffery, Head of Policy Research at the IRR, a think tank which promotes political and economic freedom. If you agree with what you have just read, SMS your name to 32823. Each SMS costs R1. Ts and Cs apply.

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