Parliament OKs legal practice bill

2013-11-12 20:47

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Cape Town - The legal practice bill, which has far-reaching implications for the legal profession, was approved by the National Assembly on Tuesday.

Provisions that were bitterly contested by the profession and opposition parties in extended negotiations remained intact.

The legislation will bring an end to the long tradition of self-regulation by the legal fraternity.

It will replace bar associations with a single council, which the minister of justice can dissolve if he loses confidence in it.

It also allows him to designate three of the 22 members of the council.

The government insists that the 120-clause bill is vital for transforming the legal profession and improving access to justice.

However, it has not managed to allay scepticism, especially since it defers dealing with fee structures that are prohibitive to the poor.

Opening debate on the bill, Justice Minister Jeff Radebe sought to pre-empt criticism by saying the search for agreement on the bill could not continue forever.

The legal profession could not operate in a vacuum where the government's policy imperatives did not matter.

"The legal profession does not only operate in its own space, but also operates in a space where all of our people, rich or poor, converge in pursuit of justice," Radebe said.

The laws of the government and those of the profession had to be seen against this background.

Radebe said the government had a legitimate interest in ensuring that constitutional imperatives were complied with.

"The transformation of the legal profession is one of these constitutional imperatives."

Right to regulate

Parliament had the constitutional right to regulate any profession.

Parliament's portfolio committee on justice chairperson Luwellyn Landers accused the legal profession of blocking change.

"The bill seeks to transform an extremely conservative and yet fragmented sector of our society.... The legal profession has, until now, successfully resisted change and transformation."

Radebe said the African National Congress had heeded pleas from the legal profession to drop long-held plans, partly motivated by cost concerns, to do away with the distinction between advocates and attorneys.

The bill, nevertheless, retained a provision that would allow clients to brief advocates directly.

But, the minister conceded, despite such compromises deep disagreement remained over the bill.

"Complete consensus became an impossible task and this is borne out by the almost 20 years of negotiations, but now we have reached the stage where we simply have to forge ahead."

All opposition parties voted against the bill, which also provides for community service by law graduates, but it was passed with ease thanks to the ANC's majority.

The Congress of the People's Luzelle Adams said the ministerial powers in relation to the new council flouted United Nations principles on the independence of the legal profession.

Dire consequences

Democratic Alliance MP Dene Smuts agreed that the bill was "inimical" to the independence of legal practitioners and said this would have dire consequences for the quality of jurisprudence and for society as a whole.

Independent-minded advocates were needed to take on cases that were politically and socially unpopular, and were as needed now to fight injustice as they were in the apartheid era, she argued.

Smuts rubbished the ANC's claims that transformation would be served by merging the advocates and attorneys' professions.

She said the ANC was ignoring progress made towards racial representivity, proven by the fact that for the past decade equal numbers of black and white attorneys had been admitted to the bar.

"The advocates' profession has been sold down the river because the ANC is lost in transformation. We are here legislating for failure and we oppose," she said.

African Christian Democratic Party MP Steve Smuts said the bill clearly made advocates the junior partners in the new statutory council, and posed the threat of draconian ministerial interference through the council.

He had backed pleas by the DA during drafting that the bill should include a clause on cost disclosure, as it would make it easier for poor South Africans to negotiate fees with lawyers.

However, as the bill stood, this would be deferred to an inquiry, to be conducted by the proposed new council.

Smuts said this would leave South Africans waiting longer for something overdue, and by failing to deal with fees the bill therefore missed its stated aim of improving access to justice.

The legislation makes provision for community service for law graduates, establishes an ombudsman for legal services and sets out more transparent disciplinary processes for legal practitioners.

The Law Society of SA has pleaded for ministerial powers to be limited, and has warned that if the legislation curtails the profession's independence, the courts will lose their independence.

Read more on:    da  |  anc  |  acdp  |  dene smuts  |  luwellyn landers  |  jeff radebe  |  judiciary  |  legislation

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