There are two troubling recent developments in the legal community that stand to undermine the rule of law and the strength of civil society.
The first is the Legal Practice Act, which has effectively nationalised the legal practitioners’ profession and placed it under government control, and the second is the Council on Higher Education’s (CHE) proposals for changes in our universities’ legal curricula.
These developments place constitutionalism and the rule of law in grave danger, although the consequences may only become visible in several years’ time.
Section 1(c) of the Constitution provides that South Africa is founded upon the supremacy of the Constitution and the rule of law. Quite underappreciated, this notion of the rule of law means more than the meaning we ascribe to it in our daily discourse.
It does not simply mean the law must be observed by government and the people alike but also, according to Professor Todd Zywicki, “includes preservation of the sphere of civil society, so as to allow individuals to form their own families and groups to accomplish their social and moral purposes”.
Indeed, the rule of law concerns itself mainly with ensuring reasonability in government and governance, which becomes impossible when government itself, through law or other means, makes it impossible to hold government to account from not only an independent institutional but also ideological perspective.
When I read about the reinstatement of Seth Nthai on the advocates’ roll by the Limpopo High Court in late May, I hoped that the judge’s finding that the Johannesburg and Pretoria advocates’ societies had no legal standing in the matter was because of some irrelevant technicality.
In the back of my mind, however, I thought it might have something to do with the new Legal Practice Act, which established the Legal Practice Council (LPC), the new statutory regulatory body for the legal practitioners’ profession.
The General Bar Council and its constituent societies, like those in Johannesburg and Pretoria, is a private organisation and was, before the establishment of the LPC, the self-regulatory body for the advocates’ profession.
It turned out that the existence of the LPC was the reason why the judge held that the advocates’ societies had no standing.
Because the Legal Practice Act apparently ousted the advocates societies’ ability to police their own members’ behaviour, these societies could no longer call upon the courts or intervene in judicial proceedings on matters affecting their profession.
In one superficial judgment, the Limpopo court essentially endorsed the nationalisation of the legal profession without any critical or constitutional engagement on whether this was legally proper.
Indeed, an important pillar of constitutionalism is a strong civil society that balances the power of the State.
With the majority of judges in South Africa still taken from the advocates’ profession, it is important for bodies unaffiliated with government, and thus unaffiliated with partisan-political interests, to play a role in vetting, observing, and disciplining, when necessary, those South Africans who might one day sit on the Constitutional Court bench.
With all advocates now effectively being subordinate to the minister of justice, a political appointee, it might happen that in several years’ time the judiciary will not be as independent as it once was.
Currently, most judges and advocates are still products of an advocates’ profession that was once independent. There might, however, come a time when we will notice more and more judgments in favour of government and against people trying to vindicate their rights.
Legal education is also being undermined. The CHE recently recommended far-reaching changes to the Bachelor of Laws (LLB) curriculum at South Africa’s universities.
The most concerning recommendation is that the theory of “transformative constitutionalism” must now not only become the predominant legal-philosophical doctrine with which students and staff are to be indoctrinated, but that it must also be distilled into law faculties’ “socialisation activities” and students’ and staff’s “mindsets” and “attitudes”.
Transformative constitutionalism describes a way in which the Constitution must be read, understood, and applied.
This undermines academic freedom because transformative constitutionalism, by its progenitor’s own admission, is not the only reasonable way in which the Constitution can be interpreted. The CHE is artificially attempting to elevate transformative constitutionalism to a status that it does not occupy nor deserve.
Substantively, transformative constitutionalism envisages a government with fewer limitations on its powers and scope than other theories of constitutional interpretation would recognise.
This means politicians, regulators, and officials, under a transformative-constitutionalist dispensation, would have more power over the affairs and destinies of ordinary South Africans than what the Constitution, textually, allows.
Ironically, transformative constitutionalism thus undermines constitutionalism itself.
To take one example, in terms of transformative constitutionalism, government might have the power to ban expression that is offensive or distasteful – as opposed to hate speech – in the name of social cohesion.
Whereas the Constitution only allows the banning of expression that advocates hatred based on race, ethnicity, gender or religion, and which constitutes incitement to cause harm; under transformative constitutionalism, expression that insults someone based on their profession (say, lawyers or politicians) might also be banned and punished with a jail sentence.
Transformative constitutionalism must be taught at our law faculties, but it must never be elevated to a quasi-state ideology as the CHE is attempting to do.
By doing that, we would not only risk having compromised advocates and attorneys, but law professors and advisors as well, with nobody from the legal profession left willing or able to hold government accountable.
The twin phenomena of nationalising the legal practitioners’ profession and of attempting to ideologically control what lawyers in South Africa think pose a grave threat to the Constitution, the rule of law, and the values we entrenched in law after apartheid ended.
• Martin van Staden is head: legal policy and research at the Free Market Foundation and is pursuing a master of laws degree at the University of Pretoria. He is author of The Constitution and the Rule of Law (2019). The views expressed in this article are those of the author and not necessarily those of the Free Market Foundation.