Speech delivered on 12th November 2013 by Hon. Jb Sibanyoni (MP) on the debate on Legal Practice Bill (LPB)
12 November 2013
NB: The ANC supports this Bill.!
The angle of my speech in this debate is "Transformation of the Legal Practice". This has been a long road or that has been taken until we reached the stage that today I standing in this podium debating the Legal Practice Bill.
Democratic Lawyers Congress (DLC) and Black Lawyers Association (BLA) My first encounter with the topic was around 1985, during the days of the launch of organisations such as the Democratic Lawyers Congress (DLC) which eventually was disbanded and it became the Pretoria branch of NADEL (i.e. National Association of Democratic Lawyers). We dabbled with calls for the Fusion of the Bar and the Side-Bar. NADEL and BLA (Black Lawyers Association) pursued the struggle. There were calls for disbanding the Law Societies and the GCBs (General Council of the Bar).
Is it not absurd that about 28 years down the lines these are still intact?
My learned friend and colleague, a Pretoria Attorney Nano Matlala has this to say:
"The problem with South Africa under black rule is that the elites do not see South Africa as part of Africa but an extension of the colonial masters. It is disingenuous to state that a single legal profession will not be independent. The distinction between attorney and advocate is academic given similar university qualifications unlike in the past when the minimum qualification of attorney was a diploma or junior degree in law. It is for this reason that the Constitution provides for appointment of the judiciary from a fit and proper attorney or advocate. There is no judge attorney or judge advocate. They are all members of the judiciary. The same should be with legal practitioners. Attorneys and advocates both appear in the high courts. Post 1994 a majority of black judges have been appointed from the attorneys profession and some are JPs and judges of the SCA and the constitutional court. The USA is a good example of an independent and single legal profession. Its judiciary is appointed from a single legal profession.
The GCB does not qualify to state that it is in the public interest to leave the advocates profession intact and to regulate itself. Over the last fifteen years I have asked many members of the public in rural and townships what the difference is between an advocate and an attorney and the answer has always been wrong. The answer I always got is: an advocate is a big lawyer and an attorney reports to an advocate. When I was Co Chair of the LSSA I caused the LSSA to undertake research on the legal profession in Namibia, Kenya and Uganda. In all these countries the legal profession is regulated as a single legal profession. In Kenya legal practitioners are advocates regulated by the Law Society and the Advocates Act. They all take direct instructions from the public and hold a fidelity fund certificate. There are no attorneys. Kenya has severed the umbilical cord with the colonial masters and this is underscored by the fact that the chief justice of Kenya, Willie Mutunga, has never been a judge before his appointment and the nation never made noise about his appointment. May be we should follow the Kenya and other African countries and call everyone an advocate. The difference will be whether one chooses to take direct instructions or not as is the position in to Namibia or in the medical profession".
Mr. Matlala knows very what he is talking about.
Work by various Justice Ministers
The Late Comrade Dullar Omar was the Justice Minister who first tabled a Bill whose objects is to transform the Legal Profession. Resistance started. (Yaqala inkathazo.!). There were extended discussions and engagements. No agreement was reached. His term of office expired. The former Justice Minister, Hon. Panual Maduna followed next. Again engagements followed. His terms expired. Next on the line was Hon. Bridget Mabandla. She also conducted colloquims. Her term expired. Hon. Enver Surtey came in. He criss-crossed the country, as an attorney, talking to his learned friends. His term expired. Now Hon. Jeff Thansanqa Radebe (Bhungane.!) is the current cabinet member responsible for the administration of Justice. Sesi thembele kuwe, Bhungane.! (O Bhungane kuthiwa oMthimkhulu.! Umfazi wama bele amade owancelisa umntwana ngaphesheya komfula.!)
Why the Legal Practice Legislation is needed?
At the present moment the law dealing with matters of attorneys and advocates is fragmented such laws are apply to different parts of South Africa. Currently the legal practice (the noble profession) does not reflect the demographics of our country and entry into this profession is often determined by unnecessary restrictions. Thus limiting access the profession specifically to the poor.
When one looks at the Preamble of the Bill, one finds the clear explanation of the objects of this Bill. Among others, it is stated that the aims are to:
- "Provide a legislative framework for the transformation and restructuring of the legal profession that embraces the values underpinning the Constitution and ensures that the rule of law is upheld;
- By broadening access to justice: by for example: ..putting in place measures to provide for the rendering of the community service for candidate legal practitioners and practicing legal practitioners.. and by putting in place measures that provide equal opportunities for all aspirant legal practitioners in order to have a legal profession that broadly reflects the demographics of the Republic
- Protect and promote the public interest; and
- Protect and promote the interests of consumers of legal services by the establishment of an off of the Legal Services Ombud".
The South African Legal Practice Council
The Council is being established to exercise jurisdiction over all legal practitioners and candidate legal practitioners; that will be empowered to advise the Minister with regard to matters concerning the legal profession and legal practice. The legislation will require the Council to enrol a duly admitted legal practitioner as such, and to keep the roll of legal practitioners and will give discretion on the Council to advise the Council on Higher Education regarding matters relevant to education in law, including the desirability of including in the LLB curriculum a form of community service to be undertaken by all law students.
Legal Services Ombud
This Bill establishes the Office of the Ombud in the Republic. For instance there is provision for the following objects of the Ombud:
- "Protection and promotion of the public interest in relation to the rendering of legal services;
- Ensuring the fair, efficient and effective investigation of complaints of alleged misconduct against legal practitioners;
- Promotion of high standards of integrity in the legal profession etc."
The Bill requires the President to promptly, after the commencement of the Act, appoint a retired judge as Legal Services Ombud.
I hereby end my debate with another quotation from attorney Nano Matlala of Pretoria:
"Today South Africa is making history as it did on the 27th April 1994 when for the first time all South Africans determined the destiny of this country at the ballot box. That historical event was captured by the world in all media. It was preceded by many years of struggle and loss of life by many South Africans of all races not to mention imprisonment, torture, forced exile outside and within South Africa. I am certain that today when we tell our grandchildren about this they are quick to respond: Why did you allow it? Our is: It was the law. That law was made possible by the legal profession: judges, ,attorneys and advocates.
They are all the products of what this Bill seeks to repeal by establishing a united legal profession under one roof. This was also a long process and is historical. It happened through a consultative process almost similar to Codesa. I am deliberately mentioning Codesa because not all participants at Codesa got all they wanted. The majority and minority compromised. Attorneys and advocates compromised. Government compromised as it needed a fused legal profession which is a feeder to the judiciary currently one judiciary under the leadership of the Chief Justice.
We in the ANC believe that the Bill is not unconstitutional and any challenge by any person based on unconstitutionality will be found wanting by our courts. We do however believe that any challenge is unfortunate but as we all do know everyone has access to courts of law".
South Africa has a transformative constitution. It provides for the three arms of the state: Parliament, Cabinet and the Judiciary. This goes along with the doctrine of Separation of Powers. No one arm should encroach on the territory of another. The constitution requires all the three arms of the state to transform the South African Society. To the Judiciary I say: "We put our trust in you, our justices!"
Once More, The ANC supports this Bill.
I THANK YOU!