Hon Speaker, hon Deputy President, hon Ministers, hon members, it is always an honour to follow on the hon Minister of Justice. The ANC will vote in favour of the Legal Practice Bill.
To say that the Legal Practice Bill is complex and complicated is an understatement. The Legal Practice Bill is 120 clauses long. The Bill seeks to transform an extremely conservative and yet fragmented sector of our society. Twenty years in the making, the legal profession has, until now, successfully resisted change and transformation.
During the committee's deliberations on the Bill, the committee received written and oral submissions from a large cross section of members and organisations from the legal profession and other sectors of civil society. We will make reference to some of these submissions during the course of this debate.
The opinions, views and positions put forward during today's debate reflect the diverse and conflicting positions within the legal profession on the matter of transformation. Today you will hear the view expressed that the status quo should remain, that the legal profession does not need transforming and that any attempt to do so will adversely affect the independence of the profession and, therefore, by extension, any transformatory measures provided for in the Bill also adversely affect the independence of our judiciary.
This is borne out by the fact that when the committee agreed to a provision allowing advocates to accept briefs directly from the public, it was described by the chairperson of the General Council of the Bar, GCB, advocate Ishmael Semenya, as "the beginning of the end for the advocates' profession". The ANC firmly rejects the view that the transformation of the legal profession, and any transformatory measures provided for in this Bill, will adversely affect the independence of the legal profession.
Of course, at the public hearings conducted by the committee, we had no less a person than the esteemed Adv George Bizos remind the members of the legal profession who were present that for so many years people like him had warned them to get their house in order and to bring about the long overdue changes they had stubbornly resisted, that failure to do so would result in transformation being imposed on them by Members of Parliament.
There were also other significant submissions made to the committee. One of these was from the Independent Association of Advocates of South Africa, which proposed that members of the advocates' profession be allowed to accept briefs directly from members of the public. The committee agreed to this proposal. Consequently, clause 34(2) sets out how this is done. As motivation for its position the Independent Association of Advocates of South Africa made the point that direct briefing of advocates, or barristers as they are called there, is allowed in Britain, from whom South Africa had inherited its legal system.
Another significant submission was made by the Competition Commission through a certain Mr Bonakela, who felt strongly that the public disclosure of briefing patterns by super users of the legal profession, for example banks, would force the diversification that is so desperately needed in the profession. An example of this can be found in New York. Regrettably, hon Speaker and hon Minister, this aspect was not dealt with by the portfolio committee.
The fragmented nature of the profession was demonstrated when the Law Society of South Africa appeared before the portfolio committee. On the one hand you had elements in the Law Society lamenting the fact that the Bill fails to provide for a single, unified body representing the legal profession in South Africa, as is the case in all other SADC countries. On the other hand, Jan Stemmet's approach was that government should merely provide for the framework in which the profession should exist, but that government should not run the legal profession.
Needless to say, and I do not intend to speak on behalf of government, it is common cause that government has no intention of running the profession. Jan Stemmet then went on to say that the proposed Legal Services Ombud should be appointed by the Chief Justice, but he failed to set out how this should happen. We rejected this proposal. However, the committee has conceded to the ombud being appointed from the ranks of judges who are retired from active service.
Probably one of the most revealing submissions made to the committee came from the chief executive officer of the Attorneys Fidelity Fund, Mr Mhlatsi Molefe, who pointed out that 60% of the fidelity fund went towards propping up the Law Society in 2012. More importantly, the CEO stated that theft by legal practitioners in South Africa is growing exponentially. Aside from ensuring adequate policing of the profession, the CEO believes that the fund must be given the independence it needs and that failure to do so could result in the fidelity fund being rendered bankrupt, as has occurred in New Zealand. I wish that the hon Richard Mdakane will take note of that. Chapter six of the Bill seeks to address Mr Molefe's concerns, which are shared by most, if not all, committee members.
Other notable features of the Bill that will be addressed in more detail during the course of this debate are, amongst others, community service for legal practitioners; the fact that all disciplinary matters involving complaints against legal practitioners must be conducted in an open, transparent forum where the complainant, the public and the media can follow the proceedings, including the publishing of particulars of such matters on the Legal Practice Council's website, together with the code of conduct for the legal profession which the Legal Practice Council will draw up.
Advocates who opt to accept briefs directly from the public must be registered as such with the Legal Practice Council and have to obtain a Fidelity Fund certificate. Consequently, such advocates will have to contribute to the Legal Practitioners' Fidelity Fund, to give it its proper title in the same way that attorneys do.
Entry into the legal profession is a serious challenge for many aspirant practitioners who face restricted and outdated prescripts compounded by disparate laws that only apply in different parts of South Africa. Access by members of the public to obtain legal services from the profession is also limited.
The Constitutional Court's pronouncements on the exorbitant fees charged by certain members of the profession also compound this challenge. However, when you put to the organised profession this particular challenge, they respond in unison: Legal aid, pro bono; pro bono, legal aid.
We want to use this occasion to call on the legal profession to draw together and embrace this Bill to ensure meaningful and proper implementation of all its provisions. A two-year intervening period leading to the establishment of the proposed Legal Practice Council will serve as a challenge to the legal profession to demonstrate its willingness to embrace transformation. The legal profession dare not fail.
Allow me, hon Speaker, to express my appreciation, firstly, to all the members of the portfolio committee, and a particular word of thanks to the hon Deputy Minister of Justice, Mr John Jeffery. He was appointed as Deputy Minister whilst he was a member of the portfolio committee and had made some crucial amendments to the Bill before us. We also want to convey our thanks to Mr Lawrence Bassett, Mr Raj Daya, Mrs Wilma Louw and Ms Bongiwe Lufuno from the Chief State Law Adviser's office for the invaluable assistance they accorded the portfolio committee during its deliberations. I thank you. [Applause.]