Mr Speaker, a wave of regulatory reform of the legal profession has been washing over the common law countries. The reasons are always the same: affordability and access, choice, competition and consumer protection, especially against ineffective professional disciplinary mechanisms.
Now we have scratched the surface and legislated some improvements: transparent disciplinaries; appeals, also appeals for complainants; an ombud who is a discharged judge; and cost estimates for clients. This last was the DA's proposal so that clients will know what they are in for in respect of the costs. The discharged judge is there at the insistence of the DA. We have therefore made some improvements. But what we should have done was to set up an appropriate regulator. The new regulator was created elsewhere to address these same problems we are faced with. It should typically be composed of small bodies of lay persons with relevant expertise, a few advocates, attorneys and sometimes government representatives - form follows function.
Instead, what is South Africa doing? Here is what South Africa is doing. The Legal Practice Bill forces advocates and attorneys into one governing body, the Legal Practice Council, and it puts the attorneys in charge. Why has this happened? It has happened because the ANC is, to borrow the title of Prof Sampie Terreblanche's latest book, "Lost in Transformation". You are lost in transformation.
To transition, and the hon Minister has alluded to this, some consideration was given. But let me now use the words of the chairperson of the General Council of the Bar, Advocate Ishmael Semenya, and I quote:
There was some consideration given to what might be called naked fusion, and for so long as that was the case the role for a Legal Practice Council in the governance and regulation of lawyers was clear.
The idea of fusing the advocates' and attorneys' professions outright was abandoned, as we have also heard, but the Bill with its Legal Practice Council has stubbornly survived through five Justice Ministries. It is fusion in disguise.
The thinking behind this fusion by stealth has been perfectly and honestly stated by the ANC members of the Justice committee. Hon Dr Motshekga cited the case of Zimbabwe, where he was present when fusion was effected at transition. But he does not say - maybe he doesn't remember - that 99% of advocates in Zimbabwe were white and they had the sole right of appearance in the higher courts.
Hon J B Sibanyoni has twice recounted how, at transition in South Africa, the then statutory municipal formations sat on one side of the negotiating table and the extra-parliamentary local government groups on the other side; negotiations resulted in what he called "wall-to-wall local government". Discussions on fusion, he said, then followed in Nadel. To hon Sibanyoni the divided legal profession is the inherited old order. The logic and applicability of his argument is not clear and I look forward to perhaps hearing from him on the subject again today. The logic is not clear unless advocates are assumed to be the embodiment of the inherited old order.
That, sir, is no doubt why a unified profession was the stated goal of the Bill at earlier stages of the legislative process. But because the Bill does not discontinue the statutory recognition of the advocates' and attorneys' professions, a unified regulator was chosen instead of a unified profession. Some attempts were made to create tasks for such a thing after the fact. But the essential goal remaining for the unified regulator is, and I quote from the Bill - ... transformation and the broad reflection of diversity and demography.
However, the truth is that significant progress has been made in deracialising the legal profession since 1994. As at March 2013, 64% of our 21 463 attorneys were white and 36% were black. Black law graduates started outnumbering whites from 2005 onwards; black articled clerks from 2009. At the General Council of the Bar, GCB, white males represented 1 379 - you may call it 1 400 - of its 2 400 plus members in April 2013. The black professional bodies have long been integrated with the GCB and the Law Society of South Africa, respectively.
The position of the General Council of the Bar, having tried in good faith to work with a single Legal Practice Council, was that there should be two separate chambers for advocates and attorneys at the national and regional level. That is logical. The position of the Law Society of South Africa was that policy should be set by the majority at the national level, that is, by them. That is 10 attorneys as against six advocates. They quite liked that. But given the significant regulatory differences characterising the two professions, there should be separate Chambers at regional level for implementation.
The departmental response, obviously speaking on behalf of the political heads, to these submissions was a dead giveaway. It said that this, meaning the Chambers, and I quote -
... boils down to the retention of the current arrangements. The department is of the view that this will perpetuate the issues that the Bill seeks to transform.
In other words, the Bill seeks to transform the advocates' and attorneys' professions. They can't go around regulating themselves, because that's too much like being two separate professions. So it was.
The ANC's guillotine fell on almost all of the DA's proposals; there are no Chambers at any level, not even the committees with original nondelegated powers we proposed as a compromise; nothing. The policy-making and operational power lies at the highly centralised national level, in the Legal Practice Council. This consists, inter alia, of 10 attorneys and 6 advocates. I argued in vain for parity. There was a moment when Dr Motshekga and I between the two of us actually achieved parity, but somebody stepped in and he reneged.
There is no guarantee that advocates will be able to elect their own halfdozen. This is so because the council will be preceded by a carefully constructed and controlled interim national forum whose first order of business will be to create an election procedure for the actual council. It is thought that this will be based on a voter's roll of all legal practitioners.
Also on the order of business, wasting no time, is to write one code of conduct for both professions. In other words, attorneys will, by majority, make regulatory policy for advocates. The chair and the deputy of this interim body are chosen by the Minister after consultation with the national forum. If they become vacant, he calls the shots again. The chair has the casting vote.
Just to rub in the Bill's levelling, fusionist intent, the DA's previously acceptable proposal - there was no sign that it was not going to be written into the Bill - that the chair and deputy of the Legal Practice Council should represent both professions, in other words, if an attorney was chosen as chair, the deputy should be an advocate and vice versa, was simply thrown out at the last minute. In addition, the further five members of the executive need only be, as far as is practicable, representative of both attorneys and advocates, gender and race.
The advocates' profession has been sold down the river, because the ANC is lost in transformation. Yet fusion is a delusion. Even in countries where full fusion was introduced, the bars arose again. We need the advocates. We believe South Africa specifically needs the split or divided profession. An advocate practicing on the traditional independent basis will take on politically and socially unpopular cases. This remains as necessary now as it was in the old South Africa. We can recite the sins of the old South Africa as often as we want. You need the independent advocate as much now as then for the politically and socially unpopular cases.
In addition, the quality of advocacy has a direct effect on the quality of judgments handed down by the Bench. And no, the relaxation of the referral rule had neither effect on the advocates' profession elsewhere nor will it destroy it here. I am in favour of the relaxation of the referral rule.
Seventy-five percent of our attorneys' firms are small. They are firms made up of one man, two men and up to a maximum of nine. Those little firms should be the frontline of access to justice for South Africans. We are, by the way, confident - on excellent authority - that a significant number of attorneys share our views on separate Chambers. There should at least have been separate Chambers if you insist on fooling around with a single Legal Practice Council.
Fusion works against the interests of small attorneys, because it is typical of fusion that law firms become enormous in order to offer a full range of services. By contrast, when professions are split, even the small attorneys' firms can take on complex cases, because they can call on the expert services of independent advocates.
We should have been working on alternative business models - that is what the regulators in all the other common law countries are also doing - so that the small attorneys can make a living while serving South Africans. But we need to have a real regulator looking at the real factors at play to see why the legal services market is not finding the legal service providers. They are not finding each other, so the attorneys feel they can hardly make a living, and the clients not only feel, they know they can't afford legal services. Something is wrong with the economics and that needs to be looked at by a proper regulator.
I regret to say that I have come to the conclusion that the ANC is interested neither in the welfare of the professions nor the real interests of clients. A ministerial power of dissolution will allow the Minister to dissolve the council. I think that is shocking. We are dealing with an independent profession here. A power of dissolution will allow him to dissolve the council and to install seven hand-picked people for six months, no matter how many safeguards are built in; and yes, the courts have been written in. This power is in itself inimical to the independence of the legal professions, as Judge Chaskalson said in his last speech.
I think that the power of dissolution is your own admission that you are fully aware, hon Minister, that the Legal Practice Council will institutionalise the same tensions which caused its negotiation over the life of four former Ministries over 20 years to fail. What makes you think it will work now that we legislate a thing that nobody wanted?
Hulle wil nie bymekaar wees nie; hulle hoort nie bymekaar nie. [They do not want to be together; they do not belong together.]
What makes you think it is going to work? I believe that we are here legislating for failure, and we oppose the Bill. [Applause.]