Hon Speaker, hon members, Cope supports all the transformative principles and clauses of the Bill. The transformation of the legal profession, coupled with access to justice, must be supported by all of us at all costs, but not at any cost. However, Cope cannot support the erosion and tampering with the independence of the legal profession as envisaged in this Bill.
Section 22 of the Constitution provides that the practice of a trade, occupation or profession may be regulated by law. This section obviously includes the legal profession. However, as in the case of the General Council of the Bar, GCB, it is Cope's submission that, whilst it is the prerogative of the Minister to provide the statutory framework within which the legal profession needs to be regulated by professional bodies, the state may not be involved in the governance and management of the profession.
In the case of this Bill it is the intention of the Minister to both provide the statutory framework for the function of the legal profession and to be involved in the governance and management of same. If it was not the government's intention to govern the profession, then why was it he deemed it necessary to include a dissolution clause? Cope cannot support this intention of the Minister.
The current clause 7 of the Bill is unconstitutional and it interferes with the independence of the legal profession in a number of aspects. Firstly, the insistence by the Minister of Justice and Constitutional Development to have three persons designated by him to sit on this legal council is plainly known as interference. Secondly, the independence of the advocacy is interfered with since the advocates will now be regulated by 17 non practising advocates who have not been elected by the advocates' profession.
On 7 August 2009, in a meeting between the Minister of Justice and Constitutional Development and the leaders of the General Council of the Bar, the Minister assured these leaders that the Legal Practice Bill will not allow the government to govern the legal profession. After four years, we are still waiting for this promise to become a reality in this Bill.
Once this Bill is passed today, the legal profession will be governed by the government. The message to the legal profession in this Bill is quite clear: you either shape up or ship out. You report to the Minister and satisfy his mandate or you will be dissolved and replaced by individuals who want to be instructed by the Minister.
Die gogga maak nou vir die baba bang. [Here comes the bogeyman.]
The UN's basic principles on the role of lawyers clearly state that lawyers shall be entitled to form and join self-governing professional associations. As long as the Bill does not provide for a Chamber of Advocates and a Chamber of Attorneys, then these legal councils cannot be regarded as self-governing bodies. South Africa will thus not comply with this UN principle.
The principle continues to state that the executive body of professional associations shall be elected by its own members and shall exercise its functions without external interference. Again, this Bill flies in the face of this UN principle because the legal council can be dissolved at any time the Minister so wishes. That is called external interference. The discretionary powers of the Minister in this Bill will erode the independence of the legal profession.
In addition to this interference by the Minister, the legal council must annually report to the Minister on a number of issues. This reporting to the Minister makes the legal council dependent on the Minister, especially since the Minister's discretionary powers can determine the future existence of that legal council.
Fifty-one years ago, in November 1962, the President of the SA Institute of Race Relations made a public statement, stating that house arrest of political activists opposing apartheid was an infringement of the rule of law. Adv B J Vorster, the then Minister of Justice of South Africa, responded to this statement by saying that "there are as many interpretations of the rule of law as there are people and the rule of law is very easily used as a pretext for attempts to frustrate action against communism". He went further to state that "an elected parliament had mandated him to maintain law and order to secure the safety of the state".
The apartheid government had no respect for the rule of law and that is why the South African citizens, including the legal profession, got rid of that government. Fast-forward to today, 13 November 2013, and in a democratic state the current Minister of justice through this Bill is advancing the same argument as that of Adv Vorster, only this time around the argument is that the rule of law is very easily used as a pretext for attempts to frustrate transformation in the legal profession and access to justice.
Any person advocating the independence of the legal profession is against the transformation of this profession. If there are any former political prisoners in this House today, then he or she should know that the independence of the legal profession was the reason why he or she was represented in court during apartheid by an independent advocate.
Judge Willers makes reference to the above and says that it is largely because of those traditions of independence that we were able to reconstruct our legal system after apartheid and create legal institutions that function in the democratic society under the rule of law.
I want to reiterate that this current government has no respect for the rule of law, and that is why the South African citizens, including the legal profession, must get rid of this government. [Applause.] The most loved President of South Africa, Mr Nelson Mandela, said in 1993 in his address to the Cosatu congress that "if the ANC does to you what the apartheid government did to you, then you must do to the ANC what you did to the apartheid government". Cope will not support this Bill. [Applause.]