Hon Speaker, hon Deputy President, Ministers, hon Members of Parliament, I will start by saying the ANC supports this Bill. [Applause.] The angle of my debate is transformation of the legal profession. This has been a long road to where we are today, standing on this podium debating the Legal Practice Bill.
My first encounter with the topic was around 1985, during the days of the launch of organisations such as the Democratic Lawyers Congress, DLC, by hon Motshekga, which was eventually disbanded and became the Pretoria branch of the National Association for Democratic Lawyers, Nadel. We dabbled with the calls for fusion of the bar and the side bar, but we moved away from that.
Nadel, the Black Lawyers Association, BLA, and other lawyers' formations pursued the struggle. There were calls for disbanding the law societies, at the beginning, and the General Council of the Bar, GCB. Is it not absurd that about 28 years down the line, the bar and the side bar are still intact? My learned friend and colleague, Pretoria attorney Nano Matlala, has this to say. I quote:
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 a junior degree in law. It is for this reason that the Constitution provides for appointment to the judiciary a fit and proper person who can be an attorney or an advocate. There is no judge attorney or judge advocate. They are all members of the judiciary. The same should be the case with legal practitioners. Attorneys and advocates both appear in High Courts. Post-1994, a majority of black judges have been appointed from the attorneys' profession and some are Judges President and Judges of the Supreme Court of Appeal, 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.
Attorney Nano Matlala also has this to say: Over the last fifteen years I have asked many members of the public in rural areas 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.
Matlala goes on to say:
When I was co-Chair of the Law Society of South Africa, 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 an advocate or a judge before he was appointed and the nation never made a noise about his appointment. Maybe we should follow the example of Kenya and other African countries and call everyone an advocate. The difference will be whether one chooses to take direct instructions or not as in the position of Namibia or in the medical profession.
Now let me come to the work of Ministers. I think you will all remember this. The late Comrade Dullah Omar was the first Justice Minister who tabled a Bill whose objects were to transform the legal profession. There was resistance.
Yaqala inkathazo. [And the trouble began.]
There were extended discussions and engagements. No agreement was reached. His term of office expired. The next Minister was the hon Penuell Maduna, and again engagements followed. His term expired. Next in tline was the hon Brigitte Mabandla. Her term also ended. There were colloquiums, conferences and the like. Hon Enver Surty also came in and quickly criss-crossed the country as an attorney, talking to his learned friends. His term also expired. Now, hon Jeff ...
... Thamsanqa Radebe, Bhungane sithi mayingapheleli ezandleni zakho njengamanzi. Bathi abakwaBhungane, oMthimkhulu, umfazi omabele amade ancelisa umntwana ngaphesheya komfula sesithembele kuwe. [Uhleko.] (Translation of isiZulu paragraph follows.)
[... Thamsanqa Radebe, Bhungane [clan name] you must resolve this issue before your term of office expires. The Bhunganes say, oMthimkhulu, umfazi omabele amade ancelisa umntwana ngaphesheya komfula [clan name], that all their hopes and our hope are in you.] [Laughter.]]
Why is the legal practice legislation needed? At the present moment, the law dealing with the matters of attorneys and advocates is fragmented and such laws are applied in different parts of South Africa. Currently the legal practice is called a noble profession, which i agree, but it does not reflect the demographics of our country and entry into this profession is often determined by unnecessary restrictions, thus limiting access to the profession, specifically to the poor.
When one looks at the preamble of the Bill, one finds a clear explanation of the objectives of this Bill. Among other things - I will not quote them all - it is stated that it is 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. Further it is intended to protect and promote public interest; and to protect and promote the interests of consumers of legal services by the establishment of an Office of the Legal Servies Ombud.
The SA Legal Practice Council is being established to exercise jurisdiction over all legal practitioners and candidate legal practitioners. As mentioned, the Bill establishes the Office of the Legal Services Ombud in the Republic. For instance, there is provision for the objectives of the ombud, and the protection and promotion of the public interests, which I have just stated.
Now, to end my contribution to the debate, I want to quote attorney Nano Matlala again, when he says:
Today South Africa is making history, as it did on 27 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.
He continues to say:
They are all the products of this Bill which seeks to repeal by establishment of a united legal profession under one roof. This was also a long process and is historical.
South Africa has a transformative Constitution. It provides for 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 three arms of the state to transform South African society.
To the judiciary, and to the ANC comrades, I want to say, we put our trust in you to pass this Bill today. Vandag is die dag. [Today is the day.]
Thank you. [Applause.]