Speech by Advocate SP Holomisa, ANC MP, during the debate on the Legal Practice Bill [B20-2012] in the National Assembly

12 November 2013

Honourable Speaker, Honourable President and Deputy President, iiNkosi eziphakathi kwethu, Honourable Members, I join those who spoke before me in support of the Legal Practice Bill. This is a Bill that seeks to transform the attorneys and advocates professions, with a view to help them promote access to justice by the people of our land, whilst at the same time promoting the interests of the practitioners.

It goes without say that the profession of legal practitioners is a vital cog in the machinery responsible for the administration of justice. These are people who are trained in the knowledge of the law in order to interprete it for the benefit of ordinary citizens. It should be self-evident, therefore, that our legal practitioners must be independent in the manner in which they carry out their vocation.

It is in line with this basic principle that the Legal Practice Council will be composed of 10 practising attorneys, 6 practising advocates, 2 teachers of law, 1 person designated by Legal Aid South Africa, 1 person (who need not be a legal practitioner) designated by the Legal Practitioners Fidelity Fund Board, as well as 3 persons designated by the Minister of Justice and Constitutional Development. So, out of a Council of 23 members 20 are designated by members of the profession themselves. The passage of this Bill by Parliament has been long in the making. As is the nature of transformation a great deal of resistance and divisions from and within the profession were responsible for such delay. The legal profession is divided between attorneys and advocates, as well as along racial and gender lines. As in most professions and careers whose origins come from our colonial and apartheid past, the profession is dominated by white males, much more so the advocates profession.

In our quest for an egalitarian, non-sexist and non-racial society, it is imperative that this particular profession is assisted to undergo the changes necessary for the attainment of this goal.

Clearly those who benefit from the status quo cannot be expected to voluntarily effect the required changes. It would be naive and unfair to have such expectations of the beneficiaries of the status quo. The structures that this Bill will establish will ensure that the profession is independent, is professional, is racially and gender diverse, is accountable and accessible to the public it serves through a fair determination of the fees charged for services. It is imperative that all of these principles are met, without any one of them dominating the others.

Alongside all the other bodies established by the Bill, namely, the Legal Services Ombud, the Board of Control for the Fidelity Fund and the National Forum on the Legal Profession, the South African Legal Practice Council and its provincial bodies, will ensure that the legal profession is the service provider of choice for all South Africans – not just for those who have access to unlimited financial resources. In the event that the Legal Practice Council fails to function effectively and efficiently and as a result loses the confidence of the Minister of Justice and Constitutional Development, the Bill facilitates the dissolution of the Council by the Minister. Such power to dissolve the Council is subject to an elaborate process involving the consultation of the Council itself, requesting the Ombud to conduct an investigation, and ultimately an application to the High Court for the requisite order.

Some of us in the Committee would have preferred that, as part of the transformation and especially with regard to the high fees charged to those who seek the services of lawyers, the attorneys and advocates professions be merged. After all attorneys and advocates service the same constituency. There can be no doubt that the benefits accruing from this division are enjoyed more by the practitioners than by the clients who pay for the services. For one case alone a single client is required to pay fees that are due to an attorney, as well as those that are due to an advocate. Whilst in the course of our interaction with the attorneys and advocates professions, the attorneys were amenable to the idea of a merger, the bulk of the advocates were not so keen. In the interests of peace and need to move forward we have agreed for the time being to let the status quo remain.

We also took note of the fact that a large body of advocates takes briefs directly from clients without the medium of attorneys. The Bill provides that they continue to do so, provided that they are first issued with Fidelity Fund Certificates, as is the case with practising attorneys, in order to protect the interests of clients. Such an arrangement will contribute in some small way towards the reduction of legal costs.

Historically and traditionally judges of the high court were selected from the ranks of senior advocates. Transformation and democratic imperatives demanded that there be a departure from this approach. As a result our current judges, who are proving themselves to be quite capable of discharging their responsibilities, come from the ranks of advocates (junior and senior), attorneys and teachers of law. The lawyers that our universities produce study for the same LlB degree; the junior degrees of BJuris and BProc, which were required mostly for prosecutors, magistrates and attorneys are no longer offered. All are now required to have the same LlB degree. The justification, therefore, for the continuation of the division between attorneys and advocates is gradually fading.

As the African National Congress, therefore, we fully support the passage of this Bill.