The Legal Practice Bill “is the biggest single threat to an independent legal profession, and so to the courts, in South Africa’s legal history.”
This is the full text of the article written by Jeremy Gauntlett SC as it appeared on the website of PoliticsWeb and included here in the public interest.
Will Jeff Radebe succeed where Vorster failed?
Jeremy Gauntlett
04 June 2012
Jeremy Gauntlett on the govt’s efforts to break the back of the independent legal profession
Minister of Justice Jeff Radebe has chosen a sponsored breakfast to announce that the Legal Practice Bill, 2012 is imminently to go through Parliament. It is the biggest single threat to an independent legal profession, and so to the courts, in South Africa’s legal history.
Crying wolf? An exaggeration? Consider the following.
The allure to government of state control of advocates and attorneys (like controls on the media, universities and even churches) is not new. Radebe even has recent local precedent to follow. But it puts him in bad company. In the 1960s the Nationalist Government directly flirted with the notion. Fearing international outcry, it drew back. Sir Sydney Kentridge QC recalls:
“During the years of apartheid in South Africa there were frequent threats from the government to place the Bar under the control of a central council with government-nominated members. This proposal was consistently and successfully resisted by the whole of the Bar, including those many members who normally supported the government in policies and legislation. It was well understood that to remove the control of the profession from the provincial Bar Councils and the General Council of the Bar would have meant the end of independence of the profession. What was also well understood was that the independence of the Bench was inextricably linked with the independence of the Bar”.
That is for a very simple reason. Without a viable profession of specialist pleaders in court, bound – whatever the personal repercussions – to accept briefs, in the spirit of Isie Maisels at the Treason Trial, the Rivonia defence team or Sydney Kentridge at the Biko inquest, the courts themselves cannot function as the rule of law requires. Nor can the courts themselves be independent if the judges are not to be appointed from the ranks of those in whom the rigour of independent representation has been inculcated by years of proficient practice. Falcons, as Justice Kriegler has put it, do not come from henhouses.
All this Radebe would now sweep away. The Bill states as its primary purpose the creation of “a unified body to regulate the affairs of legal practitioners”. This body is to be state-controlled. It is not to have parity in its membership as between attorneys and advocates – although the Law Society of South Africa and the General Council of the Bar had themselves agreed upon this – but a two-thirds preponderance of attorneys. They will be elected – but in accordance with a procedure the Council determines.
The Council is to be created by dissolving law societies and bar councils and taking their assets. Clause 97(2) provides, in language absurd to any lawyer, that a transitional council “must negotiate with and reach an agreement” with “the attorneys’ and advocates’ professions” for the “transfer” of all their assets and staff. If there is no agreement, “any party may refer the matter to arbitration in terms of the Arbitration Act, 1965”.
Arbitration under the Arbitration Act cannot determine status, constitutional or otherwise. Nor can the Arbitration Act be a vehicle for compulsory arbitration. Surely if the Minister has not read the Act his advisers have. Or are they the same advisers he blamed at the same breakfast for the fact that he loses 62% of his cases?
The problem is not merely a brazen seizure of assets and staff. It is the statutory extinction of a profession as it has evolved in South African civil society, including two decades of democracy. It is the naïveté of thinking that a Council meeting four times a year in Pretoria and its regional offshoots can do what law societies and bar councils across the country do daily. They provide bursaries, stock libraries, employ administrative staff, train members, subject them to professional examinations, and discipline delinquents, applying to court, if needs be, to strike off . They do so at no cost to the state.
This is all to go. The Council is now to draw up its own code of conduct. Its regional councils must establish disciplinary bodies. Who is to serve on them is left to the regional councils: they must however achieve “representivity” as regards race, gender, “national and regional demographics” and “the inclusion of lay persons”. Appeal tribunals are to be constituted by the Council, also achieving “representivity” according to these inexact criteria. Who will be found to serve on these structures is not considered. In 2000 the Department was invited to cost it. This has still not happened.
That is what we face. Despite the swift turn of events, it is no sudden development. For 14 years the law societies, General Council of the Bar and other groupings of lawyers have met with each of the post-democratic Ministers of Justice. It has to be said that with Ministers Omar, Maduna and Surty common ground was found. But the draft legislation tabled by both national bodies, the Law Society of South Africa and the General Council of the Bar has been rejected out of hand.
When matters came to a head again more recently, in the presence of the GCB leadership the Minister (on 7 August 2009) instructed his officials to ensure that the latest draft of the Bill (which by then had not yet been circulated) made provision for the independence of the Bar and to ensure that the Government did not, in his words, govern the profession.
By April 2010 it was apparent (several abortive meetings intervening) that the Bill had not been amended, as had been promised. Indeed, the provisions relating to dissolution, seizure and abolition of senior counsel (silk) status – despite the latter being before the courts now – go back on what had been negotiated before.
Why? At his sponsored breakfast the Minister rolled forth three populist justifications for his model. New is his promise that his Bill will cut fees. Not one of his predecessors – I speak from knowledge, because I negotiated with each bar one – raised it as a rationale. How will his Council achieve that? For whom? Members of the Bar and attorneys are already subject not only to the Competition Act, but the regulatory fee review powers of their professions. We are obliged to give time to pro bono cases. Some of us charge high fees in heavy commercial litigation.
If our clients do not like that, they have over 2 000 other counsel and 15 000 attorneys to get at a better rate. Some of us make a point of charging nothing at all when we think that right, and do that often. Others do arduous work for the Legal Aid Board; nightly practitioners across the country staff the Small Claims Courts, unpaid. Radebe should know better than to trot out the fees card.
Secondly he promises greater access to justice. An Act which makes most law firms unviable (they will be levied to pay for the elaborate new edifice) and encourages even more law graduates to go into commerce will not do that.
Thirdly he presents the dissolution of the law societies and bar councils as the achievement of “unity”. Lawyers may be fractious, but they are not fractured. The functional divide between attorneys and advocates is no more “disunity” than professional differences – with necessary differences in training and the like – between engineers and architects. Law societies and bar councils are no longer led, as they once were, by white males. True, addressing past inequalities remains a long march – but who better to lead it than those elected by their colleagues, not in terms of a procedure the Council itself will lay down?
The first section of the Constitution binds the Minister to the rule of law. That it specifically includes the independence of the legal profession is not open for rational discussion. Already in 1955 the International Commission of Jurists issued its Athens Declaration making the point. There have been similar enunciations since. The serious concern must be: trained at Leipzig in Ulbricht’s time, then Moscow, and never himself having practised law in South Africa, is the Minister as little concerned about that as Vorster was?
The Bill, if adopted, will be an affront to the rule of law and infringe the Constitution in multiple respects. It will not enhance access to justice, which is what matters. It will weaken the courts. It will give the Minister the docile henhouse he seems to desire.
Is there a way (other than yet another constitutional challenge to what the Minister does) of averting the calamity the Bill represents ? What the Bar has consistently propounded as a regulatory regime consistent with the Constitution has been this:
- As the departure point, the recognition of independent legal professions of attorneys and of advocates
- Admission and removal of practitioners must be a matter for the courts alone
- Training, examinations and discipline must fundamentally be a matter for bars and law societies
- Bars and law societies should be registered with an independent regulatory council, chaired by a senior judge or retired judge appointed by the Chief Justice, the membership equally divided between the advocates’ and attorneys’ professions, and elected by them
- Automatic transitional registration should apply to existing bars (and law societies), registration to be renewed thereafter by the Council on compliance with statutory requirements of lodging constitutions, audited financial and annual reports, rules of conduct and training programmes etc compliant with the Act. If they fail to do so, they are deregistered.
There is no particular reason to believe that such a scheme, intended to ensure continued existence and independence, will find favour. The attempted passage through Parliament of media controls and secrecy legislation suggests that. The statist control of important parts of civil society, driven off time and again during the apartheid years, again looms. As Harry Truman said: “there is nothing new in the world except the history we do not know”.
JEREMY GAUNTLETT
Jeremy Gauntlett is a senior counsel, Bencher of the Middle Temple, and former chairman of the General Council of the Bar. He writes in his personal capacity. An edited version of this article first appeared in Business Day.
“Falcons, as Judge Johann Kriegler has put it, do not come from hen-houses.”
“The bill, if adopted, will be an affront to the rule of law and infringe the constitution in multiple respects. It will not enhance access to justice, which is what matters. It will weaken the courts. It will give the minister the docile hen-house he seems to desire.”
Business Day published for the first time today an important article by Jeremy Gauntlett SC. Although a bencher of the Middle Temple and former chairman of the General Council of the Bar, the article in written in his personal capacity – Radebe’s calamitous bill is an affront to the rule of law.
With the kind permission of Business Day here are some random extracts from the article which should be read by going to Business Day or clicking on the link shown above.
“Crying wolf? An exaggeration? Consider the following.”
“The allure to the government of state control of advocates and attorneys (like controls on the media, universities and even churches) is not new. Radebe even has recent local precedent to follow. But it puts him in bad company. In the 1960s, the National Party government flirted with the notion. Fearing international outcry, it drew back.
“Sydney Kentridge QC recalls:
‘During the years of apartheid in South Africa, there were frequent threats from the government to place the Bar under the control of a central council with government-nominated members. This proposal was consistently and successfully resisted by the whole of the Bar, including those many members who normally supported the government in policies and legislation. It was well understood that to remove the control of the profession from the provincial bar councils and the General Council of the Bar would have meant the end of independence of the profession. What was also well understood was that the independence of the Bench was inextricably linked with the independence of the Bar’.”
“That is for a very simple reason. Without a viable profession of specialist pleaders in court, bound — whatever the personal repercussions — to accept briefs, in the spirit of Isie Maisels at the Treason Trial, the Rivonia defence team or Kentridge at the Biko inquest, the courts themselves cannot function as the rule of law requires.”
“Nor can the courts be independent if the judges are not to be appointed from the ranks of those in whom the rigour of independent representation has been inculcated by years of proficient practice.”
“The council is to be created by dissolving law societies and bar councils and taking their assets. Clause 97(2) provides, in language absurd to any lawyer, that a transitional council ‘must negotiate with and reach an agreement’ with ‘the attorneys’ and advocates’ professions’ for the ‘transfer’ of all their assets and staff. If there is no agreement, ‘any party may refer the matter to arbitration in terms of the Arbitration Act, 1965’.”
“That is what we face. Despite the swift turn of events, it is no sudden development. For 14 years, the law societies, General Council of the Bar and other groupings of lawyers have met with each of the ministers of justice of the democratic era. It has to be said that with ministers Dullah Omar, Penuell Maduna and Enver Surty, common ground was found. But draft legislation tabled by both national bodies, the Law Society of South Africa and the General Council of the Bar, has been rejected out of hand. When matters came to a head again more recently, in the presence of the General Council of the Bar’s leadership, the minister (on August 7 2009) instructed his officials to ensure that the latest draft of the bill made provision for the independence of the Bar and to ensure that the government did not, in his words, govern the profession.”
“By April 2010, it was apparent (several abortive meetings intervening) that the bill had not been amended, as had been promised. Indeed, the provisions relating to dissolution, seizure and abolition of senior counsel (silk) status — despite the latter being before the courts now — go back on what had been negotiated before.”
“Why? At his sponsored breakfast, Radebe rolled forth three populist justifications for his model.
• New is his promise that his bill will cut fees. Not one of his predecessors — I speak from knowledge, because I negotiated with all but one of them — raised it as a rationale. How will his council achieve that? For whom? Members of the Bar and attorneys are already subject not only to the Competition Act, but the regulatory fee-review powers of their professions. We are obliged to give time to pro bono cases. Some of us charge high fees in heavy commercial litigation. If our clients do not like that, they have more than 2000 other counsel and 15000 attorneys to get at a better rate. Some of us make a point of charging nothing at all when we think that right, and do that often. Others do arduous work for the Legal Aid Board; nightly practitioners across the country staff the Small Claims Courts, unpaid. Radebe should know better than to trot out the fees card.
• Second, he promises greater access to justice. An act that makes most law firms unviable (they will be levied to pay for the new edifice) and encourages even more law graduates to go into commerce will not do that.
• Third, he presents the dissolution of the law societies and bar councils as the achievement of “unity”. Lawyers may be fractious, but they are not fractured. The functional divides between attorneys and advocates is no more “disunity” than professional differences — with necessary differences in training and the like — between engineers and architects. Law societies and bar councils are no longer led, as they once were, by white males. True, addressing past inequalities remains a long march — but who better to lead it than those elected by their colleagues, not in terms of a procedure the council itself will lay down? ”
“The first section of the constitution binds the minister to the rule of law. That it specifically includes the independence of the legal profession is not open for rational discussion. Already in 1955, the International Commission of Jurists issued its Athens Declaration making the point. There have been similar enunciations since. The serious concern must be: trained at Leipzig in Walter Ulbricht’s time, then Moscow, and never having practised law in South Africa, is Radebe as little concerned about that as John Vorster was? ”
“The bill, if adopted, will be an affront to the rule of law and infringe the constitution in multiple respects. It will not enhance access to justice, which is what matters. It will weaken the courts. It will give the minister the docile hen-house he seems to desire.”
“Is there a way (other than yet another constitutional challenge to what Radebe does) of averting the calamity the bill represents? What the Bar has consistently propounded as a regulatory regime consistent with the constitution has been this:
— As the departure point, the recognition of independent legal professions of attorneys and of advocates;
— Admission and removal of practitioners must be a matter for the courts alone;
— Training, examinations and discipline must fundamentally be a matter for bars and law societies;
— Bars and law societies should be registered with an independent regulatory council, chaired by a senior judge or retired judge appointed by the chief justice, the membership equally divided between the advocates’ and attorneys’ professions, and elected by them; and
— Automatic transitional registration should apply to existing bars (and law societies), with registration to be renewed thereafter by the council on compliance with statutory requirements of lodging constitutions, audited financial and annual reports, rules of conduct and training programmes compliant with the act. If they fail to do so, they are deregistered.”
“There is no particular reason to believe that such a scheme, intended to ensure continued existence and independence, will find favour. The attempted passage through Parliament of media controls and secrecy legislation suggests that. The statist control of important parts of civil society, driven off time and again during the apartheid years, again looms. As Harry Truman said: ‘There is nothing new in the world except the history we do not know’.”
Prof George Devenish of Durban wrote to Business Day and his letter was published today for the first time and is included here thanks to Business Day.
Keep hands off the Bar
“I refer to the brilliant opinion piece by Jeremy Gauntlett (Radebe’s calamitous bill is an affront to the rule of law, June 4) in which he quotes Sir Sydney Kentridge’s comment on the National Party’s flirtation with the notion of attempting to control members of the Bar with a statutory council to the effect that ‘What was also understood was that the independence of the Bench was inextricably linked with the independence of the Bar’.”
This is equally true today. This means that just as important as a competent and independent judiciary, is an able and independent Bar.
The two issues are, as Sir Kentridge declared ‘inextricable’. Counsel appearing for a litigant must be fearlessly independent so he or she can appear for any person and know that such appearance will in no way prejudicially affect his or her future position.
This is impossible within a system where a governmental council controls members of the Bar. This kind of fearless independence was reflected in Britain by Thomas Erskine, one of the most eminent barristers of his day, in his exemplary defence of Tom Paine, who was being prosecuted for seditious libel against the king.
Erskine considered it his duty to accept the brief, despite inordinate pressure on him to refuse it and declared unequivocally: ‘I will forever at all hazards assert the dignity, independence and integrity of the English Bar, without which impartial justice … can have no existence’.
Control of the members of the Bar by a government-appointed council will affect in no small manner the conduct of advocates who must be prepared to represent those associated with unpopular causes and minority views with which they themselves may indeed be out of sympathy.
What is therefore required in the kind of liberal democracy inherent in our constitution is a powerful and independent Bar, that secures justice not only for individual litigants, but is essential to place appropriate restraints on the capricious exercise of power by the legislature, the executive and the judiciary.”
Today Business Day was the first to publish a report by Wyndham Hartley – Legal Practice Bill criticism rejected.
With the kind permission of Business Day I am posting some extracts from the report but the whole report should be read in Business Day or by clicking on the link.
“CAPE TOWN — Critics of the controversial Legal Practice Bill were wrong to claim that it offended the rule of law and compromised the independence of legal practitioners, Department of Justice official JB Skosana told Parliament yesterday.”
“Prominent advocate Jeremy Gauntlett, commenting earlier this week on the bill as introduced to Parliament, said it was ‘the biggest single threat to an independent legal profession, and so too the courts, in SA’s legal history’.”
“Mr Skosana said the biggest concession made by the minister was for the creation of a transitional council that would be funded by the state for two years as the transformation of the legal profession was hammered out.”
“He said a complete U-turn had also been made on the issue of the composition of the legal profession council, which the bill will create. The original plan was for the minister to appoint the council, but the bill now provided that 16 of the 21 councillors would be appointed by the profession, three by the minister and one each from the law schools and the Legal Aid Board.”
“Ms Smuts quoted Judge Malcolm Wallis as saying that legal services were expensive and out of the reach of most people.”
“She described the bill as a ‘game changer’ because of the provisions relating to the regulation and capping of fees. She also said that because advocates and attorneys were the ‘nursery’ for the judiciary, they had to be independent.”
“Mr Swart questioned whether the provision allowing the minister to dissolve the council did not weaken the independence of the profession. He noted that Mr Gauntlett believed the independence of the profession would be compromised.”
This is the full text of the article written By Jeremy Gauntlett SC as it appeared on the website of PoliticsWeb and included here in the public interest.
Will Jeff Radebe succeed where Vorster failed?
Jeremy Gauntlett
04 June 2012
Jeremy Gauntlett on the govt’s efforts to break the back of the independent legal profession
Minister of Justice Jeff Radebe has chosen a sponsored breakfast to announce that the Legal Practice Bill, 2012 is imminently to go through Parliament. It is the biggest single threat to an independent legal profession, and so to the courts, in South Africa’s legal history.
Crying wolf? An exaggeration? Consider the following.
The allure to government of state control of advocates and attorneys (like controls on the media, universities and even churches) is not new. Radebe even has recent local precedent to follow. But it puts him in bad company. In the 1960s the Nationalist Government directly flirted with the notion. Fearing international outcry, it drew back. Sir Sydney Kentridge QC recalls:
“During the years of apartheid in South Africa there were frequent threats from the government to place the Bar under the control of a central council with government-nominated members. This proposal was consistently and successfully resisted by the whole of the Bar, including those many members who normally supported the government in policies and legislation. It was well understood that to remove the control of the profession from the provincial Bar Councils and the General Council of the Bar would have meant the end of independence of the profession. What was also well understood was that the independence of the Bench was inextricably linked with the independence of the Bar”.
That is for a very simple reason. Without a viable profession of specialist pleaders in court, bound – whatever the personal repercussions – to accept briefs, in the spirit of Isie Maisels at the Treason Trial, the Rivonia defence team or Sydney Kentridge at the Biko inquest, the courts themselves cannot function as the rule of law requires. Nor can the courts themselves be independent if the judges are not to be appointed from the ranks of those in whom the rigour of independent representation has been inculcated by years of proficient practice. Falcons, as Justice Kriegler has put it, do not come from henhouses.
All this Radebe would now sweep away. The Bill states as its primary purpose the creation of “a unified body to regulate the affairs of legal practitioners”. This body is to be state-controlled. It is not to have parity in its membership as between attorneys and advocates – although the Law Society of South Africa and the General Council of the Bar had themselves agreed upon this – but a two-thirds preponderance of attorneys. They will be elected – but in accordance with a procedure the Council determines.
The Council is to be created by dissolving law societies and bar councils and taking their assets. Clause 97(2) provides, in language absurd to any lawyer, that a transitional council “must negotiate with and reach an agreement” with “the attorneys’ and advocates’ professions” for the “transfer” of all their assets and staff. If there is no agreement, “any party may refer the matter to arbitration in terms of the Arbitration Act, 1965”.
Arbitration under the Arbitration Act cannot determine status, constitutional or otherwise. Nor can the Arbitration Act be a vehicle for compulsory arbitration. Surely if the Minister has not read the Act his advisers have. Or are they the same advisers he blamed at the same breakfast for the fact that he loses 62% of his cases?
The problem is not merely a brazen seizure of assets and staff. It is the statutory extinction of a profession as it has evolved in South African civil society, including two decades of democracy. It is the naïveté of thinking that a Council meeting four times a year in Pretoria and its regional offshoots can do what law societies and bar councils across the country do daily. They provide bursaries, stock libraries, employ administrative staff, train members, subject them to professional examinations, and discipline delinquents, applying to court, if needs be, to strike off . They do so at no cost to the state.
This is all to go. The Council is now to draw up its own code of conduct. Its regional councils must establish disciplinary bodies. Who is to serve on them is left to the regional councils: they must however achieve “representivity” as regards race, gender, “national and regional demographics” and “the inclusion of lay persons”. Appeal tribunals are to be constituted by the Council, also achieving “representivity” according to these inexact criteria. Who will be found to serve on these structures is not considered. In 2000 the Department was invited to cost it. This has still not happened.
That is what we face. Despite the swift turn of events, it is no sudden development. For 14 years the law societies, General Council of the Bar and other groupings of lawyers have met with each of the post-democratic Ministers of Justice. It has to be said that with Ministers Omar, Maduna and Surty common ground was found. But the draft legislation tabled by both national bodies, the Law Society of South Africa and the General Council of the Bar has been rejected out of hand.
When matters came to a head again more recently, in the presence of the GCB leadership the Minister (on 7 August 2009) instructed his officials to ensure that the latest draft of the Bill (which by then had not yet been circulated) made provision for the independence of the Bar and to ensure that the Government did not, in his words, govern the profession.
By April 2010 it was apparent (several abortive meetings intervening) that the Bill had not been amended, as had been promised. Indeed, the provisions relating to dissolution, seizure and abolition of senior counsel (silk) status – despite the latter being before the courts now – go back on what had been negotiated before.
Why? At his sponsored breakfast the Minister rolled forth three populist justifications for his model. New is his promise that his Bill will cut fees. Not one of his predecessors – I speak from knowledge, because I negotiated with each bar one – raised it as a rationale. How will his Council achieve that? For whom? Members of the Bar and attorneys are already subject not only to the Competition Act, but the regulatory fee review powers of their professions. We are obliged to give time to pro bono cases. Some of us charge high fees in heavy commercial litigation.
If our clients do not like that, they have over 2 000 other counsel and 15 000 attorneys to get at a better rate. Some of us make a point of charging nothing at all when we think that right, and do that often. Others do arduous work for the Legal Aid Board; nightly practitioners across the country staff the Small Claims Courts, unpaid. Radebe should know better than to trot out the fees card.
Secondly he promises greater access to justice. An Act which makes most law firms unviable (they will be levied to pay for the elaborate new edifice) and encourages even more law graduates to go into commerce will not do that.
Thirdly he presents the dissolution of the law societies and bar councils as the achievement of “unity”. Lawyers may be fractious, but they are not fractured. The functional divide between attorneys and advocates is no more “disunity” than professional differences – with necessary differences in training and the like – between engineers and architects. Law societies and bar councils are no longer led, as they once were, by white males. True, addressing past inequalities remains a long march – but who better to lead it than those elected by their colleagues, not in terms of a procedure the Council itself will lay down?
The first section of the Constitution binds the Minister to the rule of law. That it specifically includes the independence of the legal profession is not open for rational discussion. Already in 1955 the International Commission of Jurists issued its Athens Declaration making the point. There have been similar enunciations since. The serious concern must be: trained at Leipzig in Ulbricht’s time, then Moscow, and never himself having practised law in South Africa, is the Minister as little concerned about that as Vorster was?
The Bill, if adopted, will be an affront to the rule of law and infringe the Constitution in multiple respects. It will not enhance access to justice, which is what matters. It will weaken the courts. It will give the Minister the docile henhouse he seems to desire.
Is there a way (other than yet another constitutional challenge to what the Minister does) of averting the calamity the Bill represents ? What the Bar has consistently propounded as a regulatory regime consistent with the Constitution has been this:
• As the departure point, the recognition of independent legal professions of attorneys and of advocates
• Admission and removal of practitioners must be a matter for the courts alone
• Training, examinations and discipline must fundamentally be a matter for bars and law societies
• Bars and law societies should be registered with an independent regulatory council, chaired by a senior judge or retired judge appointed by the Chief Justice, the membership equally divided between the advocates’ and attorneys’ professions, and elected by them
• Automatic transitional registration should apply to existing bars (and law societies), registration to be renewed thereafter by the Council on compliance with statutory requirements of lodging constitutions, audited financial and annual reports, rules of conduct and training programmes etc compliant with the Act. If they fail to do so, they are deregistered.
There is no particular reason to believe that such a scheme, intended to ensure continued existence and independence, will find favour. The attempted passage through Parliament of media controls and secrecy legislation suggests that. The statist control of important parts of civil society, driven off time and again during the apartheid years, again looms. As Harry Truman said: “there is nothing new in the world except the history we do not know”.
JEREMY GAUNTLETT
Jeremy Gauntlett is a senior counsel, Bencher of the Middle Temple, and former chairman of the General Council of the Bar. He writes in his personal capacity. An edited version of this article first appeared in Business Day.
This is the letter that Business Day published today from Jeremy Gauntlett SC
LETTER: Are you up for debate, Mr Radebe?
Justice Minister Jeff Radebe ’s recent address to Advocates For Transformation in Mthatha is his only public answer to my critique of the Legal Practice Bill (Radebe’s calamitous bill is an affront to the rule of law, June 4). There are three ironies.
The first is that he answers not one of the main points made. He does not deny that he gave an unequivocal undertaking to Bar leaders nearly three years ago that the bill would be improved to secure the independence of the profession. He does not deny that, instead, measures have now been introduced to wind up all bar councils and law societies, to seize their assets and to transfer their staff, compulsorily. He does not suggest how the current system of regulation — localised, administered by members themselves and rendered without reward — will be replaced by a statutory council in Pretoria, and such regional bodies as it may cobble together.
Most of all, the minister does not explain how this statist model offers any hope of securing that independence of the profession, which — he does not deny — is vital to the independence of the courts.
The second irony is that he picks up the tar brush instead. I, he says, am a member of the Cape Bar. The Western Cape, he then suggests, sees resistance to transformation. He joins two dots. Presto. Resistance equals reaction.
He does not say, or does not know, that the first transformation mechanisms were put in place in the Cape. That, after difficult negotiations, members found each other in parity mechanisms. That targeted bursaries and other measures to enhance equity were introduced there, as they have been across the country. That most bars, and the General Council itself, have had black leaders for years.
Mr Radebe really should focus on the issues, not inexpensive shots on wrong facts. If he wants to debate transformation, fine. But he really should do better in defending his bill than to wrap himself in the flag.
The third irony is the occasion he chose: a commemoration of the life and work of our late friend, colleague and judge, Tholle Madala. Mr Radebe forgets that when both he and I addressed the Constitutional Court last year in marking the death of Judge Madala, I spoke of him as a bar leader, a believer in the independence of the bar and of civil society itself. With that Radebe agreed, as he had to.
He knows what Sydney Kentridge has said of measures of the kind Mr Radebe told his Mthatha audience he will “relentlessly” — his word — now push through Parliament.
Does he truly think that, if alive today. Duma Nokwe, Isie Maisels or Ismail Mohamed would stand for it? He knows the answer.
Are you up for a public debate, Mr Radebe — on the issues?
Jeremy Gauntlett SC
Cape Town