Legal professionals under threat: Semenya

Parliament’s plans to allow advocates to deal directly with the public will “obliterate” the advocates profession and be the single most anti-transformative measure “ever to happen in the legal profession”.

This is the opinion of Advocate Ishmael Semenya, the chairperson of the General Council of the Bar, in his general chairman’s report, which was released last month.

Semenya was referring to provisions in the contentious Legal Practice Bill, which is currently with Parliament’s portfolio committee on justice and constitutional development.

The bill, as it stands, would allow advocates who meet certain requirements to accept briefs directly from the public, cutting attorneys completely out of the picture.

In its parliamentary submission, the General Council of the Bar argues that if there were a large number of advocates who could consult with the public, this would equate the position of advocates to attorneys, destroying the distinction between the two.

Semenya said reports that the committee had reached consensus had led him to write to the committee chairperson that such a move would “de facto and de jure (in fact and in law) obliterate the advocates profession as we know it”.

“It will mean the referral character of the . . . profession as we know it is undone,” he wrote.

In the South African legal system, members of the public do not deal directly with advocates, who generally argue cases in court.

Newly appointed Deputy Justice Minister John Jeffery has confirmed to City Press that “the committee appears to be of the view that direct briefs from the public to advocates should be allowed provided those advocates have a fidelity fund certificate, including insurance”.

Jeffery served on the portfolio committee until his appointment on Wednesday.

On the sidelines of addressing a meeting of the Public Interest Law Gathering at Wits University on Friday, Jeffery said many countries had abolished the tradition of advocates not being briefed directly by the public.

“If you want to become an advocate, you have to do a year’s pupilage and there is no provision for you to get paid.
“To my mind, it really limits accessibility or entrance to becoming an advocate,” he said.

Jeffery said the committee had not yet made any amendments to the bill but was currently working through the provisions.
He said there was “an intention to complete the bill” before the 2014 elections.

“The difficulty is that if it’s not (completed), then it can be revived by the new Parliament. But then you will have new committees . . . and so there will have to be some rehashing done,” he said.
South Africa’s referral system has been criticised for doubling the cost of accessing justice, but the General Council of the Bar remains adamant.

In his letter to the portfolio committee, Semenya cites the important role the Bar has played in transforming the profession.

“Without being an alarmist, any scant scrutiny of our judiciary since the democratic order will show by example that all the black chief justices were members of the Bar,” he wrote.

Reflecting the deep concerns that still persist about the bill within the legal profession, Semenya said that “if the intentions of government as reflected in the Legal Practice Bill are to prevail, (it) holds a threat to alter the entire fabric of legal practice in this country”.