Judicial independence is a requirement demanded by the Constitution in the public interest, since without that protection judges may not be, or be seen by the public to be, able to perform their duties without fear or favour.
Although not specifically mentioned in the Constitution, there can be not the slightest doubt the judiciary depends on an independent legal profession to enable it to perform its constitutional duty. An independent, effective and competent legal profession is fundamental to the upholding of the rule of law and the independence of the judiciary. Effective judicial process cannot be obtained from independent judges without independent lawyers.
Section 14 of the latest draft of the bill empowers the Minister to dissolve and replace the Legal Practice Council, after following certain procedures. This simply cannot be reconciled with the independence of the profession and is inconsistent with the implied provision that the Council has perpetual succession. This power, far from promoting the independence of the profession, is calculated to secure compliance with the Minister’s wishes, rather than resistance from the profession if differences on important issues were to surface between the Minister and the profession. Section 14 should be deleted in its entirety. It is a contradiction in terms to say on the one hand that the independence of the legal profession is essential and then at the same time to give the minister such power. It is a matter of conscience.
Section 24(4) provides that “The Minister may in consultation with the Council, permit a person or category of persons concerned, to expeditiously commence practising as a legal practitioner by virtue of his or her academic qualifications or professional experience”. We do not know the reason for the inclusion of this section but it is not supported. It may open the way for persons to gain rights of practice without having to comply with normal admission criteria and procedures. These admission criteria and procedures are absolutely vital to arm a practitioner to enter the public domain. Without it he / she is ill-prepared to embark on his / her career. Those empowered to deal with the Bill need to give careful considered and independent thought to these matters. This is not in the public interest and the section should be deleted.
Contributed by:
South African Attorneys Association
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