Public Interest Litigation Threatened by Legal Practice Bill

Background

The Legal Practice Bill (‘the Bill’) is a long-standing item on the Government’s agenda to reform the legal profession [1]. Starting after the birth of democracy, the reformers argue that the legal profession is untransformed and too costly. Both of these form the central concerns which the Bill seeks to address. However, the Bill has received a conflicted reception especially in the case of the legal profession [2]. The Bill may impact negatively on the progress made of racial integration and cohesiveness amongst black and white legal colleagues as the debate about the Bill unfolds along racial lines.

Proponents of the Bill include the main organisations within the profession which are vehicles for advocating transformation. They include; Advocates for Transformation (AFT), the Black Lawyers’ Association (BLA) and the National Association of Democratic Lawyers (Nadel) [3]. Opponents of the Bill include the late former Chief Justice, Arthur Chaskalson and renowned Human Rights lawyer, Advocate George Bizos [4].

Not only have Members of the Bar taken up the cudgels against the Bill; the Law Society of South Africa (LSSA) has also gone on record to state that its members are divided on the issue of support for the Bill. It has noted however that there is significant opposition to it from within its own ranks [5]. Considering that the majority of lawyers in the country are white [6], it is not difficult to presume that this opposition comes from white lawyers.

Issues

The main issues of contention include:

• the abolition of existing Bar Councils and the LSSA;
• the expropriation of assets
• the proposal of a single governing body for the attorneys’ and advocates’ profession;
• the lack of clarity of how the interim Council that will oversee abolition and expropriation will be constituted;
• the Minister’s powers to appoint members of the Council and unilaterally abolish the Council;
• the capping of fees;
• the establishment of a legal ombudsman [7] [8]

Both proponents and opponents of the Bill agree that the legal profession needs to be reformed in order to establish a more cost effective and accessible justice system. This will allow for easier entry of new practitioners so that the profession may be transformed [10]. Much like the debates around media regulation in the UK, the theme of discontent between the two camps is whether this can be achieved through effective self-regulation or whether it is necessary to let the government step in and intervene [11].

The central disagreement between proponents and opponents is over what role the government plays when it comes to reforming the profession. Proponents argue that the democratically elected government has a legitimate mandate to intervene especially in the face of opposition from within the profession. Opponents argue that reform of the profession is being used by the government to bring the profession to heel. They argue that the moment the independence of the legal profession is eroded, the judiciary will suffer too – not only will there be a lack of independent counsel to take on important cases against the government; there will also be a lack of independent counsel to become independent judges [12].

HSF Concerns

Whilst the Helen Suzman Foundation (HSF) is immediately concerned that the Bill may have the effect of undermining the profession’s independence, it is also concerned about some of the Bill’s unintended consequences.

Capped Fees

Capped fees are generally a problem because they artificially set fees at a maximum price that may not reflect the willingness to pay, the quality of the service provided or the cost of providing the service. It also means that the prices usually determined by market factors such as skills and experience can be inflated. Junior practitioners can charge the same price as that of an experienced practitioner because the market allows them to do so.

This means that counsel will no longer be able to charge clients using their discretion. A one-size fits all approach to charges means that where counsel could previously charge clients depending on the facts and circumstances of the case, usually considering things like complexity, duration, skills required and so on, counsel will now have a set fee that they must charge clients.

In order to make the same amount it means that under a capped fees system, counsel will have to increase their work load and take on more cases. This could mean that counsel does not have the time to provide their services to an NGO. For counsel  contemplate wanting to take on a pro bono case it means that they will have had to complete a higher number of cases overall so that pro bono work does not actually represent a cost to them. Whilst some may argue that counsel should be willing to take on important cases for free anyway, even at a cost, the fundamental problem remains that you do not ask a teacher, doctor or businessman to provide services to you for free no matter how important those services are. Lawyers have every right like every other profession to make money for themselves and their families. What the Bill fails to recognize is that ‘high charges’ also have benefits for NGOs, the indigent and others who benefit from pro bono representation.

It is also important to bear in mind that both the attorneys’ and advocates’ professions have ways to review charges. Further, courts have been unforgiving in cases where malpractice relating to fees is concerned. If a client feels they were charged unreasonably there is a system that exists to protect their rights as consumers.

NGOs

Capped fees pose a particular problem for NGOs. NGOs in South Africa have a proud history of bringing public interest litigation to the Courts in protection of human rights. This was the case during Apartheid and that tradition has continued under our democratic dispensation.

However, NGOs are also subject to huge financial constraints. They are not immune to financial pressures and are largely dependent on the support of donors [13]. But given that donors are affected by prevailing economic conditions they may be hesitant to pour funds into litigation where there is a possibility that it may not succeed, despite the importance of the cause. Donors opt for funding projects that have tangible outcomes.

The ability of NGOs then to bring about such litigation is made possible by counsel acting for NGOs on a pro bono (no fee) basis. This means that NGOs do not have to negatively rearrange budgets or lose out on potential funding: they can achieve maximum societal impact by continuing with a projects-based mandate as well as bring public litigation because the latter involves no cost.

The significance of all of this is that NGOs such as the HSF do not have to become strategic litigations centres that only focus on court work. Indeed if all NGOs were faced with this dilemma, an increase in the number of strategic litigation centres may be good for the development of the law but will come at the cost of an on-the-ground presence. It is clear that a balance, which allows NGOs to do one/both things simultaneously, is best for society as a whole.

Conclusion

If there are problems with enforcement, the HSF believes that the existing systems should be enhanced rather than going the route of capping fees.

The HSF trusts that whatever the fate of the Bill, it will not have a chilling effect on important and necessary public interest litigation which is so vital to the advancement of our constitutional democracy.

References
[1]    http://www.bdlive.co.za/opinion/2013/02/25/modernise-the-legal-profession-but-not-at-any-cost
[2]    http://www.citypress.co.za/news/legal-practice-bill-divides-profession/
[3]    Ibid.
[4]     http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page72308?oid=357145&sn=Marketingweb+detail&pid=90389
[5]    Note 2 above
[6]    http://www.saflii.org/za/journals/DEREBUS/2012/3.html
[7]    http://www.saflii.org/za/journals/DEREBUS/2012/4.html
[8]    http://www.bdlive.co.za/national/law/2013/03/20/department-offers-concession-to-legal-council
[9]    http://www.bdlive.co.za/national/law/2013/03/19/justice-officials-concede-bill-may-need-restraints
[10]    Note 1 above
[11]    http://www.independent.co.uk/voices/letter-statutory-versus-selfregulation-1538436.html
[12]    Note 1 above
[13]    http://www.bdlive.co.za/national/politics/2013/03/27/idasa-to-close-as-funding-runs-dry

Kameel Premhid – kameel@hsf.org.za
Intern
Helen Suzman Foundation