Quotas for new council are at odds with our nonracial, nonsexist order

Legal profession election is in danger of being set aside by the courts for being out of step with constitution

There is trouble brewing in the legal professions regarding their representation on a new body, the Legal Practice Council. No-one seems to want to vote for the body. Legalbrief Today reported on September 26 that “the Law Society of SA is urging practitioners to vote for members for the new Legal Practice Council in the first election being held under the Legal Practice Act. The voting period runs until noon on 3 October … .A practising attorney may vote only for the election of attorneys. Every attorney who is on the roll of practising attorneys may vote for a maximum of 10 (or fewer) candidates from the candidates listed.

“In order to comply with section 7(2)(a) of the Legal Practice Act and subject to the availability of the candidates, four black women, three black men, one white woman and two white men with the highest number of votes in their respective categories will constitute the 10 attorneys who will serve as members of the council”.

Advocates will be voting separately for their representatives to serve on the Legal Practice Council at around the same time. Why this should be so is hard to tell, as both professions will be “served” by one council. The advocates have been asked to wait for Advocates for Transformation (AFT) to list its candidates. Why AFT, long the champions of a form of transformation that will ring the death knell of an independent Bar, are having trouble fixing upon a list is hard to divine.

The Legal Practice Act is arguably a form of state capture that has been concocted for two primary purposes. The first, as mentioned, is to end the existence of an independent Bar made up of litigation specialists who accept briefs from attorneys, give opinions, draw pleadings and appear in court. The second aim is to secure state control over the two existing legal professions, namely the Bar and the Side Bar, or “attorneys’ profession” to give it the politically correct modern nomenclature.

This scheme is entirely in line with the longings of the ANC’s national democratic revolution; a search, conducted with “dexterity of tact”, for hegemonic control of all the levers of power in society.

That the legal professions are levers of power is beyond question. The notion that the state should be allowed to control them is deeply and darkly at odds with the liberal and progressive ethos of the constitutional order in place in SA since liberation in 1994.

Ours is a multiparty democracy under the rule of law. The notions of openness, accountability and responsiveness are meant to inform governance. The idea of an election of quotas of representatives to serve on the new Legal Practice Council is at odds with the nonracial, nonsexist new order. Lumping together candidates for the Legal Practice Council who are, in apartheidspeak, Indians, coloureds and Africans, as “blacks” is both undignified and insulting.

Worse than that, to do so flies in the face of the findings of Deputy Chief Justice Raymond Zondo in the recent correctional services case. The pending election is in danger of being set aside by the courts as conduct inconsistent with the constitution.

An element of the rule of law is the existence of an impartial judiciary drawn from an independent legal profession. This is how the International Bar Association viewed the matter in its deliberations on the exact meaning of the rule of law in a resolution it passed in September 2005: “An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportional approach to punishment, a strong and independent legal profession, strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law.”

Whether the International Bar Association will take kindly to the Legal Practice Council and the dismemberment of the Bar in SA remains to be seen. The urging of the Law Society, as recorded in the extract from Legalbrief quoted above, ought to be tempered by the requirement that the voters are permitted to participate in a lawful process. The very notion that four black women, three black men, one white woman and two white men should form the attorneys’ representatives on a quota system-based council is both unlawful and unconstitutional.

The arbitrary nature of the quota is illustrated by the possibility that the black women and men could all be “Indian” on the popular vote. The smallest apartheid era demographic, absent serious gerrymandering, could have a majority on the council. There are certainly enough Indian candidates to make this happen; some call themselves “SA” others “Asiatic” in the incorrectly marked “race” column – which may or may not disqualify them as candidates.

One advocate who has thrown his hat in the ring rather quaintly calls himself “European”.

To further complicate matters some obviously Indian surnames appear, very accurately so, next to the appellation “black”. Strictly speaking the ballot should refer only to black and white candidates, and to the gender of candidates, as there is no quota for anyone else.

That is not the only cock-up in the administration of the ballot by the National Forum on the Legal Profession, which is trying to run the election. Quite apart from confusing the gender and race columns in the form — a telling indication of sloppiness — it claims, correctly, that “successful elections are not only dependent on the voters’ turnout but its (sic) organisation and management as well”.

The secrecy and integrity of the ballot is to be assured in a convoluted way involving declarations by voters in envelopes. For “votes casted (sic) at a polling station” the process involves verifying declarations without opening the envelopes. Truly; perhaps they meant to say without opening the ballots. Ours is a nonracial order. It is also nonsexist. Voting for representatives in accordance with apartheid era classifications, some of them arbitrarily lumped together, must have the architects of apartheid rolling around in their graves with mirth.

The legal professions bowing before the great god of “representivity” (not even an English word) is neither required by the constitution nor appropriate in the type of order that values respect for human dignity and the promotion of the achievement of equality; an order that regards equality before the law as sacrosanct.

Only the bench and the public administration are constitutionally required to be broadly representative, for obvious reasons that do not apply to the legal professions. Quotas, furthermore, are not kosher in SA law.

Lawyers ought to be able to do better than they have in setting up the intended election. There is a very real risk that it will be set aside by the courts as invalid, illegal and unconstitutional.

Hoffman SC is a director of Accountability Now