Government may look rudderless, but it has a sinister agenda

HAD the National Party (NP) government done to the legal profession what the Justice and Constitutional Development Minister Jeff Rabede now plans to do to it, many of the people now running SA might not have found lawyers to represent them in political trials.

This is because the independent legal profession would have been regulated by a statutory body set up by a previous justice minister — CR Swart or BJ Vorster, perhaps — and packed with members of the Broederbond. The number of attorneys and advocates willing to take on cases defending treason trialists, communists, revolutionaries and the like would have been much smaller than it was.

No overt threats. Intimidation doesn’t have to work like that. But why unnecessarily risk antagonising members of your profession’s regulatory body by standing up for the rights of blacks or communists or whoever?

Whatever else the NP did, it did not subordinate the legal profession or nationalise its assets. Radebe, probably one of the most powerful communists in the Cabinet, has no such scruples. As a totalitarian ideology, communism recognises no distinction between party and state, nor that any part of the private domain is entitled to its independence of the state.

It is now clear that one of the key objectives of the African National Congress (ANC) and the South African Communist Party is to put all aspects of the criminal justice system and security under political control. This has already happened with the police, the intelligence services, and prosecutions. The courts, the bar, and the sidebar are next.

None of this is explicit in the Legal Practice Bill recently reintroduced in Parliament. Radebe is too clever for that. The bill is indeed an improvement on its 2010 predecessor, which sought to empower him to appoint all 21 members of the proposed new South African Legal Practice Council, rather than only three, as now envisaged. The dilution of the earlier proposals is no doubt partly the result of objections by the legal profession through its various representative bar councils and law societies.

These are now to be superseded by the new statutory council, to whom all of their assets will be transferred (subject to negotiation and, if necessary, arbitration).

The new council (committed to “transformation” and racial “representivity”) will be set up in two stages. A “transitional council” will contain nominees of the present independent bodies. This council will then make recommendations in the next two years to the minister on an election procedure for a permanent council, which must be set up within three years, at which time the present bodies will cease to function.

Once the independent bodies that objected to the 2010 bill have been extinguished and had their assets confiscated, the way will be open for the minister to ensure the Legal Practice Council ultimately becomes a compliant body. Some of its members will no doubt be cadres committed to the ANC’S national democratic revolution. Whereas the previous bodies were accountable to their members, their replacement will report to the minister.

By undermining the longstanding, cherished independence of the legal profession — even if only incrementally — Radebe will have struck at all the rights and freedoms guaranteed by the constitution, including the right of due process.

Defence of these rights and freedoms, and their enforcement, depends not only on independent courts but also on independent legal practitioners willing to take on cases without fear or favour.

Rabede will also have struck at the independence of the courts, whose own independence depends not only on constitutional guarantees and the independence of judges but also on the independence of the lawyers who appear before them.

Of course, the 2012 bill will run into opposition, though the fact that it is cannily less intrusive than its predecessor means that the opposition will be less. But nobody should doubt that President Jacob Zuma’s apparently rudderless government has an agenda it intends to implement regardless of who the next president of the party might be.

Kane-berman is the Chief Executive of the South African Institute of Race Relations.