A silk walks out of a bar, into a spat
Top advocate upset at ‘antiquated’ rule on sharing chambers
A resolution to enforce an “antiquated” rule of the advocates profession has prompted a former leader of the Johannesburg Bar to resign in disgust.
Ishmael Semenya SC, once the chair of the Johannesburg Society of Advocates, resigned on Friday after 34 years as a member. This followed a decision at the bar’s annual meeting to enforce a long-standing rule that members of the society may not share accommodation with advocates who are not members.
The Johannesburg Bar’s ethical rules say advocates must work from chambers that are approved by the bar council.
The chair of the bar, Kennedy Tsatsawane SC, said the bar council approved chambers only for its members, which implied a further rule that members did not share buildings with non-members.
In recent times, however, two of the society’s groups — the Duma Nokwe Group and Pitje Chambers — have rented offices to advocates who are not bar members. Fifteen of the 74 advocates who occupy Pitje Chambers are not bar members, and Duma Nokwe has five nonmembers in its building.
The resolution passed at the October 29 annual meeting clarified that this was not permitted. However, members of the Duma Nokwe and Pitje groups have been given a period — to be determined by the bar council — to comply before members can be charged with unprofessional conduct.
Law graduates may become advocates on application to the high court. But to be a member of the Johannesburg Bar (or any bars under the General Council of the Bar) they must do pupillage and pass bar exams. As members, they are subject to their bar council’s disciplinary and ethical regimes.
A senior member of the Johannesburg Bar told the Sunday Times that the groups of advocates making up the bar had never shared chambers with non-members — for good reason.
The bar, a voluntary association, had “for more than 100 years” maintained a high standard of ethics, enforced by a duty to report unethical conduct. The bar also trains pupils, and senior members mentor and subsidise junior members. All of this was done voluntarily, the member said.
In the process, the bar and its members had established a reputation for professionalism and high ethical standards. If nonmembers shared chambers with members, they would reap the benefits of membership without being obliged to pay the subscriptions needed to administer the bar and without being obliged to comply with its rules.
Attorneys would assume they were members and comply with its standardswhen in fact they did not. That could be to the detriment of the bar and might make it unsustainable. It could prejudice existing and aspirant members.
Tsatsawane said this point of view motivated the resolution. While it might seem unfair that members were being held liable for the decisions of their group leaders, he said, they had an obligation to participate in decisionmaking processes and “ensure that their groups do not admit and house non-members”.
But Semenya — part-owner of the Pitje Chambers building near the Johannesburg high court — said this presented an incomplete picture.
After calling the rule “antiquated” in his resignation letter, he told the Sunday Times that section 22 of the constitution provided that citizens had the right to choose their profession, which may be regulated by law.
The advocacy profession is regulated by the Legal Practice Act, which allows advocates to practise without being members of the bars. The advocates at Pitje Chambers who are not members of the Johannesburg Bar have done pupillage with other bodies, Semenya said.
“The assumption that their standards are low comes from nowhere.”
The resolution means Semenya will lose rental income from Pitje Chambers tenants who are not bar members, but he said his resignation was not motivated by his business interests. He provided 10 furnished chambers rent-free for a year to advocates who had just passed pupillage.
Semenya, who took silk in 1998, was chair of the Johannesburg Bar Council from 2004 to 2006 and deputy chair of the General Council of the Bar in 2012 and 2014.
Answering his letter, Tsatsawane said he was “saddened” by Semenya’s decision, particularly the reasons for his resignation.
Tsatsawane said that he thought Semenya had understood there was still “lots of room” to avoid his resignation and the society was “prepared to engage further”.