THE deputy chairman of the national advocates body, the General Council of the Bar, resigned on Monday because of the council’s stance on the Legal Practice Bill.
The bill has been intensely criticised by leading figures in legal circles — including the late chief justice Arthur Chaskalson — for being destructive of the independence of the legal profession, regarded as a prerequisite for an independent judiciary. The resignation of Izak Smuts SC may signal what is to come when the controversial and divisive bill is canvassed in Parliament.
In a submission submitted to Parliament’s portfolio committee on Monday, Mr Smuts said he was making his submissions on the bill in his personal capacity. He said he realised that he could not make the submissions he wanted to while remaining deputy chairman.
He emphasised the importance of voluntary associations of advocates — as opposed to a statutory body — as being key to the independence of the profession.
"I have consequently resigned from that position this morning in anticipation of my presentation of this submission," he said.
Chairman of the General Council of the Bar, Ishmael Semenya SC, said Mr Smuts’ resignation was "regrettable" because he was an "intellectual resource for the work of the (council) " .
"I wish I was able to have persuaded him differently," he said .
In his submission to Parliament, Mr Smuts took issue with a number of aspects of the bill, citing international legal guidelines that emphasise the link between an independent profession and an independent judiciary.
He said the Legal Practice Bill failed to distinguish between regulation and governance.
As a result, it proposed "to empower the (justice) minister to issue regulations on a host of issues which will constitute precisely the kind of interference in the independence of the professions deprecated in international instruments".
To be governed by a statutory body in the way proposed by the bill would remove South Africa "from the ranks of independent legal professions in the world, and would undermine the rule of law and the independence of the judiciary", he said. "It is unconstitutional and cannot be permitted."
He also said that a similar structure had been adopted in the UK and had "proven itself to be a failure".
Mr Semenya said the General Council of the Bar’s position was that both the independence of the profession and the need to regulate the practice of law were demanded by the constitution.
He said the council’s submissions proposed that the government would have nothing to do with the day-to-day running of the professions. It did, however, have a legitimate interest in regulating matters in the public interest.
It was about finding a balance between the independence of the profession and matters that legitimately fell within the government’s terrain. "Access to justice, access to the profession — these belong to the government to regulate," he said.
Tuesday is the deadline for public submissions to Parliament.