Last week the Johannesburg Bar Council (JBC) took a decision that should cause their colleagues in the organised attorneys’ profession to cringe with embarrassment and blush with shame. It opened to media scrutiny, for the first time, a disciplinary enquiry into one of its advocate members.
In contrast, though I agree it seems scarcely credible in a constitutional state based on precepts of transparency and accountability, South Africa’s attorneys are fighting tooth and nail against having to do the same. Some 40% of the respondents to a poll on the website of the Law Society (LSSA) identified the Legal Practice Bill, which will end the practice of closed disciplinary hearings, attended only by the panel, the complainant and the charged lawyer, as “forced and unwanted”.
At present, even the details of the findings of such a disciplinary committee are shielded from the public eye. Only if a lawyer is struck from the roll — which happens in a minuscule percentage of hearings into unprofessional or unethical attorney behaviour — is the offender’s name revealed. And that is no principled concession on the part the LSSA, but the unavoidable result of strikings being part of a judicial process that is carried out in an open court.
South Africa is virtually the only modern democracy left that allows lawyers such carte blanche. Everywhere from Australia to Zambia there are more transparent processes. As a consequence, lacking any information except rumour on which to make a choice, the poor South African law client thinks he is engaging a legal eagle, only sometimes to find he’s got a moth-eaten pigeon — able to flutter but not soar and quite likely to crap on his head with impunity.
Lawyers have conducted a long campaign against the Legal Practice Bill, ratified by the National Council of Provinces this week, which despite some objectionable aspects, provides for a Legal Ombud and public participation in complaints procedures. In its submission to the Parliamentary Oversight Committee, the LSSA states unequivocally that “self regulation is non negotiable” to its members. It has fought also to prevent any statutory regulation of legal fees. While the objections of the attorney profession in general are dressed up as a defence of practitioner independence from the state, for most lawyers it would seem that the only independence that really matters to them is a free hand in setting fees and protecting their bad eggs.
For all the fine words, in their determination to defend their members’ privileges the LSSA’s constituent societies are also not above flouting the law themselves. Last year I lodged Public Access to Information Act applications to all four provincial bodies for information on disciplined practitioners.
The Northern Provinces refused to supply the information, placing the expensive onus on me to challenge the refusal in court. Or alternatively to lodge a complaint to, yes you guessed it, to the Northern Province’s secret disciplinary committee. The other three chapters — the Cape, KwaZulu-Natal and Free State — simply stalled. Almost a year on, none has responded to the PAIA application, despite dozens of reminders and despite being legally obligated to do so within 30 days.
That’s astonishing behaviour from officers of the court, who take a solemn oath to uphold both the letter and spirit of the laws of the Republic. Their ethos is not one of service, but of recalcitrant conservatism and entitlement, which will not change unless compelled by legislation to do so. It is against this backdrop that the JBC’s open hearings decision, belated but nevertheless admirable, must be seen.
The JBC ruling was in response to an application by Media24 and Times Media for access to the disciplinary inquiry of advocate Menzi Simelane, former director-general of Justice. The panel – advocates Sias Reynecke SC, Danie Berger SC and Dali Mpofu – ruled unanimously that “the constitutional imperative of open justice is applicable to disciplinary enquiries of the Bar”.
“It is certainly in the public interest that the manner in which the Society disciplines its members is not shrouded in secrecy … The process must be transparent, if it is not, conspiracy theories will thrive.” They conclude: “The default position concerning disciplinary enquiries of the Bar Council must be that the press is entitled to attend and to report, unless the circumstances of the particular case justify a denial of access.”
As City Press pointed out, the JBC went further than expected. The media applicants had been willing for the default position to be that disciplinary hearings would remain closed, except on application.
Instead the triumvirate accepted the position outlined in October last year by Mike Hellens, prosecutor in the Simelane disciplinary hearing. He had told the panel that the Bar had decided that its practice of holding disciplinary enquiries behind closed doors, especially after 1994, had “simply been wrong”.
“After an objective analysis of the law, the role of the advocates profession within our system of justice, and the interests of openness and transparency, the Bar decided it did not have an automatic right to hold closed disciplinary hearings.”
The relationship between advocates and attorneys is often prickly, given their history of rivalry. Even in a more egalitarian modern world, however, there remains at least one critical difference between the two: our advocates understand that the South African Constitution trumps their professional society’s constitution. The attorneys apparently don’t.
Maybe that alone justifies the eye-watering fees that advocates charge.