LETTER: Legal Practice Act is unconstitutional
Independence is integral to the rule of law and a guarantor of the independence of the judiciary
The demise of our constitutionally guaranteed “freedom of association”, and the concomitant right to engage the lawyer of your choice, will be the outcome of the proposed implementation of the scheme foreshadowed in the plans of the Legal Practice Council to introduce a code of conduct for lawyers.
Using race as a surrogate for disadvantage is coming home to roost. How anyone who is a qualified lawyer can properly be described as “disadvantaged” for the purposes envisaged by section 9 of the constitution is hard to fathom. Especially so 30 years-plus after the death-knell of apartheid.
A “nonracial, nonsexist” legal profession will materialise when half the lawyers are male, half female, with the arbitrary, odious apartheid-era race classifications represented proportionately (as they manifest from time to time) in the ranks of the women and men who venture into the brave new world of a “broadly representative” profession that is firmly under the control of the minister of justice.
Content of character, merit and service excellence will bow before the bean counters who administer the almighty code. The stirring admonitions of justice Zak Yacoob to the profession to be independent will be meaningless.
Independence is integral to the rule of law and a guarantor of the independence of the judiciary. Without an independent judiciary, adherence to the rule of law is illusory, as has been demonstrated vividly in Zimbabwe and elsewhere. The ANC’s striving for hegemonic control of all the levers of power in society is the antithesis of our constitutional democracy.
The rule of law as we all know and respect it is under existential threat in SA today. The Legal Practice Act is unconstitutional because it decapitates the legal professions and was passed by an insufficient majority in parliament to tamper with the rule of law, for which an unattainable 75% majority is required. For both reasons it is invalid and should be impugned.
Paul Hoffman, SC
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