Maintaining the true spirit of an independent legal profession

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The De Freitas case

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Putting The Independent Bar And The De Freitas Case In The Right Perspective

Adv. Matthew Klein

15 February 2011

1.            The Independent Association of Advocates of S.A. (IAASA), also known as the Independent Bar, was formed during 1994 and has as its aim the providing of legal services to the public and making advocates more accessible to the public.

2.            The Independent Bar has resolved to support the Honourable Minister Dullah Omar to do away with the dual system which we believe is expensive and an old English rose which the old regime wanted to attach to an African stem.

3.            Be it as it may, the Independent Bar has its own ethical code (it does not differ much from the traditional Bar) and disciplinary system.  Also, the newcomers must do pupillage.  We are another club and we are co-workers for justice and we therefore stand for the slogan:  “Justice for all!” Not for those who can afford it, only!  We take hands with our colleagues in the other branches of the law.

4.            The Independent Bar is of the opinion that the term “legal practitioner” is too general and a more suitable term for attorneys and advocates should be used.  All should be called “lawyers”.

5.            The Independent Bar is of the opinion that fusion should take place, be it over a period of time, alternatively that advocates should have the right to choose whether they want to belong to a bar (a voluntary association) and the specific bar should be free to offer direct access to the public or to be a referral bar.

6.            The opinion that was voiced by the Natal Law Society at the De Freitas hearing, that the dual system is not costly cannot be agreed to.  One can only look at the many legal aid matters where counsel is instructed directly:  if an attorney was also instructed then the fees would have been much more.

7.            The question is:  how does the public feel about the dual system?  Has any survey in this regard be done?

8.            The application for striking De Freitas from the roll was based on the assumption that the profession of advocates was a “referral profession”.  Both Respondents espoused the said theory and De Freitas and the Independent Bar contested it mainly on the grounds that:

a.            There was no Roman or Roman Dutch authority at common law requiring the intervention of an attorney when instructed by a client(s).

b.            The previous decisions in South African Courts including the Beyers-case elevated the intervention of an attorney between the client and counsel (which was a rule of the traditional bar adopted from the British bar by sheer tradition and usage) to a rule of law governing the entire profession of advocates including advocates outside the traditional bars.  It was submitted by De Freitas that this elevation no longer obtains since the creation of the new South Africa which under its Constitution allowed all citizens to make direct approaches to an advocate or an attorney as “Legal practitioners of its choice”.  (De Freitas refers to Section 35 of the current Constitution incorporating the transitional Constitution and especially section 35 of Act 108 of 1996.)

c.       Furthermore De Freitas based its opposition to the traditional Bar’s contention of referral profession elected by the Superior Courts to a rule of law on certain new and trenchant developments in the present South Africa Law e.g.

i.              The formation of other concurrent societies of advocates such as Second Petitioner with their own ethnical rules and

ii.            The fundamental changes brought by section 2 and 3 of Act 65 of 1995 where under attorneys for the first time acquired the right of appearance as “advocates” pro hac vice in the superior courts and as a corollary advocates were declared to have the right of audience and appearance in any Court of Law in South Africa  De Freitas stresses that if this provision relating to advocates was merely declaratory of the existing assumed law that advocates were to appear on brief from attorneys only, then the provision would either have been tautologies which cannot be supposed or when giving counsel the unqualified right of appearance in every court should have contained a provision simply framed as follows “if briefed by an attorney”.

11.     The aforementioned contentions of De Freitas and Independent Association of Advocates of South Africa were rejected by the full bench of the KwaZulu Natal High Court as would appear from the reported case: Society of Advocates of Natal v De Freitas 1997(4) SA 1134(N) and on appeal by the Supreme Court of Appeals in De Freitas and another v Society of Advocates of Natal 2001(3) SA 750 (SCA).

12.         We approached the Constitutional Court in this regard but was referred back to the Supreme Court of Appeals as would appear from the reported case:  De Freitas v Society of Advocates of Natal 1998(11) BCLR 1345(CC).

13.         We are aware of certain misgivings relating to:

a.            The functions of an attorney under the Attorneys Act which it is said an advocate may not fulfill or even imitate lest he/she falls foul of the criminal sanctions in the Attorneys Act.  We are aware of the practical difficulties of advocates doing what is commonly known as attorneys work what we verily believe that what has been stated alone is not attorneys work but an advocates work without traditional briefs.  If briefs were omitted under our view it does not follow that we are sponsoring unprofessional conduct.  The absence of a brief can in any event not rank as conduct by advocates per se as immoral, scandalous and strike-worthy nature.

b.            The second serious criticism, especially sponsored by the Natal Law Society, was and is the absence of protection of trust monies where counsel are in a position to receive their remuneration from the public directly.  We verily believe and humbly submit that this objection omits the reflection that in most cases the advocates receive their fee for work done in advance and in fact pre-determined and the monies received are not trust monies at all.  If monies are deposited in trust the position should be catered for as soon as possible by legislation and in any event deposits of trust monies can and should be made by advocates in trust accounts of their own or allied professions such as attorneys and auditors, estate agents or trust companies catering especially for holding of trust monies.

We verily believe that the absence of a trust monies protection act for advocates at present does not justify the receipt of monies from the briefing public as so irregular of unethical as to warrant such receipts as unprofessional conduct per se.

14.         We submit that Adv. De Freitas was bona fide in his conduct:

a.       He believed that he, as a member of another “club” with other “club” rules acted within the scope of his club rules.

b.       He did not misbehave and no conduct can be attributed to your Petitioner which would violate the standards of advocacy.

c.       He did not hold himself out as an attorney.

d.       He bona fide believed he could write letters in terms of section 83(12)(f) of the Attorney’s Act 53/79 which provides that an advocate is exempt from the restrictions of section 83 of the said Act.

e.       There is no statutory prohibition against signing of pleadings in the Magistrate’s Court, vide Rule 52 of the Magistrates Court Rules.

f.        In regard to the perception of what an advocate may or may not do the Applicant a quo mooted the possibility if attorneys be allowed to appear in the Supreme Court then the whole issue may have to be reconsidered!  Petitioner annexed a document from the Applicant, to his documents, “JADF2″, in his answering affidavit.

g.       Furthermore the rules of the traditional bar have from time to time changed and its own rules are not above criticism by the Courts e.g. S v Sefadi 1995(1) SA 433 (D).

h.       The traditional bar has always reserved the right to vary, adopt or extend its own rule re briefing to matters which meet the Council’s approval, as would appear from the judgment.  Rule 9(ii)(e) of the traditional bar leaves scope for the extension of the rule of briefing in that it says “which meet with the Council’s approval”.  The rule has been extended to include the Legal Aid Board which is not a state organization.

15.    The following contentions are of a constitutional import:

a.       Access to the legal system is a critical problem in South Africa.

b.       Should the Honorable Court allow the practice to continue where advocates can only be briefed by attorneys, but attorneys can go to the highest courts and do everything and more than an advocate can do, they are entrenching unfair competition.  The fact that the Second Appellant is barred from taking instructions directly from members of the public is discriminatory in its essence.  It is submitted that it is in violation of an advocate’s right to free economic activity and fair and free competition to be instructed only by a competitor, namely an attorney.  It is with respect incorrect for the Court a quo to hold that the attorney has always been a competitor of the advocate.

c.       The Constitution is premised on an avowal of foundational values, and would necessitate, in fitting circumstances, the revision of existing law so as to harmonize such with its underlying ethos.

d.       The preference by the court a quo for the rules of the Respondent over the rules of the Second Appellant is discriminatory and offends the Appellants’ rights to equality before the law.  In addition the practice whereby the Respondent freely amends its ethical rules concerning those bodies which are permitted to instruct its advocate members without the intervention of an attorney, offends the Appellants’ rights to do the same and is therefore discriminatory and violates the Appellants’ rights to equality before the law.

As I write this “revision” of this article, I may mention that the Bar Societies have agreed to the new Legal Practitioner’s Bill in principle by signing the Legal Practitioner’s Charter end of 2009.  This means that we will have one profession, in a sense.  There is now only one degree for becoming an attorney or advocate