The ANC has made clear its intention of passing the highly controversial Legal Practice Bill as soon as possible. Just what this legislation entails is spelt out in this update by advocate Jeremy Gauntlett. Jeremy is, of course, one of South Africa's top legal minds with an international reputation – Dr Denis Worrall, Chairperson of Omega Investment Research

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Yesterday the government gave notice that it intended pushing through the Legal Practice Bill. It is the biggest single threat to an independent legal profession, and therefore to the rule of law and the courts, in South Africa's legal history.

Crying wolf? An exaggeration? Consider the following.

The allure of a government-controlled legal profession (like control on the media, universities and even churches) is as old as power. In South Africa, the Nationalist Government flirted with the notion, but fearing an international outcry, drew back. Sir Sidney Kendridge recalls:

"During the years of apartheid in South Africa there were frequent threats from the government to place the Bar under the control of a central council with government-nominated members. This proposal was consistently and successfully resisted by the whole of the Bar, including those many members who normally supported the government in policies and legislation. It was well understood that to remove the control of the profession from the provincial Bar Councils and the General Council of the Bar would have meant that the independence of the Bench was inextricably linked with the independence of the Bar"

That is for a very simple reason. Without a viable profession of specialist pleaders in court, bound by their rules of conduct to accept briefs, in the spirit of Erskine QC at the trial of Tom Paine, the courts themselves cannot function as the rule of law requires. Nor can the courts rigour be independent if the judges are not to be appointed from the ranks of those in whom the rigour of representation has been inculcated by years of proficient practice. Falcons, as Justice Kriegler has put it, do not come from henhouses.

The Bill states its primary purpose as the creation of "a unified body to regulate the affairs of legal practitioners". Its preamble refers to a need to "transform and unite the legal profession" and to "regulate the legal profession, in the public interests, by means if a single statute"

The "unified body to regulate the affairs of legal practitioners" is of course the key to the new dispensation. This body is to be a state-controlled body, "the South African Legal Practice Council". It is not to have parity in its membership as between attorneys and advocates – although the Law Society of South Africa and the General Council of the Bar had themselves agreed upon this – but a two-thirds preponderance of attorneys. Neither branch of the wider profession is to have the right to elect its own representatives: the Minister will select them, in his discretion, from nominations.

A previous draft of the Bill provided for a "transitional council" to make recommendations to the Minister on how to abolish the existing law societies (for attorneys) and bar councils (for advocates)

Vagueness is now replaced with absurdity.

Clause 97(2) of the revised Bill provides that the transitional council must "negotiate with and reach an agreement with the attorneys' and advocates' professions" for the transfer of all their assets and staff to the Council (or regional councils). If there is no agreement, "any party may refer the matter to arbitration in terms of the Arbitration Act, 1965".

Why this change? Because the Bar has warned the Department of Justice, in writing on 3 May 2010, and at meetings since, that the confiscation of assets and compulsory transfer of staff would not pass constitutional muster.

Hence the drop-kick of the issue to arbitration. But that cannot competently determine a constitutional dispute.  Nor can the Arbitration Act 1965 be the vehicle for compulsory arbitration: if the Minister records the long title and definition section, he will see that.

The problem is not merely the audacious seizure of assets and staff (as regards the latter, without even a nod to the Labour Relations Act). It is the statutory extinction of a profession as it has evolved in South Africa over four centuries. Law societies and bar councils across the country train members, subject them to rigorous examinations, found bursaries, libraries and administrative staff, and discipline delinquents, applying to court, if needs be, for striking off. They do so at no cost to the state.

This is to go. The Council is to draw up its own code of conduct. Its regional councils must establish disciplinary bodies. Who is to serve on them is left to the regional councils: they must however achieve "representativity" as regards race, gender, "national and regional demographics" and "the inclusion of lay persons". Appeal tribunals are to be constituted by the Council, also achieving "representativity" according to these inexact criteria.

That is what we face. Despite the swift turn of events, it is no sudden development. At the Mafikeng congress of the governing party in 1997 it was resolved that the advocates' and attorneys' profession should be "unified" – by which was meant, fused – and since then a litany of discussion papers, meetings of the recognised profession, and meetings with the recognised profession with the four post-democratic Ministers of Justice and officials has taken place. The details are tedious. The draft legislation tabled by both national bodies, the Law Society of South Africa and the General Council of the Bar has been rejected out of hand. When matters came to a head again in 2009, in the presence of the GCB leadership the Minister (on 7 August 2009) instructed his officials to ensure that the latest draft of the Bill (which by then had not yet been circulated) made provision for the independence of the Bar and to ensure that the Government did not, in his words, govern the profession.

By April 2010 it was apparent (several abortive meetings intervening) that the Bill had not been amended, as had been promised.

But what does it mean? Simply and ultimately that democracy itself is under the law. Over seven hundred years ago, Bracton expressed the notion when he said "The king ought not to be under any man, but he ought to be under God and the law, since the law makes the king". In other words, the Rechtstaat entails not simply rule, or rule by law, but rule under the law.

The penumbral reach of the principle may fairly still be debated. But that it includes, specifically, the independence of the legal profession is not now open for rational discussion. The International Commission of Jurists issued a declaration in 1955 at Athens making the point. There have been similar enunciations since.

The Bill, if adopted, will be an affront to the rule of law. The existing voluntary associations, set up and founded by civil society, stand to be stripped of their assets and employees. Power will lie in a statutory body in Pretoria, whose members the Executive (through the Minister) will appoint – exercising discretion, choosing as he or she will, from nominations. The regional councils will be creatures of the Council, constituted by discretion according to the vague notions of representativity, and exercising far-reaching powers over the conduct of practitioners.

Is there a way of averting the calamity the Bill represents? What the Bar has consistently propounded as a regulatory regime consistent with the Constitution recognises:

• The Bill states its primary purpose as the creation of "a unified body to regulate the affairs of legal practitioners".  Its preamble refers to a need to "transform and unite the legal profession" and to "regulate the legal profession, in the public interests, by means of a single statute".
• As the departure point, an independent wider legal profession, and within it, a profession of advocates working as independent court specialists, work being referred to them by instructing attorneys.
• That admission and removal of practitioners must be a matter for the courts alone.
• Training, examinations and discipline must fundamentally be a matter for bars and law societies.
• Bars and law societies should be registered with an independent regulatory council, chaired by a senior judge or retired judge appointed by the Chief Justice, the membership equally divided between the advocates' and attorneys' professions, and elected by them.
• Automatic transitional registration apply to existing bars (and law societies), registration to be renewed thereafter by the Council on compliance with statutory requirements of lodging constitutions, audited financial and annual reports, rules of conduct and training programmes etc compliant with the Act.

There is no particular reason to believe that such a scheme, intended to ensure continued existence and independence, will not find favour. We have argued for it for a decade. The attempted passage through Parliament of media controls and secrecy legislation. The statist control of important parts of civil society, driven off time and again during the apartheid years, again looms. As Harry Truman said: "there is nothing new in the world except the history we do not know".

By Jeremy Gauntlett

(Gauntlett is a senior council and former leader of the South African Bar. He writes in his personal capacity).