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Cape Bar v Minister of Justice and Correctional Services and Others (9435/19) [2020] ZAWCHC 51


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Cape Bar v Minister of Justice and Correctional Services and Others (9435/19) [2020] ZAWCHC 51

Cape Bar v Minister of Justice and Correctional Services and Others (9435/19) [2020] ZAWCHC 51

19th June 2020


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Click here to read full judgment on Saflii

[1]              The case before us concerns questions of equality, transformation, restructuring and representation in the provincial governing structures of the legal profession.  The applicant (“the Cape Bar”) challenges the constitutionality of the Regulations and Rules published under the new Legal Practice Act 28 of 2014 (“the Act”), legislation that ushers in a new dispensation of transforming, unifying, governing and regulating the legal profession in South Africa.


[2]              In the Preamble, the Act records the reality of the legal profession before its coming into operation.  The profession was fragmented, regulated by different laws applicable in different parts of the country, and it was divided.  The legal profession is not broadly representative of the demographics of South Africa. Opportunities for entry into the legal profession had been for decades restricted by the legislative framework, and social and educational constraints that existed.  Most importantly, access to legal services is still not a reality for most South Africans.  In order to deal with these challenges, and others, a single statutory dispensation provides a legislative framework geared at, inter alia, transforming and restructuring the governance and regulation of the legal profession, that is broadly representative of the demographics of South Africa, under a single national regulatory body, the South African Legal Practice Council (“the Council”).  At provincial level the Act provides for Provincial Councils.  It is the provisions relating to the composition of Provincial Councils that are the subject of attack by the Cape Bar. 

[3]              It is without dispute that both the advocates’ and the attorneys’ professions have been, and are still, dominated by white men.  Transformation of the legal profession has been a goal that has eluded the South African society since the dawn of our democracy, and is an area of challenge that our society has struggled to make significant strides in.  The first respondent (“the Minister”), sets out the detailed statistics showing the lack of transformation, which do not reflect well on the profession.  He also gives a historical account of gender and racial composition in various Bar Councils since the early 1980s to 2000s, to illustrate the slow pace of change.


[4]              The Cape Bar has fairly accepted this account and the criticism levelled against it for the skewed representation.  It however contends that it is committed to seeing that changing, and this application is necessarily brought with that in mind.  This being so, it contends that the Regulations and Rules which were introduced as measures to enable the transformation of the profession, are inimical to that very objective.


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