Independence of the legal profession,
like the judiciary, is paramount
- Public Protector
While all role players
in the justice system
are required to have
a level of independence,
Thuli Madonsela has
highlighted that, for the judiciary and the
legal profession, independence is 'paramount'.
Ms Madonsela made the statement during
a speech at the Gauteng Law Council's
annual general meeting in Midrand
on 6 October 2012, in which she also
discussed the Marikana tragedy and her
office's submissions on the Legal Practice
Bill (B20 of 2012) (the Bill), among others.
Ms Madonsela praised the legal profession
for its response to the Marikana
tragedy, which left over 40 people dead,
and in particular noted that many lawyers
were worried about the Marikana people.
'It was quite amazing to see how lawyers
have reacted ... . It reminds us of the
past of the legal profession in this country,'
Ms Madonsela added that she had been
particularly encouraged by the fact that
when it became clear that the families
of some of the deceased were not going
to be represented at the commission of
inquiry into the incident, lawyers had
argued that the state must provide resources
to ensure that the families have
the opportunity to engage in the accountability
'That for me was the kind of ethical
lawyering that we were used to seeing
during apartheid, during the Truth and
Reconciliation Commission and now in
Marikana,' she said.
Independence in the
Ms Madonsela noted that concerns had
been raised about judicial independence
and emphasised that this should be examined
as part of a broader issue of independence:
'The real independence that is entrenched
in the Constitution is independence
in the judiciary system as a whole,'
Ms Madonsela said, adding that 'it is not
enough' to have independent and impartial
judges if other role players, such as
registrars, prosecutors, police, lawyers
and the legal profession, were not independent.
'The independence of all these other
actors is as important as the independ-
ence of the judiciary. Obviously the levels
of independence differ. The independence
of the judiciary is paramount. The
rest of the system must be independent,
but there are degrees. ... The independence
of the clerk of court is not going
to be underpinned by the same guarantees
as the independence of the judicial
officers. The issue of the independence
of the legal profession is paramount too
because [it] is an important feeder of the
judicial system,' she said.
Ms Madonsela said that the profession
also serves 'a particular purpose' in respect
of access to justice: 'The legal profession
becomes the voice of the voiceless
in many instances and, of course,
it lends its voice to powerful people as
well, but particularly to the voiceless,
and it becomes important that the impartiality
is not just there, but that it is
also perceived by those who engage with
In respect of criticism against the judiciary
and the legal profession, she noted
that some criticism had been perceived
as interference; however, she said it was
important not to confuse fair criticism
and accountability with interference:
'Fair criticism cannot interfere with independence
of both the judiciary and
the legal profession and accountability
is also not inconsistent with independence,'
Perceptions of the
Ms Madonsela said that the conduct of
some members of the legal profession
allowed the perception of lawyers as
'sharks' to prosper, despite this not applying
to the average lawyer.
The Public Protector emphasised that
it was up to the profession to ensure that
lawyers are not judged by their 'weakest
link', namely those who give the 'noble
profession' a bad name.
The Legal Practice Bill
Ms Madonsela informed those present
that her office had made submissions
on the Bill, which it did not support in
its entirety. In particular, she said there
were 'certain gaps' relating to accountability
of lawyers that needed to be
resolved. She said that this was based
on her office's experience in dealing
with cases involving legal practitioners,
some of which related to Road Accident
Fund claims and the administration of
DE REBUS - NOVEMBER 2012
- 7 -
However, her office supported the
Bill's establishment of an independent
ombud for the legal profession. The
goal of the office will be to protect and
promote the public interest, ensure the
proper investigation of complaints, promote
high standards of integrity in, and
the independence of, the legal profession
(see s 47 of the Bill).
Ms Madosela said it was essential that
the ombud was an independent institution,
but how this should be done, the
Public Protector had 'left for other parties
to look at'.
Working with lawyers
On the role of lawyers in respect of her
office, Ms Madonsela said she had benefited
from working with lawyers, who
had proven to be 'very helpful' to the
Public Protector's work. She described
insights from lawyers as 'invaluable' to
her office and highlighted some of the
opportunities for her office and the profession
to work together, including:
* Strengthening state contracts to ensure
accountability for wrongdoing. 'Let us
create contracts that foster accountability
by those who contract with the state,'
* Providing pro bono assistance to complainants.
* Providing expert opinions.
* Advising the state 'with the vision in
mind of making sure that the state creates
a society that we want to become'.
In closing, Ms Madonsela elaborated on
this last item:
'Each nation gets the country it deserves.
Whatever country we become
will be the country we decide to make it.
During the struggle we fought for what
we have now and the Constitution that
is respected by the entire world. We have
the power now and the opportunity to
influence the behaviours of the state
and the other fellow human beings that
we advise on a day-to-day basis to play
their part in creating that society that
we chose to become. If we do so [and] if
we work together, we can make sure that
our state is accountable; that public accountability
is not an option, but a must;
that our state operates with integrity at
all times and ultimately is responsive to
all our people.'
Kathleen Kriel, Kathleen@derebus.org.za
and Kim Hawkey,