voluntary association to which members
could belong, which would promote and
protect the interests of the profession.
Mr Swart concluded by discussing the
transitional period provided for in the
LPB. He said that while the Bill currently
provides for a two-year transitional period,
there were discussions about whether,
instead of a Transitional Council, the
Legal Practice Council should be vested
with transitional powers, thereby doing
away with the need for a Transitional
'This is a very important issue. There
must be certainty and it must be properly
done,' he said.
Justice Kriegler urges
profession to speak out
against abuses of power
Justice Kriegler spoke on the rule of law
and practising lawyers, as well as the demise
of the SADC Tribunal and the Marikana
mine tragedy that resulted in the
death of over 40 people.
In respect of the latter, Justice Kriegler
'No South African patriot can be as
deeply concerned about the state of our
land. We are in a bad place at the moment.
I do not think we ever thought we
would see a number of wounded, bloody
bodies shot by South African policemen.
We never thought we would see this
again. It was frightful to see the scenes of
Marikana, especially for those of us who
fought to ensure that those days would
He added that it was 'most disturbing'
to see the international media 'awaiting
doom' in South Africa as they had
done before. In retort, he said: 'Watch us.
Things are very gloomy. The portents are
indeed ominous, but we are South Africans;
we have come through worse times.
... By dint of common sense and a common
commitment to our country, we resolved
those issues through consensus
building ... . We will do it again.'
He said that the Marikana incident had
come at a 'terrible cost' in terms of loss of
lives, limbs and the economy.
'It has done tremendous damage to the
system of collective bargaining we have
built up so carefully. I am afraid the message
given out is that if you are violent
enough and threaten enough, you will get
what you are asking for,' he said, adding:
'It is the function of those of us who hold
the rule of law dear to show that this is
not the way to do it. ... When a court of
law issues an order, it is obeyed. ... I live
in South Africa - a free country, a democracy.
But we are not perfect.'
In respect of the SADC Tribunal, Justice
Kriegler said that it was 'killed off
precisely because it had done its duty' by
upholding the rights of the dispossessed.
'It was too courageous, it was too consistent
in its application of the rule of
law. We are not perfect; we stumble. Our
institutions are much stronger than in
comparable jurisdictions, but the rule
of law is not beyond harm in this country.'
Justice Kriegler also had harsh words
for the legal profession for not speaking
out when necessary:
'I do fault the legal profession for
having made it necessary for me to be
exposed to vilification in my retirement
because you said nothing - you did not
condemn when you needed to. I appeal to
you; I have confidence in you.'
He urged the legal profession to hold
those in power accountable and to speak
out when there are abuses of power.
'I appeal to the legal profession to
ensure that the hands of the President
and the legislature and the executive are
strengthened and that the little foxes that
spoil the vineyard are put firmly in their
place. If people are abusing state power,
it is the function of the law and the rule
of law to see they get their comeuppance,'
President Zuma on the
Legal Practice Bill and
transformation of the legal
In addition to his formal address to the
association, President Zuma used the opportunity
to comment on the Marikana
tragedy, which he described as a 'shock'.
'No one thought we would have such an
incident. This is why from government's
side we thought it was important to create
not just a commission of inquiry,
but a judicial commission of inquiry. We
must remedy what was wrong so that we
do not see such a side again. South Africa
is the envy of everyone and Marikana
raised eyebrows to many. We are sure it
will not happen again,' he said.
However, despite this, President Zuma
said he believed it was an 'exaggeration'
to say that the country was 'almost back
to apartheid': 'We are a democratic country.
Apartheid was not. This is an incident
I believe that we will resolve and we can
guarantee that this will not happen again.'
He added that if the police were found
to be at fault in relation to the incident,
then this must be rectified. Further, he
said that the legal profession should
not take certain things for granted, for
example the culture of people who protect
themselves by carrying weapons and
who break things, and added that not
dealing with this 'resolutely' can lead to
the deaths of many, such as during the
'We need to deal with this from a legal
point of view and ensure that the rule of
law is adhered to by all citizens. We will
have to work together to reach lasting
solutions,' he said.
In addition to speaking on the Marikana
incident and the Legal Practice Bill,
DE REBUS - NOVEMBER 2012
- 15 -
President Zuma discussed transformation,
access to justice and the role of
the legal profession in a constitutional
He said that while many lawyers had
played a pivotal role in the struggle
against apartheid and many remained
committed to achieving the society they
fought for, it was now time to continue
the transformation process.
One critical factor, he said, was access
'We are all seized with the matter of
how to make our courts more accessible
to the poor. Simply put, how do we make
it easy for people who live far from the
cities or who cannot afford to pay for
justice, to obtain justice?'
Another factor identified by President
Zuma was the need to substitute the
'old-order legislation that still governs
the legal profession in various parts of
the country', including the Admission of
Advocates Acts applicable to Bophuthatswana,
Transkei and Venda, the Bophuthatswana
Attorneys Act 29 of 1984,
the Attorneys Act 53 of 1979 and the
Admission of Advocates Act 74 of 1964.
He said it was improper for the profession
to continue to be governed by oldorder
legislation in a constitutional democracy,
adding that the LPB was aimed
at rectifying this.
Linked to this is the 'Discussion document
on the transformation of the judicial
system and the role of the judiciary in
the developmental South African state',
and Bills aimed at transforming the judicial
and legal systems, he said. In addition
to the LPB, these include the Constitution
Seventeenth Amendment Bill (B6 of 2011)
and the Superior Courts Bill (B7 of 2011),
which he expected to be passed shortly.
'All these Bills ... have been in the making
for the past 15 years or much longer.
The fact that these Bills have taken
longer than was originally anticipated
should not come as a surprise. Deliberations
on what the contents of the Bills
should be when they are finally placed
on the statute book have been robust.
With hindsight, it is prudent that their
passage to date has been lengthy and
even controversial. It is proof of a participatory
democracy at work,' he said,
adding: 'The fact that we debate and
debate is what makes South Africans
special. The fact that we have discussed
these for so long means we are trying to
leave no stone unturned so, when finally
agreed, the views have been canvassed
sufficiently by all of us.'
In respect of the LPB in particular,
President Zuma said:
'I am aware that the introduction of
the Legal Practice Bill has elicited robust
and fierce public debates within the legal
profession. Government has, over the
last 15 or more years, been trying to facilitate
consensus within the various formations
in the legal profession on how a