While SA lawyers and politicians argue over the best way forward for the legal profession, a similar debate has emerged in the Lesotho courts. Earlier this year, an advocate practising there approached the High Court’s constitutional division to complain that restrictions on advocates resulted in grave injustice.
The law and rules of court placed “unfair restrictions on an advocate which limits the advocate’s right to practise his or her profession”, said Matsaseng Ralekoala.
By contrast, attorneys may appear in all Lesotho courts without restrictions.
He said the law discriminated in favour of attorneys who could appear in court without being briefed by someone else, whereas advocates always had to be briefed by an attorney first. Some advocates were so desperate, he claimed, that they forged the signature of attorneys to make it look as though they had obtained a brief.
Ralekoala’s extraordinary claim was backed up by the Law Society of Lesotho, which complained about the problem caused by advocates “masquerading” as attorneys and pretending to have been instructed by attorneys.
The law society wants the advocates’ council to do something about this problem, saying it “borders on extreme professional misconduct”. The court said all Ralekoala’s “factual” claims had been admitted by the other side – the minister of justice, the attorney-general and the law society; in other words, there was general agreement that the legislation and the rules were unconstitutional.
However, the judges said, just because the government and other parties to a case agreed that a law was unconstitutional did not make it so. A court had first to declare the law invalid and this required a proper consideration of the matter.
It had been shown that advocates were subject to restrictions that did not apply to attorneys and which might cause unfair discrimination.
The law established two separate professions, with attorneys being obliged to open and keep a separate trust account in a Lesotho bank where all the money held on behalf of clients had to be deposited. There was no requirement for advocates to have a trust account. Any incoming funds could be paid directly into the advocates’ business account and could be attached by creditors.
Moreover, this business account did not have to be held at a bank in Lesotho. Was this in fact “unfair discrimination”? Or was it justified? Neither as a group nor as individuals were advocates targeted for discrimination, the court said. They “were always held in high esteem (and) regarded with reverence for being members of an elite and exceptional group of people. They are respected as being endowed with fine legal minds and as professionals who will unwaveringly – within ethical limits – protect the interest of their client”.
Their dignity had not been impaired by the law or the rules of court: rather, these laws were intended to protect the public, something Parliament had the right to do.
These discriminatory rules and laws were in the public interest, according to the principle that the state had a duty to protect its citizens. Advocates joined the profession out of choice, fully knowing about these restrictions which, in the court’s view, were reasonably justifiable in a democratic society. According to figures given to the court, there were about 150 advocates in Lesotho and 40 attorneys.
Ralekoala’s argument that this unfairly disadvantaged an advocate did not impress the court. It held that the existing situation was not unconstitutional and dismissed the application. But the most significant part of the decision followed this conclusion.
Restructuring of the legal profession was “an idea whose time has come”, said the court. And the attitude of the parties clearly showed that the Lesotho authorities, including the attorney-general and the minister, would no longer resist change.
They were willing to be part of a reform process to transform the profession without compromising standards. Other countries had already made comprehensive reforms and a similar overhaul was contemplated in SA through the Legal Practice Bill, said the court.
Referring to the sense that advocates were being “strangled” by the unlimited High Court rights of attorneys, the judges said the grievances and aspirations of attorneys and advocates needed urgent attention to achieve a “responsive, transparent, cost-effective and independent legal profession”. And they said the country’s lawyers should “rise to the challenge and take up the offer” made by the attorney-general and the minister.