1. The National Association of democratic Lawyers (NADEL) is seriously perturbed by the attack by the African National Congress’s (ANC) Eastern Cape’s Provincial Chairperson , Oscar Mabuyane, on attorney Mvuzo Notyesi (who is also the current president of NADEL). This follows after Mr Notyesi appeared on behalf of the Applicants in an urgent application that sought to interdict the ANC provincial conference, which saw Mabuyane elected as Chairperson, from proceeding. Mr Mabuyane accused Mr Notyesi of trying to control the ANC for representing the applicants in the said matter. The remarks laboured against Mr. Notyesi went as far as saying that Mr. Notyesi’s actions were informed by greed and a wish to control the ANC, they impute on Mr. Notyesi the views of his clients as if they were his own. The attacks on Mr Notyesi is an attack on the profession itself as it seeks to undermine the independence of the legal profession.
What is independence of the legal profession?
2. As a legal fraternity that operates in a constitutional democracy and is moving towards handing over the regulation of the profession to the executive arm of government the question and vigilant protection of our independence is of paramount importance. This is not just for the survival of the profession but also for the survival of our constitutional democracy.
3. The Legal profession is independent of government and even their clients. Independence of legal profession is the legal professions’ ability to function without any undue influence or fear of reprisal. This simply means that attorneys should be able to act in the best interest of his/her client and perform his duties without fear of any negative inference being drawn towards him/ her. It is important to highlight that an attorney is a creature of instruction. In executing his/ her duties an attorney acts in the best interest of his client and in the best of his ability. The fact that applicant instructs a particular attorney because of his knowhow and skill should not conflate his own personal views and that of his clients.
Why is independence of the legal profession so important?
4. One might then ask, why is it so important to jealously guard the independence of the profession? The answer is simply that the independence of the legal profession is of integral important to the upholding of our Constitutional democracy. Our democracy is based on the principal of the rule of law which has integrated in it fundamental human rights. The rule of law and the independence of the legal profession play a vital role in protection of Human rights and the maintenance and establishment of the rule of law.
5. The former Chief Justice, Arthur Chaskalson, in his address to the Cape law society on 9 November 2012 said:
“An independent, effective and competent legal profession is fundamental to the upholding of the rule of law and the independence of the judiciary. The link between independence of the legal profession and the rule of law is also spelt out by the International Bar Association in its Standards for Independence of the Legal Profession adopted in 1990.13 The standards declare that an independent legal profession is an essential guarantee for the promotion and protection of human rights and the establishment and maintenance of the rule of law.
The need for this in a constitutional democracy is clear. Taking our Constitution as a model, this is essential to give substance to the right to have access to courts, the right to a fair trial, the right to just administrative action, and generally to the right of the public to enforce the obligation on the state to respect, promote and fulfil all the rights in the bill of rights.
It is lawyers who advise members of the public of their rights and who bring cases to the court on their behalf. Courts depend on the lawyers discharging this duty honestly and competently, and advancing the interest of their clients to the best of their ability. Without the assistance of lawyers judges would not be able to discharge their constitutional duty to uphold the law without fear or favour. It is in the public interest, and the interest of clients, that the culture of the legal profession should be rooted in the independence of the profession, and that lawyers should not be subject to outside influences or be concerned that if they take on a case for a particular client they will incur the hostility of the government or other powerful instances. The Chief Justice of New Zealand, Dame Sean Elias, puts this succinctly.”
6. It would be a sad day for justice that would see Legal professionals refuse to represent a client simply because they do not like the client, fear being painted as if they endorse their client’s behaviour or do not share that particular client’s political affiliation.
7. It is for the above reasons that we therefore strongly and without revocation condemn the carless statement of Mr. Mabuyane and ask him to withdraw same with immediate effect. We call on all South Africans, especially those in power, to respect the rule of law and our constitutional democracy by respecting the independence of the legal profession. We as NADEL will jealously guard against the undermining of the independence of the legal profession and will not allow for any attorney to be attacked for the execution of his duties on behalf of a client.
ISSUED ON BEHALF OF THE NATIONAL ASSOCIATION OF DEMOCRATIC LAWYERS (NADEL), SOUTH AFRICA.
By: Memory Sosibo
Publicity Secretary, NADEL Executive Committee,
Contact: 081 710 7910