Legal Insights

The legal profession in South Africa occupies a position that is, in equal measure, privileged and demanding. It is privileged because the tools of the law — argument, procedure, rights, remedies — remain, in a constitutional democracy, among the most powerful instruments available to those who seek accountability from those who exercise public power. It is demanding because the use of those tools requires something more than technical competence. It requires a commitment to the values that animate the Constitution, and a willingness to act on that commitment even when it is inconvenient to do so.

The Bar in particular — the independent Bar, the Bar of advocates who owe their primary duty to the court and to the law rather than to any client — sits at the heart of this obligation. An independent Bar is not a luxury. It is a structural necessity in any society that takes the rule of law seriously. When advocates become instruments of their clients’ interests rather than officers of the court, the architecture of justice begins to fail.

South Africa’s constitutional transition was not achieved by government alone. It was achieved in part by lawyers — advocates, attorneys, jurists and academics — who were willing to argue for rights before courts that were not always sympathetic to those arguments, and who understood that the work of law is inseparable from the work of justice.

That inheritance creates a living obligation. The present generation of advocates cannot simply receive the benefits of an independent Bar without contributing to its maintenance. Contribution takes many forms: appearing in matters of public interest, mentoring junior practitioners, engaging in the governance of the profession, and being willing to speak publicly on matters that concern the rule of law — even where silence might be more comfortable.

The Johannesburg Society of Advocates, as the largest Bar in South Africa, carries particular weight in this regard. Its voice — when it chooses to use it — is heard. Its silence, equally, is noticed. Leadership of an institution like the JSA is therefore not merely an administrative function. It is a responsibility to the values that the institution is meant to embody.

South Africa faces significant structural challenges in its legal system: case backlogs, access to justice for those without means, briefing patterns that continue to disadvantage women and black practitioners, and a legal culture that has not always been willing to examine its own inherited assumptions. None of these challenges will be resolved by advocacy alone. But advocacy — in the broadest sense, the making of arguments for what is right — is where it begins.

Those who lead the Bar have an obligation to make those arguments. Not performatively, but with the seriousness and rigour that the profession demands of its best practitioners in court.

This article was first published in InGlobe Magazine. The views expressed are those of the author in his personal capacity.