Legal Opinion: A united legal profession is not negotiable

Tazorora Musarurwa

For a three-letter word, the word “bar”, in its noun form, amazingly has a number of meanings.
To plenty of people, it is a place to go and have fun, drinking the so-called waters of wisdom. To prisoners, in its plural form, it is what physically restricts them from being with everyone else.
The Oxford Dictionary provides about 20 different ways in which the word can be used.
In legal circles, the word takes a completely different meaning. In civil procedure, the word refers to various situations when a litigant is disallowed from appearing before the court or from filing further papers. The word also refers to the place allocated for lawyers in a courtroom.
In North America, the word refers to lawyers in general. Interestingly, the collective noun for lawyers is not “a bar of lawyers” but crassly, “a quarrel (or disputation) of lawyers”.
In common law and Roman-Dutch jurisdictions, such as Zimbabwe, the word refers to the particular profession of lawyers known as barristers (in the United Kingdom) and as advocates (Zimbabwe, South Africa, Namibia). Lawyers who practice as advocates are known as members of the bar. It is this latter definition that forms the crux of this article.
On January 11 2016, Chief Justice Godfrey Chidyausiku, in his speech to officially open the legal year, suggested that the legal profession in Zimbabwe needs to return to the old scenario whereby only advocates were permitted to appear in the superior courts (High Court, Supreme Court and Constitutional Court).
It is not the first time that a senior judge has been disturbed by the quality of representations made by attorneys. The website of the Durban-Natal Bar reports that in “1932 the position of having an advocate’s profession as a purely consultative profession was dealt with by rules of court. Until then it had been an entirely voluntary arrangement. Mr Justice Feetham had been sent from the Transvaal to be Judge President of the Natal Provincial Division and was apparently very unfavourably impressed by the dual practice system, and possibly by the performance of some of the dual practitioners, though it must be said that many of them were very competent. In consultation apparently with Mr Mackeurtan he then caused rules of Court to be passed governing the position with regard to the dual practice.”
During that time, the judges could alter the rules as they pleased. If they were challenged they would simply dismiss the challenge as was done after lawyers challenged Justice Feetham’s actions.
So the debate has begun. It has been broadcast on the radio and published in the news. What are the issues and what is involved? Let us break it down.
South Africa is the best example to use because it is very close to home and many of us can easily relate. South Africa has a proper divided profession. There are advocates and there are attorneys. Attorneys deal with the general members of the public and, therefore, they are the first port of call when one is in need of legal services. Attorneys are allowed to deal with all matters in the magistrates’ courts.
For matters that need the superior courts, one will still need to approach an attorney. Members of the public cannot directly approach an advocate but need to go through an attorney. Advocates only receive instructions from attorneys.
Attorneys will in most cases draft the initial papers that are called pleadings. Attorneys cannot, however, appear in the High Court, Supreme Court and Constitutional Court. For the High Court there is, however, an exception that comes from the Right of Appearance Act 62/1995 which allows attorneys to apply to the Registrar of the High Court for right of appearance in the High Court.
This right only applies to the High Court and does not extend to the Supreme Court and Constitutional Court. These two courts are exclusively for advocates.
So the Chief Justice is suggesting we go back to what South Africa is currently doing. His main argument, as what the case was with Justice Feetham 80 years ago, is that the quality of legal representation coming from some attorneys is deplorable. The question is whether the quality of pleadings in the Supreme and Constitutional courts warrant a formal splitting of the profession?
The quick answer to this question is a respectable “NO”! The long answer follows below.
Zimbabwe currently has what we call an “informal bar”. In the legal profession, we like to believe it’s the best of both worlds. This means that the profession of advocates is not specifically catered for within the Legal Practitioners Act but advocates operate in the same way as their South African counterparts.
Advocates are, in theory, specialists in litigation. It is for this reason that one would prefer an advocate to handle a matter that requires those lawyers that make it a habit to always be in court.
In 2002, when I started working at a legal firm, the advocates’ profession seemed to be dwindling. Lawyers were not briefing advocates as they should be and only a few people were interested in choosing this field as a profession.
I remember vividly, my boss back then narrated how he felt sorry for a certain advocate whom he had seen at the magistrates’ court filing summons personally. This is unheard of, but briefs were hard to come by and I guess that the advocate had to do whatever he had to do to survive.
In a starving economy, clients can seldom afford to engage two different lawyers to pursue the same cause. It is for this reason that the divided profession can never thrive in a poor economy. Our judges need to be in touch with this reality on the ground.
If anything, the French Princess, Marie Antoinette taught us that the privileges of high office can make the occupants lose touch with reality. Superior court judges must guard against losing touch.
Most law firms are simply breaking even with the current clientele and often take up cases on a semi-pro bono basis, if I can call it that. For attorneys to then tell the same client that they need to fork out much more money for High Court representation is unfathomable.
As it stands, there are clients who can afford to have an advocate briefed. A number of attorneys actually recommend these clients to advocates. This also allows attorneys to have more time to consult with new and other clients, while at the same time preparing initial court papers.
This is not to say the concerns of the Chief Justice should be taken lightly. Any lawyer worth his salt will know the importance of having quality jurisprudence (judgments) coming from the highest courts of the land.
The recent Zuva case by the full bench of the Supreme Court should put to rest any doubt on the importance of Supreme Court judgments. The current Government also came about through an election date that was compelled by the Constitutional Court. These courts are game changers in matters of national importance.
With this in mind, it is imperative that lawyers that appear before these highest courts be equipped with the knowledge in both substantive and procedural law that will guide the court in coming to decisions that are legally sound.
In my view, the Chief Justice rushed to ignite a debate without thoroughly interrogating the problem first.
In the old days, to be an advocate, one had to be called to the bar. In other words, the advocates would choose the best attorneys and invite them to join the bar. At the same, in these old days, to be a judge one would have been a senior advocate. That was the chain of progression. Attorneys aspired to be advocates whilst advocates aspired to be judges.
Much has changed since then. The need for transformation in all sectors of politics and economy cannot follow such restrictive practices. If judges were only taken from the bar, we would have only three or four judges in Zimbabwe at present. This old formula is archaic and belongs in our history books for purposes of study so that we know why we discarded it and should never bring it back.
It needs to be stressed that the issue of competency in court does not only apply to lawyers. In a number of occasions, competent and sober lawyers are appalled with the quality of reasoning shown by some members of the bench.
This does not only apply to young magistrates but goes up to even judges of the High Court. The recently introduced public interviews for judges had the gallery questioning how some judges were appointed in the first place. The Chief Justice himself was visibly disturbed with certain responses he got when interviewing sitting judges who wanted to be appointed to the Supreme Court.
The real question, nonetheless, is how do we make sure that those who appear in the Supreme Court and Constitutional Court are properly equipped to handle this type of high-level litigation? The Chief Justice is a member of the Council for Legal Education, which is a statutory body responsible for setting the standards for those who want to practise law in Zimbabwe. This could be the starting point.
First, it is sad to note that whilst there is a standard for the learners, there seems to be no standard for the educators. Law faculties in some law schools are headed by people who do not even have doctorates. The international standard for a Dean of Law is a professorship. So if the head of a law faculty has scant legal education, what more can be assumed from those below him and the quality of education they impart?
Whatever the case, to ensure students are equipped with correct skills, we need to start from our law schools. In South Africa, the debate on the extent of practical studies that should be carried by law schools is raging.
Some schools are of the thought that their task is to provide academic knowledge and it is left for the practical schools to finish off. In South Africa, this makes sense as there is a requirement for one to do two years of articles at a law firm before he or she is registered as an attorney. Before such registration, one still has to pass a set of exams as is the case with chartered accountants.
With the introduction of more law schools in Zimbabwe, the Council for Legal Education should be considering whether it should have its own set of exams for all law graduates and whether to introduce practical training.
The reality on the ground is that after a law student graduates, he or she seeks employment from a firm. Law firms reluctantly employ such graduates as the pie is already small. Once employed, there is no time to be a teacher to the graduate. He has to hit the ground running. What he does not know, he must learn by himself.
For the graduate, it is like learning to swim from the deep end. Everything is trial and error. As long as he does not drown, he is okay. Even if he does not swim, he must at least remain afloat. So while judges are disturbed that the recent young graduate is fumbling in court, the senior practitioner is angry that the young graduate did not obtain the court order from the judge. We are all in a quandary.
Let us adopt the South African approach of articles (practical training) after law school and then exams before registration. This allows for a single standard to apply to everyone coming from the various law schools. The Council for Legal and the Law Society must support both law firms and advocates so that they are able to provide practical training to graduates.
Let us ensure that all our law schools have lecturers that have at least a Master’s degree. Let them be headed by professors who are respected legal scholars.
Rather than a split profession, I am sure the members of the Law Society can accede to a requirement that only lawyers that have completed the current 36-month pupillage can appear in these courts.
In debating whether we should go back to the era of a formally split profession, we are debating on the wrong thing. That will never happen. Lawyers will never accede to having the right of appearance taken away from them, even when they hardly use it.
That is the essence of freedom. You may not want to go anywhere and would rather stay in your room all day, but if that room gets locked, you instantly become claustrophobic.
While I cannot speak on behalf of the profession, I am certain that the answer is an emphatic but respectable NO. We need to be forward looking.
Our predecessors saw it fit that the discriminatory split profession be disbanded immediately after independence. Whilst other colonial laws continued to haunt Zimbabwe, this was one of the first things to be rid of. We are being inept to even consider its return.
While the leaders of our society will be diplomatic in their resistance, those of us in the pit gallery respectfully say the answer is NO.
Tazorora T. G. Musarurwa is a managing partner with Mambosasa Legal Practitioners but writes in his personal capacity.