Have senior South African advocates been given a ‘licence to print money’?
South Africa’s top advocates are raking in millions, sparking concerns that the conferral of senior counsel status is “tantamount to a licence to print money”.
Several senior advocates and lawyers who spoke to City Press said South Africa’s top advocates charge as much as R45 000 per day.
At a very conservative estimate of only 15 hours of work per week, at R4 500 an hour, and deducting 20% for expenses, advocates could go home with an annual salary of nearly R3 million – almost double what a high court judge earns.
The issue of advocates’ fees were brought into sharp focus when lawyers acting at the Marikana Commission of Inquiry withdrew this week owing to a lack of funding.
City Press spoke to advocates about the range of fees they charge. Two confirmed that some advocates are completely “off the scale”, charging as much as R6 000/hour or R60 000/day for their services.
But Ishmael Semenya, the chairman of the General Council of the Bar, said most advocates don’t make that much.
“Most of the time, people are really talking about the high end of legal services. It’s like saying you are going to give everyone access to a cardiologist.
“Of course, the top end is out of reach for ordinary people, but cardiology is not available to them either,” he said.
Semenya said a debate was needed about provisions in the Legal Practice Bill about compulsory community service for graduating law students, similar to what medical students are currently required to do.
He said this would include a discussion around the requirement of advocates only having to do a minimum of 20 hours of pro bono, or community service, work per year.
According to a Joburg advocate, who asked not to be named, South Africa faced a situation where the law only “caters for the very rich and the very poor”.
The advocate further said: “There’s absolutely no question that advocates are out of reach for most South Africans. If you’re above the legal aid limit, you’re buggered.”
Legal Aid SA only provides free legal assistance to South Africans who earn less than R5 500 per month.
There are also limits to what Legal Aid SA can pay advocates who take on work for the poor, such as those representing the families of Marikana victims.
According to Jacob van Garderen, the national director of Lawyers for Human Rights, “access to justice and the rule of law depends on the ability of people to get cases before court”.
He said: “The advocates’ and attorneys’ professions do far too little pro bono work and their fee structure is totally out of reach for most South Africans.”
The Constitutional Court itself warned in a judgment last year that it was no “loose metaphor” to say that the fees counsel charged had “skyrocketed”.
The judgment was a review of legal fees for preparation and appearance by advocates in a case that ran to R453 150 for the senior counsel and R263 500 for the junior counsel.
The court reduced this to R180 000 and R120 000, respectively, and remarked: “No matter the complexity of the issues, we can find no justification, in a country where disparities are gross and poverty is rife, to countenance appellate advocates charging hundreds of thousands of rands to argue an appeal.”
The court also expressed its support for the pro bono work and reduced rates that many advocates offered in taking up important cases.
Last year, Owen Rogers, a senior counsel and former chairperson of the Cape Bar, wrote an article in the journal Advocate, in which he said the silk system (or conferral of senior counsel status on advocates) puts “significant upward pressure on the cost of litigation”.
Rogers quoted an English judge, Sir Gavin Lightman, who said that the “granting of silk was tantamount to a licence to print money” and that “the silks’ inflated fees became the benchmark for juniors’ fees”.
Rogers argued that, while top advocates’ fees were on par with those charged by top executives and auditors, this was a reflection of a “distorted pattern of remuneration” in which top executives earned disproportionately more than the rank and file.
“As members of an honourable profession, we should be distinguished by our absence, not our presence at this feeding trough,” he wrote.
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