The Role of referral Advocates in the South African Legal System

The members of the Free State Bar must all practice as referral advocates as envisaged in Section 34(2)(a)(i) of the Legal Practice Act 28 of 2014 (‘the LPA’).  The Code of Conduct for all Legal Practitioners, Candidate Legal Practitioners and Juristic Entities (‘the Code of Conduct’) was published in terms of Section 36(1) of the LPA. Part IV of the Code of Conduct deals with conduct of referral advocates contemplated in Section 34(2)(a)(i) of the Act, also known and referred to as ‘counsel’.  In addition, the Free State Bar is a constituent member of the General Council of the Bar of South Africa (commonly known as the GCB). All GCB affiliated members must be enrolled and practice as referral advocates.  Reference to advocate or counsel herein is a reference to a referral advocate.  

Counsel occupies a pivotal position within South Africa’s legal framework. As independent legal practitioners, they specialise in litigation and advocacy in both judicial and non-judicial forums. Counsel, in particular, are not instructed by nor consult directly with clients. Instead, they are briefed by attorneys who instruct them to provide expert legal representation and assistance.

Counsel are independent practitioners of advocacy and agents of the rule of law, a founding value in terms of Section 1(c) of the Constitution of South Africa, who should resist any undue influence from anyone, whose specialised services are available to all persons, including indigent people, regardless of any disregard in which persons requiring the services of counsel may be held by anyone.

Counsel understand that the profession of advocacy is primarily vocational and serves the public interest and accordingly acknowledge fiduciary duties towards the courts, their clients and to all colleagues. 

The role of counsel in South Africa encompasses, amongst others, the following key responsibilities:

‘Cab rank rule’

The ‘cab rank rule’ is an indispensable principle, unique to the advocates profession, which is often misunderstood.  It provides that counsel shall not refuse to accept briefs in an area of practice – or in a court – in which they profess to practise on the grounds that they disapprove of the client or of the client’s opinions or alleged conduct or because of any disregard in which such person might be held, unless there are special circumstances which justify his refusal to accept a particular brief.  Importantly, acceptance of a brief by an advocate does not signify that the advocate in person associates him or herself or has any personal sympathy with the client or the cause.  It is an indispensable principle that ensures and promotes the autonomy of the members of the Bar and ensures access to justice for all.    

Specialist Representation and Litigation

Counsel are experts in courtroom advocacy, where they are tasked with persuasively presenting their clients’ cases.  Their responsibilities include drafting pleadings and other legal documents pertaining to litigation or potential litigation, presenting evidence, examining and cross-examining witnesses, and delivering both oral and written arguments before various courts and tribunals.

Provision of Legal Advice and Opinions

While primarily focused on litigation, advocates also furnish legal opinions and strategic advice. They assist attorneys and clients in assessing the merits of cases, interpreting applicable laws and regulations, and developing effective legal strategies.

Legal Research and Case Preparation

A critical aspect of a counsel’s role involves conducting comprehensive legal research. This includes analysing statutes, case law, and precedents to support their arguments or assessing the merits of a particular matter. Based on this research, counsel prepare the necessary court documents—such as pleadings, motions, and heads of argument—to advance their client’s position effectively and also advise accordingly.

Representation Across a Broad Spectrum

Counsel represent a wide array of clients, including private individuals, corporations, government bodies, and non-governmental organisations. They are involved in a diverse range of legal matters, such as criminal prosecutions, civil litigation, administrative reviews, and constitutional challenges. Counsel are also often appointed on a pro bono basis as and when the need arises. 

Upholding Ethical and Professional Standards

Counsel are bound by a stringent code of ethics which requires them to act with integrity, fairness, and professionalism. As officers of the court, they have a duty not only to their clients but also to the court itself. Their independence and adherence to ethical conduct are central to the credibility of the Bar and serve as a safeguard against conflicts of interest. This ethical framework is a source of professional pride and a cornerstone of the legal profession.

Contribution to Jurisprudence

Through their advocacy and participation in legal discourse, counsel play a significant role in shaping South African jurisprudence. Those who demonstrate exceptional skill and make notable contributions to the profession may, upon application, be conferred senior status (SC) by the President of the Republic—an honour that recognises excellence and expertise. Commonly referred to as “Silks,” Senior Counsel often undertake particularly complex or high-profile cases.

Commitment to Continued Learning

Counsel are required to remain informed of legal developments and procedural changes. They do so through continuous professional development, which includes attending legal seminars, workshops, conferences, and pursuing further education and specialised training.

Promoting Transformation

The Free State Bar and its members are committed and actively engaged in advancing ongoing transformation within the legal profession through various transformation policies, initiatives, and programmes.

Conclusion

Counsel is indispensable to the South African legal system. Their legal acumen, advocacy skills, and unwavering commitment to ethical standards ensure access to justice and the fair administration of the law. By offering expert representation, contributing to legal development, and supporting transformation, advocates uphold the rule of law and strengthen the justice system in South Africa.