The requirement of 'fit and proper' for the legal profession: A South African perspective
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Date
2022
Authors
Bloem, Martie
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Publisher
University of the Free State
Abstract
The research problem of this study is that our understanding and interpretation of the 'fit and proper' requirement for admission to legal practice is too superficial and one-dimensional to allow for a more diverse, broader and critical thinking needed to enable transformation of the legal profession. The question that originates from the research problem and guides this study is what the meaning, reason, purpose and importance of the current 'fit and proper' requirement is, and what it rather should be. The purpose of this research is to indicate that the requirement of 'fit and proper' for a person to be admitted to legal practice is closely related to the role of the legal professional in society and should therefore be directly linked to objectives such as public interest, access to justice and social justice if we are serious about transformation of the legal culture of South Africa. My proposal is that 'fit and proper' should be a continuous responsibility of all legal professionals instead of a prerequisite only required from legal practitioners for admission to legal practice. Furthermore, that the meaning of the concept should be informed by variable values and principles in line with the Constitution and not mere compliance with fixed rules of conduct or a specific test. Every chapter of this study indicates that changing the legal culture will necessarily entail an honest reconsideration and admission of the role and responsibility of legal professionals in their contribution to the current vision of the law and the manner in which law is practiced. What would be needed for this change is that at least the majority of legal professionals understand their responsibility in changing the traditional approach to the law in order for it to respond to the needs of a multicultural society. In my opinion, the role of legal professionals in this process is twofold: in their capacity of being professionals and therefore having an obligation to serve the public interest; and in their capacity as members of the community, having a responsibility of being self-conscious and aware of their complicity. The suggestion is that we should discontinue the practice of finding that a person is 'fit and proper' to be admitted to legal practice and rather expect of all legal professionals to continuously reconsider the role they play in society. Reimagining our understanding of 'fit and proper' requires an endless contribution to the collective effort of thoughtful thinking about the law in an attempt to imagine justice into reality and thereby becoming 'fit and proper'. A shift in focus of legal education may be the starting point or even the solution to the research problem that our thinking about the law, the role of the legal practitioner and interpretation of 'fit and proper' is too superficial to allow for transformation. The recommendation is that the focus of legal education must be adapted to enable law graduates to be critical of both the law and the political state in order to serve the law and the aims of justice and not only on delivering practically skilled law graduates.
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Thesis (LLD (Public Law))--University of the Free State, 2022