Regulating Professions: Associations and the State. an Examination of Changes in the Regulation of the Legal Profession in South Africa

This paper examines the regulation of the legal profession in South Africa over time; in particular it is interested in exploring the relationship between the associations of legal professionals and the state in the context of both the Apartheid as well as the post-apartheid state. The paper is divided into four sections. In the first part it outlines the regulatory framework of the legal profession in South Africa, primarily focusing on the legislative frameworks and how these have changed over the last eighty years. In the second part it explores the ways in which this regulatory framework – particularly in the apartheid period - facilitated (or not) access into the profession. It argues that the Law Societies played an active role in the closure of the profession to black legal professionals and that their activities went beyond the regulatory framework in order to support and uphold the political project of the Apartheid State. In the third section it looks at the post-apartheid period and at the ways in which the State has intervened in the regulation of the profession in order to transform and open access, to previously excluded groups (black and female), to the profession. In the final section the paper reflects upon the relationship between the (legal) profession and the state in the post-apartheid context suggesting that the state’s need to weaken the power of professional groups is linked to the imperative to transform and to open up access to the professions in a context where professional closure had been used to exclude people on the basis of their race. While it is primarily an empirical paper, the empirical case study will be used to reflect upon and engage with the theoretical literature.