Have your say on legal costs

June 1st, 2019
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In the March editorial ‘Show me the money: A discussion on access to justice v legal fees’ in 2019 (March) DR 3, I wrote a report on a meeting that was held between the Law Society of South Africa (LSSA) and the South African Law Reform Commission (SALRC) to discuss issues connected with legal costs and s 35 of the Legal Practice Act 28 of 2014 (LPA). The LSSA wrote to the Justice Minister requesting the suspension of subss 35(1), (2), (3) and (7) up to and including (12), which deal with fees for legal services until the SALRC has completed its investigation on legal fees and there has been proper consultation. This means that only subss (4), (5) and (6) of s 35 have come into operation.

The SALRC was established by the South African Law Reform Commission Act 19 of 1973 as an advisory body whose aim is the renewal and improvement of the law of South Africa on a continuous basis. The SALRC has released ‘Issue paper 36 project 142: Investigation into legal fees’, which details the organisations’ study on –

  • factors and circumstances giving rise to legal fees that are unattainable for most people;
  • desirability of establishing a mechanism responsible for determining legal fees and tariffs;
  • litigious and non-litigious matters;
  • attorney-and-client costs and contractual freedom;
  • contingency fee agreements; and
  • legislative and other interventions to improve access to justice by members of the public.

To read the full issue paper see www.derebus.org.za/resources-and-documents.

In a letter to the LSSA, the SALRC stated:

‘The investigation into legal fees and tariffs payable to legal practitioners is prescribed by legislation. Section 35(4) and (5) of the Legal Practice Act, No.28 of 2014, which came into operation on 1 November 2018, mandates the SALRC to investigate and report back to the Minister with recommendations on the circumstances giving rise to legal fees that are unattainable for most people; legislative and other interventions in order to improve access to justice by members of the public; and the desirability of establishing a mechanism which will be responsible for determining fees and tariffs payable to legal practitioners. If the SALRC considers such a mechanism to be necessary and desirable, it is required to apply its mind on the composition of the mechanism that is contemplated and the process it should follow in determining fees and tariffs.

Furthermore, the SALRC is required to consider the desirability of giving users of legal services the option to pay less or in excess of any amount that may be set by the mechanism and the obligation by a legal practitioner to conclude a mandatory fee arrangement with a client when that client secures that legal practitioner’s services.

In doing this, the SALRC must be guided by best international practices; the public interest; the interests of the legal profession; and the use of contingency fee agreements as provided for in the Contingency Fees Act, No.66 of 1997.

The issue paper is the first document published by the SALRC during the course of this investigation and, therefore, does not contain any recommendations for law reform. The paper aims to announce the investigation, initiate and stimulate debate, seek proposals for reform, and will serve as a basis for further deliberation by the SALRC.

The issue paper contains questions aimed at discovering the issues at hand and the extent of the need for law reform. The SALRC specifically requests input and comment on the issue paper as a whole, including the questions which are posed in it.’

Legal practitioners are urged to have their say on this important issue of legal fees and in particularly s 35 of the LPA. Send your comments to following address:

  • The Secretary – South African Law Reform Commission

Private Bag X668
Pretoria
0001

 

This article was first published in De Rebus in 2019 (June) DR 3.