National Forum races against time to submit recommendations to minister

June 1st, 2017
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By Barbara Whittle

The National Forum on the Legal Profession (NF) held its eighth meeting in Kempton Park on 6 May. Having received a six-month extension from Justice Minister Michael Masutha to submit its recommendations to him, the NF is racing against time to finalise its recommendations before the extended deadline of 1 August.

Although it has finalised most of the rules and regulations required, irreconcilable differences between attorneys and advocates with regard to practical vocational training (PVT) are holding back some of the education-related rules, and thus the entire set from being gazetted for comment. NF Chairperson and Deputy Chairperson, Kgomotso Moroka SC and Max Boqwana, were to seek to break the deadlock on the PVT issues in order to finalise matters before the deadline.

Before the rules and regulations made by the NF in terms of s 109 of the Legal Practice Act 28 of 2014 (LPA) can be presented to the Minister, they must be gazetted for public comment. These relate to –

  • a competency-based examination or assessment for candidate legal practitioners, conveyancers and notaries;
  • the minimum conditions and procedures for the registration and administration of PVT;
  • the procedure and directions pertaining to the assessment of persons undergoing PVT;
  • the criteria for a person, institution, organisation or association to qualify to conduct an assessment;
  • the procedures to be followed by disciplinary bodies;
  • the manner and form in which complaints of misconduct relating to legal practitioners, candidate legal practitioners or juristic entities must be lodged with the Council; and
  • any other matter in respect of which rules must be made in terms of ch 10.

Once the rules have been gazetted there will be 30 days to submit comments to the NF.

In addition, the Legal Practice Amendment Bill B11 of 2017, which was submitted to Parliament at the end of April, empowers the NF to make rules in terms of s 95, which must also be gazetted for comment. An amendment also empowers the NF to draft regulations in terms of s 94 for consideration by the minister.

As regards the Bill, the NF was to make submissions to Parliament on some omissions that still created technical anomalies.

At its plenary meeting, the NF considered the recommendation that the Legal Practice Council (LPC) should convene an annual general meeting (AGM) of legal practitioners. However, the general view was that the LPC is a regulatory body with the primary function of protecting the public. It will communicate with legal practitioners (attorneys and advocates), but the LPA does not provide for an AGM to engage with them.

Besides some of the education-related issues, the NF has already finalised and approved for submission to the minister:

  • The regulations relating to election procedures for the LPC and the ballot paper: The NF envisages that elections for the first LPC will be held soon after ch 2 of the LPA – bringing the LPC into operation – comes into effect. In terms of the current timeframes, this is due to happen in February 2018. The Amendment Bill provides that the existing provincial law societies will continue to regulate attorneys for six months, while the LPC is being set up before being abolished six months after ch 2 comes into effect. The LPC will then take over regulation of all legal practitioners.
  • The composition of the nine provincial councils (PCs): It is recommended that each PC should consist of six attorneys and four advocates, except the Gauteng PC, which should consist of eight attorneys and four advocates.
  • The powers and functions of the PCs.
  • The seat of the LPC to be in Midrand.
  • The seats of the PCs as follows:

– Eastern Cape – East London;

– Free State – Bloemfontein;

– Gauteng – Pretoria;

– KwaZulu-Natal – Durban;

– Limpopo – Polokwane;

– Mpumalanga – Nelspruit;

– North West – Mahikeng;

– Northern Cape – Kimberley; and

– Western Cape – Cape Town.

  • The staffing requirements for the national and provincial offices.
  • The draft funding requirements and sources of funding for the LPC: Once all the education aspects have been finalised, the funding model will be completed and it would then be possible to set realistic annual levies for legal practitioners.

As regards the certificate for right of appearance in the higher courts for attorneys in s 25(3) of the LPA, the NF’s Rules and Governance Committee was requested to discuss this requirement, which could be regarded as an unfair discriminatory burden for attorneys.

New NF members

Two new members joined the NF in 2017: Johannesburg attorney, Mashudu Kutama, replaced Lutendo Sigogo who resigned at the beginning of the year after becoming President of the Law Society of the Northern Provinces. Mr Kutama is a nominee of the LSSA (Black Lawyers Association). Advocate Matthew Klein replaced Mark Hawyes as the representative of the National Bar Council of South Africa.

Developments on the Legal Practice Act can be accessed on the LSSA website at www.LSSA.org.za under the ‘Legal Practice Act’ tab.

Barbara Whittle, communication manager, Law Society of South Africa, barbara@lssa.org.za

This article was first published in De Rebus in 2017 (June) DR 17.

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