Trust account advocates – can they be admitted to the roll of notaries and conveyancers?

March 1st, 2019
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By Sydney Mosoane

In terms of the Legal Practice Act 28 of 2014 (LPA) both advocates and attorneys are referred to as legal practitioners. For the purposes of this article, the old terms advocates and attorneys will be used. – Editor

It may be unusual to suggest that it is time to have advocates practicing for the first time in South Africa (SA) as notaries and conveyancers. In SA, admission into the professions of notaries and conveyancers is limited only to persons who are admitted and enrolled as attorneys. This makes admission as an attorney a requirement for entry into the professions of notaries and conveyancers. This is both in terms of the LPA and the repealed Attorneys Act 53 of 1979 and other legislation. This article seeks to establish whether the new category of advocates with a trust account, under the Legal Practice Act, can qualify as notaries and conveyancers owing to the nature of their practice.

One of the purposes of the LPA is to provide a legislative framework for the transformation and restructuring of the legal profession, in line with constitutional imperatives, so as to facilitate and enhance an independent legal profession that broadly reflects the diversity and demographics SA – bearing in mind that access to legal services is not a reality for most South Africans and to remove any unnecessary or artificial barriers for entry into the legal profession.

The requirements for admission and enrolment as a notary and conveyancer

Section 1 of the LPA defines a ‘conveyancer’ as ‘any practicing attorney who is admitted and enrolled to practice as a conveyancer in terms of this Act’. The definition is the same in the case of a notary.

In terms of s 26(2) and (3), an attorney qualifies to be enrolled as a conveyancer and as a notary if they have passed the competency-based examination or assessment of notaries and conveyancers (as the case may be).

It is clear from these provisions that one must have first been admitted as an attorney before applying to be admitted as either a notary or a conveyancer. In terms of r 12.2 of the rules made under the authority of ss 95(1), 95(3) and 109(2) of the LPA (as amended), the candidate’s application for admission and enrolment as either a notary or conveyancer must be accompanied by an affidavit by the applicant containing a confirmation that the applicant has been admitted as an attorney.

There are, therefore, two requirements for admission into the professions of notaries and conveyancers, namely –

  • admission as an attorney; and
  • successful completion of the competency-based examinations for notaries and conveyancers.

The want of qualification of advocates in general for admission and enrolment as notaries and conveyancers

Advocates in general cannot practice as notaries and conveyancers as they do not conduct any trust banking accounts to administer clients’ money. The profession of a conveyancer is one that requires the practitioner to keep a trust account, the purpose of which is to protect clients from appropriation and loss. The Supreme Court of Appeal (SCA) in De Freitas and Another v Society of Advocates of Natal and Another 2001 (3) SA 750 (SCA) at paras 8 to 10 has shown that clients who instruct an advocate directly have no protection against attachment by creditors and cannot recover a shortfall in a trust account from the Legal Practitioners Fidelity Fund.

For both these reasons stated, advocates are not included in the definition of a notary and a conveyancer.

Trust account advocates and the elimination of the want of qualification

In terms of s 1 of the LPA, a ‘trust account practice’ means a practice conducted by –

‘(a) one or more attorneys who are; or

(b) an advocate referred to in section 34(2)(b) who is, in terms of this Act, required to hold a Fidelity Fund Certificate.’

Advocates with a trust account are the new category of advocates established by s 34(2). The nature of the practice of an advocate with a trust account is one of a trust account practice in terms of s 1 and is the same in many respects to that of an attorney as these advocates are required to keep a trust account and to hold a Fidelity Fund Certificate (FFC). A client may approach a trust account without the fear of appropriation or loss, as the client’s money is administered through a trust account.

The nature of the practice of an advocate referred in s 34(2), therefore, in all reasonableness eliminates the lack of qualification for advocates to be admitted as notaries and conveyancers.

Because these advocates hold a FFC in terms of ss 34(2)(a) and 84(1), and because they are required in terms of s 85(1)(b) to complete a practice management course, they are without doubt equally fit to be admitted as notaries and conveyancers as attorneys are, provided of course that they pass the competency-based examinations that notaries and conveyancers are required to pass.

A constitutional challenge

While there is a need to regulate the profession in terms of s 22 of the Constitution, such regulation must be fair, reasonable and in line with constitutional imperatives. Where there is a change in policy and practice in the profession, regulations ought to change where necessary to meet the needs and challenges of the present policy and practice. This does not seem to be the case now in this matter. Schippers J in Noordien v Cape Bar Council and Others (WCC) (unreported case no 9864/2013, 13-1-2015) (Schippers J) correctly held in para 26 when dealing with the constitutionality of the referral rule that the differentiation between attorneys and advocates bears a rationale connection to a legitimate government purpose, the need to regulate the professions and to protect the public. Now that things have changed, is the protection of the public in the case of trust account advocates still a concern as it was with traditional advocates without a FFC? If not, would the differentiation between attorneys and these trust account advocates still bear a fair and legitimate government purpose in as far as the profession of notaries and conveyancers is concerned? I think not.

Sections 1 and 26(2) and (3) of the LPA may be found wanting of constitutional validity to the extent that it does not allow trust account advocates into the profession of notaries and conveyancers when they are in fact and in law equally fit and qualified as attorneys are to provide notarial and conveyancing services. The bottom line would be that the differentiation between attorneys and trust account advocates for purposes of the said professions of notaries and conveyancers is one that is unfair and discriminatory if the need to make such differentiation does not bear a legitimate government purpose.

Conclusion

I submit that advocates practising in terms of s 34(2) of the LPA equally fit as attorneys are to practice as notaries and conveyancers. This shift is important for the realisation of transformation in the legal profession.

Recommendations

I recommended that the LPA be amended to the extent that it includes trust account advocates in the definitions of a notary and a conveyancer in s 1 and s 26(2) and (3) of the LPA. The Legal Practice Council as the single regulatory body of the legal profession should engage with all stakeholders to take views and comments on the matter and to find the possibility and practicality of allowing trust account advocates to practice further as notaries and conveyancers for the first time in SA.

 Sydney Mosoane is an LLB student at the University of Limpopo.

 This article was first published in De Rebus in 2019 (March) DR 19.

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