A crucial transition

November 1st, 2013

By Mapula Sedutla –  acting editor

As 2013 draws to an end most legal practitioners will be questioning if, in fact, the Legal Practice Bill will be enacted before the country’s general elections in April 2014. As previously indicated by the Justice Portfolio Committee, if the Bill is not enacted before a new parliament is elected, all the work that has been done on the Bill will have to be redone. The Portfolio Committee has been earnestly debating the Bill and by mid-October had produced draft 5 of the Bill, with amendments, by the time this issue of De Rebus went to print.

The first phase of the implementation process of the Bill will be the establishment of the Transitional South African Legal Practice Council (Transitional Council), which is also referred to as the National Consultative Forum on the Legal Profession (Consultative Forum) in draft 5 of the Bill. The transitional body will exist during the transition period of three years. The Transitional Council/Consultative Forum will be an important body that will influence the future of the organised legal profession and pave the way for the establishment and smooth transition into the permanent South African Legal Practice Council. Its duty will be to iron out and attempt to resolve all the ‘contentious’ issues that were allocated to it to help speed up the passing of the Bill  and any other issues that may arise during the transitional period. therefore the right people who are well prepared for the hard work ahead should form part of the Transitional Council.

According to clause 96 of the Bill, the Transitional Councill/Consultative Forum will comprise of 16 legal practitioners, namely:

  • Eight attorneys nominated by the Law Society of South Africa (LSSA), two who represent the Black Lawyers Association, another two who represent the National Association of Democratic Lawyers, one who represents the Cape Law Society, one who represents the Law Society of the Free State, one who represents the Law Society of the Northern Provinces and one who represents the KwaZulu-Natal Law Society.
  • Six advocates nominated by the General Council of the Bar of South Africa.
  • One advocate nominated by the Independent Association of Advocates of South Africa, now called the National Bar Council of South Africa (see p 11).
  • One advocate nominated by the National Forum of Advocates.
  • One teacher of law or legal academic nominated by the South African Law Deans Association.
  • Two persons nominated by the Minister, who are fit and proper and have knowledge of the legal profession.
  • One person nominated by Legal Aid South Africa.
  • One person nominated by the Board of Control for the Fidelity Fund, who may not be a legal practitioner.

The Bill states that the Transitional Council will also be tasked with, inter alia, making recommendation within 24 months of existence to the Minister on the following –

‘(i)      an election procedure for purposes of constituting the first Council;

(ii)      the establishment of the first Regional Councils and their areas of jurisdiction;

(iii)     the powers and functions of the first Regional Councils;

(iv)    the manner in which the first Regional Councils must be elected;

(v)     all the practical vocational training requirements candidate attorneys or pupils must comply with before they can be admitted by the court as legal practitioners;

(vi)    a fees structure for legal practitioners;

(vii)    the right of appearance of a candidate legal practitioner in court or any other institution;

(viii)   a mechanism to wind up the affairs of the Transitional Council; and

(ix)    all the requirements necessary for the implementation of compulsory post-qualification professional development.’

It is clear from the above that the Transitional Council/Consultative Forum will have a mammoth task ahead of it during the three-year period.

It is envisaged that some form of public hearings will be held by the National Council of Provinces before the Bill is enacted. Attorneys are urged to be on the lookout for the announcement of the dates and venues of the public hearings, so that they can make an input.

Mapula Sedutla, mapula@derebus.org.za

This article was first published in De Rebus in 2013 (Nov) DR 3.