By Nomfundo Manyathi
Shortly after the Legal Practice Bill (B20 of 2012) (the Bill) was introduced in parliament at the end of May, the Justice Department provided an overview of the Bill to the Portfolio Committee on Justice and Constitutional Development.
In a presentation, the Justice Department’s deputy chief state law adviser responsible for policy development and coordination, JB Skosana, spoke about –
His presentation was followed by a question and answer session.
Mr Skosana said that the legal profession had always operated in an ‘overly regulated space’ and was regulated by different legislation and rules, including the Admission of Advocates Act 74 of 1964, the Attorneys Act 53 of 1979 and the various rules and practice directives of the courts.
Mr Skosana said that attorneys and advocates were different in many respects, yet shared some similarities. He said that they had similar academic qualifications; appeared in the same courts; represented the same clients before the same judges and magistrates; contributed to the same jurisprudence and drew their fees from the same customers, who, when using the services of both an attorney and an advocate, had to ‘pay twice for the service of one’.
Mr Skosana said that the Bill sought to ameliorate the burden of a client having to pay for one service provided by many practitioners in circumstances where the service of one would suffice. The Bill did this by providing for advocates to accept briefs directly from the public in circumstances to be determined by the Justice Minister.
Mr Skosana provided details of the legal profession in South Africa. He said that, according to the department’s records, there were approximately 4 762 advocates enrolled: Just over 2 000 were affiliated to the General Council of the Bar (GCB), just under 1 000 practised through an independent Bar and the remainder practised in the public and private sector as prosecutors or legal advisers. Of these, Mr Skosana said about 3 220 were male and approximately 2 470 were white.
In terms of attorneys, Mr Skosana said that there were an estimated 20 000 attorneys who practised through the law societies. Of those, approximately 13 000 were white.
Mr Skosana added that some law societies of the ‘defunct homelands’ were still ‘operating under the laws passed by the old Bantustans’, which was against the grain of the Constitution.
Mr Skosana said that those who would be affected by the Bill included attorneys, advocates, the Law Society of South Africa (LSSA), as well as the provincial law societies, the GCB, the National Prosecuting Authority and customers of legal services.
Mr Skosana said that the Bill was linked to other transformative initiatives, such as –
Speaking on the consultation process, Mr Skosana said that over the years a number of task teams had worked on different versions of the Bill. He added that, at all times, the profession was involved and that debates on the Bill had taken place in panel discussions and workshops at annual general meetings of the LSSA and the GCB.
Mr Skosana said that, as a result, a few concessions had been made, such as –
In respect of practitioner’s fees, Mr Skosana said that the transitional phase in the Bill would give the profession the opportunity to proactively revise the fee determination mechanism.
Mr Skosana said that the establishment of a legal services ombud would assist in resolving ‘thousands of cases’ that would otherwise clog the courts. He added that the legal profession had welcomed this arrangement, which would strengthen accountability.
Mr Skosana said that the Bill would also strengthen the rule of law by giving effect to the International Bar Association’s General Principles for the Legal Profession, which promote the independence of the profession and place the interests of clients above other interests. He added that non-state participation in the council enhanced the independence of the profession.
Some concerns raised during the question and answer session related to the capping of legal fees by the Justice Minster, the amount of community service that practitioners would be required to undertake; the current stance relating to attorneys and advocates reaching consensus on issues related to the Bill; and the costs of the Transitional Council.
In addressing the matter of legal fees, Mr Skosana said that the Minister already had the power to cap fees in respect of legal services offered to government in terms of the State Attorneys Act 56 of 1957, adding that the Minster had a public interest role to fulfil. Mr Skosana said that there was a need to balance what people could afford to pay with what lawyers needed to keep their practices running. Mr Skosana said that government wanted to ensure that legal services reached people in rural areas and added that community service could happen at state attorneys’ offices and at community advice centres. He said that government would pay a stipend to those who participated in community service.
Mr Skosana said that he did not want to comment on behalf of the professions, but he believed that the gap between the respective stances of attorneys and advocates had narrowed. He said that the council would ensure uniform standards for training of attorneys and advocates. If government were to wait for absolute consensus between all stakeholders, it would take another 30 years to finalise the legislation, he said.
The Justice Department’s chief director of legislative drafting, Lawrence Bassett, said that the department would pay the costs for the two years that the Transitional Council was expected to exist and that the department would provide more detailed information on this at a later stage.
Nomfundo Manyathi, nomfundo@derebus.org.za
This article was first published in De Rebus in 2012 (Aug) DR 9.
