By Barbara Whittle

On 31 January the Portfolio Committee on Justice and Constitutional Development announced that it would be holding public hearings on the Legal Practice Bill on 19 and 20 February 2013 and set the final deadline for written comments for 12 February.

The deadline for written comments had been postponed after the initial deadline in July last year, following a joint request by the Law Society of South Africa (LSSA) and the General Council of the Bar (GCB) for an extension of the time to provide comments.

The LSSA and the GCB met on several occasions between August and October and reached agreement on a number of issues. However, there were some issues on which the two branches of the profession could not find consensus.

The LSSA made its draft submissions available to the attorneys’ profession for comment in October 2012 and the council of the LSSA considered various drafts of the submissions, with the aim of finalising these for the portfolio committee in February.

LSSA’s submissions on the Bill

The LSSA’s submissions to the portfolio committee open by welcoming improvements in this version of the Bill compared to the previous version. The LSSA stresses the importance of the independence of the courts, the judiciary and the legal profession, as entrenched in the Constitution.

The LSSA notes:

‘Judicial independence is a requirement demanded by the Constitution in the public interest, since without that protection judges may not be, or be seen by the public to be, able to perform their duties without fear or favour. Although not specifically mentioned in the Constitution, the judiciary depends on an independent legal profession to enable it to perform its constitutional duty. An independent, effective and competent legal profession is fundamental to the upholding of the rule of law and the independence of the judiciary. Effective judicial process cannot be obtained from independent judges without independent lawyers.’

The LSSA highlights several provisions in the Bill that affect the independence of the legal profession. Firstly, it points out that there are differing views in the profession on whether the Minister should have the right to appoint members of the South African Legal Practice Council (the council). These range from the view that there should be no members of the council appointed by the Minister to ensure independence, to the view that the Minister should be entitled to appoint three members of the council, as provided for in the Bill introduced in parliament.

There are also differing views within the profession on the issue of the dissolution of the council, insofar as it may reflect on the independence of the profession and be at odds with the implied provision that the council has perpetual succession. One view holds that the court may, on the application of any interested person, dissolve the council. The contrary view is that the Minister should have the right, on proper grounds, to order that the council be dissolved, as provided for in the draft Bill. The LSSA states, however, that if the council is dissolved, for whatever reason, the Bill should provide that the provisions dealing with the composition of the council should apply in relation to the reconstituted council.

Wherever the Minister is given the power to make regulations in the Bill, the LSSA stresses that this should be done in consultation with the council. The LSSA recommends that there be a blanket provision to this effect, with an exception being made in circumstances where it is appropriate for the Minister to act after consultation with the council – for example when determining community service, where the public interest is paramount.

Regional councils: The LSSA agrees that regional councils should be established and should operate under powers delegated to them by the council. However, the regulatory functions of the council relative to the attorneys’ profession and the advocates’ profession are significantly different and the LSSA believes that, at regional level, there need to be separate regulatory bodies for each branch of the profession (as illustrated above).

The areas of jurisdiction of the regional councils must be prescribed by the Minister in consultation with the council (not after consultation), since the council has first-hand knowledge of the need for legal services in regions.

The LSSA has noted that regional councils should be elected by legal practitioners, as this will promote and encourage regional involvement by practitioners.

Foreign qualifications and admission: The LSSA recommends that provision be made for a panel of experts to determine, in conjunction with the council, the quality of foreign qualifications, training and experience. This should not be left to the Minister alone.

The LSSA does not support the inclusion of the Minister’s discretion to permit a person, or category of persons, to expeditiously commence practising as a legal practitioner by virtue of his academic qualifications or professional experience. Any action taken by the Minister in this regard should, in the public interest, be taken only in consultation with the council. The LSSA warns that it may open the way for persons to gain rights of practice without having to comply with normal admission criteria and procedures. This is not in the public interest and the section should be deleted.

Fees: Although the LSSA shares the Minister’s concerns with regard to high legal costs, the LSSA stresses that any regulations regarding fees should be made by the council, approved by the Chief Justice and published in the Government Gazette. The Minister should not be involved in the process, which is an unwarranted interference in the fee-setting procedure and is calculated to undermine the independence of the profession.

Legal services ombud: It is in the public interest that the ombud be independent and be seen to be independent, and the LSSA recommends that the ombud be appointed by the Chief Justice.

Representative body for legal practitioners: The LSSA is of the opinion that one of the objects of the council should be to promote the interests of the legal profession, subject always to the overriding interests of the public. It is in the public interest and in the interests of the administration of justice and the upholding of the rule of law that there should be a strong, cohesive and independent legal profession, and in fulfilling its duties to the public as regulator, the council should be mindful of the interests of the profession.

Definitions of ‘advocate’, ‘attorney’ and ‘conveyancer’: The LSSA points out that not every attorney requires a Fidelity Fund certificate; it is only attorneys who practise in partnership or for their own account or as members of professional companies who require such certificates, whereas professional assistants, associates and consultants do not require certificates. The LSSA suggests that the definitions relating to the attorneys’ profession be amended to read as follows:

• ‘“Attorney” means a legal practitioner who was duly admitted and enrolled as an attorney in terms of the Attorneys Act [53 of] 1979, or who is admitted, enrolled and registered as such under this Act’.
• ‘Conveyancer’ is defined as including a person referred to in the definition of ‘conveyancer’ in the Deeds Registries Act 47 of 1937.

The LSSA notes that it is undesirable that there be a cross-reference to other Acts, and the definition in the Deeds Registries Act should be incorporated into the Bill. The regulation of conveyancers should be governed by the Bill and not by the provisions of any other Act. There should be a corresponding amendment of the Deeds Registries Act to bring it into conformity with the Bill.

Minimum legal qualifications: Provision should be made for the council to play a role in the quality assurance of law faculties at universities to ensure that the legal profession has a voice in determining the content of law degrees (as is the case with other professions in relation to their academic qualifications). Any decision concerning minimum legal qualifications should be made in consultation with the attorney and advocate members of the council.

Practical vocational training: The training requirements for candidate legal practitioners should be as determined by the rules, and not prescribed by the Minister. There should be uniform standards with regard to legal qualifications and training for all legal practitioners, which will be determined and provided at a national level. However, this requirement should not inhibit the attorneys’ sector or the advocates’ sector from requiring further training in specific skills.

Community service: According to the LSSA, the provisions of the Bill that relate to community service are vague. The LSSA proposes that community service be distinguished from pro bono work, and that the obligation to provide pro bono services (for which there should be a specific requirement in the Act) should be restricted to legal practitioners. Community service should be provided by candidate legal practitioners. The Minister’s power to determine community service requirements should also be after consultation with the council.

Advocates taking instructions directly from the public: If the advocates’ profession is to be a referral profession, then advocates should not take instructions from the public, save with the approval of the council. Such approval should be given only in appropriate cases where it is in the interests of the public, to avoid the irregularities that have occurred in the past through unregulated advocates taking instructions directly from members of the public.

Law clinics: The LSSA points out that the Bill does not provide for the accreditation of law clinics, as is currently required. This should be a requirement, since law clinics are entitled to employ candidate attorneys.

Legal Aid South Africa should be entitled to charge for disbursements only, not fees.

Disciplinary processes: It is the LSSA’s strong recommendation that the provisions of the Bill relating to the disciplinary process be removed and be incorporated into the rules, in which constitutional values, including transparency of the proceedings, will be taken into account. The submissions set out the process fully. If the disciplinary process is contained in the Bill, then the LSSA recommends that the provisions in the current draft uniform rules be incorporated into the Bill.

Attorneys Fidelity Fund: Several sections in the Bill deal with the Attorneys Fidelity Fund (AFF) and the LSSA has made numerous submissions in this regard. Among these, the LSSA notes:

• The AFF should not be liable for the theft of any money placed with an attorney purely for investment purposes, and the provisions of s 47(1)(g) of the Attorneys Act should be reinstated in the Bill.
• The Bill gives the board of control of the AFF the right to inspect the accounting records of any attorney. While it is understandable that the AFF would wish to safeguard its position by conducting inspections of attorneys’ accounting records, the LSSA stresses that the council is the regulator, and it is inappropriate for two entities to have the same regulatory powers in respect of attorneys’ firms. The power of inspection should lie with the council, which should be authorised to delegate the inspection function to the AFF for specific inspections, as decided by the council. In the event that the legislation delegates the function to the AFF, the AFF can conduct the inspection, but, if it does so, it would be under the authority of the council.

Fidelity Fund certificates: According to the LSSA, the Bill introduces uncertainty into the requirement for holding a Fidelity Fund certificate and will lead to the mingling of business funds and trust funds. The LSSA recommends that every attorney who practises for his own account, or in partnership, or as a member of a juristic entity be required to hold a Fidelity Fund certificate, whether or not he holds trust money or trust property at any particular time.

Interest on money invested on behalf of a client: The Bill, as it stands, allows the AFF to claim part of the interest on money invested on behalf of a client on a temporary basis and as part of a transaction. The LSSA points out that this is contrary to the current position and amounts to the expropriation of part of the interest belonging to the client. The Bill should be amended to make it clear that interest under s 86(5)(b) accrues to the client. However, the LSSA recognises that the AFF is at risk if the funds invested on behalf of a client were to be stolen and it, therefore, supports a proposal that part of the interest accruing on the invested funds should be paid over to the AFF, provided the portion paid over is limited to 5% of the interest.

Mandatory practice management: The LSSA has requested the inclusion of a section requiring every attorney who for the first time practises as a partner in a firm of attorneys or practises for his own account to, within one year, complete a course in legal practice management approved by the council.

Transitional provisions in relation to degrees: The date 1 January 1999 should be changed to 31 December 2004, and the words ‘and if all other requirements are met in terms of the Attorneys Act, 1979’ should be added at the end of the section in the Bill.

Amending the rules: The LSSA indicates that any amendment to the rules should be published for comment before being gazetted.

The full submissions by the LSSA can be accessed on the LSSA’s website at www.LSSA.org.za.

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

This article was first published in De Rebus in 2013 (March) DR 10.