Rule 22.1.5.1 versus r 22.2.4.1 of the Legal Practice Act: Inequalities in the profession?

The advent of the Legal Practice Act 28 of 2014 (LPA) was meant to establish a single unified statutory body to regulate the affairs of all legal practitioners. The reforms included in the long title of the LPA are, among others, to restructure and transform the legal profession, and to be consistent with constitutional requirements. Insofar as endeavouring to achieve this objective, subordinate legislation in the form of Rules made under the authority of ss 95(1), 95(3) and 109(2) of the LPA (the Rules) had to come into existence in 2018. The Rules, which also need to be consistent with the Constitution, came into being through ss 95(1), 95(3) and 109(2)(a) of the LPA to enable the administrative function of such primary legislation to be realised effectively. The realisation is, however, not that simple, but requires the question of how consistency with the Constitution and specifically the right to equality will be achieved in the legal profession?

The LPA and Rules define both candidate attorneys and pupils as candidate legal practitioners and as those who are currently undergoing practical vocational training. The definition places both candidate attorneys and pupils under one umbrella, which is complementary to one of the purposes of the LPA found in s 3(c). The section refers to the LPA’s aim to create a unified statutory body regulating the affairs of legal practitioners and candidate legal practitioners in South Africa.

In South African Legal Practice Council v Alves and Others 2021 (4) SA 158 (SCA) at para 9 the court referred to s 3(c) of the LPA to address inequalities in the profession that inevitably created the necessity for the Act. The court further held that one of the purposes of the Act was to ‘level the playing field’. This reference was used to further highlight the right to equality the LPA so earnestly sought to achieve through its provisions.

The first of these provisions is s 27(2) of the LPA, which provides: ‘The rules … must regulate the payment of remuneration, allowances or stipends for all candidate legal practitioners’ (my italics).

However, this is not portrayed in terms of the Rules. Rule 22.1.5.1 allows candidate attorneys to earn bona fide remuneration for their services. While its counterpart, r 22.2.4.1 does not make provision for pupils to be allowed an equal opportunity to also earn a bona fide remuneration for their services. In fact, the latter rule does not mention this specific aspect. These rules are prima facie identical, except for this portion.

The second of these provisions is s 95(1)(o) of the LPA, which further provides the Legal Practice Council must make rules relating to the payment of remuneration, allowances and stipends concerning all candidate legal practitioners. The Rules allowing candidate attorneys to be allowed bona fide remuneration but pupils not, is not encompassing of the inclusivity the LPA intended to bring about.

The Rules need to be balanced allowing both candidate attorneys and pupils a fair opportunity to benefit from the legislation. The promotion of inclusivity would mitigate any unintentional infringement on equality in the profession. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 speaks to these aspects of opportunity and benefits embedded in the law, rules and the like in addressing discrimination. It is these benefits, opportunities or advantages mentioned in part (b) of the ‘discrimination’ definition that should not be withheld from any candidate legal practitioner, more specifically pupils.

I conclude, that because of the novelty of the Act, it is understandable for these imbalances to occur. It is up to all legal practitioners and candidate legal practitioners to work together through engagement for necessary amendments to be made to the Rules. It is through this mechanism that all voices of interested parties will be heard in achieving one of the primary purposes of the Act, which is forging equality through transformation.

Tumelo Mamabolo NDip Legal
Assistance (TUT) HCert LLB (UNISA) is a paralegal at Moima Incorporated.

This article was first published in De Rebus in 2022 (Dec) DR 6.