By Jacques Halbert
The State has a Constitutional mandate to take progressive measures towards realising the rights contained in the Bill of Rights. The Bill of Rights is a cornerstone of democracy in South Africa, which enshrines the right of all citizens to access courts as stipulated in s 34 of the Constitution. The State is entrusted with promoting and fulfilling the rights contained in the Bill of Rights and affording all citizens the equal protection and benefit of the law. More pertinent, the State must endeavour to eliminate the obstructions inhibiting access to justice and in particular, those difficulties which impede the poor, illiterate and indigent.
Since the advent of our democracy the executive, the legislature and the judiciary have combined their efforts by putting measures in place, as well as institutions and programmes with the objective of broadening access to justice. The Legal Practice Bill (the Bill) is a product of the continued collaboration between the three branches of State and ultimately a progressive measure taken to amplify access to justice by the ordinary citizen.
The Legal Practice Bill
The Bill was passed by the National Assembly on 12 March 2014 and at the time of writing this article it was before the Presidential office for signing. The Bill is an example of how government, through the use of legislation, aims to enhance access to justice by giving effect to the transformational imperatives envisaged by the Constitution.
In its present form, it creates a framework, which allows for the implementation of various mechanisms to broaden and amplify access to justice. One of the key objectives for the introduction of the Bill is to augment access to affordable legal services which is a continuation of efforts of the legislature to realise the ideal of a legal system which affords all citizens equal opportunities to exercise their right to access justice.
Advocates permitted to accept instruction direct from the public
Clause 34 of the Bill allows an advocate to render legal services in expectation of a fee, commission, gain or reward, on receipt of a request direct from a member of the public for that service, if that advocate is in possession of a Fidelity Fund certificate. This provision seems to eradicate the traditional distinction between an advocate and attorney, and members of the public will no longer be required to use the services of an attorney prior to engaging an advocate as they will have the choice of approaching either legal professional. Attorneys will no longer necessarily play the middle-man between members of public and advocates, who are engaged to argue on their behalf.
The Law Society of South Africa (LSSA) initially submitted that if the advocates’ profession is to be kept a referral profession, advocates should not accept instructions (briefs) direct from the public, except with the approval of the Legal Practice Council (LPC). It further submitted that such approval should only be given in appropriate circumstances where it is in the interests of public, in this way hoping to avoid irregularities, which had occurred in the past through unregulated advocates taking instructions from the public.
In 2012 as a result of a meeting between the LSSA and the General Council of the Bar of South Africa (GCB) the two branches of the profession agreed that there should be a unified profession, but not a fusion. Also, the two branches of the profession should remain separate and independent, allowing for legal practitioners with Fidelity Fund certificates and legal practitioners who work on a referral basis only, ultimately keeping the distinction between the two professions unblurred, although both would be regulated by one body – the LPC. The GCB was of the view that advocates had no interest in the regulatory affairs and administrative affairs of the attorneys’ profession and vice versa. Members of GCB appeared to agree that they had chosen to become advocates to avoid the administrative burden carried by attorneys, namely, dealing direct with the client, applying for a Fidelity Fund certificate, operating a trust account and employing the services of an accountant or auditor to keep proper accounting records.
Members of the GCB appear positive that the relationship between advocates and attorneys will not feel the impact of the elimination of the distinction, and that attorneys will continue to brief them, as the referral system is a system that has been effective to this day. It is in the interests of the public that advocates and attorneys work together and not in competition. The GCB is of the view that the so-called ‘rebel’ advocates who deal directly with the public by side-lining attorneys could end up costing clients more, for instance if the advocate charges his or her hourly rate to index and paginate the court file in preparation for trial.
The Centre for Law and Society was of the view that advocates and attorneys deliver different services and need different qualifications. As a general rule, attorneys are regarded as general practitioners, while advocates are regarded as specialists in particular fields of law. It is for this reason that it is often argued that fusion of the legal profession will result in the loss of expertise in specialist fields.
The Independent Association of Advocates of South Africa (IAASA) – now called the National Bar Council of South Africa – believes that since attorneys secured the right to appear in the High Court, it was only fair that advocates be allowed to take instructions direct from the client. In practice it is rare that attorneys will appear in the High Court and may prefer rather to brief advocates to appear on their behalf.
Members of IAASA believe that the existence of a dual profession merely perpetuates an unnecessary financial burden, which is borne by the client and results in the duplication of costs and, therefore, supported fusion of the legal profession. They believe that the inclusion of clause 34 protects advocates and citizens from undue exploitation. In its submissions, IAASA was of the view that the following instances dictate that an advocate should be briefed direct by the public: All criminal matters, specialised areas of legal advice, opinions, drafting of complicated contracts, drafting of wills, drafting of memoranda of incorporation, matters concerning the Consumer Protection Act 68 of 2008, arbitration and mediation, maintenance matters etcetera. IAASA further proposed that all legal practitioners should have compulsory indemnity insurance.
Community service
Clause 29 of the Bill provides that the Minister must, after consultation with the LPC, prescribe the requirements for community service. Community service may be a component of practical vocational training (articles) or a minimum period of recurring service by legal practitioners on which continued enrolment as a legal practitioner is dependant. Community service may, among others, include the provision of legal education and training on behalf of the LPC, service without remuneration, as a judicial officer in the case of legal practitioners, service at the South African Human Rights Commission and service in the State, approved by the Minister in consultation with the LPC. In the same vein, legal practitioners, as well as candidate legal practitioners may be exempt from community service on application and good cause shown.
Clause 27 allows the LPC to create rules in respect of payment of remuneration, allowances or stipends to all candidate legal practitioners. Future candidate legal practitioners fear that they will not be compensated for community service and in that event will be unable to support themselves and their families.
It is interesting to note that advocates are included in the definition of legal practitioners and accordingly will have to undertake community service. The intentions of the legislature in providing for the implementation of community service as a requirement to be admitted or to continue to practise are laudable in that it is directed at providing countless people, who could otherwise not afford legal services, with access to justice.
It is necessary to consider the ethics and implications of compulsory community service and how to balance the right to access justice and the need to ensure quality legal services for those who desperately need it. The question is raised whether it is ethical to require fresh law graduates, who have not yet qualified as attorneys and who have limited practical experience, to give legal advice? What mechanisms will be implemented to monitor the quality of the legal services delivered, how will the hours for community service be captured and by whom? Seasoned legal practitioners believe that, given law students’ current legal education which affords them limited exposure to the law in practice, it would be unethical for them to perform community service, because as it stands, they are ill-equipped to give any form of legal advice. Candidate legal practitioners could rather be involved in educational programmes focussing on citizen’s rights and the exercise of those rights.
Most law students are of the view that community service will go a long way in developing socially conscious legal graduates who understand the law in light of the vision of the Constitution and the goals of transformation. They have suggested that a one-year community legal service programme be implemented and structured to provide for the placement, supervision and remuneration of candidate legal practitioners, similar to the compulsory service year in the medical profession. The period of one year may seem excessive, but for purposes of continuity it remains reasonable, although many matters take longer than a year to reach finalisation.
The effectiveness of compulsory community service will depend heavily on how it is implemented and how the resources to fund the supervision of community service are found.
One of the major debates that has occupied members of the legal profession has been whether, in pursuing community service as a strategy for expanding access to justice, a voluntary or mandatory system should be adopted. A mixed system may possibly offer the best solution, similar to a carrot and stick approach. Incentives are used in all industries and professions to motivate and compel members to participate in activities that benefit the less fortunate and uplift the community. A mixed system – where a minimum is prescribed and incentives are put in place to motivate members of the legal fraternity to go beyond what is required of them – may potentially yield fruitful results, more so than a compulsory system.
Academics feel that law students should be subjected to community service in their final year of study. The programme at Nelson Mandela Metropolitan University expects final-year law students to present a minimum of ten street law lessons to high school pupils over a period of six months and thereafter to attend the law clinic or Rights Refugee Centre for a period of six months. Both programmes are appropriately supervised and law students gain valuable knowledge and practical experience. After such programmes, law students could apply to be exempt from community service during their vocational training programme as this may constitute good cause for exemption.
The notion of community service has been welcomed by members of the legal profession but how it will be imposed is uncertain and how it will be regulated is worrisome.
Generally, I believe that fusion of the legal profession is nonsensical and both professions working together offer independent, valuable and indispensible services to members of the public which will result in access to justice becoming a reality.
Jacques Halbert BCom LLB (NMMU) is a candidate attorney at Rushmere Noach Inc in Port Elizabeth.
This article was first published in De Rebus in 2014 (Oct) DR 37.
