Immediate Past President and executive board member of the German Bar Association, Prof Dr Wolfgang Ewer noted that regulatory bodies could not and should not be the representative body of professionals.

By Mapula Sedutla

The Law Society of South Africa (LSSA) held its annual conference in Cape Town on 23 to 24 March under the theme: ‘Blueprint for the future of our profession’. Topics discussed at the conference centered on the future of the profession after the full enactment of the Legal Practice Act 28 of 2014 (LPA).

Immediate past Co-chairpersons of the LSSA, Walid Brown and David Bekker, welcomed delegates to the conference. Mr Brown noted that during his tenure as Co-chairperson, the LPA and its implementation thereof was one of the main features on the agenda. ‘We have had complex and emotional set of negotiations and discussions to ensure a smooth transition,’ Mr Brown said.

Mr Brown said that the LPA was amended to extend the lifespan of the National Forum on the Legal Profession (NF) and change the envisaged handover date to the Legal Practice Council (LPC) from February to October. ‘There are a number of issues the NF is still grappling with, including professional vocational training,’ he added. Mr Brown assured delegates that the NF was planning for the unforeseen during the full implementation of the LPC and when the provincial law societies cease to exist.

Mr Brown noted that the Legal Education and Development arm of the LSSA, which provides legal education to some 11 000 legal practitioners a year, and professional vocational training programme to some 1 500 candidate attorneys a year, was one of its biggest functions and required R 80 million a year to run. He said that once the LPA was fully enacted, the issue of who and how the legal education system should be run, would be an issue. He added that it was not in the interest of the profession for legal education to be privatised.

Mr Brown touched on the passing of former Chief Executive Officer of the LSSA, Nic Swart. He said the death of Mr Swart was a loss to the legal profession as Mr Swart was passionate about legal education and leading the profession during a difficult transitional period. ‘Nic was passionate about empowering young lawyers. He was also passionate about making professional vocational training affordable,’ he added.

Speaking about the future of the LSSA, Mr Bekker noted that four of the six constituent members of the LSSA will dissolve once the LPA is fully operational. ‘This would mean the end of the LSSA in its current form and this should be of major concern to the profession as it would mean that the profession would no longer have a unified voice, therefore, no one would listen to us,’ he added.

Professional body for legal practitioners

During the conference, a panel discussion was held under the title ‘A professional body for legal practitioners: A critical necessity or an optional extra?’ Speakers on the panel included guest speaker and Immediate Past President and executive board member of the German Bar Association, Prof Dr Wolfgang Ewer; Mr Brown; member of the National Forum on the Legal Profession, Krish Govender; President of the Black Lawyers Association (BLA), Lutendo Sigogo; LSSA Management Committee member, Jan van Rensburg; Co-chairperson of the LSSA, Ettienne Barnard; and former LSSA Co-chairperson Nano Matlala.

Prof Dr Ewer said the German Bar Association was a representative body of German lawyers with more than 60 000 members. He noted that regulatory bodies could not and should not be the representative body of professionals. Highlighting the need for South African legal practitioners to retain their independence, he said that legal practitioners needed to form a voluntary association that is separate from the LPC, which would represent the interests of legal practitioners. He suggested that the representative body could be similar to the system in operation in Germany, Denmark and the United Kingdom, where both regulatory and self-regulatory organisations representing legal practitioners exist side-by-side.

Speaking about conflict of interest, Prof Dr Ewer said a self-regulatory body was essential in deciding on the needs of the public versus the profession. ‘We are not always in conflict, but such conflicts do occur, and in such a situation it was essential to distinguish between the two interests and not give preference to the public over the profession, as would be likely with a regulatory body. A strong, united self-regulatory body was also essential to help protect the rule of law and democracy,’ he added.

Prof Dr Ewer noted that legal practitioners needed independence from government. He added legal practitioners needed to operate under conditions free from any pressure or influence by governments and authorities. Recognising racial division challenges facing the South African legal profession, Prof Dr Ewer said it was important for the legal profession to have a single identity and a common purpose. ‘Legal practitioners should have a united front as they would always have enemies to challenge. They need to be united against enemies of democracy and we should not give the enemies a chance to split the profession regardless of the differences,’ he added.

Mr Brown noted that when the professional body is formed, it should be considered whether the body will be financially viable according to what the profession can afford. He added that the body should be a national body that, through its functions and activities, coordinates and promotes the interest of the profession.

Mr Govender said that the existence of various separate legal bodies in South Africa (SA) was a result of the country’s fragmented past. He added that in other jurisdictions, there is one voice representing the legal practitioners of the country. Adding that this was the opportune time for building faith in a united professional body.

Deputy Minister of Justice and Constitutional Development, John Jeffery, said 25 years after democracy the legal profession was still not where it should be in terms of reflecting the racial and gender demographics of the country.

Mr Govender said the LPA was far from perfect with several sections still needing to be ‘fixed’. He added: ‘The sections of particular concern to the profession were those dealing with fee structures, the definition of work and roles performed by advocates and attorneys, compulsory community service. On such issues, and others that may arise in the future, it was essential for legal practitioners to be able to add their voices and advance their interests via a united professional organisation.’

Mr Sigogo, noted that the main difficulty in moving forward with a united self-regulatory body was ‘our past’. He said black legal practitioners, had been marginalised in terms of governance of the profession, and that entry to the profession for black people was not easy. He added that governance of the profession had, therefore, been seen to be white and male. Mr Sigogo questioned whether the formula used for the composition of the LSSA when it was formed, which is 25% BLA, 25% for National Democratic Lawyers Association (NADEL) and 50% non BLA or NADEL, would work for a new structure considering that the four provincial societies, which largely made up the non-BLA/NADEL representation would no longer exist.

Mr Matlala emphasised the need for any new organisation to be seen to represent the whole of SA’s society, as it would otherwise not receive support. He added that any formed organisation, which takes place within a society and it should be representative of that society. ‘We want to create a different LSSA, this new body should serve the needs of legal practitioners. The body will function outside the parameters of the LPC,’ he added.

Deputy Minister of Justice and Constitutional Development, John Jeffery, said 25 years after democracy the legal profession was still not where it should be in terms of reflecting the racial and gender demographics of the country. He said initiatives such as the procurement protocol, which the LSSA had been involved in, did not go far enough to address the disparities. ‘We cannot have African practitioners not getting instructions from big largely white firms,’ he said.

Deputy Minister Jeffery admitted that the implementation of the LPA was taking longer than it should have, saying further amendments as requested by the LSSA would have meant more delays. He added, however, that some aspects, which the legal profession had objected to, were taken into consideration.

Candidate attorney at Maponya Inc, Nape Masipa, and attorney at Naicker Attorneys, Ugeshnee Naicker, discussed work-life balance and social consciousness challenges for young lawyers during the Law Society of South Africa conference.

Envisaged professional body

Three breakaway sessions were held to discuss how the envisaged professional body will be formulated. Topics covered by the breakaway sessions were membership and governance, core functions and sustainability.

Membership and governance

The recommendations given under this commission were:

• The composition of the new body starts with membership and it must be representational of the demographic of the country and must include women.
• Three entities (BLA, NADEL and the former provincial law societies) must share membership and power three ways on a 33,3% basis.

Core functions

The recommendations given under this commission were:

• The organisation must perform trade union functions.
• Workshops should be held for entry level practitioners to show them the nuts and bolts of practice.
• Candidate legal practitioners should be engaged while studying on what to expect in practice.
• Regular communication should take place with practitioners on the law and practice.
• The organisation must assist to promote the services of attorneys.

Sustainability

The recommendations given under this commission were:

• Increasing costs of practising should be addressed particularly in the context of the envisaged regulation of fees charged by legal practitioners for legal services.
• First and foremost there should be clearly identified benefits for the individual practitioners, and secondly for the organised profession.
• Many legal practitioners are already struggling to sustain themselves, the plight of single practitioners has to be taken into consideration in the determination of an affordable subscription amount for them.
• There should be programmes that will benefit practitioners, offering continuous professional development – similar to that offered by organisations such as South African Institute of Chartered Accountants – which can be used to derive additional income.
• Consideration should be given to practitioners who are already members of existing voluntary legal organisations such as NADEL, BLA, South African Women Lawyers Association etcetera, in order to minimise the costs of subscriptions that their members may be expected to pay for joining the professional association.
• The professional association should consider how to attract and retain practitioners in the profession.
• Find innovative ways of attracting practitioners to join the professional association, essentially looking at collective bargaining power to get benefits for members (ie, approaching insurance companies to get better rates for members professional indemnity cover).
• Look at a sliding scale of membership subscriptions for single practitioners and newly admitted practitioners, which may be for a limited period of time.
• Investigate why practitioners are leaving and not staying in the profession and to address the causes thereof.
• Reduction of costs by making use of video conferencing for any meetings that may be necessary.
• Approach the Attorneys Fidelity Fund to assist with the funding of programmes aimed at benefiting practitioners through the professional association.

Client and fees

On the second day of the conference a session was held to discuss how s 35 of the LPA envisages changing the way legal practitioners deal with and charge their clients. Co-chairperson of the LSSA, Ettienne Barnard noted that when speaking about legal fees, one needs to bear in mind that access to legal services is not a reality for most South Africans. He added that one of the aims of the LPA is to broaden access to justice. ‘Discussion on legal fee structures is an ongoing process, however, it is important to protect the rights of the public,’ he added.

Speaking about the future of fee structures when the LPA is fully enacted, Mr Barnard noted that the Rules Board would not be ready with the fee structures by 1 November. He added: ‘What will we do in our practices when that happens? Will it be business as usual until we know about the tariffs?’

Speaking about doing cost estimates for clients, which s 35 of the LPA will introduce, Mr Barnard said that when legal practitioners conduct cost estimates, it should be subject to a disclaimer. ‘The disclaimer should clearly state to your client that is a possibility that things will change during the course of you conducting the case,’ he added.

• See lssa.org.za

Attorney at Bowmans, Lenja Dahms-Jansen made a presentation on social media and the law. Ms Dahms-Jansen noted that a growing number of companies were addressing the balancing act between protecting their business while needing to act against employees who do not understand the perils of social media.

The Millennial legal practitioner

Attorney at Bowmans, Lenja Dahms-Jansen made a presentation on social media and the law. Ms Dahms-Jansen noted that a growing number of companies were addressing the balancing act between protecting their business while needing to act against employees who do not understand the perils of social media. ‘We have seen a surge in the numbers of cases reaching the CCMA,’ she added.

Ms Dahms-Jansen highlighted several high-profile international and national court cases, including Heroldt v Wills [2014] JOL 31479 (GSJ) where an interdict was sought against the defendant for a Facebook post suggesting that the plaintiff was not a proper person because he allegedly failed to care for his daughters and had a problem with alcohol and drugs. The court ordered the defendant to remove all posts involving the plaintiff and also to pay the plaintiff’s legal costs. She cautioned delegates that the very nature of the social media space was that: ‘Once it is out there, it is incredibly difficult to contain the damage. You put it out there to your detriment,’ she added.

• See p 19.

Mapula Sedutla NDip Journ (DUT) BTech (Journ) (TUT) is the editor of De Rebus.

This article was first published in De Rebus in 2018 (July) DR 6.