On 1 February the Executive Committee of the Law Society of South Africa (LSSA) and the Executive Committee of the Legal Practice Council (LPC) held a meeting to discuss issues of importance to the legal profession.
Legal practitioners (attorneys and advocates) in South Africa are registered with the LPC in terms of the Legal Practice Act 28 of 2014 (LPA). The LPC is a national, statutory body established in terms of s 4 of the LPA. The LPC and its Provincial Councils regulate the affairs of, and exercise jurisdiction over, all legal practitioners and candidate legal practitioners. Since 1998 the LSSA has represented the attorneys’ profession. The LSSA brings together the Black Lawyers Association, the National Association of Democratic Lawyers and provincial attorneys’ associations, in representing the attorneys’ profession in South Africa. Below is a summary of some of the issues discussed at the meeting held between the LSSA and the LPC.
Cooperation between the LSSA and the LPC
Before the LPC came into existence, the provincial statutory law societies performed both regulatory and members’ interest functions, this has been changed by the LPA. In the past the LSSA performed a professional interest function, which it still does to date. During the meeting it was agreed that the LSSA would draft a memorandum setting out reasons and rationalisation for why there should be a memorandum of understanding (MOU) between the two organisations. The MOU would be taken to the LPC for consideration.
International engagement
On the topic of international engagement with other legal professional organisations, it was decided that the LSSA should list all the international bodies that it belongs to and consider the following questions:
Further, where it was clear that the membership of an international organisation was regulatory in nature, the LSSA and the LPC would jointly notify that organisation that in terms of the LPA, the regulatory body of the South African legal profession was the LPC. The LSSA remained as a voluntary association in the interest of its members.
Where the membership of an international body was on a voluntary basis and open to all that had an interest in the legal profession, the LPC and the LSSA would jointly inform the organisation that the LPC is the regulator and that the LSSA is a voluntary association.
Inspections by FIC
The LPC has entered into a MOU with the Financial Intelligence Centre (FIC), this decision is not supported by the LSSA. The taking over of the Financial Intelligence Centre Act 38 of 2001 (FICA) supervisory responsibilities by the FIC would see attorneys’ practices being inspected by FIC inspectors.
The LPC advised that it considered many issues before signing the MOU with the FIC. The main issue was the fact that the LPC does not have the resources to carry out the supervisory functions over legal practitioners. Before signing the MOU with the FIC, the LPC requested advice from the directors of the former law societies who advised that it was difficult to do the FIC inspections. There had been non-implementation of FICA from the legal profession’s side. The LPC was informed that it was a matter of time before the Minister of Justice would sign amendments to sch 8. According to the MOU signed by the LPC, the FIC will be conducting inspections but would not mete out penalties to legal practitioners.
It was agreed that the LSSA should prepare a memorandum for submission to the LPC on the concerns that the LPC should raise with the FIC.
Functioning of Provincial Councils
The LSSA noted that legal practitioners were concerned that Provincial Councils were not fully functional and asked whether there were committees set up to deal with the assessment of non-litigious fees. The LPC responded by saying, to date all Provincial Councils are functional with delegations of authority and appointed directors of the provincial offices, North-West is the only provincial office without a director, however, someone has been tasked with overseeing the office. At the first meetings of the Provincial Councils, Fee Assessment Committees had been set up.
The LPC further stated that if there were specific matters that were brought to a specific province and had not been attended to, the LSSA should inform the LPC. Further, it was agreed that if the LSSA receives complaints about fee assessments it should bring them to the attention of the director of the Provincial Council concerned or to the executive officer of the LPC.
Legal education funding
The LSSA is aware of the financial constraints facing the LPC, however, for the LSSA to be able to deliver quality legal education there was a need for it to have some certainty regarding its budget before moving into the financial year.
Since funding for the LSSA was limited, one of the unintended consequences of limited funding was that senior legal practitioners were no longer willing to assist the LSSA as instructors because of the low fees paid to them. The LSSA requested the LPC to look at its processes and mechanisms so that service providers would be able to get some certainty and move forward in a positive way.
The LPC noted that it had appropriated funding to service providers in terms of its budgetary constraints. Further, the LPC stated that it was ironic that the LSSA was requesting for more funding to provide quality legal education to new entrants to the legal profession, yet it did not support the move to increase LPC subscriptions.
The LSSA highlighted the fact that the former provincial law societies used to convene annual general meetings to account to legal practitioners on how the funds were utilised. The LPC has no obligation to convene annual general meetings, therefore, it was difficult for legal practitioners to understand that the LPC does not have enough resources to fund legal education. The LSSA thanked the LPC for the legal education funding that was granted in 2019 and assured the delegates at the meeting that the funding for legal education was utilised for its intended purpose.
It was agreed that compliance reports should be submitted to the LPC on time so that budgetary appropriations would not be unnecessarily delayed and that the LSSA should consider why the LPC should continue to fund the six months course instead of the five-week course only.
LSSA legal education accreditation
The LSSA requested that its accreditation to provide legal education services be extended from one to three years. The LSSA had submitted proposals to the LPC to revisit its accreditation criteria and was aware that the LPC was looking at its accreditation criteria and standards.
The Education Standards and Accreditation Committee of the LPC will be meeting to review the accreditation criteria/norms and standards. After the committee had reviewed the criteria, it would be approved by the LPC and published for comment. The expectation was that the process would be completed by April 2020.
LPC fees levied on legal practitioners
The LSSA requested to be furnished with the reasons that necessitated the subscriptions to be increased by the LPC. The LSSA was concerned that legal practitioners were going to be levied further by the Legal Practitioners’ Indemnity Insurance Fund NPC (LPIIF) following the implementation of the professional indemnity cover payment. The cost to practise in South Africa was going to weigh heavily on legal practitioners. The LSSA had met with the Legal Practitioners’ Fidelity Fund (LPFF) and raised its concerns as there was a need to look at the issue of cost to practice holistically.
The LPC explained that access to the profession was one of the main objectives of the LPA. The subscriptions were considered thoroughly by the LPC. In the past there were four provincial law societies, while the LPC has nine provincial offices that need to be funded and capacitated. The LPFF had indicated that it was not in a position to increase its appropriation to the LPC because it was having financial challenges.
The LPC was also concerned about the premium cover, which was to be paid by legal practitioners, particularly from the perspective of the sole practitioner. The LPC consulted with the LPFF and the LPFF agreed to postpone the implementation of the premium cover to 2021. The LPC has established a task team, which will engage with the LPIIF on the issue of the premium cover. Further, the LPC stated that the issue of cost to practise could not be complete without the LPC knowing how much subscription the LSSA was going to charge its members.
The LPC noted that it followed the law before increasing subscriptions payable by legal practitioners. The LPC issued a notice with the proposed fees and received comments from legal practitioners. The comments were considered by the LPC, which resulted in the LPC coming up with a figure of R 3 500 (excluding VAT). The subscription amount would have been much higher if the LPFF did not make the contribution it makes to the LPC.
Initially the National Forum on the Legal Profession had conducted modelling on the issue of fees and it worked out an amount of R 3 500 per annum per practitioner. It was then felt that it was going to be too much of an adjustment for the legal practitioners to pay such an amount in the first year. The National Forum then worked out some way to get through the first year at a lower figure of R 2 500 annual subscription per practitioner.
The LSSA noted that although the LPC had followed due process as required by law in coming up with an increased subscription, legal practitioners were feeling the weight of the cost to practise in South Africa. As the leaders of the profession, the LPC and the LSSA should continue to deal with the issue of fees until a solution was found.
It was agreed that:
Debt Collectors Amendment Bill
Prior to the LPA coming into operation, the Debt Collectors Amendment Bill, 2016 had been on the table and the former Law Society of the Northern Provinces had made representations to the minister on the Amendment Bill.
The Deputy Minister of Justice and Constitutional Development, John Jeffery, had made a remark on the Debt Collectors Amendment Bill at the annual general meeting of the Council for Debt Collectors on 18 November 2019. He said that he had requested the department to amend the Bill to subject attorneys who did debt collecting to the provisions of the Act and making them accountable to the Council for Debt Collectors. The reason was that there was widespread abuse by attorneys on the collection of debts.
Deputy Minister Jeffery was also of the view that the Council for Debt Collectors was more efficient in addressing abuses and disciplining errant members than the regulatory body in the legal profession. His concern was that the definition of debt collection was taking money from someone. In 90% of litigation, legal practitioners would sue persons for money and that was debt collection. Conveyancers collected rent, which was also a form of debt collection. Further, the registration process with the Council for Debt Collectors was complex. In terms of the Debt Collectors Act 114 of 1998, every person who worked on the file had to be registered, including receptionists and typists. If an attorney had a staff of 20 people, they would pay a subscription for 20 persons.
It was agreed that the LSSA should prepare a memorandum to assist the LPC in its deliberations with the Deputy Minister Jeffery on the amendment of the Debt Collectors Bill. The LSSA would forward comments on the first Debt Collectors Bill to the LPC. Should the amendment sail through, the LPC would request an exemption for attorneys practising debt collection from the jurisdiction of the Council for Debt Collectors. The LSSA, as a professional interest organisation, will encourage attorneys to read the Debt Collectors Amendment Bill.
See also:
Amendments to the LPA
It was suggested that the list of proposed amendments from the LSSA be forwarded to the LPC in the interest of time. The LPC had considered all the proposed amendments to the LPA, which were submitted to the Department of Justice and Constitutional Development had all been referred to the LPC. Since the LPA gave the LPC the responsibility of moving amendments to the Act, all the other organisations that are seeking amendments to the LPA should do so through the LPC. It was agreed that, going forward, the two organisations would engage each other on the proposed amendments to the LPA.
LPFF board elections
The process of getting the LPFF board elections to take place was underway. The LPFF board elections would be taking place around April 2020. The LPC and the LPFF had established task teams to facilitate the first LPFF board elections. The task teams were engaging and had finalised r 46, which would be published 30 days before the elections take place.
Mapula Sedutla NDip Journ (DUT) BTech (Journ) (TUT) is the editor of De Rebus.
This article was first published in De Rebus in 2020 (March) DR 3.
