By Barbara Whittle

At a meeting at the end of January 2012, the Law Society of South Africa (LSSA) and the General Council of the Bar (GCB) agreed to set up a joint technical committee to work on a joint position paper on the Legal Practice Bill (LPB). This came after the two branches of the profession had reached little consensus on the Bill during the past decade.

The LSSA was led by co-chairpersons Praveen Sham and Nano Matlala, and the GCB by its chairperson, Gerrit Pretorius. By the end of the meeting it was clear that the two branches of the profession had moved closer in their views on the Bill, and there were now several areas of agreement. Both bodies agreed that –

• the independence of the profession is paramount;
• there should be a unified profession, but not fusion;
• two separate branches of the profession should remain, allowing for legal practitioners with Fidelity Fund certificates and legal practitioners who work on a referral basis only;
• there should be an overarching national council to deal with policy and set standards for the entire legal profession;
• the concept of voluntary associations with regulatory powers was not acceptable as this would fragment the profession and lead to numerous regulatory problems;
• the attorneys’ profession should have a majority representation on the Legal Practice Council (LPC);
• paralegals should be regulated but not in the LPB;
• admitted legal practitioners should be able to cross from one branch of the profession to the other seamlessly, provided they fulfil the necessary requirements;
• they would seek the inclusion of a provision in the Bill for the protection of the interests of legal practitioners in the objectives of the LPC;
• there should be synergy and cooperation as regards legal education and training;
• there should be a joint approach to the law deans in discussions on problems around the LLB degree;
• access to justice must be taken into account at all times in restructuring the profession; and
• all legal practitioners would provide pro bono

Issues that require further discussion between the two branches of the profession include the following.

The GCB was of the view that if the Legal Practice Council was the only regulatory body, it would have difficulty in coping with the regulatory, administrative and communication burden for both branches of the profession. In general, there appeared to be common ground between the GCB view and the view of some statutory councillors of the provincial law societies, which was submitted to the Justice Department as an alternative proposal, for a regional governing structure. The GCB sees the LSSA and GCB existing as the main statutory bodies, with separate regional councils for the two branches of the profession, and suggested that these intermediary statutory bodies be created to coordinate the activities of the regional councils and to maintain standards. Currently, neither the LSSA nor the GCB are statutory bodies. The GCB has not formulated a view on the number and functions of the regional councils at this stage.

There will be further discussions on the governance model.

Also, the GCB was of the view that advocates had no interest in the regulatory affairs of attorneys and vice versa. Where there were issues in common to both branches, these should be dealt with together at the highest national level, but regulatory matters specific to each branch should be dealt with by the respective branch of the profession.

Although there were different views on whether the Minister should have representation on the council, the LSSA’s proposal of one ministerial representative would be discussed.

Further discussion was also required on the role of paralegals and on community service, particularly in the context of access to justice, as well as on vocational and workplace training models.

In general, at the close of the January meeting, representatives of the LSSA and the GCB agreed to go back to their respective constituents to seek a mandate to set up the technical committee to draft the joint position paper covering issues on which there were uniform views.

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

This article was first published in De Rebus in 2012 (March) DR 9.