By Barbara Whittle

At a meeting in Johannesburg on 7 July 2012, the Law Society of South Africa (LSSA) Manco and the executive of the General Council of the Bar (GCB) noted the numerous aspects of the Legal Practice Bill that the two branches of the profession agreed on. They resolved to issue a joint press statement welcoming the fact that the Bill had finally been published and calling on the Justice Portfolio Committee for an extension of time until the end of August for both branches of the profession to comment on the Bill. Both the LSSA and the GCB were of the view that there were better prospects that the two branches would be able to make comprehensive and largely uniform submissions to the portfolio committee if given a short extension of time beyond the original 27 July deadline set by the portfolio committee for public comment.

The spirit of the meeting between the LSSA and the GCB was positive and constructive, and both stressed their commitment to working together to find common ground on a number of issues in the Bill. However, they agreed that fundamental and principled differences unique to each branch of the profession would be respected. They also committed themselves to participating in the parliamentary process set by the Justice Portfolio Committee, as well as the consultative process to be set up by the Justice Department preceding the Transitional Council envisaged in the Bill.

In the joint statement, the LSSA and the GCB welcomed the fact that positions that were untenable in the initial drafts of the Bill had been abandoned. The current Bill states as one of its objects the enhancement of the independence of the profession, and the attorneys’ and advocates’ professions noted the repeated assurances by the Minister of Justice and Constitutional Development that he did not wish to govern the profession. They said an independent legal profession was essential for the protection of the rule of law and the promotion of a constitutional democracy.

Both stressed that their engagement with the Bill was premised on the fact that the legal profession is, first and foremost, a service profession serving the public.

A few days before the meeting with the GCB, the LSSA council met in a special session to discuss proposals made by its Legal Practice Bill Task Team on the final version of the Bill. The council met again on 17 July to finalise outstanding issues. The GCB was to discuss the Bill at its annual general meeting on 20 July. With parliament in recess until 25 July, both branches would wait to hear from the portfolio committee about the requested time extension. The LSSA, however, planned to have its comments confirmed at its council meeting on 26 July should an extension not be granted. In the event of the latter, the LSSA and the GCB would ask the portfolio committee for an opportunity to supplement their comments after the submission deadline.

LSSA welcomes positive developments; raises concerns

In the meantime, at its meeting in July, the LSSA council noted positive developments in the Bill, including the following:

• There will no longer be any ministerial appointment to the South African Legal Practice Council (the council) in respect of the legal practitioners’ component, and the profession will now appoint its own representatives.
• The provision for the accreditation of voluntary associations to acquire certain regulatory functions has been deleted.
• The Bill does not provide for the regulation of paralegals.
• The definitions of ‘conveyancer’ and ‘notary’ make it clear that these practitioners will be registered and enrolled attorneys.
• Provision is made for easy conversion by a legal practitioner from attorney to advocate and vice versa.
• The Transitional Council and the council will draft a code of conduct and rules.
• Provision is made for the investment of trust money for the benefit of clients.
• The majority of the board of control of the Attorneys Fidelity Fund will be nominated by the council.
• The investigation of complaints against legal practitioners will be conducted by regional councils in terms of powers delegated to them by the council.
• The law societies of Bophuthatswana and Venda will be dissolved.
• Provision is made for competency-based assessment and mandatory continuing professional development (CPD).
• The council will play a role in relation to the requirements for academic qualifications of legal practitioners.

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 (Aug) DR 16.