By Barbara Whittle

In May, the Law Society of South Africa (LSSA) commented to the South African Qualifications Authority (SAQA) on the draft Policy and Criteria for Evaluating Foreign Qualifications within the South African National Qualifications Framework. The LSSA supported the principles set out in the policy document, in particular the principle that professional bodies can be recognised to participate in the evaluation process and chain.

The LSSA noted that, since the policy will also be used in the evaluation of foreign qualifications for purposes of registration and professional licensing of foreign persons by professional bodies, it was clear that the evaluation procedure could also apply to the recognition of foreign qualifications in law to enable foreign lawyers to be registered and admitted to practise law in South Africa.

The LSSA stressed the importance of its participation in such evaluation processes.

Legal position: Foreign qualifications for legal practice in South Africa

The LSSA set out the legal position in regard to the recognition of foreign qualifications for purposes of admission to legal practice in South Africa as currently regulated by the Attorneys Act 53 of 1979. In terms of s 15, a person is permitted to be admitted by a court of law to practise as an attorney in South Africa if such person, inter alia, has satisfied all the requirements for a degree at a university in a country (other than South Africa), which has been designated by the Justice Minister and in respect of which a South African university has certified the syllabus and standard of training.

To date only a few such countries have been designated by the Minister.

Without such designation and such certification, a foreign law degree cannot, in terms of current law, be relied on to enable a foreign lawyer to practise as an attorney in South Africa.

SAQA policy and the Legal Practice Act

As regards the SAQA draft policy, the LSSA pointed out that the Attorneys Act will be replaced by the Legal Practice Act 28 of 2014 (LPA). However, it is expected that the transitional phase for the implementation of the LPA will last some two years, after which the substantive provisions of the LPA will come into effect. In terms of s 24(3) of the LPA, the Justice Minister will have the authority (after following a prescribed consultation process) to determine the right of foreign legal practitioners to be admitted and enrolled to practise as legal practitioners in South Africa. The LSSA noted that it is expected that this determination will include some form of recognition of foreign law degrees, and possibly a SAQA evaluation will form part of such a determination process.

The LSSA stressed that, to ensure that the admission to legal practice in South Africa of persons with foreign law degrees, and the recognition of such law degrees for this purpose, would not compromise the quality of professional legal services and the accountability of the persons providing such services, so as to protect the clients and thus the public, it would be important to ensure that the evaluation and certification of foreign law qualifications by SAQA is in line with the standards and criteria applied by the legal profession.

Under the current Attorneys Act the statutory provincial law societies and the LSSA, as the national representative body, oversee the adherence to the legal provisions in regard to law qualifications for purposes of admission to legal practice. Under the LPA the Legal Practice Council – to be established – will fulfil a similar function. The LSSA noted that it was important, therefore, for these bodies to become part of the evaluation chain of SAQA.

The LSSA stressed that the current provincial law societies and the LSSA would qualify to be recognised as professional bodies and participate in the evaluation chain.

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

This article was first published in De Rebus in 2015 (June) DR 13.