National unified body for the legal profession discussed at FSLS AGM

December 1st, 2017

Co-chairperson of the Law Society of South Africa (LSSA), Walid Brown, gave the mid-term report of the LSSA at the Free State Law Society (FSLS) annual general meeting (AGM).

By Kgomotso Ramotsho

The Free State Law Society (FSLS) held its annual general meeting (AGM) on 27 October in Bloemfontein. Starting the proceedings, Law Society of South Africa (LSSA) Co-chairperson Walid Brown, said there has been a debate around the retention of the assets of the statutory law societies (the Law Society of the Northern Provinces, FSLS, KwaZulu-Natal Law Society and the Cape Law Society) and whether the assets should be retained or handed over to the Legal Practice Council (LPC). However, he noted that the National Forum on the Legal Profession (NF) came back and put the ball in the court of the four statutory law societies to make a decision regarding the assets.

Mr Brown encouraged the FSLS to debate the issue and come up with a proposal that will benefit them as best it can. He added that the LSSA could add little to the debate, and that all the LSSA would say when the debate concludes is that the decisions made should be in the best interest of the attorneys’ profession.

Mr Brown added that another debate revolved around the period of articles candidate legal practitioners should serve. He said discussions have been around what the most applicable time period for candidate legal practitioners to serve articles is. He noted that an agreement was reached with regards to the articles, however, the attorneys’ representative at the NF submitted a proposal to the Minister of Justice that reduces training to 12 months compulsory training, however, one can enter into a contract for a longer period.

Mr Brown noted that one of the aspects of the Legal Practice Act 28 of 2014 (LPA), is that it is going to change how attorneys’ practice. He added that people are resistant to change and nobody likes change, particularly attorneys. He said attorneys like their system and all that they want to know is that there is a system in place and that tomorrow is going to be the same as today. However, Mr Brown said not all change is necessarily bad.

Mr Brown added that today attorneys have the benefit of hindsight and those who were involved in the negotiation for change from 1994 to 1996 with the creation of the LSSA, brought together two groups of attorneys that had never worked together before under one umbrella. He said what the past has taught us is that change is not necessarily bad. He added that if one looks back at the legal profession, the road has been tough and hard, but one thing that can be said is that the profession has done well.

Mr Brown pointed out that the number of attorneys has increased. Transformation has occurred and if one looks back at the number of black attorneys that have entered the profession since 1994 and statistics of the number of black female candidate attorneys in the profession today it is over 60%. He said nobody can say the profession is not transforming. He added that, however, there can be a debate on the pace of the transformation, but that the profession has transformed. ‘We will continue to transform and this is the ever changing nature of society and it is not isolated to South Africa, it is a global phenomenal,’ Mr Brown said.

Mr Brown noted that another issue that has been debated for a couple of years, is the issue of a representative body for attorneys. He said it has reached the finality and, at the end of the day, no matter the form the LPC takes, the profession is still going to need a unified body, a voice speaking as one to government, to the LPC and to the outside world. Mr Brown said the LSSA believes it can be transformed to speak as the voice of the profession, to become a direct representative for every attorney in the country.

Mr Brown added that statistics show that reserved work in the profession is shrinking. He said it is not only isolated to South Africa, but it is a global phenomenon that governments across the world are reserving less and less work. He added that attorneys should use their training and experience as their tools, ‘yes everybody can draft a Will, but nobody can draft a Will like an attorney,’ he said.

Mr Brown also spoke about the passing of the Chief Executive Officer of the LSSA, Nic Swart. He added that since Mr Swart’s death, a significant amount of condolences have come from across the nation and not only from the legal profession. He said the profession had lost an icon and everyone who has spoken to him about Mr Swart has said how Mr Swart changed their lives. Mr Brown pointed out that Mr Swart’s focus was on youth and black female candidate attorneys. He noted that Mr Swart was passionate about legal education and development and added that whatever decision is taken regarding legal education must honour the memory of Mr Swart.

Briefing patterns

Mr Brown said briefing patterns is a burning issue and that attorney firms and government entities who have committed to the procurement protocol must send their statistics to the LSSA, so that the LSSA can be informed on views and contributions to the changing legal profession. He added that there was no time for complaints on not knowing who government is giving briefs to and pointed out that information on issued briefs are uploaded on the website of the Department of Justice on a monthly basis. However, what is not available on the website is the value of briefings. He said that has to be changed and there must be transparency on the value of briefings. He added that there is still a lot to be done on the issue of briefing patterns, but noted that the end of that chapter is near.

Mr Brown said a submission was made to the portfolio committee on a section in the LPA that appears to reverse some of the gains that attorneys have made in terms of levelling the playing fields with advocates. He referred to the Right of Appearance in Courts Act 62 of 1995 that allowed attorneys to appear in the High Court if the attorney had an LLB or if they had been practicing for three years. ‘We made a submission to the portfolio committee that the gains we have made in 1995 should not be reversed,’ Mr Brown said. He pointed out that attorneys have been acting on behalf of clients and representing clients in the High Court, since 1995 and they should continue to be able to do that.

Mr Brown was asked about what role the LSSA was playing to ensure that there is a smooth transition within government departments and entities to ensure that briefs are given to black legal practitioners and female legal practitioners. He said all the LSSA could do after institutions commit to the procurement protocol was to follow up and monitor it. He noted that the Procurement Protocol was signed by state attorneys, government departments, state enterprises, law firms and the private sector.

Mr Brown added that state attorneys are already in the forefront for giving monthly statistics. He said from the state attorneys point of view almost 80% of briefs are being given to the black advocates and female black advocates. He noted that the LSSA has urged state owned enterprises, the private sector and individual law firms to come on board. Mr Brown said when speaking about briefing patterns there is a view that there is still a lot of ground work to be done, however, a great deal has changed, including the amount of work being given to small firms, black firms, black female advocates and attorneys.

Mr Brown was also asked about the issue of assets and why the advocates’ assets were not being transferred to the LPC. He said that it was unfortunate and unfair that nothing was being said about the transfer of assets from the advocates, however, he added that the provision of the LPA only makes reference to the four statutory law societies and only compels the four law societies to negotiate with the NF and transfer assets.

Co-chairperson of the LSSA David Bekker, discussing the functions of the LSSA and future plans of a national unified body to protect the interest of the legal profession.

Establishment of professional legal body

Co-chairperson of the LSSA, David Bekker, said the LSSA is going to disappear next year and asked if the younger generation is ready to get involved in a new body. He added that the functions of the LSSA other than its regular functions, include, the Legal Education and Development (LEAD) branch, which provides vocational training, hosting of seminars and providing learning material and informing the profession through De Rebus and the LSSA communications department. Mr Bekker said those are not the only functions the LSSA performs, he pointed out that the LSSA has other functions.

Mr Bekker said the LSSA is regularly consulted by government departments on a number of issues, such as, nominating attorneys to various organisations. He added that there are about 30 bodies that attorneys serve and share their knowledge on, including, making people aware of what attorneys do. He noted the LSSA was involved in the Provincial Efficiency Enhancement Committee that Chief Justice Mogoeng Mogoeng presides over, including the Rules Board of Courts of Law, King Commission, Companies Tribunal, Deeds Registries Committee and many others.

Mr Bekker added that the LSSA also nominates representatives on certain task teams, such as the Rural and Land Affairs matters, the BEE, Mining Rights and others. He added that the LSSA monitors the news for advertisements to see where people with legal backgrounds can be involved. He said the LSSA is not only the voice of the profession in the country, but internationally as well. Mr Bekker pointed out that the LSSA has started a committee called LSSA In Transition, the committee has ten attorneys looking at possibilities of what can be done in regards to the future of the LSSA.

Mr Bekker said the committee agreed that there is a need for a national unified body. There are three issues the committee is faced with, which are:

  • How will the new body be funded?
  • The functions of the new body. Will it perform the same functions the LSSA has been doing, or can functions of a new body be minimised?
  • Will membership be open to individual attorneys and advocates or to circles and provincial councils?

Mr Bekker pointed out that from early next year the LSSA will host road shows across the country to inform its members and to give more information on the issue of a new body. He said the road shows will be followed by two national conventions, which will be held in Cape Town and Gauteng in March 2018, to discuss the way forward.

Board member of the Attorneys Fidelity Fund, Jan Maree, said the objective of the LPC is, among others, to promote and protect public interest and thereafter regulate all legal practitioners. He noted that when the draft Bill was published the attorneys profession responded by stating that it should also protect the interest of the profession. He added that government was quite adamant that the new body be a regulatory body and not to protect the interest of the legal practitioners. ‘Importantly what we need to realise is that the professional interest functions up to now, the four law societies and the LSSA has fulfilled, is not catered for in the LPA and for that reason it is quite important for the future of the profession,’ Mr Maree added.

Attorneys’ Fidelity Fund

Chairperson of the Board of Control of the Attorneys Fidelity Fund (AFF), Strike Madiba, noted it had come to the attention of the AFF that legal practitioners have not been taking advantage or using the resources it has been providing. He said the AFF has identified service providers, such as, the Black Lawyers Association, National Association of Democratic Lawyers and LEAD, to provide seminars or projects that are enhancing the profession.

Mr Madiba noted that with regard to the implications of the LPA on the AFF, the LPA has brought with it fundamental changes in the regulatory environment of legal practitioners. He pointed out that in the current environment only the law societies have the power to carry out functions, such as, doing inspections, of book accounts, appoint curators or initiating prosecutions against legal practitioners. However, Mr Madiba noted that the LPA has vested those powers to the AFF, including the part to determine the rules associated with inspections, which it must carry out.

Mr Madiba said to ensure that the AFF is ready when changes come, the AFF has completed a re-design project that will ensure that it delivers its mandate. He added that the AFF is developing a computer environment to service its needs, the needs of the AIIF and those of the regulator. He pointed out that currently the agency fees is payable to the law societies by the AFF, however, next year it will be replaced by a central allocation to the national regulator in terms of s 22(1)(b) of the LPA.

Outgoing president of the FSLS, Cuma Siyo, speaking at FSLS AGM in October.

A word from the President

Outgoing President of the FSLS, Cuma Siyo, said that the FSLS is in the good hands of men and women who work endlessly to make sure it fulfils its mandate. However, he added that there were concerns of disconnection between the society and its members. He said members are not following the developments in the profession and have not read about the LPA.

Mr Siyo added the struggle is not being able to access information about the voluntary association and other issues, such as, the matter of the transfer of assets. He said when there is no information there is no growth and the profession loses information and wisdom that it can get from its members. He said moving forward the focus should be on developing new membership for the society, to look at how to develop membership of practices, and how to help members of the society to flourish so that their businesses can grow. He encouraged members to engage with the FSLS council and communicate with the council so that the council can be sure that it is representing the interests of its members.

Mr Siyo said the council of the FSLS was experiencing a situation in regard to complaints received about legal practitioners who mismanage trusts. He noted that when investigations are concluded, the council finds out that there was a lack of information, training and support for the member. He added that in most cases when investigations are conducted it showed that some of the matters they deal with could have been avoided early on, but ultimately members are suspended or struck off the roll. Mr Siyo said there was a document that was made available for the members, a document that seeks to help members understand what is needed in terms of trust management.

2017/8 councillors

At the time of going to print the FSLS President had not been elected yet. The council consists:

  • Cuma Siyo
  • Vuyo Morobane
  • Arnold Mohobo
  • Tsiu Vincent Matsepe
  • Noxolo Maduba
  • Dumisani Qwelane
  • Deidré Milton
  • Johannes Fouche
  • Henri van Rooyen
  • David Bekker (Vice President)
  • Etienne Horn
  • Jan Maree.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2017 (Dec) DR 13.

De Rebus