By Kim Hawkey
The Legal Practice Bill (B20 of 2012), which has been in the pipeline for more than a decade, is one step closer to implementation after Justice Minister Jeff Radebe introduced it in parliament at the end of May. This article aims to provide an overview of the Bill, which is set to be a major game changer in the legal profession.
The Bill, which will repeal the Attorneys Act 53 of 1979 and the Admission of Advocates Act 74 of 1964 among others, is aimed at transforming and restructuring the legal profession. The motivation for the Bill, according to the ‘Memorandum on the objects of the Legal Practice Bill, 2012’ attached to the Bill (the memorandum), is that:
‘Current legislation pertaining to advocates and attorneys is fragmented as it is regulated by different laws which apply in different parts of the country. The legal profession is also not representative of the demographics of South Africa and entry into the profession is, in many instances, determined by outdated, unnecessary, and overly restrictive prescripts. Access to legal services, especially by the poor, is limited. The Bill seeks to correct these shortcomings through a unified legal profession by means of a single statute. While seeking to attain these objectives, the Bill recognises the independence of the legal profession and seeks to strengthen this independence.’
While the Bill is aimed at unifying the two branches of the profession, it does not fuse them. In terms of the definition section of the Bill, ‘advocate’ is defined as a legal practitioner practising without a Fidelity Fund certificate and ‘attorney’ is defined as a legal practitioner practising with a Fidelity Fund certificate. In addition, both conveyancers and notaries are provided for in the Bill.
Oversight – Chapters 2 and 10
The two branches of the profession will share an oversight body in the form of the South African Legal Practice Council (the council). This body will be preceded by a Transitional South African Legal Practice Council (TC), which will lay the groundwork for the council to take over after three years or on an earlier date fixed by the President. Generally, the TC will be responsible for ‘aspects in respect of which there are still differing views between the various categories of legal practitioners among themselves, on the one hand, and between the government and the legal profession, on the other’, according to the memorandum.
Many of the issues on which consensus has not been reached to date will be left to the TC and the council to resolve. The council will, among others, ensure that legal practitioners’ fees are reasonable; regulate and register legal practitioners; determine professional and ethical standards; advise the Justice Minister (the Minister) on multidisciplinary practices and promote access to the profession (ss 5 and 6).
In addition to the national oversight body, the Bill provides for the council to delegate to regional councils powers that ‘are better performed at regional level’ (ss 6 and 23(1)). However, the council will remain responsible for any delegated duty or function (s 21(2)). The Minister, after consultation with the council, will determine the jurisdiction of these regional councils (s 23(2)).
The Attorneys Fidelity Fund (AFF) will contribute to the expenses of the council (s 58), while the TC will be funded by money appropriated by parliament from the Justice Department’s budget vote and any other money received by or accruing to the TC from any other source, including disbursements made by existing law societies. In addition, the out-of-pocket expenses of TC members will be payable by the body that, or person who, nominated, elected or appointed them (s 107(3)).
Regulation – Chapter 3
Chapter 3 of the Act addresses admission of practitioners, foreign legal practitioners, the right of appearance, reserved work and fee structures, among others.
The minimum qualification requirements for admission as a practitioner are an LLB degree or a recognised equivalent, completion of prescribed vocational training and the passing of a competency-based examination or assessment (s 26(1)). The Minister may make regulations in respect of admission and enrolment of practitioners. The Bill provides for conversion from an attorney to an advocate and vice versa on any conditions the council may set (s 32). In this regard, the memorandum states: ‘The aim of this provision is to provide for an easier mechanism for legal practitioners to change direction in their careers, either as attorneys or advocates.’
The Bill protects reserved work for legal practitioners in s 33, which provides that ‘no person other than a legal practitioner … may, in expectation of any fee, commission, gain or reward –
(a) appear in any court or tribunal in which only legal practitioners are entitled to appear; or
(b) draw up or execute any instruments or documents relating to or required or intended for use in any action, suit or other proceedings in a court of civil or criminal jurisdiction within the Republic.’
One change brought about by the Bill is that, in terms of s 25(2), both attorneys and advocates have the right to automatically appear on behalf of any person in any court in South Africa, unlike the current position where attorneys are required to apply to appear in the High Court, Supreme Court of Appeal and the Constitutional Court. The memorandum states: ‘This provision unconditionally abolishes the current discrimination on the right of appearance in the High Court between advocates and attorneys.’
In addition, the Bill provides for attorneys to accept work from the public, while it allows advocates to accept briefs from attorneys, as well as work directly from the public – provided this meets any regulations to be set by the Minister (s 34(1) and (2)). The memorandum states:
‘The current referral rule of practice, as applicable to advocates, is retained. The retention of this rule is considered to be in the public interest, as advocates do not hold Fidelity Fund certificates, which protects the public against the theft of money paid to a legal practitioner with a Fidelity Fund certificate. A further provision has been included that an advocate may also render legal services in expectation of a fee, commission, gain or reward determined in accordance with this Act or any other applicable law upon receipt of a request directly from a member of the public for that service: Provided that such request complies with any regulations made by the Minister.’
The Bill also provides for community service by practitioners. Section 29 accords the Minister, after consultation with the council, the power to prescribe requirements for community service. This section states that this may include community service by candidate legal practitioners as a component of vocational training or by practitioners as a requirement to continue practising. The Bill provides an indication of what type of community service is envisaged, including pro bono work, providing legal education and training, acting as a small claims court commissioner and service to the state.
In terms of fees, s 35 provides that these will be charged in accordance with the fee structure provided for in terms of the Legal Practice Act, taking into account, inter alia, the importance and complexity of the work, the volume of the work and the time spent on it.
Professional conduct and disciplinary matters – Chapter 4
The council will develop a code of conduct that all practitioners must adhere to. Failure to do so will constitute misconduct (s 36(2)). A draft of this code will be published in the Government Gazette for comment.
In terms of disciplinary matters, the council will establish investigating committees to investigate complaints and disciplinary committees to conduct disciplinary hearings (s 37). It will also determine rules for the procedure to be followed by the disciplinary bodies (s 37(7)). Complaints of misconduct will be lodged with the regional councils (s 38). Despite the provisions of the Act, in terms of s 45, the High Court retains ultimate power to adjudicate on matters relating to the conduct of legal practitioners.
If an investigating committee finds that the practitioner is not guilty of misconduct, it will inform the parties and provide reasons for its decision. If, however, an investigating committee finds that a practitioner may be guilty of misconduct, the matter will be referred to a disciplinary committee for a hearing.
A disciplinary committee will have subpoena powers. A practitioner, candidate practitioner or juristic entity appearing at a hearing may be represented, has the right to be heard, may cross-examine witnesses supporting the charge and may call witnesses during the hearing. The disciplinary committee must make a finding within 30 days after the conclusion of the hearing (s 40(1)).
If the committee finds a practitioner guilty, it may order him to pay compensation to the complainant, pay a fine, suspend him from practising or engaging in any aspect of practice, and may advise the council to apply to court to have him struck from the roll, suspended, prohibited from dealing with trust money or ‘any other appropriate relief’ (s 40(3)). In addition, it may advise the council to amend or endorse his enrolment, order that his Fidelity Fund certificate be withdrawn or issue a warning.
If it finds a candidate practitioner guilty of misconduct, it may cancel or suspend his vocational training, may impose a fine, or caution or reprimand him.
In the case of a juristic entity, the committee may order it to pay compensation or a fine, it may issue a warning or advise the council to apply to court for its winding-up.
The committee may impose a combination of any of these sanctions and may also require the guilty party to pay the costs of the investigation or hearing. It may also suspend any sanction on certain conditions. Any finding of guilt will be published in the Government Gazette (s 40(8)).
The Bill provides recourse mechanisms for aggrieved parties – a legal practitioner, candidate legal practitioner or juristic entity may challenge the facts presented at a hearing on appeal, while a complainant has a right of review with the legal services ombud (the ombud), where only procedural matters relating to the hearing and its outcome may be challenged.
In terms of the appeal process, an appeal tribunal will be established, which may dismiss or uphold the appeal (s 42). In terms of the review process, reviews will be heard by the ombud, who may confirm the findings of a disciplinary committee, set aside the findings if the procedure was substantially unfair or, if there has been an unreasonable delay on the part of the disciplinary body, substitute the decision of the disciplinary body with his own decision. Where the outcome of a disciplinary hearing is taken on review, the ombud may confirm the outcome or substitute the decision of a disciplinary body if there was a substantial miscarriage of justice (s 41). The ombud also has an oversight role in monitoring the investigation of complaints and the conduct of a disciplinary body during a hearing (s 43).
Chapter 4 also makes provision for urgent legal proceedings. In terms of s 44, the council may apply to court for the suspension of a legal practitioner where there is evidence that he misappropriated trust money or is guilty of other serious misconduct.
Legal services ombud – Chapter 5
The Bill establishes an independent ombud to protect and promote the public interest, ensure the proper investigation of complaints, promote high standards of integrity in, and the independence of, the legal profession (s 47). According to s 48: ‘The ombud is independent and subject only to the Constitution and the law. … No person may interfere with the functioning of the ombud.’
In keeping with this, the ombud will be appointed by the President, may only be removed or suspended from office by the President, and the ombud’s remuneration may not be less than that of a High Court judge.
The ombud must be a South African citizen and a fit and proper person with a cumulative period of at least ten years’ relevant experience, for example in the administration of justice, the law and the legal profession, or as an attorney, advocate or university law lecturer (s 48).
The ombud’s functions include that he may, of his own accord or on receipt of a complaint, investigate an alleged failure of the council or a regional council to effectively deal with a complaint, and may also review a decision of the AFF board in respect of a rejection of a claim arising out of the theft of trust money.
Attorneys Fidelity Fund – Chapter 6
Section 54 of the Bill provides for the continued existence of the AFF and the provisions of this chapter are similar to those in the current Attorneys Act.
The revenue of the AFF will come from, inter alia, interest earned in attorneys’ trust accounts, annual contributions from attorneys, investments and money from insurers. Section 74 provides that every attorney must pay the fund an amount required for professional indemnity insurance and a non-refundable amount determined by the AFF board, both payable annually.
Section 56 sets out the liability of the AFF to reimburse those who suffer loss as a result of theft of any money or other property given in trust to an attorney, while s 57 provides for limitation of the fund’s liability in certain circumstances.
This chapter also sets out the powers and functions of the AFF board and the procedure for instituting claims against the AFF.
Trust money – Chapter 7
The provisions of chapter 7, which only apply to attorneys, are very similar to the current regime provided for in the Attorneys Act.
Subject to certain exemptions for full-time Legal Aid South Africa attorneys, state legal advisers, state attorneys and state law advisers, every attorney who practises for his own account or as a director and who receives or holds money or property belonging to any person must be in possession of a Fidelity Fund certificate. In terms of s 84(4), any person who contravenes this section is guilty of an offence and is liable on conviction to a fine or striking off, among others.
This chapter also provides for the application for and issuing of Fidelity Fund certificates in accordance with rules to be set by the council. The council, in consultation with the AFF board will determine the fees for these certificates and, in terms of s 85(5), the council may exempt categories of attorneys from paying this fee.
An important change from the 2010 version of the Bill to the current version is that attorneys can continue to invest trust money for the benefit of a client, that is, the client will receive interest accrued on such investment (s 86(4) and (5)).
In addition, s 87(2) empowers the council or the AFF board to inspect the accounting records of any trust account practice to ensure that the trust account provisions in s 86 are being met. Section 64 of the Bill also provides that the AFF board may inspect, or cause to be inspected, the accounts of any attorney as determined in the rules.
General provisions – Chapter 8
Chapter 8 provides for the recovery of costs by attorneys rendering free legal services and for offences and penalties. Section 93 provides that a practice may not employ a person who has been suspended or struck off the roll, while that person remains suspended or struck off, without the consent of the council. Any person found guilty of contravening this provision will be guilty of an offence and may be fined or imprisoned for up to a year.
Regulations and rules – Chapter 9
Section 94 sets out matters in respect of which the Minister may or must, where required in the circumstances, make regulations. These include regulations relating to –
These regulations must be approved by parliament and thereafter published in the Government Gazette.
Section 95 sets out the matters in respect of which rules may or must, where required in the circumstances, be made by the council. These include rules relating to –
Before finalising a rule, the council must publish a draft of it in the Government Gazette inviting comments. However, if the council amends a draft rule as a result of these comments, it does not have to publish the amended rule in the Gazette. Further, the Bill provides for instances where no publication of the rule in the Gazette is required (s 95(3)).
Transitional provisions – Chapter 10
Chapter 10 provides for the establishment, powers and functions of the TC, which will operate for up to three years (s 96(3)).
Within two years after the commencement of chapter 10, the TC must make recommendations to the Minister on a range of issues, including an election procedure for the first council and regional councils and the latter’s areas of jurisdiction, a fee structure for legal practitioners and a mechanism to wind-up the affairs of the TC. Section 97 provides for negotiations between the TC and the legal profession in respect of the transfer of assets, rights, liabilities, obligations and staff of existing law societies and other regulatory bodies in the legal profession to the council or regional councils. The TC must meet at least four times a year and must report to the Minister every six months. The Minister may extend the two-year period if necessary (s 97(5)).
Section 108(1) provides that the Minister must, within six months after receiving the above recommendations from the TC, make regulations in consultation with the TC. However, if the TC fails to make recommendations in the set time, the Minister must make the regulations after consulting the TC. In addition, in terms of s 108(2), the TC must make and publish rules as set out in this section within two years.
Other provisions in this chapter include:
The South African Legal Practice Council will consist of –
|
The Transitional South African Legal Practice Council will consist of –
|
Kim Hawkey, kim.hawkey@derebus.org.za
This article was first published in De Rebus in 2012 (July) DR 32.
