Realistic timelines needed for the full implementation of the LPA

October 1st, 2018

In the September guest editorial (‘Is the profession ready for the full implementation of the LPA’ (2018 (Sept) DR 3)), I expressed the view that if the first Legal Practice Council (LPC) can be elected before the National Forum on the Legal Profession (NF) ceases to exist on 31 October, the transitional arrangements remaining at that stage, including the election of the Provincial Councils (PCs), can then be finalised by the LPC in cooperation with the law societies, Bar councils and associations. If all role players cooperate, a fairly smooth transfer can be achieved by the end of the year.

In contrast to this, the timelines imposed on the NF by the Department of Justice and Constitutional Development provide for the full implementation of the Legal Practice Act 28 of 2014 (LPA) by 31 October. The election of the LPC commenced on 4 September and, if all goes according to plan, the process should be completed by 5 October; but the PCs still need to be elected and established. The Department nevertheless wants the provincial law societies to be dissolved by 31 October and the LPC and PCs to commence regulating the profession the following day.

Some members of the NF regard these timelines as unrealistic. They warn that it will not be possible to finalise the transitional arrangements required to render the LPC and PCs functional in the 26-day period from 5 to 31 October for the following reasons:

  • Dissolving the provincial law societies before the LPC and PCs are capable of regulating the profession, will not be in the interest of the public or the profession.
  • The process of electing the attorneys and advocates to serve on the PCs in terms of the new r 16, will be of similar duration as that of the LPC, which is 30 days if there are no hiccups. This alone will exceed the 26 days available before 31 October.
  • If the outcome of the election of the LPC is announced on 5 October, it will take a few days to get the 16 newly elected practitioners and the seven other designated council members to convene for its first meeting.
  • Before the election of the PCs can commence, the LPC will, at its first meeting, have to –

– elect a chairperson, a deputy chairperson and the executive committee;

– appoint an executive officer, financial officer and essential staff members;

– appoint an election committee and service provider to help run the provincial election;

– appoint a referee and scrutineers; and

– compile or approve the provincial voters’ rolls, the election timetable and invitation for nominations.

  • At the same time, the fledgling LPC will need to attend to many other tasks at its first and subsequent meetings to prepare for the full implementation of the LPA: Find premises to rent for the offices of the PCs, enter into contracts, accredit practical vocational training (PVT) service providers, appoint essential staff for the PCs, obtain infrastructure, equipment, information technology and communication systems, arrange finances, etcetera.
  • Depending on the date of the first meeting and time required to finalise these arrangements, the 26 days left for the election of the PCs can further be reduced.
  • After the PCs have been elected and convened, a host of practical arrangements will need to be made before they can be capable of performing the comprehensive list of functions delegated to them in the new reg 5. In addition to electing their office bearers, appointing operational committees and making all the arrangements relating to staff, the PCs will need to be ready to –

– receive and process applications for admission for legal practitioners (attorneys and advocates);

– enrol admitted legal practitioners;

– register and administer PVT contracts;

– process applications by attorneys for certificates to appear in the High Court etcetera;

– process applications by candidate legal practitioners for certificates for the right of appearance;

– process applications for conversion of enrolment;

– inspect accounting records of trust account practices;

– establish investigating and disciplinary committees;

– finalise pending disciplinary processes;

– handle new and pending applications to the High Court to suspend errant legal practitioners and for the appointments of curator bonii to administer trust accounts; and

– process applications for Fidelity Fund Certificates, due to commence on 1 November.

The situation calls for flexibility on the issue of the timeframes. It will be in the best interest of the public and the profession to allow sufficient time for a smooth transfer, rather than to abolish the existing law societies before the new structures are capable of functioning as required.

Jan Stemmett is a member of the National Forum on the Legal Profession.

This article was first published in De Rebus in 2018 (Oct) DR 3.