The legal profession should tackle the issue of high legal fees

December 1st, 2018

Deputy Judge President of the Gauteng Division of the High Court, Aubrey Ledwaba, said the legal profession needs to address the issue of high legal fees.

By Kgomotso Ramotsho

The Law Society of the Northern Provinces (LSNP) held its last annual general meeting (AGM) on 29 September in Johannesburg. Keynote speaker Deputy Judge President of the Gauteng Division of the High Court, Aubrey Ledwaba, said when he looked at the attendees of the LSNP AGM, it gave him great pleasure as he saw many black and white female legal practitioners. He added that one could not have imagined that it could be possible for black and white legal practitioners to meet and share the same profession. He reflected on when he started his articles, he said it was during a difficult time. He pointed out that back then, there were less than 30 black female attorneys.

Deputy Judge President Ledwaba, addressed the AGM on access to justice. He said access to justice is defined in a restricted manner, which means that the accused must be legally represented, especially in criminal matters.  He pointed out that the concept incorporates the promotion of equality and social justice, especially for the poor. He noted that this was the era where the Constitution, the state and the courts have a mandate to realise and protect the rights of the people contained in the Bill of Rights, including access to justice.

Deputy Judge President Ledwaba said legal books describe the South African Constitution as one of the best in the world. However, he pointed out that there must be an interrogation into whether an ordinary man or woman is born into a country where the Constitution benefits them. He asked if the ordinary person on the street thinks they have a Constitution that gives them access to the courts, a Constitution, which protects and encourages one to seek protection from courts?

Deputy Judge President Ledwaba said no one can deny that the reason why people do not go to court is because of the high legal fees they are charged by legal practitioners. He added that society is looking for courts that do not have too many formalities, the courts where people will not be intimidated when their cases are being presented. Deputy Judge President Ledwaba added: ‘Our people expect to be assisted. We need to look at how can we assist institutions that can assist our people to bring cases to court’.

Deputy Judge President Ledwaba said one of the reasons why South Africans do not access the courts is because they think they will not be properly represented by lawyers who are offered by Legal Aid South Africa (Legal Aid SA). He added that he once heard someone saying using Legal Aid SA is like using a public hospital. He pointed out that he did not agree with the remark and said Legal Aid SA plays an important role in ensuring that the rights of those who cannot afford legal fees are protected.

Deputy Judge President Ledwaba, spoke on the cost of legal fees. He pointed out that some people think if they have more money they are assured to get better legal services.  He said that there should be equal access to justice and equal justice, the fruits of justice are there for all to enjoy. ‘I strongly believe that the Legal Practice Act [28 of 2014] will enhance access to justice by giving effect to transformational s 35(4) of the Legal Practice Act,’ Deputy Judge President Ledwaba added.

Deputy Judge President Ledwaba noted that if one looks at s 35(4) of the Legal Practice Act (LPA), which states: ‘The South African Law Reform Commission must, within two years after the commencement of Chapter 2 of the LPA, investigate and report back to the Minister of Justice with recommendations on the following:

(a) the manner in which to address the circumstances giving rise to legal fees that are unattainable for most people;

(b) legislative and other interventions in order to improve access to justice by the members of the public;

(c) the desirability of establishing a mechanism which will be responsible for determining fees and tariffs payable to legal practitioners;

(d) the composition of the mechanism contemplated in paragraph (c) and the processes it should follow in determining fees or tariffs;

(e) the desirability of giving users of legal services the option of voluntarily agreeing to pay fees for legal services less or in excess of any amount that may be set by the mechanism contemplated in paragraph (c); and

(f) the obligation by a legal practitioner to conclude a mandatory fee arrangement with a client when that client secures that legal practitioner’s services.’

‘I quoted this section to show that in terms of the LPA it is expected of the South African Law Reform Commission to make recommendations to the minister of what I have mentioned,’ Deputy Judge President Ledwaba said. He pointed out that high legal fees are a huge stumbling block in the challenge of access to justice. He added that he had come across a bill of costs where a legal practitioner charged the amount of
R 30 000 for a matter that lasted 15 minutes and said it is unacceptable. Deputy Judge President Ledwaba said the legal profession should start to look into the issue of legal fees and resolve it. He added that it should be the profession that is going to make recommendations about legal fees to the Minister of Justice.

Deputy Judge President Ledwaba said with the new dispensation both attorneys and advocates will be called legal practitioners the only difference will be that some will be practicing as practitioners and others will be practicing as specialists. Deputy Judge President Ledwaba raised his concern about attorneys who did not want to appear in the High Court even when they have the Right of Appearance. He said these attorneys would still brief advocates about simple matters, such as divorce, or take a matter to the magistrate’s court just to avoid appearing in the High Court because they have a phobia of appearing before a judge of the High Court. He added that previously some attorneys were afraid to go to court, because the Bench was dominated by white males, but added that the judiciary is transforming. An approximate 40% of the judges who are sitting on the Bench are from the attorneys’ profession, he further mentioned that even the leadership of the High Court are from the attorneys’ profession and not solely from the advocates’ profession.

Chairperson of the Zungu Investments Company, Sandile Zungu, spoke at the Law Society of the Northern Provinces annual general meeting.

Legal profession must help in land issues

The Executive Chairperson of the Zungu Investments Company, Sandile Zungu, spoke on the issue of land and the role of black people in agriculture. He said that black farmers were still stuck in time, not farming and not moving forward and remained consumers, while white farmers are acquiring the big markets. He added that the issue of agriculture is said to be the centre of the topic when it comes to land. He pointed out that the Broad-Based Black Economic Empowerment Commission and the legal profession needed to look at the issues of land with a magnifying glass and that the country needed to pay attention to the issue of water rights.

Report by the ADF

Chairperson of the Attorneys Development Fund (ADF), Nomahlubi Khwinana, said the intention of the ADF is to assist newly appointed legal practitioners to enter the profession easily. The idea is to give these legal practitioners strategic business mentorship and technical support to ensure that they have sustainable practices.

Ms Khwinana added that for a legal practitioner to apply for assistance from the ADF, they are required to be an attorney, have practical management training and have a Fidelity Fund Certificate. The legal practitioner will have to provide a cash-flow and a business plan. She pointed out that with regard to the LPA it is on the ADF to accommodate all legal practitioners, which include advocates and attorneys. She noted that at the ADF’s next AGM, amendments will be made to accommodate all legal practitioners.

Ms Khwinana added that the board of the ADF saw fit to include all legal practitioners to be able to get funding and not only newly appointed legal practitioners. She pointed out that the ADF does not give out cash to qualifying legal practitioners, instead they buy the resources needed by the legal practitioners so that they can use in their legal practice. She said that the ADF aims to improve the lives of legal practitioners in ensuring that legal practitioners are competitive in practising law and that, not only are they honest, but they are also ethical in their leadership.

Update on the LPA

Executive member of the Legal Practice Council (LPC) and attorney, Jan Stemmett, gave an update on the LPA. He started by giving the latest demographics of attorneys in the country. He said the legal profession consists of 43% black attorneys. He added that female attorneys amount to 40%, he noted that the percentages have advanced from two years ago.

Mr Stemmett spoke about s 35 of the LPA, which deals with fees. He said there are concerns about two aspects in this section. The first one is with regard to fee tariffs on which the LPA states that the Law Reform Commission must investigate and report to the Minister of Justice. He added that there is a clause in the LPA that states that until such time as a regulation regarding fees is published, the Rules Board for Courts of Law must furnish maximum fees.

Mr Stemmett, however, said information had emerged that the Rules Board is not going to furnish rules regarding fees, but the Minister of Justice will make recommendations to the President that part of the LPA be implemented and wait for the Law Reform Commission to conclude its investigation. He added that of concern was s 35(7), which states that before a legal practitioner takes instruction from a client, they must give the client a detailed estimation of costs.

Mr Stemmett also spoke about candidate legal practitioners who wanted to know whether they can be admitted with a BProc degree. He said s 112 of the LPA provides that a BProc degree is still recognised. He pointed out that there are two sets of regulations, one of which was gazetted on 31 August, however, another set of regulations is pending approval by Parliament. Mr Stemmett pointed out that the rules were implemented on 20 July and are based on the Rules for the Attorneys’ Profession, the Rules of the Advocates Profession and those of the Corporate Lawyers Association of South Africa that deal with non-practising legal practitioners who have also been brought in to be regulated in terms of the LPA.

Mr Stemmett said the nine provincial councils will be placed in each province in the jurisdiction areas of the High Courts. He added that there will be one uniformed structure that will regulate the whole legal profession in the country and for the first time in history the new structure will also include people who are not legal practitioners governing this structure.

Mr Stemmett pointed out that the interests of the legal profession will be taken care of by the Law Society of South Africa. He added that the elections of the provincial councils will still take place in future in terms of r 16, and an invitation for nominations will be sent out to legal practitioners, however, there are no time frames as to how long it will take.

Mr Stemmett said other priorities of the LPC, among others, is to see to it that they –

  • accredit practical vocational training service providers;
  • confirm examination arrangements;
  • acquire a building for the LPC; and
  • take over bank accounts of the four statutory provincial law societies from the effective date.

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

This article was first published in De Rebus in 2018 (Dec) DR 6.