By Kim Hawkey

In addition to the oral submissions on the Legal Practice Bill (B20 of 2012), the Justice Portfolio Committee received several written submissions on the draft legislation. This is a summary of those submissions published on the Parliamentary Monitoring Group’s website.

ORGANISATIONS

Adams & Adams

Adams & Adams’ submissions focus on issues relevant to it as a law firm providing specialised legal services in various fields of law, including intellectual property (IP) law, commercial litigation and property law.

The primary focus of its submissions relate to fees and the requirements for admission as a legal practitioner.

Fees

The firm submits that legal services in the ‘highly specialised’ area of IP law merit a sector-specific fee structure that provides remuneration commensurate with the importance, volume and financial implications of this type of work.

Similarly, it recommends that the Justice Minister (the Minister) should also consider determining a sector-specific fee structure for specialised commercial and litigation services.

It refers to the Minister’s power in the Bill to make regulations relating to the fee structure of legal practitioners, as well as the factors to be taken into account in determining such structure. It notes the sometimes complicated and often technical nature of IP work, as well as the sector-specific qualifications that practitioners need to do certain work. The firm says that the importance, significance, complexity and expertise of the legal services; the volume of work required and time spent; as well as the financial implications of such work need to be taken into account.

Further, clients of these services include foreign clients, often large companies, which require legal services on a high and consistent level of quality in order to be assured that their IP is properly protected, as well as South African conglomerates, whose foreign market share is protected by IP rights.

‘It would not be unrealistic to expect of such clients to pay a fee commensurate with the services demanded. In the case of foreign companies, this also results in a flow of foreign currency into South Africa and increased revenues for the Companies and Intellectual Property Commission,’ the firm states.

Further, on the capping of fees, Adams & Adams notes: ‘Unduly capping the fees which IP practitioners will be allowed to charge would result in disincentivising talented young law and science/engineering graduates from pursuing careers in IP law. This would lead to a gradual degeneration of the IP system and almost certainly loss of vital IP rights to South African individuals and companies seeking to compete in the global knowledge economy.’

Admission and enrolment of legal practitioners

Adams & Adams also notes that the provisions in s 24 of the Bill, which deal with admission and enrolment of legal practitioners, may ‘open the door for the scales to be tipped in favour of foreign persons’ as the usual requirements ‘will not always apply to foreign persons’.

It notes that this section permits the Minister (after consultation with the South African Legal Practice Council (the council)) to make regulations in respect of admission and enrolment to, inter alia, determine the right of foreign legal practitioners to practise in South Africa; give effect to any reciprocal international agreement regulating the provision of legal services in South Africa by foreign legal practitioners or the admission and enrolment of such foreign legal practitioners; or permit a person or category of persons, if it is in the public interest, to expeditiously commence practising in South Africa as legal practitioners by virtue of academic qualifications or professional experience.

Taking into account the General Agreement on Trade in Services, of which South Africa is a member, this, the firm says, means that if such practising rights, or if expedited admission rights, are granted by the Minister to foreign legal practitioners from one or more specific countries, the same treatment will need to be accorded to legal practitioners of all other World Trade Organization countries.

‘It is clear that this would throw wide open the door for foreign legal practitioners to claim entitlement to practising rights in South Africa,’ its submissions state.

Aleagis Consulting

The submission of Aleagis Consulting, an ‘international network of trade experts, attorneys and scholars’, is in the form of a complaint to the Competition Commission, in which it objects to the rules of the constituents of the Law Society of South Africa that relate to –

• organisational forms;
• reserved work;
• advertising, marketing, touting and fee sharing; and
• ‘undercutting’.

It says that these rules preclude it from –

• establishing territorial offices;
• approaching the persons who need its services the most, namely government departments, parastatals and multinationals; and
• competing in this market on price, merit, innovation, turnaround times, specialisation, public interest or otherwise.

This amounts to an abuse of dominance and/or an egregious violation of international law, it claims.

Association of Paralegals Practitioners

In its submission, the Association of Paralegals Practitioners requests recognition of paralegal community law workers as legitimate community law practitioners in the Bill, as well as, inter alia –

• acknowledgment and recognition that paralegal community law practitioners are an integral part of the South African law community and serve a legitimate constituency and need for law services;
• for paralegal community law workers to be formalised through the South African Qualifications Authority accreditation, with the paralegal national certificate being the entry requirement to practice;
• that a code of conduct be drawn up to regulate paralegal community law workers;
• that those who have been deregistered or debarred as lawyers should not be allowed to emerge later as paralegal law advisers, as this can tarnish the image of the practice;
• the enforcement of a funding and fee structure approved in terms of the Bill; and
• that people with criminal records should not be allowed to practise as paralegal community law workers.

It adds that government support can be modelled around workers’ trade union support that has been administered through the Department of Labour.

Centre for Constitutional Rights (CFCR)

In its submission, the CFCR focuses on aspects of the Bill that may negatively impact the independence of the legal profession and, by implication, the judiciary and the rule of law.

It submits: ‘The Bill in its current form vests extensive power to control essential aspects of the legal profession in the [Minister] – in our opinion, powers well beyond constitutional parameters and international norms and principles. This is untenable in our constitutional democracy. It is therefore submitted that the relevant matters of concern be seriously considered by the committee, aimed at alignment with constitutional requirements and international norms and standards, in the context of effective transformation and improved access to justice as required by the Constitution.’

Its key concerns relate to aspects of the Bill that ‘clearly infringe on the independence of the legal profession’. In this regard, it states: ‘The relevant provisions in the Bill provide for a council which is partially to be appointed by the Minister, must advise the Minister and can be dissolved by the Minister on fairly wide grounds. In addition, a number of the powers and functions of the council are to be fulfilled in consultation with the Minister – with the Minister having a final decision over matters such as fee structures, vocational training requirements and community service.’

In detail, this includes:

• The Minister may appoint three members (who do not have to be legal practitioners) to the council. Additionally, it appears to be unclear who or what the ‘organisations representing law teachers or legal academics’ may be and it appears as if Legal Aid South Africa may appoint any ‘person’, regardless of qualification, profession or experience. ‘As such, the Bill fails to respect those international norms and standards which entitle legal professionals to form and join self-governing professional associations that represent their interests, promote their continuing education and training, protect their professional integrity and exercise of its functions without external interference – especially by the executive.’
• The Minister’s power to dissolve the council: Although the Minister must appoint a retired judge to investigate the council’s conduct, he will not be bound by the judge’s recommendations and can dissolve the council regardless of these. If the Minister dissolves the council, he must appoint an interim council for up to six months and must designate a chairperson of the interim council from its members. Since the council has extensive regulatory powers, ‘the Minister could effectively, through an interim council and chairperson, potentially effect undue pressure on the legal profession and individual legal practitioners’.
• It contends that the Minister’s powers to regulate on a wide range of matters encroach on the ability of the legal profession to regulate itself on matters that could affect its independence.
• The legal services ombud provided for in the Bill reports to the Minister and its budget is allocated from that of the Justice Department, requiring further reporting obligations to the department, which has implications for independence. It suggests as a possible solution that the ombud be appointed by and report to the Chief Justice.

Constitutional Literacy and Service Initiative (CLASI)

CLASI, which lists its primary vision as working with law students and graduates to deepen access to justice and information about the Constitution in communities, comments on aspects of the Bill that relate to access to justice.

In particular, CLASI focuses on community service, legal education and the regulation of paralegals.

In respect of community service, it proposes, inter alia:

• That community service should be a requirement for both entry into the legal profession and for continued registration as a legal practitioner, with the possibility of community service as a requirement for entry into the profession taking place during the LLB degree, after graduation or, possibly, as a combination of both.
• Remuneration for community service: ‘If the aim is to reach a point where the legal profession is reflective of the demographic composition of the country, it can hardly be feasible to require young graduates, many of whom may be from disadvantaged communities, to find a way to support themselves while working without compensation.’
• However, CLASI proposes that aspirant legal practitioners who engage in community service programmes during the course of their legal studies would not need to be compensated, but would receive academic credit.
• The establishment of a working group dedicated to community service under the auspices of the council. The group would be responsible for keeping a register of approved opportunities for placement, as well as facilitating supervision of aspirant legal practitioners by legal practitioners, in fulfilment of both parties’ community service obligations.

On legal education, it submits, inter alia:

• In order to further the project of ‘tra­nsformative constitutionalism’ in South Africa, legal education needs to be reformed. It recommends expanding clinical legal education and integrating clinical methodology in existing law faculties, which would serve ‘the twin goals of providing opportunities to aspirant legal practitioners to fulfil community service requirements, as well as offering a dynamic pedagogy that will develop better law graduates’.
• The new constitutional dispensation requires a shift from the formalistic parameters of legal education and the legal profession to a more substantive one, which considers moral and political values and the social context in which law operates – both in how and what is taught.
• Law faculties, in partnership with the council, should play a more intentional role in rethinking the design and implementation of the LLB curriculum in light of the skills and values desirable in law graduates. Law students must be holistically exposed to the balance between knowledge, skills and values in the course of all doctrinal or theory-based courses, which must not be reserved for a stand-alone legal practice course in their final year.
• That the council and the Transitional South African Legal Practice Council (the transitional council) include one teacher of law or legal academic nominated by law teachers, legal academics or organisations representing law teachers or legal academics, as well as one clinician nominated by and a member of the Association of University Legal Aid Institutions.

On paralegals, it proposes, inter alia:

• The regulation of services by paralegals under the same body that will regulate attorneys and advocates.

‘The exclusion of paralegals from the Legal Practice Bill and the scheme that it creates undermines the status of the group within the legal landscape of South Africa. In order to play the vital role that it should, the sector requires respect, which could be achieved through external recognition and regulation. Access to justice can be enhanced if the credibility of paralegals is fostered, and their role in the profession concretised.

Separate regulation … will … detract from the legitimacy of the profession. Moreover, linkages between the formal legal profession and the paralegal sector should be strengthened, a goal that will be achieved by regulating legal and paralegal practitioners together.’

• Paralegals should be regulated, specifically with regard to their training and qualifications, in a separate chapter of the Bill.
• Representation of paralegals on the council.

Eskom

The main emphasis in Eskom’s submission is the protection of the independence of the judiciary. ‘The question is asked whether, with the Minister appointing members to the main governing professional body, that is possible,’ its submission reads.

Further, Eskom asks, inter alia:

• Whether the Bill applies to practising members of the profession only and excludes those who have qualified, but are, for example, legal advisers in private or public companies. If such people are excluded, Eskom proposes the establishment of an independent body to regulate their professional affairs.
• Whether the prescription of training for legal practitioners extends to non-practising legal practitioners.
• That consideration be given to the possibility that the rendering of community service should apply to candidate attorneys only and not to legal practitioners.
• For a requirement that Fidelity Fund certificates be clearly displayed at attorneys’ offices.

Eskom notes that ‘non-practising practitioners make up a significant percentage of the legal fraternity and have direct influence on South African business as legal advisers and legal counsel’ and therefore it was of concern that they were not eligible to be members of the council and that it was ‘essential’ that non-practising attorneys have appropriate representation on the council.

It also asks that consideration be given to allowing a qualified, admitted attorney, who is a non-practising full-time legal adviser/corporate counsel, the right of appearance on behalf of his employer, with conditions and/or limitations if necessary. ‘This may also enable corporate organisations to take on articled clerks in the future, as is the case in some other professions,’ Eskom notes.

Legal Expenses Group Africa (LEZA), comprising LegalWise and Scorpion Legal Protection

In its submission, LEZA focuses on access to the profession, multidisciplinary practices and reserved work, and contends that: ‘[M]uch of the status quo of what is widely perceived in the private sector in general as unwarranted exclusivity and protection of the legal profession at the expense of the consumer has been left intact.’

In this regard, it claims that few, if any, barriers to entry have been removed and the provincial law societies are ‘merely replaced’ by a single self-regulating council consisting primarily of legal practitioners, ‘which has the potential to impede a holistic approach concerning legal services’.

It states: ‘It denies all those lawyers who work in corporations throughout the country as employees, but who may be admitted and are equally qualified, the right to appear in court. Well-meaning corporations, for example, may well find it attractive to employ legal practitioners to attend to the legal needs of its staff, including court appearances, as an employee benefit. The shortage of legal practitioners will be significantly alleviated if all qualified lawyers – subject only to the appropriate and obvious safeguards regarding education, prior and ongoing vocational training, professional indemnity insurance, etcetera – are able to perform the work reserved for legal practitioners as currently defined in the Bill.’

It adds that it is ‘difficult to find cogent reasons to justify that it is in the public interest that the largely administrative functions of conveyancing and notarial work should, by virtue of qualification requirements, in effect be provided by legal practitioners only’.

LEZA supports broadening the base of legal practitioners by recognising alternative business structures, such as incorporated legal practices owned and controlled by non-legal practitioner third parties, but with the legal practitioners of the incorporated legal practice being subject to the provisions of the Bill.

Among others, it recommends:

• A system in terms of which legal practitioners are obliged to enter into written costs agreements with clients, disclosing the proposed hourly rate, an estimate of the total number of hours to be spent and all other contractual terms to govern the relationship, prior to providing services. ‘If a fixed fee is prescribed in terms of this Act or any other Act, the costs agreement must reflect that.’
• Legal practitioners should be allowed to advertise freely, provided that advertisements comply with the requirements of the Advertising Standards Authority of South Africa or any applicable law, which will ‘result in an improved consumer-centric approach’.
• On independence, it states: ‘We agree with an independent legal profession in the sense of [its members] being able to represent whoever they choose to, whoever the opponent, without interference or prejudice to privileged attorney/client communications, provided that it is underpinned by an independent judiciary and constitutional safeguards. We do not believe that a level of independence that equates to near total autonomy to practise a profession is required in the public interest. Perhaps the term “independence” should be defined.’
• The inclusion in the council of at least two persons nominated by the legal expenses insurance sector, after consultation with the National Consumer Commissioner.
• Further, it supports the Minister having three appointees to the council and notes that the power of the Minister to dissolve the council ‘appears justifiable in the public interest’.
• The Bill should allow for any juristic entity to conduct an incorporated legal practice, regardless of ownership and control.

National Alliance for the Development of Community Advice Offices (NADCAO) and the National Task Team on Community-based Paralegals (the task team)

In a joint submission, NADCAO and the task team call for the inclusion of community-based paralegals in the Bill, as well as for a national interim governance structure to regulate this sector. It believes that a separate regulatory framework will ‘irreparably and irrevocably detach and disconnect community-based paralegals from other legal practitioners and from the mainstream justice sector’, adding: ‘This divisiveness goes against the intended spirit of the Bill to bring the legal professions together and this will not augur well for sustained access to justice.’

Inter alia, they ask for the following inclusions in the Bill:

• Recognition of community-based paralegals as legal practitioners.
• The possibility of subsidising or wholly paying for the costs of community advice offices.
• The appointment of not less than two community-based paralegals appointed by the Minister to the council or other representative body, after receiving nominations from community-based paralegal practitioners or organisations representing the interests of community-based paralegals.

National Association of Democratic Lawyers (NADEL)

In its submission, NADEL sets out general comments on the Bill, as well as commentary and analysis of certain sections of the draft legislation.

NADEL records its long-term view of ‘a truly and entirely unified profession’ and notes that it has always argued for fusion, viewing the distinction between attorneys and advocates as archaic and artificial.

In terms of independence, NADEL is of the view that it is appropriate that the legal profession ‘govern itself with little or no interference from the executive and legislative branches of government’; however, it believes that the Minister’s powers in terms of the Bill do not threaten the independence of the profession:

‘The arguments of some elements in the profession that the Bill’s provisions constitute an attack by the Minister or the [Justice] Department on the independence of the profession belie the fact that the profession (including both advocates and attorneys) cooperated with the apartheid government and had a poor track record with regard to executive interference. The independence of the profession rather relies upon people with strong values who are able to act in an independent manner when faced with difficult choices. Provided the members of the profession are free to choose the cases they take on and provided there is no attempt to “punish” or isolate those who take on unpopular causes – and the Bill appears not provide any basis for this kind of intervention – the independence of the profession can hardly be regarded as being under threat.’

NADEL does not believe that there is anything objectionable in the requirement that reports are to be made to the Minister on a regular basis, or that the ministerial appointment of three members to a 21-member council could amount to unreasonable governmental interference.

However, NADEL objects to the provision in the Bill allowing the Minister to dissolve the council: ‘The power to dissolve the council cannot vest in the hands of the Minister. In line with the principle of independence of the profession, only a court should be able to order the council’s dissolution. Nothing would naturally stop the Minister from approaching a court for such an order.’

Further, any interim council appointed on such dissolution would have to be appointed by majority by members of the profession ‘and ought not to be appointed by the Minister alone’.

The association also notes that ‘a key feature’ missing from the Bill is that it does not provide for the council including organisations such as ‘trade unions’ of legal practitioners with the interest of members as one of its functions: ‘At its core, the Bill focuses primarily on the regulation of the profession. The omission of members’/the profession’s interests needs to be addressed.’

Further, NADEL does not believe the transformative objectives envisaged in the Bill are achievable during the time of the transitional council ‘as the issue of representation actually relates to the permanent council and not the transitional council’. It therefore proposes the continued accreditation of the Black Lawyers Association (BLA), NADEL and Advocates for Transformation (AFT) for a longer period, in the region of five years, ‘to sustain achievement of the objective of transformation’.

The association also suggests the possibility of sunset clauses ‘in view of the numerical strength of white male lawyers’ and the recognition for the need of race and gender balance, and the potential for the governing structures to be dominated by big firms, senior counsel and urban-based lawyers.

In terms of access to work in the light of transformation, NADEL says that this issue has not been ‘tackled in a coherent fashion’ by the profession, government, statutory bodies, state-owned enterprises and private business, and a single regulatory regime must deal with this matter as a priority.

In respect of particular aspects of the Bill, NADEL submits, inter alia:

• A fee structure, as prescribed by the Bill, is likely to fall foul of the Competition Act 89 of 1998 and practitioners’ capacity to earn a living ‘should not be limited by making access to justice the sole reason for setting fee structures’. It adds that access to justice can be achieved in a number of other ways. ‘We need to ensure a balance between greed and unreasonable expectations, on the one side, and sound practice management and fair reward, on the other,’ it says.
• The Bill does not provide for the transitional council and the council to have a corporate structure with perpetual succession. The transfer of assets/secondment of staff provided for in the Bill therefore ‘raises huge complications’. The role of the director-general of the Justice Department ‘is also questionable’ in this process, NADEL submits.
• The composition of the transitional council fails to take into account that AFT represents 50% of the General Council of the Bar and therefore ought not to have additional separate representation. Further, BLA and NADEL have non-attorney members, who are advocates or members of the profession in other functions, which ought to be considered when determining the representation of these organisations on the council.

South African Institute of Race Relations (SAIRR)

The SAIRR’s main contention is that the Bill seeks to abolish the independent Bar councils and law societies and replace them with a new council, despite ‘no sound reasons for this change’ being put forward.

It believes the Bill is an attempt to bring the legal profession under ministerial control with the consequence that ‘[o]nce all legal practitioners are regulated by a council answerable to the Justice Minister, it is likely to become much harder to find lawyers willing to take up contentious cases against the state’.

The council and the transitional council

The institute states: ‘This council will report to the Justice Minister. It will also be vulnerable to dissolution by him at any time, without adequate safeguards against potential abuse of this power, militating against its independence.’

It is of the opinion that it is unacceptable for the Minister to have ‘so much influence over the council’s composition’.

‘The new council – like the Judicial Service Commission – is likely to include a core of people who support the ruling party, and might even be its deployed cadres as well,’ its submissions read.

It states that the composition of the transitional council is likely to give the Minister significant influence over the council’s deliberations and decisions. ‘Moreover, if the transitional council is unable to reach agreement, this will open the way for the Justice Minister himself to decide by regulation what the “election procedure” for the permanent council should be. Effectively, this will allow him to control the composition of the permanent council by executive fiat.’

On the Minister’s powers in respect of dissolution of the council, the SAIRR submits that the safeguards against potential abuse of this power are insufficient. While the Minister must afford the council a reasonable opportunity to respond to the reasons for dissolution, and must afford the council a hearing on any submissions received, he is not obliged to take such submissions into account or to give reasons for rejecting them.

Further, although the Minister must appoint a retired judge to conduct an investigation and make recommendations prior to dissolving the council, the Minister is not bound by such recommendations. ‘He is not even obliged to take them into account, or explain why he has overruled them.’

‘Making the council subject to dissolution by the Minister in such circumstances will erode whatever independence it might otherwise have. Moreover, since the council will control the right of legal practitioners to practise their craft, this will give the Minister an indirect control over the legal profession which is profoundly at odds with the independence needed by the Bar, the Side Bar and the Bench.’

Various academics from the faculty of law at the University of South Africa

Senior lecturer Dalita Ramwell from the department of private law notes the following as potential problem areas of the Bill:

• The definition of ‘attorney’ has the effect that an attorney who fails to obtain a Fidelity Fund certificate in a specific year is automatically an advocate.
• There is no definition of the ‘public interest’ in the Bill.
• The objects of the council include ensuring that legal fees are reasonable and promote access to legal services, and regulating legal practitioners. In this regard, Ms Ramwell states: ‘It is debatable whether it is wise to fix prices in this manner in a largely capitalist economy. That such price fixing only applies to registered attorneys and advocates seems undeniably discriminatory. It also risks benefiting only the rich and not the poor … . The Bill does not prescribe how the reasonable fees will be achieved, and that is perhaps the key issue.’
• The provisions on the dissolution of the council and the appointment of an interim council seem to create the potential for ‘a relatively small number of members to “highjack” the council and pass undemocratic resolutions’.
• The criteria for a fee structure omit seniority and experience of the practitioner.
• The questionable need for a transitional council. ‘Why not go from ordinary law societies to the Legal Practice Council? The answer seems to be contained in section 97. It merely postpones the problems and disputes that could not be resolved thus far, in that the transitional council must advise the Minister on problematic and controversial issues … and, most importantly, the transitional council must, within 24 months, “negotiate with and reach an agreement” with the attorneys’ and advocates’ professions in respect of the transfer of their assets, rights, liabilities, obligations and staff. To provide that parties must reach an agreement seems contra bonos mores and unenforceable. Furthermore, taking over the assets of private institutions, operating more or less like a club, where all the members have a shared interest in the assets, seems to indicate a deprivation or expropriation, with all the constitutional implications of that.’

In conclusion, Ms Ramwell states: ‘Most concerning, however, is that I did not find any provisions that may strengthen the independence of the legal profession. On the contrary, the over-regulation seems to have the opposite effect.’

Professor Magda Slabbert of the department of jurisprudence notes a number of positive aspects in the Bill, but raises, inter alia, the following concerns:

• Paralegals are not addressed in the Bill.
• Competent persons should be appointed to the council and not political figures with the ‘right connections’.
• The four-year LLB is a major concern: Few students succeed in four years and, apart from obtaining the degree, they are not ready for practice.
• Pupillage for advocates should be compulsory.
• A single code of conduct for lawyers will not suffice – there should be separate ones for attorneys and advocates due to their differing roles.
• Council members should be appointed for five-year terms, not three, to work effectively.
• The term ‘fit and proper’ is vague, subjective and discretionary and a full explanation of its meaning is necessary.

In addition, Professor Slabbert asks why only one teacher of law is to be represented on the council and, further, where the regional councils will be situated.

Professor Heinrich Schulze of the department of mercantile law says that the reference in the preamble to the removal of ‘any barriers for entry into the legal profession’ is too wide and should be omitted, alternatively amended to proclaim that only unnecessary barriers be removed.

Further, in respect of s 6(1)(d) of the Bill – which provides, inter alia, that the council may, having due regard to the Constitution, applicable legislation and the inputs of the ombud and parliament,‘perform any act in respect of negotiable instruments or the electronic transfer of monies’ – he says that negotiable instruments and the electronic transfer of funds ‘are by no means the only, or even the two most important, examples of methods or instruments of payment’. Therefore, the wording of this subsection should encompass all forms of money.

Finally, he says that the structuring and wording of s 91 of the Bill ‘do not make sense’ and sets out fully why he believes the provisions in this section contradict each other.

University of the Witwatersrand Law Clinic, School of Law

The University of the Witwatersrand Law Clinic submits that:

• Fidelity Fund certificates should be a requirement to practise as an attorney at a university law clinic, since such attorneys are often in receipt of trust money in the form of damages recovered on behalf of clients and deposits for disbursements.
• Limitations on the type of legal work that can be performed by university law clinics ‘have no place in the Bill and should be scrapped’. ‘It is a form of protectionism which is to the prejudice of the poor,’ its submissions read.
• University law clinics must be able to recover costs awarded, which must be taxed in the clinic’s name.
• The forms of legal practice in the Bill fail to provide for an attorney who practises in the full-time employ of a university law clinic. The section should be amended to accommodate such attorneys.
• The definition of ‘community service’ in the Bill does not provide that the legal services rendered by the attorneys and candidate attorneys at university law clinics qualifies as such. The section should be amended to provide that the legal services and training provided by attorneys and candidate attorneys at a university law clinic, free of charge to the public, qualify as community service.
• The right of appearance in the lower courts should be extended to suitably qualified final-year undergraduate students. ‘The time is ripe to implement the rule as a matter of principle, with the proposed council to regulate the minutia of the rules determining the conditions under which students will be able to appear in our lower courts.’
• Like in the case of medical graduates, suitable funding should be made available from the national fiscus to cover the running costs of community service as part of law graduates’ practical vocational training.

Webber Wentzel

Webber Wentzel raises a number of items relating to the Bill that are of concern to it as a large corporate law firm. These fall under four main headings:

• Regulation of fees: Webber Wentzel says that experience, location and overhead costs should also be included as factors to be taken into account for the fee structure to be determined in terms of the Bill.
• Further, the firm notes that its clients are ‘very sophisticated users of legal services’ and the Bill does not expressly take into account their power, bargaining position and ability to regulate and keep fees competitive. It proposes that such users be allowed to contract out of the fee structure.
• On fee caps, it says: ‘We feel that it is inevitable that if fees are regulated as is proposed, almost all lawyers will move to charge the maximum capped rate. This will distort competition in the market … . We believe that the market does and should have the freedom to determine and regulate rates.’
• Multidisciplinary practices: Webber We­ntzel submits that the relevant wording in the Bill is too speculative and does not provide set time periods. It notes that firms like it compete with many multidisciplinary practice international firms and clients would benefit from a ‘one-stop shop’, in particular those offering tax and related financial services.
• Limited liability practices: The firm also believes that the relevant wording in the Bill is too speculative. Allowing limited liability practices will be of great benefit to the public and should be prioritised, it says, adding that sufficient control measures are in place to protect the public. The current barrier discourages the establishment of new firms, it adds.
• Continuing professional development: Webber Wentzel requests clarity and certainty on what this requirement will entail and whether internal training programmes will be capable of being accredited as training providers.

INDIVIDUALS

Swaziland-based attorney Sydney Dlamini

Mr Dlamini has issue with the fact that legal practitioners who are South African citizens residing outside the country cannot be admitted as attorneys in South Africa without ‘starting from scratch’. He says that currently an attorney who has been practising for more than ten, or even 20, years in a foreign jurisdiction, must serve articles if he wishes to relocate to South Africa. ‘This is not fair considering the history of South Africa,’ he says.

‘It is not a reasonable thing to require that an attorney who is over 40 years [old] and who has been practising for many years should start from scratch if that practitioner wishes to pursue his/her trade in South Africa,’ he says.

He therefore motivates for recognition in the Bill of such attorneys who have practised for more than ten years, and who meet the other requirements in the Bill, being allowed to petition the court for admission as a practitioner.

Advocate Eric du Preez

Mr du Preez says that many legally qualified persons have been excluded by the ‘system’ in place for many years. ‘Please accommodate those of us who have experience, but have not, or could, not afford to follow the current requirement for admission, imposed by a system that emanates from the previous century. Allow these people … to work freely and the market forces will soon make legal assistance affordable to all,’ he asks.

In support of his submissions, Mr du Preez cites his personal experience as an LLB graduate at age 55 after a 34-year career in the police service and his subsequent inability to secure pupillage or articles at a law firm. After 15 months of working for free as a candidate attorney at a university law clinic, he was subsequently trained by the Commission for Conciliation, Mediation and Arbitration, where he has been a part-time commissioner for the past nine years.

Despite this, he says: ‘As I am admitted as an advocate by the High Court, I have right of appearance in the High Court and other courts, where I practised as an independent practitioner. However, I may not accept money from a client “upfront” and can only receive payment after the task is completed – placing myself a risk of not being paid,’ he says, adding:

‘The dilemma I find myself in is experienced by many legally qualified persons who have, for whatever reason, not done pupillage and/or the candidate attorney route. These are magistrates, prosecutors [and] legal advisers working for government, in the private sector, provinces, banks, etcetera. Most of these persons have huge knowledge and experience in their particular field, but are marginalised because of the fact that they could not follow the current recognised system to become an advocate or [attorney] and to ply their trade.’

He says that the argument that without formal, post-university training, a person is not competent to do legal work ‘does not hold water’: ‘All industries have in-house training, why not legal practitioners?’ he asks. As further support for his submission, he notes that many South Africans have done part-time work to finance their legal studies; they have families and often cannot afford to do pupillage of a year without income or ‘candidateship with a salary usually so small that they just could not survive’.

Pretoria advocate Connie Erasmus

Although a deputy di­rector of public prosecutions, Ms Erasmus comments on the Bill in her personal capacity.

She recommends, inter alia, the following amendments to the Bill:

• The name of the Bill should be changed to the ‘Legal Professions Bill’.
• That the LLB degree as a minimum academic qualification, plus the vocational training by each of the professions, be collapsed into a single legal professional qualification providing, entrance to the attorneys’ profession, prosecutors and attorneys engaged as corporate lawyers.
• That the LLM degree as a minimum academic qualification, together with the vocational training of the individual professions, be collapsed into a single legal professional qualification pro­­viding entrance to the advocates’ profession, specialist prosecutors, specialist corporate lawyers and advocates engaged as researchers of law and judges’ professions.
• The proposed legal professional qualification should run over a maximum period of two years full-time.
• After the transitional period provided for in the Bill, advocates with seven or more years’ experience can continue practising as advocates, advocates engaged in prosecution, as corporate lawyers or as researchers of law, or they can convert their registration to attorneys. Those with less than seven years’ experience and without an LLM can practise as attorneys, attorneys engaged in prosecution or as corporate lawyers. All attorneys with more than seven years’ experience who have an LLM can convert their registration to advocates.
• A partially completed LLB degree entitles the holder to practise as a legal adviser/paralegal, which should be provided for in separate legislation.
• All lawyers should be subject to a lawyers’ fidelity fund and board (instead of the Attorneys Fidelity Fund (AFF) and board), with prosecutors, state attorneys, governmental corporate lawyers and advocates excluded from such authority.
• That advocates be allowed to form partnerships with each other or attorneys, and that advocates may become notaries and conveyancers.
• That the National Director of Public Prosecutions and/or his delegate be given a seat on the Judicial Service Commission (JSC) and the council.
• All references to the Minister in the Bill be changed to the JSC.

Springbok former public prosecutor Derrick Grootboom

Mr Grootboom, who does not have an LLB degree, but who has other legal qualifications and experience, asks that he – and others in his position – be recognised in the Bill as able to qualify to be admitted as an advocate and/or an attorney.

Mr Grootboom has a BIuris degree and an LLM. Further, during 2009 to 2011 he sat as a member of the Western Cape High Court Bench, presiding with judges in criminal trials, while at the same time practising as a legal consultant for a law firm. He is also a former public prosecutor at the National Prosecuting Authority.

However, he notes that his qualifications do not ‘fulfil the LLB requirement’: ‘Despite the above, I am not allowed to practise as a lawyer representing clients in the South African courts of law, charging clients professional fees, because the requirements set in the Attorneys Act [53 of 1979] and the [Admission of Advocates Act 74 of 1964], which [are] now copied into the Legal Practice Bill, debar me [from earning] my living as a legal practitioner, as guaranteed by the Constitution … in sections 22 (freedom of trade, occupation and profession) and 9 (right to equality).’

He maintains: ‘I respectfully submit that I should not be further debarred from appearing in the South African courts of law, earning my living as a legal practitioner with two law degrees, obtained under the harshness apartheid weighed on me as a black person, by the requirements … of the Admission of Advocates Act … (which [are] similar to [those] in the Attorneys Act) and that provision must be made that I, and others like myself, must be regarded to be duly qualified to be admitted as advocates/attorneys by virtue of the Legal Practice Bill.’

Pietermaritzburg legal administration officer Nosihle Gumbi

Ms Gumbi notes her ‘great anxiety’ over the term ‘attorney’, defined in the Bill as ‘a legal practitioner practising with a Fidelity Fund certificate’, which is a ‘move away from’ the definition in the Attorneys Act. She asks: ‘Would it mean that a person such as myself, who met the requirement of being admitted as an attorney but is not in practice, is no longer an attorney?’

Further, she raises concern over s 24(1) of the Bill, which provides: ‘A person may only practise as a legal practitioner if he or she is admitted and enrolled to practise as such in terms of this Act.’ In this regard, she asks: ‘What about us who were admitted in terms of the Attorneys Act? Are we no longer attorneys?’

Andre Jensen

Mr Jensen, from Port Elizabeth, proposes that the Bill ‘make the legal profession accountable to their clients’ and preclude practitioners from charging for time ‘negligently wasted’.

He states that the legal profession, like the medical profession, enjoys ‘the latitude of being able to charge for their services even when the outcomes are unsatisfactory’, adding that: ‘In the light of the fact that there is so often uncertainty of outcome in these professions, this is understandable.’ However, he says that this tolerance is being abused by the legal profession. ‘Some members of the legal profession find it very tempting to persuade their clients to take legal action even when they know for certain, or should know for certain, that the action will prove futile. In such cases the onus should be on the legal profession to tell their clients that the matter will prove futile, but the temptation is to not tell the clients this and to then enable the earning of fees,’ he says.

Cape Town attorney Andries Landman

Mr Landman proposes that –

• ‘family member’ in s 57(1)(a) of the Bill be adequately defined as it is vague and will lead to litigation. This subsection excludes liability by the AFF for compensation for loss suffered by a family member or a member of the household of the attorney found guilty of the theft; and
• the words ‘contemplated in paragraph (d)’ be deleted from s 57(1)(e) of the Bill. Section 57(1)(e) excludes the AFF’s liability for loss suffered by any person as a result of theft of money which an attorney has been instructed to invest on behalf of the person contemplated in paragraph (d). Section 57(1)(d) excludes liability for loss as a result of theft that occurred after the victim received notice in writing from the council or the AFF board warning against the use or continued use of the legal services of the practice concerned, or the giving of any money or property in trust to that practice, and the person in question has failed to take reasonable steps after being so warned.

Mr Landman claims that the above renders ‘the limitation of liability of very little use in practice as thefts are in almost all instances discovered after the event. It thus makes little sense to exclude the fund’s liability only in those instances.’

Johannesburg advocate Jacques Lourens

In his submission, Mr Lourens submits that the Bill is ‘fatally flawed’ for a number of reasons and, if adopted as is, will be unconstitutional. His two main objections are:

• The Bill is a threat to an independent legal profession and the courts, including because the body to regulate the affairs of practitioners will be state controlled.
• Capping of legal fees, which is likely to be deemed uncompetitive, noting that there are already guidelines and review powers in place.

Johannesburg attorney June Marks

Ms Marks informs the committee that the fee charges of advocates are ‘out of control’ and ‘the Bar Council insists on payments and forces attorneys to pay without submission of time sheets and allows conduct which is in fact fraudulent, being many different accounts for one month by the same counsel for the same matter’.

Further, she notes that she has advised the Bar Council of the criminal activities of many members of the profession against whom charges have been laid and dockets have been opened. ‘The Bar Council ignores this and, in fact, promotes such counsel to senior positions,’ she says.

Joseph Maseko

Mr Maseko, the managing member of Maseko Management Services CC, proposes the following in respect of the Bill:

• Right of Appearance: Certain attorneys already enjoy the right to appear in the superior courts, while no advocates are allowed take briefs directly from the public in all areas. This is unfair and marginalises advocates, he says, adding: ‘There is no equality before the law for legal practitioners.’
• Coverage of specialist fields for advocates: Certain advocates should be allowed to take direct briefs from the public in specialist areas like those relating to consumer courts and tribunals, Labour Courts and conveyancing work.
• A possible Fidelity Fund for advocates, which would deal with the concern over safeguarding the public if advocates were to be briefed directly.
• Certain, if not all, categories of counsel should be designated to deal with direct briefs for certain paying clients.

Dr Ramola Naidoo

Ms Naidoo, who was admitted as an advocate in 1979, submits that the Bill does not measure up to its objectives.

Ms Naidoo notes that one of the reasons she does not practise law is the ‘old boys’ network’ in the profession, which is ‘as prevalent today as it was 30 years ago’. She highlights some of the difficulties for women advocates in particular:

‘It is a huge challenge to practise as an advocate if one has taken a break away from practice (as I have done) as one’s own professional network is lost. The loss of sustainable income is not just my own experience, but that of other lawyers as well. Thus it is extremely challenging to practise at the Bar if there are no briefs forthcoming. A number of women have shared the same misgivings.’

She says that the Bill entrenches the current split Bar system ‘with a layer of costly bureaucracy and does not fully address the root of the problem’.

She therefore proposes, inter alia:

• That the Bill provide for 30% of all briefs from private attorneys and 50% of those from state attorneys to go to female advocates listed on a public database and website operated by the council or the Justice Department. Further, that advocates should not be discriminated against for being out of the traditional matrix of the Bar. The proposed amendment should be implemented for a period of five years subject to annual review by parliament. ‘Naturally, women who are already successful and well established in the legal profession may opt out of inclusion in this database but care should be taken to ensure that the work assigned to women on the database should be fair and highly remunerative, as opposed to just a pittance as in pro deo cases of the past,’ Ms Naidoo submits.
• advocates should be allowed to practise from any location, including at home, with flexible hours.
• advocates should be allowed to advertise their services and to give advice electronically, for example on websites.
• That the traditional garb worn by advocates, which is ‘cumbersome and archaic’, should be abandoned.
• That parliament, not the Minister, should be mandated to dissolve the council.
• There should be minimal state intervention in regulating the legal profession.

Further, Ms Naidoo submits that a legal services ombud is unnecessary. ‘It is far too costly and would create a bureaucracy of managers and other bureaucrats. It is hard to imagine thousands of people in the Republic who have legitimate complaints against lawyers,’ she says.

In this regard, she adds: ‘Where there is embezzlement or fraud, then clients should report this to the commercial fraud office of the South African Police Service. The majority of the people in the Republic neither have the means to go to court nor do they understand their rights to even think of litigation, so they will hardly be in a position to lodge a complaint against a lawyer. Indeed, it would be surprising if there are many lawyers based in rural areas. I have also canvassed opinion from ordinary South Africans, who say that they have not felt the need to get any legal advice and some who say that they pay a monthly fee to LegalWise or similar organisations more as an “insurance” if they ever needed a lawyer, but that this has not yet arisen.’

Further, she says: ‘Until we educate the broader public about their legal rights and concomitant obligations, we can hardly develop a sophisticated public who would opt for legal advice and litigation rather than extra-legal means to resolve any conflicts that they may have. … An affluent society like Sweden can surely afford such a luxury of the services of an ombud … . In South Africa, however, we call ill afford to pay for yet another independent government body that has its own highly paid management and administration when a simple unit with the department would suffice to handle complaints from the public. The money used to create the ombud can surely be well spent elsewhere to ensure true sustainable development in this land where poverty is the norm.’

Ms Naidoo adds that, in the long term, an option would be to expand the mandate of the Public Protector ‘so that complaints against state-employed lawyers as well as against lawyers in private practice may be investigated by the Office of the Public Protector’.

Finally, she calls for wider public participation in drafting any amendment to existing laws regulating the profession and for the committee to hold public hearings on the Bill in provinces other than the Western Cape.

Advocate Nick Smythe

Advocate Smythe commends the provision in the Bill that will, in certain circumstances, allow advocates to render legal services directly to the public, which he says will ‘considerably reduce the cost of legal services’.

However, he advocates for the eradication of ‘obsolete rules’ imposed by the Bar that result in clients being required to pay additional amounts.

‘For example, advocates may not appear in court unless an attorney is present. That made sense in the days before cell phones, but now the only effect of this rule is to require clients to pay for the cost of both an attorney and counsel at court, when this is often unnecessary. … There may be occasions where the presence of attorneys is warranted but it should not be mandatory … . [I]n many instances law firms send junior attorneys and candidate attorneys to accompany counsel, merely because they are compelled to do so and not because they believe it is necessary, and then pass the cost on to the client,’ he says.

Further, Mr Smythe says that another obsolete rule is the one requiring attorneys to be present when an advocate consults with a client. ‘By analogy, in the medical profession when a patient consults a surgeon there is no requirement that the referring doctor or general practitioner be present.’

However, he adds that advocates taking work directly from the public should not be allowed to hold money in trust or operate trust accounts. Further, such advocates must have completed pupillage and their training will need to be extended to cover matters such as the issue and service of summonses.

Johannesburg advocate EK Tsatsi

Advocate Tsatsi submits that people who are not practising law or who do not belong to any professional body should not be allowed to use the title ‘advocate’.

The reason for this, Ms Tsatsi says, is that such persons are not subject to any ethical and professional rules and are ‘difficult to monitor’.

‘When a person like this does something wrong, it seems as if the advocate profession is put into disrepute. There is no way of disciplining the said person,’ she says.

 

Kim Hawkey, kim.hawkey@derebus.org.za

This article was first published in De Rebus in 2013 (April) DR 38.