The Law Society of South Africa (LSSA) in collaboration with the Legal Practitioners’ Fidelity Fund (the LPFF), hosted a young lawyers’ conference in Johannesburg on 29 June 2024, which aimed to engage and empower young legal practitioners.
The Chief Executive Officer of the LPFF, Motlatsi Molefe, during his welcoming address to attendees, said that the LPFF have been having roadshows throughout the country since 2023. The aim of the roadshows was to make sure that legal practitioners understand what the LPFF, as well as what the Legal Practitioners’ Indemnity Insurance Fund (LPIIF) is about, but also trying to elicit questions and discourse around legal practitioners’ problems. He told attendees that often decisions are taken to the exclusion of young legal practitioners.
The Chief Executive Officer of the LPFF, Motlatsi Molefe, told attendees that often decisions are taken to the exclusion of young legal practitioners.
Mr Molefe said that: ‘We thought it might be wise to engage with young legal practitioners. Primarily what is problematic, as I see it in the profession today, is that your generation is not involved in the politics of the profession. You are not involved but decisions are taken for you. Decisions are imposed on you. … I have been in the regulatory space for 14 years. Before then I had been practising for some time before I left to do some other things. Even at the time when I was a practitioner, which is almost 20 years or so ago, my only engagement with the LPFF was the understanding that there is a particular point in time in the year, when I have to get what is called a Fidelity Fund Certificate [(FFC)].’
Chairperson of the Legal Practitioners Fidelity Fund, Peppy Kekana.
Mr Molefe added if he had known what the LPFF was all about, he would probably have had a better understanding of it and wherever he encountered problems, he could have engaged with the LPFF to understand how he could have been helped. He added that the fact of the matter is that when one looks at the leadership of the legal profession, it generally seems to be the same people in rotation because young practitioners do not participate in the politics of the profession. And as one moves around the legal profession, even if it is in a different organisation, they still maintain the same mindset and say the same things. No new ideas are being introduced into the discussion about what is best for legal practitioners.
Mr Molefe added: ‘It just remains a stale discussion and part of the problem with that is simply the fact that over the years the legal profession has relied heavily on the LPFF to solve some of its problems. We are enjoined currently by s 22(1)(b) of the [Legal Practice Act 28 of 2014 (LPA)] to provide an annual appropriation to the Legal Practice Council, which appropriation is intended to be used for both regulatory activities and other issues, such as legal education. What is clear to me is that we have over the years thrown money at problems rather than finding creative solutions to the problems. You are the young ones, you are lucky that you are born in an era open to you for learning, so many resources are available for you to use.’
Managing Director of the Legal Practitioners Indemnity Insurance Fund NPC (LPIIF), Sipho Mbelle, gave a presentation about the LPIIF.
Mr Moelefe pointed out that one of the things bothering him is the risk report, as he does not recognise most of the names on it. These are young people who have been practising for a period of one to five years and are already in trouble. ‘The question is what are we doing about it,’ Mr Molefe asked? ‘We as the Fund are deploying resources to help where we can. The LPIIF are deploying resources freely to the profession in order to assist with problems that exist in practices. The profession should offer a formal mentorship, and … we need honesty, that when you have a problem, you identify it and accept that it could be a problem that could lead to a bigger issue. How do I solve it? If one had a mentor, they would ask how I would solve this problem. We need to understand that we need to approach this with learning in mind. All issues that we are dealing with, with an open mind, and it is important for us to understand that we all have a blind spot. You may think that you know it all, but I promise you, you do not,’ Mr Molefe added.
Managing Director of the Legal Practitioners Indemnity Insurance Fund NPC (LPIIF), Sipho Mbelle, gave a presentation about the LPIIF. He explained to attendees that the LPIIF is a nonlife insurance company, that was formed by the LPFF. He pointed out that nothing that they do has a profit motivation. ‘We consider ourselves a public interest organisation. We believe that we want to serve the profession and we want to serve the public,’ Mr Mbelle said. He added that the LPFF pays a premium to the LPIIF on behalf of legal practitioners. The LPIIF provides professional indemnity (PI) insurance and publishes risk management education in De Rebus including the Risk Alert Bulletin. The PI insurance is subject to the master policy cover, which refers to the terms and condition that the LPIIF gives to the legal profession.
Mr Mbelle pointed out that the LPIIF provides prescription letter services. The scheme also has practitioner support, where they send their executive to law firms to have a one on one with legal practitioners and explain what the LPIIF is about. Mr Mbelle also revealed that the LPFF litigates on behalf of the profession. He added that legal practitioners can participate on some panels because they are part of the scheme. Mr Mbelle said that the scheme offers access to justice as more practitioners can participate.
Investment Executive at the LPFF, Robert Burawundi, spoke about the increasing provisions on trust accounts, the key provisions to look out for in the LPA and the rules of the Legal Practice Council (LPC). He added that the key elements have to do with the requirements of s 86 of the LPA. ‘Anyone who operates a trust account is required to have a valid Fidelity Fund Certificate. The trust account must be held with the bank that has entered into a banking arrangement [with the holder of the trust account] and there are 14 banks that have arrangements with the Fund,’ Mr Burawundi added.
Investment Executive at the LPFF, Robert Burawundi, spoke about the increasing provisions on trust accounts, the key provisions to look out for in the Legal Practice Act 28 of 2014 and the rules of the Legal Practice Council.
He mentioned one of the key initiatives by the board of the LPFF, is the automation of Trust Interest Receipts by the LPFF. He pointed out that this has been a journey since 2012. Since then, the Fund has made significant progress, and legal practitioners have contributed to this journey. Mr Burawundi said that s 86 speaks to investments, which is an opportunity that legal practitioners can utilise to enhance what is refundable to them at the end of each financial year, in terms of audit fees and bank charges. He added that most legal practitioners who are adopting this method are getting more out of their audit fees and bank charges.
Mr Burawundi also touched on the claimant of unpaid trust money, which has been in place for almost over a decade. Legal practitioners are required to comply with these three provisions for trust accounts, which are namely, s 86(2), s 86(3) and s 86(4) of the LPA.
He added that the key distinction between s 86(3) and s 86(4) is to understand that 100% of the interest that is earned on s 86(2) and s 86(3) vests with the LPFF the moment it is generated, and that interest must be paid over to the LPFF. In terms of s 86(4) only 5% of the interest goes to the LPFF. One has to have a client mandate to invest their money in terms of s 86(4).
Vice Co-Chairperson of the Johannesburg Attorneys Association, Azhar Aziz-Ismail, in his presentation on artificial intelligence said that young legal practitioners find themselves in a unique position in the forefront of a rapidly changing legal landscape.
He shared the total trust interest that legal practitioners have contributed in the past five years was R 780 million in 2019 and R 206 million in 2021.
Mr Burawundi said that the LPFF still needs to perform its statutory obligations, which is the payment of claims and other obligations it has in terms of s 22(1)(b) regardless of the interest circle. Whether the income is declining or increasing the LPFF is still seized with that obligation.
Vice Co-Chairperson of the Johannesburg Attorneys Association, Azhar Aziz-Ismail, in his presentation on artificial intelligence (AI) said that young legal practitioners find themselves in a unique position in the forefront of a rapidly changing legal landscape, with the energy and adaptability of the youth, yet rooted in a country with its own legal traditions and challenges. He said that it is important that South Africa acknowledges the reality of the situation. Like many other countries, it is grappling with the integration of AI and technology into various sectors, including the legal sector. ‘As a country we may not be in the forefront of AI development globally, but we are certainly not immune to its effect. South Africa has recognised the importance of AI and this is evidenced in a recent law launch of an AI planning discussion by the Department of Communications and Digital Technologies in April 2024,’ Mr Aziz-Ismail said.
He pointed out that it is important for young legal practitioners to be aware of the changes that are happening in the industry and in the country, as this may impact the future of the country and the profession. He shared that the legal industry is not new to legal technology, that legal technology goes as far back as 1953 with the audograph (dictation machine) and as time progressed in 2023 with the release of AI-Assisted Research on Westlaw Precision. He added that there is a wide variety of tools that are available locally and internationally. He said that young legal practitioners should not be discouraged despite the legal industry being slower on technology, the legal industry has embraced it and things have changed drastically since the first tools were released. Mr Aziz-Ismail mentioned a few legal technologies and said that the field of legal technologies is quite wide. He said that when it comes to legal technologies, AI can be used for a lot of things, such as –
‘Legal technology is not only what one uses to support their clients. Legal technology also talks to how you run and manage your law firm. What is important to us is to understand, especially us young lawyers, we have been trained to a specific mindset at university level. We have gone through articles, but the practice of law is not only about the law, especially for those of you who are venturing to managing directors, starting your own law firms. The practice of law is a business and there are operational elements to it as well,’ said Mr Aziz-Ismail. He noted that legal practitioners have to have a mindset to think like businesspeople and legal practitioners.
The Law Society of South Africa in collaboration with the Legal Practitioners’ Fidelity Fund, hosted a youth month event in Johannesburg on 29 June 2024.
Mr Aziz-Ismail pointed out that generative AI is not necessarily about removing human beings from the process. He said these tools are not about scrapping knowledge workers or replacing them. But they are about increasing productivity knowledge, improving creativity and refining ideas. Mr Aziz-Ismail said that at the end of the day all generative AI tools require input, some sort of training. ‘What you put in is what you are going to get out.’ He pointed out that in legal research AI and technology play a crucial role in knowledge management by streamlining processes, analysing vast data processes.
He said it was important that legal practitioners explore AI tools and play with them. By implementing certain strategies legal practitioners can effectively mitigate risks associated with AI. While he delved more into mitigating risks of AI while doing research, he pointed out that there must be human oversite and review. He added that there should be –
The President of the LSSA, Joanne Anthony-Gooden, said many people think the LPC and the LSSA are the same entities, and that both institutions perform the same function.
Mr Aziz-Ismail said young South African legal practitioners can prepare for the AI of the future by embracing technology, but this does not mean blindly adopting every tool but rather developing a mindset of openness to innovation and experimenting with tech tools and developing tech literacy. ‘We do not need to be computer programmers. We do not know how to program. But develop a basic understanding of AI and how it works. Learn how to prompt engineers. Focus on uniquely human skills as AI takes on more of a routine task. We should develop skills that are more focused on humans that includes emotional intelligence, creative problem solving, adequate reasoning and the ability to build strong client relationships.’ He added that legal practitioners must advocate for the responsible use of AI. He also encouraged the young legal practitioners to collaborate and network by attending network events such as the youth conference more often.
The President of the LSSA, Joanne Anthony-Gooden, said many people think the LPC and the LSSA are the same entities, and both institutions perform the same function. However, she explained that the LPC is the regulatory body of the legal profession, and their function is to regulate in terms of the LPA. While the LSSA is a representative of legal practitioners, serving as a voice of legal practitioners. But most importantly, its core function being legal education and development. She told young legal practitioners that it is the job of the LPC to discipline legal practitioners who overstep the code of conduct and unfortunately the LSSA cannot help such practitioners.
The joint Chairperson of the Johannesburg Attorneys Association and joint Vice-Chairperson of the Gauteng Attorneys Association, Wendel Bloem, spoke about the importance of attorneys’ associations.
Ms Anthony-Gooden explained that legal education, mandatory training, as well as ethics, and compliance within the legal practice is the function of the LSSA. She explained that it goes a little further than that as the LSSA needs to partner with training institutions, law schools to make sure that legal practitioners that are turning out are competent and know the difference and how to run their practice. She added that the LPC speaks about the transformation of the legal profession and pointed out that, that is where the two institutions meet each other, on the transformation of the profession.
Ms Anthony-Gooden said that the LSSA represents and promotes the rights of attorneys in all matters affecting the profession. And protects and grows the professional services of attorneys and identifies common interest. She explained that the law is not advancing as fast as it should for people on the ground. She encouraged young legal practitioners to contact the provincial associations in all nine provinces and that the LSSA comprises of three constituencies, which are the Black Lawyers Association (BLA), National Association of Democratic Lawyers and Independent lawyers. She pointed out that the LSSA engages on behalf of legal practitioners, with stakeholders such as government departments, Parliament, the judiciary and other organisations. ‘We lobby for legislation to be passed. We lobby about policies, processes and procedures which impact upon the public and the attorney’s profession. And because of these activities for which we are very active, there are multiple changes that are implemented.’
Head of Legal Aid South Africa in Bellville, Ronelle Arendse, told the young legal practitioners that they need to take their Practical Vocational Training (PVT) contract seriously.
Ms Anthony-Gooden said some of the engagements are aimed at promoting the rights of legal practitioners and enhancing the image of the legal profession. ‘The LSSA regularly interacts with the Legal Practice Council,’ Ms Anthony-Gooden added. She said the LSSA’s interaction with the LPC is quite robust, that even though sometimes there are arguments, they mostly look for common ground for the best interest of legal practitioners. She spoke about the mentorship programme that the LSSA offers young legal practitioners, through the Safety and Security Sector Education and Training Authority (SASSETA). Ms Anthony-Gooden also encouraged legal practitioners to read the LSSA’s legal journal De Rebus, which publishes informative content, such as the law reports, case notes, as well as news articles that keep practitioners up to date and educate legal practitioners about developments in the legal profession among other things.
Association Professor and Head of the Department of Private Law at the University of Johannesburg, Michele van Eck said legal practitioners need to understand the limitation of technology.
The joint Chairperson of the Johannesburg Attorneys Association (JAA) and joint Vice-Chairperson of the Gauteng Attorneys Association, Wendel Bloem, said that the attorneys’ association takes the baton from the LSSA on the fact that it promotes entry to the legal profession. He pointed out some of the benefits of being a part of the association is that it engages stakeholders to advance the interest of members. He also gave an example that members of the JAA get services such as access to CaseLines, the digitisation of files and booking services. The JAA has a working relationship with the Master’s office and court clerks to make the running of practice for its members efficient including entities such as the South African Revenue Service, the National Prosecuting Authority, the Department of Justice and Constitutional Development, human rights entities, ProBono.Org and many others.
Head of Legal Aid South Africa in Bellville, Ronelle Arendse, told the young legal practitioners that they need to take their Practical Vocational Training (PVT) contract, which is a contract between the candidate legal practitioner, the principle and the LPC, seriously. She pointed out that they need to read it and know what they are going to contract themselves into. She said that the PVT contract is a contract between legal practitioners and the LPC. She added that she noticed that when some law students are still studying for their LLB, they register companies. She said that they must be honest and disclose this information to their principal and the LPC from the onset, so that it does not create problems, as it is a matter of integrity. She added that once a candidate legal practitioner has received articles, she often advises them that they must be like a sponge and absorb everything they are taught. Ms Arendse told the young legal practitioners that they need to network and be in associations so they can build professional relationships and be able to seek assistance should they need it.
Legal Practice Council Legal Officer, Estelle Jordaan, spoke about drafting of admission papers.
Ms Arendse also spoke about the competence-based examinations. She pointed out that the exams require hard work and dedication. ‘There is no easy recipe for it, it requires you to be dedicated,’ Ms Arendse said. She advised that candidate legal practitioners need to have the material and have prepared on the material. She pointed out that when marking scripts, she can see that some candidate legal practitioners do not prepare, and they do not understand the principle of what they are doing. She said that it is disheartening because one cannot go into something so important by taking a chance and not preparing. She added that candidate legal practitioners need to be able to apply what they have learnt to any scenario. She advised that candidate legal practitioners must attend extra classes that various organisations such as NADEL are offering.
Legal practitioner Anthea Platt SC spoke on the aspect of becoming an advocate and highlighted the difference from that of being admitted as an attorney.
Association Professor and Head of the Department of Private Law at the University of Johannesburg, Michele van Eck, said legal practitioners need to understand the limitation of technology, to ensure that they have a level of digital competence, verify information and remain responsible when using technology, regardless of what the program they might be using produces. She said that technology does not replace legal practitioners. And if one does not know what technology is about, they need to employ someone who does.
Legal Practice Council Legal Officer, Estelle Jordaan, spoke about drafting of admission papers. She said that an application for admission is the most important application that a legal practitioner will ever prepare. She pointed out that generally most admissions are granted by the court irrespective of the errors and omissions notwithstanding or having filed multiple supplementary affidavits. She added that most times the courts are sympathetic, and people do get admitted eventually. Ms Jordaan said when preparing an application, the first mistake many applicants make is the use of a template without taking the time to read the Act and the rules.
Programme Director for the Young Lawyers’ Conference, Matome Chidi; with LSSA President Joanne Anthony-Gooden; Chairperson of the Legal Practitioners Fidelity Fund, Peppy Kekana; Legal Practitioner, Lizelle Haskins; and Acting Executive Director of LSSA Lizette Burger.
Ms Jordaan said if one reads the Act and the rules, they do not need to use a template. But just address every item as it is. She said it is not only omissions on applications, but mistakes such as incorrect dates, references to the legislation that is incorrect. She pointed out that in those cases the Council must ask the applicant to address those mistakes and omissions. She added on the issue of language skills and said an application to admission gives the court a glimpse of the applicant’s competence, potential and drafting of papers when it comes to clients. She added that poor use of language and incorrect drafting may indicate to the court that the candidate may not be suitable to meet a client’s expectations.
President of the South African University Law Clinics Association, and LEAD course director, Daven Dass, spoke about legal education.
Ms Jordaan said that candidate legal practitioners have a duty to know what the law says. ‘We have an honourable profession, and we owe it to our profession to ensure that we do all that we can and continuously instil values, respect and love for the profession and for the law when it comes to candidate legal practitioners and young legal practitioners. And that respect is also owed to the Legal Practice Council, who is your regulatory body and its employees,’ Ms Jordan added.
Legal practitioner Anthea Platt SC spoke on the aspect of becoming an advocate and highlighted the difference from that of being admitted as an attorney. She said that PVT training for advocates is one year and unremunerated. She pointed out that PVT is vital and must be completed in February of every year, she said the reason for this is that one needs to be able to write the admission examinations in September. Ms Platt advised that those who wanted to be admitted as advocates have to make sure that they complete their PVT and submit to the LPC before the end of February.
Legal practitioner, Lizelle Haskins, shared the five fundamentals of practice with the young practitioners.
Ms Platt told the young legal practitioners that she sits in the professional affairs board of the LPC. She said that it is difficult sometime because some candidate legal practitioners submit their PVT after February, only when they started in January, meaning they cannot write in September then they must wait to April the following year. She said that they must read the LPA and see what is required of them. She also pointed out that it is important that when candidate legal practitioners start their pupillage journey, they must work very hard. She also advised that when they do not understand things they should not be afraid to ask their seniors for assistance.
President of the South African University Law Clinics Association, and Legal Education and Development (LEAD) course director, Daven Dass, said that when he speaks of legal education, he does not speak of practice ready. He added that graduates leaving university must be in position of skills, they must be skills ready. He said that it is not up to a graduate leaving university at that point to be familiar with r 17 and s 24 of the LPA, which speaks to admission. He pointed out that it is up to the graduate to be in a position to know that there will be professional aspects required of them to enter the legal profession. ‘They must be provided the knowledge in this regard, and I think that is key and important,’ Mr Dass said.
Mr Dass continued to say that the late Chief Executive Officer of the LSSA, Nic Swart in 2014 said that universities are not expected to deliver readymade legal practitioners. Mr Dass added that this is where the message has been lost in translation largely, because of individuals who come through the system, have lost their voice. He said that when talking about legal education it is high time that academics and the legal profession know that they are stakeholders in enabling, a fluent skilled candidate legal practitioner. He pointed out that candidate legal practitioners want skills, and they want a canvas to know which skills to utilise when they enter the legal profession.
The Black Lawyers Association’s Kgaogelo Maponya spoke about barrier to the profession and skewed briefing pattern.
Legal practitioner, Lizelle Haskins, shared the five fundamentals of practice with the young practitioners which are namely:
Member of the Black Lawyers Association’s Youth Desk Keneilwe Zondi discussed barriers for candiate legal practitioners.
In the panel discussion on barriers to access and briefing patterns, the BLA’s Kgaogelo Maponya spoke about barriers to the profession and skewed briefing patterns particularly on race. He said there is bias on the briefing of some legal practitioners within the legal profession. ‘When we speak of briefing patterns, we are not referring to general work such as [Road Accident Fund], or criminal work. That work is quite accessible. When we refer to skewed briefing patterns, we are referring to specialised work. Work that everyone does not do, such as commercial work which involves larger industries and to some degree the state’, he said. Mr Maponya pointed out that this is not a novel issue within the profession. He added that the issue has manifested itself prior to the 1994 dispensation. He said that young legal practitioners need to discuss and confront what must happen with issues such as briefing patterns.
Member of the Black Lawyers Association’s Youth Desk Nomfundo Nonkele attributed some of the struggles that legal practitioners experience.
Members of the BLA’s Youth Desk, Nomfundo Nonkele and Keneilwe Zondi attributed some of the struggles that legal practitioners experience to the fact that one needs to be financially afloat, as the candidate legal practitioner’s stipend is small, and pupils do not get paid throughout PVT. Other challenges they spoke to is the fact that requirements were unreasonable as some candidate legal practitioners are required to have prior experience, and a car. The youth from the BLA desk said that is very discouraging. They also mentioned the issue of the board exams not being frequent and that one must wait months in order to write the exams. The most important was the issue of support when it comes to matters of sexual harassment. That candidate legal practitioners do not have a central place to go and report such matters. Ms Zondi said that the LPC should be more involved in the relationship between candidates and their principals to make sure that there is good conduct in that relationship.
Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
This article was first published in De Rebus in 2024 (August) DR 4.
