History of the Legal Practice Act

The first meeting of the designated members of the National Forum on the Legal Profession was held on 31 March 2015. Advocate Kgomotso Moroka SC was elected as Chairperson and attorney Max Boqwana was elected as Deputy Chairperson of the National Forum.

• Read about the National Forum.
• Read about the first meeting of the National Form on 31 March 2015.
• Read the article: First meeting of the National Forum of the Legal Practice Act (2015 (May) DR 12).

This brings into effect the National Forum on the Legal Profession, the transitional body which must lay the groundwork for the Legal Practice Council. The provincial law societies continue to carry out their functions in terms of the Attorneys Act.

• Read GG 38412/23-01-2015 (PDF – 340KB).
• Read the LSSA press release welcoming the implementation of the National Forum.

• Press release: LSSA welcomed the promulgation of the Legal Practice Act 28 of 2014. Read press release (PDF – 27KB).
• Download Government Gazette 38022 of 22 September (PDF – 366KB).
• Advisory by The Presidency (23 September 2014). Read advisory.

The Portfolio Committee on Justice and Constitutional Development will consider and report on the amended Bill on Wednesday 12 March 2014.

Support for the adoption of the Bill was not unanimous at the NCOP. Five provinces voted in favour of the Bill, one province abstained and three did not submit their mandates. The Western Cape Legislature did not support the Bill on the following grounds:

• The Western Cape objected to the Legal Practice Bill asserting that the formation of the Legal Practice Council forces advocates and attorneys into one governing body thus constituting a form of fusion of the profession.
• The Western Cape further asserted that the Bill shall provide the Minister with too much power over the South African Legal Practice Council, and over the profession as a whole, specifically the power of dissolution, the prescription of community service and that of maximum tariffs.

The LSSA Legal Practice Bill delegation which made submissions to Parliament with CEO Nic Swart (left), included Busani Mabunda, Jan Stemmett, Krish Govender and Max Boqwana.

• There will no longer be ministerial appointment to the Legal Practice Council (LPC) in respect of the legal practitioners component, and the profession will now appoint its own representatives.
• The provision for the accreditation of voluntary associations which will acquire certain regulatory functions has been deleted. We have always been of the view that this would lead to a fragmentation of the profession.
• The Bill does not provide for the regulation of paralegals.
• The definitions of ‘conveyancer’ and ‘notary’ make it clear that these practitioners will be registered and enrolled attorneys.
• Provision is made for easy conversion by a legal practitioner from registration as an attorney to that of an advocate and vice versa.
• The Transitional Council and the LPC will draft a code of conduct and rules; this will not be done by the Minister or the Justice Department.
• Provision is made for the investment of trust monies for the benefit of clients.
• The majority of the members of the Board of Control of the Attorneys Fidelity Fund will be nominated by the LPC.
• The investigation of complaints against legal practitioners will be conducted by regional councils in terms of powers delegated to them by the LPC.

The Portfolio Committee on Justice and Constitutional Development invites stakeholders and interested persons to submit written submissions on the Legal Practice Bill [B20-2012].

The purpose of the Legal Practice Bill is to:

• provide a legislative framework for the transformation and restructuring of the legal profession in line with constitutional imperatives;
• provide for the establishment, powers and functions of a single South African Legal Practice Council and Regional Councils in order to regulate the affairs of legal practitioners, and to set norms and standards;
• provide for the admission, enrolment and registration of legal practitioners;
• regulate the professional conduct of legal practitioners so as to ensure accountable conduct;
• provide for the establishment of an Office of a Legal Services Ombud and for the appointment, powers and functions of a Legal Services Ombud;
• provide for an Attorneys Fidelity Fund and an Attorneys Fidelity Fund Board of Control;
• provide for the establishment, powers and functions of a Transitional South African Legal Practice Council; and
• provide for matters connected therewith.

• By the end of the meeting it was clear that the two branches of the profession had moved closer in their views on the Bill, and there are now several areas of agreement. Both bodies agree that
• there should be a unified profession, but not fusion;
• two separate branches of the profession should remain, allowing for legal practitioners with Fidelity Fund certificates and legal practitioners who work on a referral basis only;
• there should be an overarching national council to deal with policy and set standards for the entire legal profession;
• the concept of voluntary associations with regulatory powers is not acceptable as this would fragment the profession and lead to numerous regulatory problems;
• the attorneys’ profession should have a majority representation on the Legal Practice Council;
• paralegals should be regulated but not in the LPB;
• admitted legal practitioners should be able to cross from one branch of the profession to the other seamlessly, provided they fulfilled the necessary requirements;
• they would seek the inclusion of a provision in the Bill for the protection of the interests of legal practitioners in the objectives of the LPC;
• there should be synergy and cooperation as regards legal education and training;
• there should be a joint approach to the Law Deans in discussions on problems around the LLB degree;
• access to justice must be taken into account at all times in restructuring the profession; and
• all legal practitioners would provide pro bono servicesIssues that required further discussion between the two branches of the profession are the following:
  The GCB was of the view that if the Legal Practice Council was the only regulatory body, it would have difficulty in coping with the regulatory, administrative and communication burden for both branches of the profession. In general, there appeared to be common ground between the GCB view and the view of some statutory councilors of the provincial law societies, which was submitted to the DoJ&CD as an alternative proposal, for a regional governing structure. The GCB sees the LSSA and GCB existing as the main statutory bodies, with separate regional councils for the two branches of the profession, and suggested that these intermediary statutory bodies be created to coordinate the activities of the regional councils and to maintain standards. Currently, neither the LSSA nor the GCB are statutory bodies. The GCB had not formulated a view on the number and functions of the regional councils at this stage.

Also, the GCB was of the view that advocates had no interest in the regulatory affairs of attorneys and vice versa. Where there were issues in common to both branches, these should be dealt with together at the highest national level, but regulatory matters specific to each branch should be dealt with by the respective branch of the profession. Although there were different views on whether the Minister should have representation on the Council, the LSSA’s proposal of one ministerial representative would be discussed. Further discussion was also required on the role of paralegals and also on community service, particularly in the context of access to justice, as well as on vocational and workplace training models.

The Justice Department advised the LSSA on 18 August 2011 that the Legal Practice Bill was being delayed, after the Minister announce in his budget speech in June that it would be introduced to Parliament ‘within the next few days’. The delay has been on the side of the State Law Adviser, whose office had asked for an extension of time to certify the constitutionality of the Bill. Also, the Justice Department was considering a number of broad policy issues that impact on the Bill.

Competition issues: In addition, the Department was in discussions with the Competition Commission on various issues that impacted on the Bill, such as reserved work and fee arrangements. The Justice Department indicated that it would convene a joint meeting between itself, the Competition Commission and the legal profession to discuss these issues.

Cross-border practices: The Department has indicated that it is investigating the implications of opening the market for legal services across the SADC region and beyond. It would be considering foreign policy and international commitments in terms of the General Agreement on Trade in Services (GATS).

Broad policy issues

Some of the policy issues being investigated include

• admission requirements with specific regard to vocational training; whether articles of clerkship and pupilage as they currently operate are facilitation transformation of the profession, and how these systems can be integrated;
• the framework and criteria for the status of senior counsel;
• the policy framework around community service and pro bono work, and how these coincide with vocational training;
• the role of paralegals; and
• reserved work.

Although the Bill provides the principles for unifying the governance of the profession, no guidance is given on how the operational aspects are to be streamlined and integrated.

The Justice Department has undertaken to consult the profession on all the policy aspects being considered.

Download (PDF -523KB) the presentation from the Legal Practice Bill information sessions in July/August 2011

The LSSA invites attorneys to submit their comments or raise their concerns with the Acting CEO of the LSSA, Nic Swart: E-mail nic@LSSALEAD.org.za or fax 086 677 8824.

LSSA completes national information sessions on the Bill

Information sessions on the Legal Practice Bill (LPB) were held throughout the country during July and August by members of the LSSA Task Team and members of its Management Committee.

Active participation by practitioners was recorded at all sessions, with attorneys being given the opportunity to raise their concerns and engage in discussion with those who have been involved directly in the negotiation process with the Justice Department.

Attorneys raised the following issues at most of the sessions:

• the future of reserved work;
• the role of foreign lawyers and cross-border practices;
• the necessity for regional structures close to practitioners;
• concern around multidisciplinary practices;
• the role of the Legal Services Ombud and whether this would impact on the independence of the profession, particularly as regards disciplinary procedures;
• ministerial appointments to the National Legal Practice Council and the effect on the independence of the profession;
• the roles of attorneys and advocates and why each should be involved in the regulation of the other;
• attorneys should have a greater representation on the national council as they far outnumber advocates in practice; and
• right of appearance in the High Court and senior counsel status.

The LSSA is consolidating the reports on all the information sessions into a report. The Legal Practice Bill will also be on the agenda for discussion at the annual general meetings of all the LSSA constituent members throughout October and November 2011.

Information sessions schedule

The Co-Chairpersons of the Law Society of South Africa, Nano Matlala and Praveen Sham, invited attorneys to information sessions to discuss the Legal Practice Bill and the implications of the Bill for the profession. The LSSA undertook to take into account the issues and concerns raised at the sessions, and to take direction from attorneys to guide it when making representations to Parliament.

Some issues discussed:

• What about reserved work?
• Governance of the profession and the election of councillors
• Will trust interest still be payable to the Fidelity Fund?
• Will I still receive cover against theft and negligence from the Fidelity Fund?
• What will the requirements be for admission to the profession for local and foreign practitioners?
• Who will look after the interests of legal practitioners?
• Who will I contact for questions on day-to-day issues affecting my practice?

Background

• The definitions of conveyancer and notary must be amended to state that only an attorney registered and enrolled as a conveyancer may practise as such. It was vital for the protection of the public and for the land registration system, according to the LSSA, that a conveyancer should be an officer of the court and that the public should be protected by the Fidelity Fund and the Insurance Indemnity Fund.
• The provision for ‘reserved work’ must be retained in the Bill, and defined.
• The Department must seriously consider reinserting the provision in the Bill equivalent to the current s 78(2A) which entitles clients to interest earned on deposits paid to attorneys.
• The Department’s Bill legislates that all interest on monies deposited in any trust account must be paid to the Fidelity Fund.
• As part of its regulatory functions, the NLPC must be empowered to deal with fees and also determine all aspects relating to legal education, including accreditation, monitoring and review. The Council must have the power to determine that some forms of training are mandatory, and mandatory continuing professional development for legal practitioners must be entrenched in the LPB.
• Regional councils should have only delegated powers flowing from the NLPC.
• Voluntary associations should have no delegated powers as this may cause a fragmentation of the profession into numerous interest groups.
• The Department should seriously consider the role of a Legal Practice Society as a body to provide corporate identity for legal practitioners.

The LSSA submitted its comments (PDF – 141Kb) on the first working draft to the Department of Justice and Constitutional Development on 17 November 2009.

Background prior to 2009

Fundamental differences of opinion between the attorneys’ profession and the advocates’ profession led to two versions of the Bill being drafted, one by the Law Society of South Africa (PDF – 286Kb), representing the view of the attorneys’ profession, and the second draft by the remainder of the Task Team stakeholders (PDF – 267Kb).

The two drafts were presented to the Minister in 2002. A report by Mr Budlender summarised (PDF – 59Kb) the views which led to the drafting of two versions of the Bill.

There were no further developments for some time.