Latest developments on the Legal Practice Act 28 of 2014
LSSA National Forum on the Legal Profession representatives
The LSSA has appointed its team of eight representatives to the National Forum:
Max Boqwana (Nadel)
Kish Govender (Nadel)
Jan Maree (Law Society of the Free State)
Martha Mbhele (Black Lawyers Association)
Janine Myburgh (Cape Law Society)
Praveen Sham (KwaZulu-Natal Law Society)
Lutendo Sigogo (Black Lawyers Association)
Jan Stemmett (Law Society of the Northern Provinces)
Section 96 (1)(a)(i) of the LPA stipulates how the nominations must be made by the Law Society of South Africa (LSSA):
National Forum on Legal Profession
96. (1) A National Forum on the Legal Profession (hereafter referred to as the ‘‘National Forum’’) is hereby established as a body corporate with full legal capacity
and comprising of the following members:
(a) 16 legal practitioners, namely—
(i) eight attorneys designated by the Law Society of South Africa, two of which represent the Black Lawyers Association, two of which represent the National Association of Democratic Lawyers, one of which represents the Law Society of the Cape of Good Hope, one of which
represents the Law Society of the Orange Free State, one of which represents the Law Society of the Transvaal and one of which represents the Natal Law Society; …’
Section 120 of the LPA stipulates as follows (our inclusions in parenthesis):
Short title and commencement
120. (1) This Act is called the Legal Practice Act, 2014.
(2) Chapter 10 [the National Forum] comes into operation on a date fixed by the President by proclamation in the Gazette.
(3) Chapter 2 [the Legal Practice Council] comes into operation three years after the date of commencement of Chapter 10 or on any earlier date fixed by the President by proclamation in the Gazette.
(4) The remaining provisions of this Act come into operation on a date, after the commencement of Chapter 2, fixed by the President by proclamation in the Gazette.
The date for the commencement of Chapter 10 (the National Forum) has yet to be announced.
23 September 2014: Legal Practice Act 28 of 2014
Press release: LSSA welcomes promulgation of the Legal Practice Act 28 of 2014. Read press release.
Advisory by The Presidency (23 September 2014). Read advisory.
The Legal Practice Act 28 of 2014 was gazetted in GN 740 in Government Gazette 38022 of 22 September 2014.
Download Government Gazette 38022 of 22 September.
12 March 2014:
The National Assembly has passed the Legal Practice Bill, as amended by the NCOP. The Bill will be sent to the President for assent.
View the Legal Practice Bill [B20D-2012] as amended and passed by the NCOP and the National Assembly.
5 March 2014:
The Legal Practice Bill has been passed by the National Council of Provinces (NCOP) with amendments. The Bill has been referred to the Portfolio Committee on Justice and Constitutional Development of the National Assembly for concurrence. Read the parliamentary paper.
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.
Download the LSSA submissions to provincial legislatures and the National Council of Provinces (February 2014)
Dates and venues for public hearings on the Legal Practice Bill are published as confirmed by provincial legislatures
►Tuesday, 4 February 2014, Free State Legislature: Old Parliament Building, QwaQwa 09:00
► Tuesday. 4 February 2014, North West Provincial Legislature: Chamber, Legislature Building, Mahikeng, 10:00
►Tuesday, 4 February 2014, Mpumalanga Provincial Legislature, Nelspruit 15:00
Govan Mbeki Foyer, Lower Ground, Mpumalanga Government Complex, Riverside Park.
►Wednesday, 5 February 2014, Free State Legislature: 4th Raadsaal, Bloemfontein 09:00
►Wednesday, 5 February 2014, Gauteng Provincial Legislature briefing, Johannesburg 09:00
Committee Room A, 1st Floor Gauteng Provincial Legislature, Corner City Hall and President Street, Johannesburg.
►Friday, 7 February 2014, KwaZulu-Natal Legislature: Main Chamber, Legislature Building, Pietermaritzburg 10:00
►Tuesday, 11 February 2014, Northern Cape Legislature, Kakamas. Contact Judy Masekela at (053) 839 8374.
►Thursday, 13 February 2014, Eastern Cape Provincial Legislature: Raymond Mhlaba Chamber, Legislature, Independence Avenue, Bhisho 10:00
►Friday, 14 February 2014, Limpopo Provincial Legislature: Bolivia Lodge, Polokwane, 09:00
►Tuesday, 18 February 2014 Western Cape Provincial Parliament: Chambers, 8th Floor, Cape Town: Provincial Legislature Building, t Wale Street, Cape Town 09:00-13:00.
► Wednesday, 19 February 2014: Gauteng Provincial Legislature public hearings on the Legal Practice Bill, City Hall, Johannesburg at 10:00.
Download the final version of the Legal Practice Bill as approved and passed by the National Assembly on 12 November 2013.
Legal Practice Bill Draft 7.
24 October 2013: The Justice Portfolio Committee plans to finalise the Legal Practice Bill for adoption on 29 and 30 October 2013.
Legal Practice Bill Draft 6 with amendments proposed by Portfolio Committee pursuant to discussions on 23 October 2013.
22 October 2013: The Justice Portfolio Committee will continue discussing draft 5 of the Legal Practice Bill on Wednesday, 23 October 2013.
Legal Practice Bill Draft 5 with amendments pursuant to discussions on 10 September 2013.
2 October 2013: The Justice Portfolio Committee is debating the various options in draft 5 of the Legal Practice Bill over the next two weeks.
26 September 2013: The Justice Portfolio Committee is to meet next week for further discussions of the Bill.
16 September: As the Justice Portfolio Committee has not scheduled a final meeting, it is unclear when the Bill will be finalised.
12 September 2013: The Justice Portfolio Committee postponed its final meeting to next week. It is envisaged that the Bill, if finalised, is to receive a second reading at the National Assembly on 19 September 2013.
10-11 September 2013: The Justice Portfolio Committee is meeting on 10 and 11 September to discuss outstanding issues on the Legal Practice Bill. A fourth draft of the Bill was presented on 10 September. This contained amendments as discussed by the committee on 3 and 4 September 2013.
Legal Practice Bill Draft 4 with amendments pursuant to discussions on 3 and 4 September 2013.
Legal Practice Bill Draft 3 with amendments as at 15 August 2013.
July-August 2013: The Justice Portfolio Committee has been debating the Legal Practice Bill throughout July and August. The committee has been discussing changes to the Bill with the drafters from the Department of Justice and Constitutional Development. The drafters have been making amendments to the Bill as requested by the committee and various working document drafts of the Bill are tabled which include deletions and additions. Draft 2 of the Bill reflects the instructions given by the committee for possible options and changes of wording as at 13 August 2013. The chairperson of the committee, Mr Landers, has emphasised that there have been no formal decision on these matters yet, and changes to the Bill merely reflected options for further deliberation by the committee.
Legal Practice Bill Draft 2 as at 13 August 2013.
Legal Practice Bill draft working document as at 1 August 2013.
Legal Practice Bill draft working document as at 24 July 2013.
Original draft of the Legal Practice Bill [B20—2012]
June - July 2013: The Legal Practice Bill is being discussed by the Portfolio Committee for Justice and Constitutional Development.
The Committee is discussing responses and recommendations made by stakeholders with the Justice Department. Read the summary by the DoJ&CD.
16 May 2013: The LSSA has made its further submissions on the Legal Practice Bill, 2012 to the Portfolio Committee on Justice and Constitutional Development. These submission responded to a number of questions raised by the Portfolio Committee during the oral hearings in February 2012. In a separate annexure, the LSSA submissions also carried a full response to the oral and written submissions made by the Attorneys Fidelity Fund. Click here to download the further submissions.
19 February 2013: The LSSA made its submissions to the Justice Portfolio Committee. The LSSA was requested to supplement its submissions with further information requested by the Committee.
|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.
Read the De Rebus comprehensive feature article covering the submissions by 12 organisations and individuals invited to make oral submissions to the Justice Portfolio Committee on 19 and 20 February 2013. In addition, the article summarises all the written submissions made by other stakeholders and individuals.
Click here to download the full LSSA submissions
Summary of LSSA submissions on Legal Practice Bill
The LSSA submissions open by welcoming developments in the Bill which were improvements of the previous version. The LSSA then goes on to stress the importance of the independence of the courts, the judiciary and the legal profession as entrenched in the Constitution.
The LSSA notes:
‘Judicial independence is a requirement demanded by the Constitution in the public interest, since without that protection judges may not be, or be seen by the public to be, able to perform their duties without fear or favour. Although not specifically mentioned in the Constitution, the judiciary depends on an independent legal profession to enable it to perform its constitutional duty. An independent, effective and competent legal profession is fundamental to the upholding of the rule of law and the independence of the judiciary. Effective judicial process cannot be obtained from independent judges without independent lawyers.’
The LSSA highlights several provisions in the Bill which affect the independence of the legal profession. Firstly, it points out that there are differing views in the profession on the issue whether the Minister should have the right to appoint members of the Legal Practice Council (the Council). These range from the view that there should be no members of the LPC appointed by the Minister to ensure independence, to the view that the Minister should be entitled to appoint three members of the Council, as provided in the Bill introduced in Parliament.
There are also differing views within the profession on the issue of the dissolution of the Council, insofar as it may reflect on the independence of the profession and be at odds with the implied provision that the Council has perpetual succession. One view holds that the Court may, on the application of any interested person, dissolve the Council. The contrary view is that the Minister should have the right, on proper grounds, to order that the Council be dissolved, as provided in the draft Bill. The LSSA states, however, that if the Council is dissolved, for whatever reason, the Bill should provide that the provisions dealing with the composition of the Council, should apply in relation to the reconstituted Council.
Wherever the Minister is given the power to make regulations in the Bill, the LSSA stresses that this should be done in consultation with the Council. The LSSA recommends that there be a blanket provision to this effect, with an exception being made in those circumstances where it is appropriate for the Minister to act after consultation with the Council – for example – when determining community service, where the public interest is paramount.
Regional councils: The LSSA agrees that regional councils should be established and that they should operate under powers delegated to them by the Council. However, the regulatory functions of the Council relative to the attorneys' profession and the advocates' profession are significantly different and the LSSA believe that, at regional level, there need to be separate regulatory bodies for each profession.
The areas of jurisdiction of the regional councils must be prescribed by the Minister in consultation with the Council (and not after consultation with the Council), since the Council has first-hand knowledge of the needs for legal services in regions.
The LSSA has noted that regional councils should be elected by legal practitioners, as this will promote and encourage regional involvement by legal practitioners.
Foreign qualifications and admission: The LSSA recommended that provision be made for a panel of experts to determine, in conjunction with the Council, the quality of foreign qualifications, training and experience. This should not be left to the Minister alone.
The LSSA does not support the inclusion of this Minister’s discretion to permit a person or category of persons concerned, to expeditiously commence practising as a legal practitioner by virtue of his or her academic qualifications or professional experience. Any action taken by the Minister in this regard should, in the public interest, be taken only in consultation with the Council. The LSSA warns that it may open the way for persons to gain rights of practice without having to comply with normal admission criteria and procedures. This is not in the public interest and the section should be deleted.
Fees: Although the LSSA shares the Minister’s concerns with regard to high legal costs, the LSSA stressed that any regulations regarding fees should be made by the Council, approved by the Chief Justice and published in the Government Gazette. The Minister should not be involved in the process, which is an unwarranted interference in the fee-setting procedure and is calculated to undermine the independence of the profession.
Ombud: It is in the public interest that the Ombud be independent and be seen to be independent, and the LSSA recommends that the Ombud be appointed by the Chief Justice.
Representative body for legal practitioners: The LSSA is of the opinion that one of the objects of the Council should also be to promote the interests of the legal profession, subject always to the overriding interests of the public. It is in the public interest and in the interests of the administration of justice and the upholding of the rule of law, that there should be a strong, cohesive and independent legal profession, and in fulfilling its duties to the public as regulator, the Council should be mindful of the interests of the profession.
Definitions: ‘advocate’, ‘attorney’ and ‘conveyancer’: The LSSA points out that not every attorney requires a fidelity fund certificate; it is only attorneys who practise in partnership or for their own account or as members of professional companies who require such certificates, whereas professional assistants, associates and consultants do not require certificates. The LSSA suggests that the definitions relating to the attorneys’ profession be amended to read as follows:
‘‘attorney’ means a legal practitioner who was duly admitted and enrolled as an attorney in terms of the Attorneys Act, 1979, or who is admitted, enrolled and registered as such under this Act’.
‘‘Conveyancer’ is defined as including a person referred to in the definition of ‘conveyancer’ in the Deeds Registries Act, 1937. The LSSA notes that it is undesirable that there be a cross reference to other Acts, and the definition currently in the Deeds Registries Act should be incorporated into the Bill. The regulation of conveyancers should be governed by the Bill and not by the provisions of any other Act. (There should be a corresponding amendment of the Deeds Registries Act to bring it into conformity with the Bill).
Minimum legal qualifications: Provision should be made for the Council to play a role in the quality assurance of law faculties at universities to ensure that the legal profession has a voice in determining the content of law degrees (as is the case with other professions, in relation to their academic qualifications). Any decision concerning minimum legal qualifications should be made in consultation with the attorney and advocate members of the Council.
Practical vocational training: The training requirements for candidate legal practitioners should be as determined by the rules, and not prescribed by the Minister. There should be uniform standards with regard to legal qualifications and training for all legal practitioners, which will be determined and provided at a national level. However, this requirement should not inhibit the attorneys' sector or the advocates' sector from requiring further training in specific skills.
Community service: According to the LSSA, the provisions of the Bill which relate to community service are vague. The LSSA proposes that community service be distinguished from pro bono work, and that the obligation to provide pro bono services (for which there should be a specific requirement in the Act) should be restricted to legal practitioners. Community service should be provided by candidate legal practitioners. The Minister’s power to determine community service requirements should also be after consultation with the Council.
Advocates taking instructions directly from the public: If the advocates' profession is to be a referral profession, then advocates should not take instructions from the public, save with the approval of the Council. Such approval should be given only in appropriate cases where it is in the interests of the public, to avoid the irregularities that have occurred in the past through unregulated advocates taking instructions directly from members of the public.
Law clinics: The LSSA points out that the Bill does not make provision for the accreditation of law clinics, as is currently required. This should be a requirement, since law clinics are entitled to employ candidate attorneys.
Legal Aid South Africa should be entitled to charge for its disbursements only, and not charge fees.
Disciplinary processes: It is the LSSA’s strong recommendation that the provisions of the Bill relating to the disciplinary process be removed from the Bill and be incorporated in the rules, in which constitutional values, including transparency of the proceedings, will be taken into account. The submissions set out the process fully. If it is felt that the disciplinary process should be contained in the Bill, then the LSSA recommends that the provisions in the current draft uniform rules be incorporated into the Bill.
Attorneys Fidelity Fund: Several sections deal with the Attorneys Fidelity Fund (AFF) and the LSSA has made numerous submissions in this regard. Among these the LSSA notes:
The AFF should not be liable for the theft of any money placed with an attorney purely for investment purposes, and the current provisions of s 47(1)(g) of the Attorneys Act should be reinstated in the Bill.
The Bill gives the board of control of the AFF the right to inspect the accounting records of any attorney. While it is understandable that the AFF would wish to safeguard its position by conducting inspections of attorneys' accounting records, the LSSA stresses that the Council is the regulator, and it is inappropriate that two entities should have the same regulatory powers in respect of attorneys' firms. The power of inspection should lie with the Council, but the Council should be authorised to delegate the inspection function to the AFF for specific inspections, as decided by the Council. In the event that the legislation delegates the function to the AFF, the AFF can conduct the inspection but, if it does so, it would be under the authority of the Council.
Fidelity fund certificates: According to the LSSA, the Bill as it stands introduces uncertainty into the requirement for holding fidelity fund certificates, and will lead to the mingling of business funds and trust funds. The LSSA recommends that every attorney who practises for his or her own account, or in partnership, or as a member of a juristic entity, be required to hold a fidelity fund certificate, whether or not he or she holds trust money or trust property at any particular time.
Interest on moneys invested on behalf of a client: The Bill, as it stands, allows the AFF to claim part of the interest on money invested on behalf of a client on a temporary basis and as part of a transaction. The LSSA points out that this is contrary to the current position and amounts to the expropriation of part of the interest belonging to the client. The Bill should be amended to make it clear that the interest under s 86(5)(b) accrues to the client. However, the LSSA recognises that the AFF is at risk if the funds invested on behalf of a client were to be stolen and it, therefore, supports a proposal that part of the interest accruing on the invested funds should be paid over to the AFF, provided the portion paid over is limited to 5% of the interest .
Mandatory practice management: The LSSA has requested the inclusion of a section which requires every attorney who, for the first time, practises as a partner in a firm of attorneys or practises on his own account must, within a period of one year, complete a course in legal practice management approved by the Council.
Transitional provisions in relation to degrees: The date 1 January 1999 should be changed to 31 December 2004, and the words ‘and if all other req-0uirements are met in terms of the Attorneys Act, 1979’ should be added at the end of the section in the Bill.
Amending the rules: The LSSA indicates that any amendment to the rules should be published for comment before being gazetted.
31 January 2013: The Portfolio Committee on Justice and Constitutional Development will hold public hearings on the Legal Practice Bill on 19-20 February 2013. Stakeholders and interested people who have already made written submissions and those who wish to make supplementary submissions are invited to do so. Stakeholders and people who have not made written submissions are invited to do so by Tuesday, 12 February 2013.
Submissions and enquiries must be directed to: Mr V Ramaano, Justice & Constitutional Development Portfolio Committee, 3rd Floor, 90 Plein Street, Cape Town 8000, e-mailed to email@example.com or faxed to 086 565 9219. Copies of the Bill may be obtained from Mr. V. Ramaano on tel: (021) 403-3820 or 083 709 8427.
26 October 2012: The LSSA has published its draft submission that will be made to the Justice Portfolio Committee once confirmed by the LSSA Council at the end of November.
Download the LSSA draft submissions on the Bill.
Read the advisory of 1 November 2012
25 October 2012: The LSSA is finalising its submissions on the Bill. These will be available for viewing in the next few days.
26 September 2012: The LSSA and the General Council of the Bar will meet on 26 September 2012 for a further round of discussions.
8 September 2012: Representatives of the LSSA - including Co-Chairpersons Jan Stemmett and Krish Govender - and of the General Council of the Bar - including its Chairperson Ishmael Semenya SC - met with representatives of the Justice Department and the Office of the State Law Adviser to brief them on discussions held between the LSSA and GCB in seeking to align their positions on the Bill.
7 August 2012: The LSSA and GCB have met for further discussions to seek to align their positions as far as possible. The next meeting is scheduled for 30 August 2012.
27 July 2012: The Justice Portfolio Committee has extended the deadline for written submissions on the Legal Practcie Bill. Download the media statement here.
12 July 2012: The LSSA and GCB met on 7 July. They have issued a joint press release stating that the two branches of the profession will be able to make a largely uniform submission to the portfolio committee. They have requested an extension of the time for comment to 31 August 2012.
Download the press release.
3-4 July 2012: The LSSA Council met to discuss the Legal Practice Bill. A further meeting to finalise its comments to the Portfolio Committee will be held on 17 July 2012. The LSSA is formulating its comments. However, the LSSA Council noted the following positive changes made in the Bill were noted:
- 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.
17 June 2012: The Portfolio Committee for Justice and Constitutional Development called for written submissions by 27 July 2012
Legal Practice Bill [B20 – 2012]
Portfolio Committee on Justice and Constitutional Development
Submissions and Hearings
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.
Submissions must be received by no later than 27 July 2012. Please indicate your interest in making a verbal presentation. Public hearings will be held in Parliament.
Submissions and enquiries must be directed to Mr. V Ramaano, Portfolio Committee on Justice and Constitutional Development, 3rd Floor, 90 Plein Street, Cape Town, 8000 or emailed to firstname.lastname@example.org or faxed to 086 565 9219.
Copies of the Bill may be obtained from Mr. V Ramaano, tel: (021) 403-3820 or 083 709 8427.
Issued by Hon. LT Landers
Chairperson: PC on Justice and Constitutional Development
6 June 2012: The Department of Justice and Constitutional Development briefed the Justice Portfolio Committee on the Bill. Click here to download the DoJ&CD presentation to the committee.
1 June 2012: The LSSA and General Council of the Bar will meet on 7 July 2012 to discuss the Bill.
30 May 2012: The Legal Practice Bill was tabled in Parliament. Click here to download the Legal Practice Bill [B20—2012]
22 May 2012: The LSSA welcomed the publication of the Bill. Read the press release.
17 May 2012: Justice Minister Jeff Radebe announced that the Legal Practice Bill has been tabled in Parliament after it was certified by the Chief State Law Adviser. He said the Bill is a milestone in the history of the profession. It opens doors of access to the profession and guarantees accessible legal services, by creating a framework for the determination of reasonable and affordable fees.
Download the Legal Practice Bill, 2012
Download the Minister's Budget Vote Address
March 2012: Parliamentary discussion on Bill expected to start in last quarter of 2012
At the LSSA AGM on 27 March 2012, policy adviser to the Justice Department, JB Skosana, told delegates that the certification process of the Legal Practice Bill by the Chief State Law Adviser was all but complete and that the Bill would introduced before Parliament shortly. The Bill would then be channeled to the Justice Portfolio Committee for public engagement.
Mr Skosana indicated, however that discussion around the Bill would take place once the Constitution Seventeenth Amendment Bill and the Superior Courts Bill were dealt with in August of September 2012.
Click here to read the full report in the May 2012 issue of De Rebus.
29 January 2012: LSSA and GCB to set up team to draft joint submissions on Legal Practice Bill
At a meeting on 29 January 2012, the Law Society of South Africa (LSSA) and General Council of the Bar (GCB) agreed to set up a joint technical committee to work on a joint position paper on the Legal Practice Bill (LPB). This came after little or no contact between the two branches of the profession on the Bill during the past decade. The LSSA was led by Co-Chairpersons Praveen Sham and Nano Matlala, and the GCB by its Chairperson, Gerrit Pretorius SC.
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.
In general, at the close of the January meeting, representatives of the LSSA and GCB agreed to go back to their respective constituents to seek a mandate to set up a joint technical committee to draft the joint position paper covering issues where there were uniform views.
December 2010 draft Legal Practice Bill
Download the presentation from the Legal Practice Bill information sessions in July/August 2011
18 August 2011: Legal Practice Bill delayed to allow for consultation on policy issues and thorough certification process
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.
Although the Department is preparing a broad policy document on all the issues impacting on the Bill, indications are that this will not necessarily delay the certification of the Bill once the State Law Adviser was satisfied that it would pass constitutional muster. The Bill could then still be introduced this year, although the parliamentary process and public hearings would probably not be completed and would continue into 2012.
December 2010 draft Legal Practice Bill (this is the latest version of the Bill, but not the final Bill, which is still being awaited)
Download 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?
|City / Town
||Date in 2011
||12h30 to 14h00
||12 noon to 14h00
||17h30 to 19h00
||School for Legal Practice, 45 Commercial Road, Arcadia
||17h30 to 19h00
12h30 to 14h00
Hunter's Rest Hotel
17h30 to 19h00
Sunnyside Park Hotel
12h30 to 14h00
The Ranch Hotel
17h30 to 19h00
Safari Conference Centre
12h30 to 14h00
17h30 to 19h00
Waalburg Conference Centre
17h00 to 18h30
12h30 to 14h00
12h30 to 14h00
The Imperial Hotel
17h30 to 19h00
| The Hilton
||12h30 to 14h00
||Mountain Zebra National Park
7 June 2011: In his budget vote address, Justice Minister Jeff Radebe said:
'The revised Legal Practice Bill was approved by Cabinet in December 2010, following continued engagement with the legal profession on the initial Bill approved by Cabinet in May 201. A ground-breaking compromise which enjoys the support of many in the profession relates to the legislative mandate proposed for the Transitional Legal Practice Council to deal with the outstanding areas of contention in the Bill within a period of 18 months. These areas of contention are, among others, the type of regulatory structures for the profession; the appointment mechanism for the members of the regulatory structures, disciplinary mechanisms and assets and financial arrangements relating to the profession. I am pleased to inform the House that the Department and the State Law Advisers are addressing all the concerns that would have likely obstructed the certification of the Bill and I am confident that this Bill will soon be ready for introduction into Parliament. The certification process will be finalised in a matter of days to pave the way for the introduction of this important Bill to Parliament.'
26 May 2011: The LSSA made its final submissions of the Bill to the Department of Justice and Constitutional Development
on 26 May
12 May 2011: On 12 May 2011 the Law Society of South Africa (LSSA) made several last-minute proposals on the draft Legal Practice Bill to the Department of Justice and Constitutional Development prior to the Bill starting its progress through the parliamentary process.
The Department’s representatives indicated that the Justice Minister intended to speak to the Bill in the debate on his budget vote in Parliament on 7 June 2011.
The LSSA made some suggestions on adjusting the representation of members on the Legal Practice Council on the basis that it was not in favour of separate representation for various blocks of legal practitioners.
The LSSA highlighted the following concerns it had with the Department’s December 2010 draft of the LPB:
- 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.
See also De Rebus article below.
March 2011: Read the report in De Rebus on discussions on the Legal Practice Bill at the LSSA annual general meeting at the end of March 2011. DIscussions focused around the December 2010 draft of the Bill.
9 December 2010: Cabinet announced in a statement that, at its meeting on 8 December, it had approved the December 2010 version of the Legal Practice Bill for submission to Parliament.
8 November 2010: The LSSA has submitted its comments on the Legal Practice Bill in legislative format to the Justice Department.
5 November 2010: The LSSA finalised its comments on the second draft Bill for submission to the Justice Department on Monday, 8 November 2010.
Justice Minister Jeff Radebe announced in his Budget Vote address on 5 May 2010 that Cabinet had approved the Legal Practice Bill for introduction into the parliamentary process.
In April 2010 the Department of Justice and Constitutional Development published a second draft of The Legal Practice Bill(PDF -384Kb) as well as a document summarising the key principles (PDF - 36Kb) undepinning the Bill.
The LSSA submitted its comments (PDF - 141Kb) on the first working draft to the Department of Justice and Constitutional Development on 17 November 2009.
The Department of Justice and Constitutional Development published a first working draft of the new Legal Practice Bill, 2009 [PDF - 1.175MB] in August 2009.
Background prior to 2009
Discussions on the Legal Practice Bill, which is to transform the governance structures of the legal profession, were started between the Minister of Justice and Constitutional Development and the legal profession in 2001. The then Minister, Dr Penuell Maduna, set up a Task Team chaired by Geoff Budlender to draft the Bill.
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.
In 2008 the LSSA reopened discussions on the Bill with then Minister Enver Surty.