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Latest developments on the Legal Practice Act 28 of 2014
 

Seventh Plenary Meeting of the National Forum on the Legal Profession 26 November 2016

At its seventh plenary meeting on 26 November 2016 since its establishment in March 2015, the National Forum on the Legal Profession (NF) refined its vision for nine fully functional provincial councils of the Legal Practice Council (LPC) once the Legal Practice Act 28 of 2014 comes into effect early in 2018.

The provincial councils will consist of 8 council members, except the Gauteng Provincial Council, which will have 12 council members to accommodate the large concentration of legal practitioners in that province.

A preliminary costing for the LPC based on a national council as well as nine fully functional provincial councils (and six committees) was finalised. This will cover the regulatory as well as other functions of the LPC for the regulation of all legal practitioners – attorneys, advocates, candidate attorneys, pupil advocates and non-practising practitioners. The NF estimates there are 32 532 practising practitioners currently; 24 912 attorneys and 7 620 advocates.

The assumptions by the NF included that

  • each province has a provincial council (PC) located at a High Court (with a High Court envisaged in Mbombela);
  • each PC performs all functions;
  • committees (in terms of s 23(6)) are located at every High Court which does not have a PC (three committees in the Eastern Cape, one in Gauteng, one in KwaZulu-Natal and one in Limpopo); and
  • the committees will serve as service points only, with applications and requests sent to the relevant PC.

The NF is now working on the income assumptions for the LPC. Once this process is completed, the annual levy per legal practitioner will be determined.

Amendments to the Act
It was reported that a number of amendments to the LPA recommended by the NF to the Justice Department have been processed by the Department and will be ready by mid-December. The Department envisages that the amendments will be scheduled in the parliamentary programme early in 2017. Among the amendments proposed are those that will bring the LPC into effect in August 2017 so that it can run parallel with the statutory provincial law societies to allow for the election of council members and to ensure a proper transfer of all powers, functions, assets and so there is no vacuum between the two regulatory regimes. The hand-over from the provincial law societies must be completed by February 2018, when the LPC’s powers will come into effect, the Law Societies will be abolished and the LPC will take over the regulation of the profession.

Election of council members
The Governance Subcommittee of the NF has been grappling with the election process for legal practitioners to elect the 16 elected council members to the LPC. This must comply with s 7 of the LPA.

The NF adopted the recommendation of the subcommittee that the principle of council representation as regards race and gender should be on the basis of 70:30 black to white and 50:50 male to female. The modalities on how these percentages will be achieved, taking into account all the other requirements set out in s 7, must still be determined.

Earlier this year, the NF agreed that only practising legal practitioners will be allowed to vote for the 16 legal practitioners on the LPC. The NF also agreed that there would be separate voters’ rolls for attorneys and advocates. Attorneys will elect the 10 practising attorneys on the LPC and advocates wold elect the 6 practising advocates. This can be reviewed after the first election if necessary.

The NF must also still determine the modalities for the election of council members for the Provincial Councils in terms of the specific criteria set out in s 23 of the Act. Among others, these indicate that ‘provincial needs, interests and sensitivities’ must be taken into account.

Transfer of staff and assets
The Admin and Human Resources Subcommittee of the NF is currently negotiation with the provincial law societies for the transfer of the staff and assets of the law societies to the LPC. It is envisaged that agreement in principle will be reached with the provincial law societies by the end of January 2017.

Education aspects
Agreement is still outstanding between the advocates’ profession and the attorneys’ profession on the practical vocational training requirements for the two branches of the profession.

Code of Conduct and Rules
The NF adopted the Code of Conduct for legal practitioners, candidate legal practitioners and juristic entities prepared by the Rules Subcommittee in terms of s 97 (1)(b) of the Act. The NF will publish the Code of Conduct and hand it to the LPC. In terms of s 36, the LPC must publish a draft of the Code of Conduct in the Government Gazette and call for comment in writing. The final code must then be gazetted. The Code of Conduct will serve as the prevailing standard of conduct for legal practitioners, candidate legal practitioners and juristic entities. Failure to adhere to the code will constitute misconduct. Download the Code of Conduct adopted on 26 November 2016.

The NF has also finalised most of the draft Rules (ss 95 and 109 (2)(a)). Once completed, these will be gazetted for comment and further amendments must also be published. In addition, Regulations in s 94 drafted by the NF must be approved by the Minister and Parliament. These must be gazetted before the LPC comes into effect.

Membership change
The Attorneys Fidelity Fund has replaced Abe Mathebula with Etienne Horn on the NF. Mr Mathebula has been recommended by the Judicial Service Commission for appointment to the Bench.

The next meeting of the NF will be on 28 January 2017. The 4 working committees will continue to meet in December 2016 in order to meet deadlines.
 

Sixth plenary meeting of the National Forum: 3 September 2016
 

At the meeting, the NF continued to grapple with the rules for legal practitioners, the staffing and costs relating to the Legal Practice Council (LPC) as well as where provincial councils and committees will be located in the new dispensation.

The NF must make recommendations to Justice Minister Michael Masutha before 1 February 2017. It had agreed at its meeting in April this year to recommend nine provincial councils as well as an additional six committees at each High Court seat where there is no provincial council, to the Minister. At the meeting on 3 September, the committees were defined further when the NF agreed that each committee would comprise two legal practitioners (an attorney and an advocate), a third legal practitioner nominated by the relevant provincial council, as well as two staff members. The purpose of the committees is to provide access to practitioners and to members of the public in places where there are no provincial offices or councils of the LPC.

As regards elections, some progress has been made in that it was resolved that, for the first election of the LPC, there would be separate voters’ rolls for attorneys and advocates. Attorneys would vote for the 10 attorneys on the LPC and advocates would vote for the 6 advocates. This would be reviewed after the first election when the LPC would consider whether there should be one voters’ roll.

The mechanics of how the elections would be conducted, how diversity and skills mix of councillors will be ensured and whether there is an opportunity in the Act for a body such as an electoral college, will still be discussed. In the meantime the NF is researching elections in other jurisdictions, particularly in African jurisdictions.

Although the issue of foreign legal practitioners does arise in the NF, the Act makes provision that the Minister may, in consultation with the Minister of Trade and Industry and after consultation with the LPC, and having regard to any relevant international commitments of the Government, make regulations with respect to foreign legal practitioners. It is, therefore, not within the scope of the NF to do so.

A three-person team - which includes attorneys Jan Stemmett and Lutendo Sigogo as well as advocate Elizabeth Baloyi-Mere - was tasked to start drafting the submissions to the Minister.

Advocates Elizabeth Baloyi-Mere and Roseline Nyman have been appointed to the NF in the place of Dali Mpofu SC and Thami Ncongwane SC.

The subcommittees of the NF continue to meet regularly to deal with the tasks allocated to them.

The Admin and HR subcommittee has commenced negotiations with the statutory provincial law societies for the transfer of staff and assets to the LPC.

The Rules and Code of Conduct subcommittee has drafted the Code of Conduct. Some of the issues being dealt discussed include whether the rules relating to advocates with trust accounts should be aligned with attorneys rather than with those for advocates. One example is whether they should be permitted to charge a collapse fee.

After some consultation, the subcommittee agreed that the Code of Conduct would state that all legal practitioners – attorneys and advocates – would robe in the lower courts in the new dispensation.

The Governance subcommittee is discussing provincial councils and committees and the allocation of functions to these. It is also investigating elections and voting. This committee has a further subcommittee - the Costing Committee - which is working with external consultants investigating various costs scenarios for the new structures.
The Education subcommittee is working to finalise a position on practical vocational training (articles and pupillage) in the new dispensation.

The next meeting of the NF plenary will be on 26 November 2016.

 

The July meeting of the NF has been postponed to September 2016.

 

Fifth plenary meeting of the National Forum on the Legal Profession

At its fifth meeting on 23 April 2016, the National Forum on the Legal Profession (NF) resolved to recommend to the Justice Minister that there should be nine provincial councils under the Legal Practice Council, one situated in each province. The Governance Subcommittee of the NF has been debating the structure of the LPC over several meetings and has considered various options ranging from four provincial councils based on the jurisdiction of the current four provincial law societies, to six provincial councils. The majority of the subcommittee members finally resolved to recommend nine provincial councils (s 97(1)(a)(ii)). The NF must take into account s 23(2)(a) of the Legal Practice Act 28 of 2014 (the Act) which enjoins it to take into consideration the interests of legal practitioners, candidate legal practitioners and the public, as well as provincial needs, interests and sensitivities. Accessibility for the public and for practitioners is also paramount.

A provincial council will consist of between 8 to 12 council members. The proportion of attorneys to advocates at each provincial council will be determined by the number of attorneys and advocates in the province.

The NF also resolved to recommend that there should be committees (s 23(6)) at each seat of the High Court where there is no provincial council. The committee will consist of not fewer than four legal practitioners.

The functions with are to be performed at national lever by the LPC and those that it can delegate to the provincial councils and the committees were allocated at the three levels. It was agreed that not all provincial councils and committees will necessarily perform the same delegated functions. The delegation of functions will be determined by considerations of what is practical and cost-effective.

An initial basic organogram for the LPC and provincial councils was approved on the above basis.

However, it was resolved that the NF will appoint an organisational development advisory company to interrogate the above structure for cost efficiency and effective functioning. This may eventually result in a different configuration of provincial councils and committees, as the cost of the structure will ultimately impact on the subscription to be paid by legal practitioners.

Elections of LPC councillors
Section 7 of the Act determines that 16 of the 23 councillors of the LPC will be legal practitioners (10 practising attorneys and 6 practising advocates). These 16 councillors must be elected. The NF resolved that only practising legal practitioners will be entitled to vote for council members.
The other seven council members are nominated as follows:
• 2 teachers of law (one a law dean and he second a teacher of law;
• 3 designated by the Justice Minister
• 1 designated by Legal Aid South Africa; and
• 1 designated by the Legal Practitioners Fidelity Fund.

Code of Conduct and Rules
The NF considered a first draft of a Code of Conduct as well as rules that will apply to both attorneys, advocates practising with trust accounts and referral advocates. This is an extensive work in progress and members of the NF have undertaken to consider the first draft and make preliminary comments to the Rules and Code of Conduct Committee next month.

The NF will meet again on 2 July 2016.
 

 
Fourth plenary meeting of the National Forum on the Legal Profession

The working committees of the National Forum (NF) have been meeting regularly between NF meetings. On 23 January 2016, at its fourth meeting since the launch of the NF in March 2015, two of the NF members – Martha Mbhele and Willem van der Linde – were replaced by their nominating constituents as they had both been appointed to the Bench. The LSSA has nominated its formed co-chairperson, Kathleen Matolo-Dlepu from the Black Lawyers Association to replace Ms Mbhele, and the General Council of the Bar has replaced Mr Van der Linde with Geoff Budlender SC,

The NF was in the process of finalising its staff complement, however, the practitioners in the four working committees continue to deal diligently with the tasks allocated to those committees. As matters are ripe for recommendations, such recommendations from the committees will serve before the plenary of the NF for debate and finalisation. In the meantime, the NF’s Chairperson and Deputy Chairperson – Kgomotso Moroka SC and Max Boqwana – continue to brief the Minister and are in the process of drafting the second six-monthly report on the NF’s progress which must be made to Justice Minister Michael Masutha in terms of s 98(4) of LPA.

The Governance Committee is preparing recommendations to the NF on whether there should be nine provincial councils (see s 23) and committees (s 23(6)) at every seat of the High Court, or whether it would be more feasible to have six provincial councils or four based on the current provincial law societies’ jurisdictions. The committee has worked on an allocation of functions at national, provincial and committee level.

The committee has also consulted with the State law advisers to review lacunae in the Act with a view to making amendments so that a proper hand-over period is provided for. This will allow the NF to oversee a parallel implementation process from the current dispensation to the new dispensation.

The Rules and Code of Conduct Committee has been working on a code of conduct which is envisaged to contain broad principles in its preamble, referring to the Constitution, transformation imperatives and prohibition of unfair discrimination. The rules are being drafted taking into account the current uniform rules for the attorneys’ profession, as well as rules relating to the advocates’ profession.

The Education, Standards and Accreditation Committee is discussing the future of vocational training focussing on the extent to which it may be possible to coordinate the training of attorneys and advocates, and looking at specific training that may be required for candidate legal practitioners entering each branch of the profession.

Besides dealing with the recruitment and appointment of NF administrative staff, the Admin and Human Resources Committee must also tackle the human resources organogram for the LPC and the consultation process of transferring staff from the currents statutory law societies to the LPC.

Third plenary meeting of the National Form on the Legal Profession

The National Forum on the Legal Profession (NF) held its third meeting for the year in Centurion on 19 September 2015. Kgomotso Moroka SC and Max Boqwana – the Chairperson and Deputy Chairperson respectively – reported that they had drafted a report on the NF’s activities and submitted the report to Justice Minister Michael Masutha. They were due to meet with the Minister on 21 September 2015 to report to the Minister on developments and on the work undertaken by the NF in terms of the Legal Practice Act, 2014 to pave the way for ‘the effective and efficient implementation of the Act’ by the Legal Practice Council once it comes into effect. At the NF meeting, the General Council of the Bar recorded the replacement of one of its member, Ismail Jamie SC, with Durban advocate Anna Annandale SC from the KwaZulu-Natal Bar. Also, the four working committees set up at its meeting in July reported on their activities to date, which included drafting terms of reference, work plans and initial discussions on critical issues.
The four committees are

  • Admin and Human Resources Committee
  • Governance Committee
  • Rules and Code of Conduct Committee
  • Education, Standards and Accreditation Committee

The Admin and Human Resources Committee shortlisted and interviewed candidates for the position of Executive Officer of the NF. An announcement will follow soon. The committee will then focus on developing a strategy and plan for the transfer of the staff and assets of the statutory provincial law societies to the Legal Practice Council. Welkom attorney Martha Mbhele has been appointed chairperson of this committee. The transfer will also include all records, databases and work in progress relating to both the attorneys’ and advocates’ professions.

Polokwane attorney Jan Stemmett has been appointed chairperson of both the Governance and Rules and Code of Conduct committees. The first committee is dealing with the structure and functions of the Legal Practice Council and the provincial councils, as well as their areas of jurisdiction and delegation of powers from national to provincial level. The second committee is tackling the rules and code of conduct that will regulate all legal practitioners under the new dispensation

The Education, Standards and Accreditation Committee is chaired by Bloemfontein attorney Jan Maree and needs to deal with a range of issues relating to vocational training, examinations and legal education service providers.

At this stage the work of the committees is being carried by the committee members – who are all legal practitioners – as the NF has yet to appoint an Executive Officer, staff and researchers.

The NF will meet again on 23 January 2016, but the above working committees have meetings scheduled throughout October and November to ensure progress is made within the tight timeframes prescribed in the Act.

Second plenary meeting of the National Forum on the Legal Profession

The National Forum on the Legal Profession (NF) – established in terms of Chapter 10 of the Legal Practice Act – met in Centurion on Saturday, 18 July 2015. This was the NF’s second meeting since that section of the Act came into operation earlier this year. The NF is scheduled to meet at least four times a year and its first report to the Justice Minister was due in early August.

At this meeting, the NF membership was confirmed (membership) and it was resolved that members will not have alternates as the Act does not allow for these. Meeting dates are set well ahead of time, with the next meeting scheduled for 19 September 2015. NF members who cannot attend a meeting can present written comments and discuss these with the Chairperson, Ms Kgomotso Moroka and Deputy Chairperson, Max Boqwana.

The NF has the duty to set in place the framework to ensure a smooth transition from the current dispensation to the Legal Practice Council. In order to deal with its extensive list of tasks which it should complete in 24 months (with an option to approach the Minister for a further year’s lifespan).

To best utilise the time and skills of the members of the NF, four working committees have been established and the NF members divided into these committees to start work immediately.

An Executive Committee comprising the Chairperson, Ms Moroka SC (Minster’s nominee), the Deputy Chairperson, Max Boqwana (LSSA, Nadel) and the executive officer will oversee the work of the NF and report to the Minister at the required intervals.

The four committees are as follows:

The Admin and Human Resources Committee will deal with the administration and staffing aspects as well as stakeholder relations. Its first duty was to consider applications for the positions of chief executive and financial officer, which were expected to be filled early in August, in consultation with the Justice Director General. The rest of the staff complement would follow. The NF has been provided office space in Centurion, in the same building as the SA Law Reform Commission, but independent from the Justice Department. This committee will also deal with the issue of a consolidated database of all legal practitioners – attorneys and advocates – that will comprise the rolls of the new LPC.
It is critical that practitioners ensure that their details are current and complete with their present regulatory body (for attorneys that will be your current provincial law society) to ensure that they are captured on the roll at the Legal Practice Council once it comes into being. The committee will draft a handover plan from the current dispensation to the new dispensation.

Admin and Human Resources Committee members
Mr Lutendo Sigogo LSSA (Black Lawyers Association) - Acting Chaiperson
Adv Dali Mpofu SC General Council of the Bar (GCB)
Adv Dumisa Ntsebeza SC Advocates for Transformation (AFT)
Mr Krish Govender LSSA (Nadel)
Adv Geoff Budlender SC General Council of the Bar (GCB)
Ms Kathleen Matolo-Dlepu LSSA (Black Lawyers Association)

The Governance Committee will consider the structure of the LPC and delegation of powers to the provincial councils, as well as the areas of jurisdiction of the latter. In addition it will make recommendations on the election of members to both the national and provincial councils. The complex issue of funding of the new structures will also be considered by this committee and proposals made to the Minister.

Governance Committee members
Mr Jan Stemmett

 

LSSA (Law Society of the Northern Provinces) - Chairperson
Mr Jan Maree LSSA (Law Society of the Free State)
Ms Kathleen Matolo-Dlepu LSSA (BLA)
Ms Janine Myburg LSSA (Cape Law Society)
Mr Abe Mathebula Attorneys Fidelity Fund
Adv Jurgens Prinsloo SC National Forum of Advocates
Ms Thina Siwendu Minister’s nominee
Adv Greg Harpur SC GCB
Adv Willem van der Linde SC GCB
Adv Dumisa Ntsebeza SC AFT
Adv Thami Ncongwane SC GCB
Adv M Hawyes NBCSA

The Rules and Code of Conduct Committee will develop a code of conduct as well as rules relating to disciplinary bodies, the lodging of complaints against legal practitioners and any other rules. These must all be gazetted for comment. In the course of its work, the committee – and all the other committees – may come across aspects of the Act which may not translate well into the implementation, This committee will be responsible for proposing amendments to the Act, if necessary.

Rules and Code of Conduct Committee members
Mr Jan Stemmett LSSA (LSNP) - Chairperson
Ms Janine Myburgh LSSA (CLS)
Adv Jurgens Prinsloo SC National Forum of Advocates
Adv Mark Hawyes National Bar Council of South Africa
Mr Lutendo Sigogo LSSA (BLA)
Ms Thina Siwendu Minister’s nominee
Adv Greg Harpur SC GCB
Ms Manette Strauss LSSA (KZNLS)
Adv Anna Annandale SC GCB
Adv Thami Ncongwane SC GCB

The Education, Standards and Accreditation Committee will deal with various aspects of and the rules relating to practical vocational training, competency-based examinations/assessments and institutions that will qualify to conduct assessments. The rules must be gazetted for comment. It will also make recommendations on the right of appearance of candidate legal practitioners. Other aspects that it may consider are the LLB degree, compulsory post-qualification professional development and practice management, foreign qualifications, as well as the mobility between the branches of the profession as the Act permits easy movement between the roll of attorneys and the roll of advocates.

Education, Standards and Accreditation Committee members
Mr Jan Maree LSSA (LSFS)- Chairperson
Adv Brian Nair Legal Aid SA
Prof Managay Reddi SA Law Deans Association
Adv Mark Hawyes National Bar Council of South Africa
Mr Abe Mathebula Attorneys Fidelity Fund
Adv Dali Mpofu SC GCB
Adv Geoff Budlender SC GCB
Mr Krish Govender LSSA (Nadel)
Adv Anna Annandale SC GCB
Ms Kathleen Matolo-Dlepu LSSA (BLA)


31 March 2015:

Kgomotso Moroka SC and attorney Max Boqwana have been elected as Chairperson and Deputy Chairperson of the National Forum on the Legal Profession respectively.
Above Max Boqwana, Kgomotso Moroka, Justice Minister Michael Masutha and Deputy Minister John Jeffrey at the first meeting of the National Forum on 31 March 2015.
Read more on the meeting of 31 March 2015.
Read the article: 'First meeting of the National Forum of the Legal Practice Act' (2015 (May) DR 12).

1 February 2015

Parts 1 and 2 of Chapter 10 of the Legal Practice Act came into effect on 1 February 2015. 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.

22 September 2014

The Legal Practice Act 28 of 2014 was gazetted in GN 740 in Government Gazette 38022 of 22 September 2014.

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] -- parts 1 and 2 came into effect on 1 February 2015.
(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 LSSA and the National Forum on the Legal Profession

The history of the Legal Practice Act, 2014