LPA = Legal Practice Act 20 of 2014 (as amended)
LPC = Legal Practice Council
PC = Provincial Council
LPFF = Legal Practitioners' Fidelity Fund
PVT = Practical vocational training
Are attorneys members of the Legal Practice Council or the relevant Provincial Council?
The Legal Practice Council (LPC) is a statutory regulatory authority and does not have members like the previous Law Societies had. All admitted and enrolled legal practitioners (attorneys and advocates) are regulated by the LPC. The PCs are substructures of the LPC and have delegated functions.
What fees do I pay?
See PART II of the Rules relating to fees and charges, application fees; annual fees for fidelity fund certificates; annual fees payable by all legal practitioners; fees payable in respect of examinations conducted by the Council; Other fees, levies, contributions and charges.
How do I change from the attorneys’ roll to the advocates’ roll?
An attorney can apply to the LPC to have her/his enrolment converted to that of an advocate upon payment of a fee and the rules determined by the LPC (s 32). See also PART VII of the ‘Rules relating to keeping of rolls and conversion of enrolment’
Will admitted attorneys with a BIur or BProc be allowed to convert to practise as advocates?
No, not in terms of s 26 read with ss 114 and 115.
Can advocates with trust accounts do the same work as attorneys?
No, they can do only work traditionally done by advocates. For example, a conveyancer is defined in the LPA as a ‘practising attorney admitted and enrolled to practise as a conveyancer’. Similarly, also a notary. Rule 33 sets out the legal services that may be rendered by advocates with trust accounts.
I was admitted by a specific division of the High? What is the process for appearing in another division?
Any person who has been admitted and enrolled to practise as a legal practitioner in terms of the LPA, is entitled to practise throughout the Republic, unless his or her name has been ordered to be struck off the Roll or he or she is subject to an order suspending him or her from practising.
A legal practitioner, whether practising as an advocate or an attorney, has the right to appear on behalf of any person in any court in the Republic or before any board, tribunal or similar institution, subject to subsections (3) and (4) or any other law.
(3) An attorney who wishes to appear in the High Court, the Supreme Court of Appeal or the Constitutional Court must apply to the registrar of the Division of the High Court in which he or she was admitted and enrolled as an attorney for a prescribed certificate to the effect that the applicant has the right to appear in the High Court, the Supreme Court of Appeal or the Constitutional Court and which the registrar must issue if he or she is satisfied that the attorney -
(a) (i) has been practising as an attorney for a continuous period of not less than three years: Provided that this period may be reduced in accordance with rules made by the Council if the attorney has undergone a trial advocacy training programme approved by the Council as set out in the Rules;
(ii) is in possession of an LLB degree; and
(iii) has not had his or her name struck off the Roll or has not been suspended from practice or that there are no proceedings pending to strike the applicant’s name from the Roll or to suspend him or her; or
(b) has gained appropriate relevant experience, as may be prescribed by the Minister in consultation with the Council, if the attorney complies with paragraph (a) (iii).
(4) (a) An attorney wishing to apply for a certificate contemplated in subsection (3) must serve a copy of the application on the Council, containing the information as determined in the rules within the time period determined in the rules.
See also Rules 19 and 20 relating to Period of practice as an attorney and advocacy training programme and Information to be provided by attorney for appearance in High Court.
Admission and right of appearance
See also Rules 17 and 18: Application for admission and enrolment as legal practitioners [s 95(1)(k) and (t)read with ss 24(2)(d), 30(1)(a) and 30(b)(iii)] and application for admission and enrolment as conveyancer or notary [s 95(1)(k) and (t)]
Can I obtain right of appearance in the superior courts with a BProc degree?
No, an LLB is required (see above), but s114(5) provides that an attorney who had the right of appearance in the superior courts on 1 November 2018, retains that right.
Is the Code of Conduct referred to in s 36 of the LPA in operation?
No. It was resolved by the Legal Practice Council at its meeting on 31 October 2018, that the Code of Conduct as gazetted by the National Forum on 10 February 2017 will not be effected on 1 November 2018. The LPC will publish it for comment as required by section 36(5) of the Legal Practice Act of 2014. As such the new Court robing code is not operational until further notice. See Government Gazette of 14 November with LPC notice here.
Robing in Courts
Do we need to robe in all courts as in the Superior Courts as required in the Code of Conduct?
No. The Code of Conduct is not in operation (see above)
See Memorandum by the National Forum on the Legal Profession: Candidate Attorneys serving under articles of clerkship during transition to Legal Practice Council
Should we have our candidate attorneys sign PVT contracts to regulate the relationship between us post 1 November 2018? Or will the existing contracts continue as if they were PVT contracts and a letter to the candidates to this effect would suffice?
It will not be necessary to enter into new PVT contracts. The existing ones are still valid and section 112(1)(b) of the Legal Practice Act recognizes previous periods of PVT. If you want to give your CAs a letter to confirm this, you may do so, but it is not required by the Act or the Regulations.
I am a candidate attorney registered under a five-year contract. I have completed both PLT and also most of my admission examination papers. Must one have an LLB in order to commence with articles?
The Regulations in terms of the LPA do not recognise practical vocational training (PVT) completed before you obtain your LLB. The following three routes towards admission and enrolment as an attorney are provided for persons who have LLB degrees:
Candidate attorney who entered into a 5-year contract of articles at a time when this was admissible in terms of the Attorneys Act (that is before 31 October 2018) may stand a chance at getting condonation for the PVT they did before getting their LLB degrees. They could apply for admission and condonation after having obtained the LLB and passed the admissions exam.
Is there guidance on the minimum wage/salary that is being proposed for candidate attorneys?
The LPC will attend to this in due course.
Where do I pay my fee for my Fidelity Fund certificate?
The fee is payable into the business accounts of the regional offices of the LPC as per the invoices sent to each member, and not payable to the Fund.
Where do I pay my trust interest?
Trust interest that is payable to the LPFF must, until further notice, continue to be be paid into the same law society/LPC account that attorneys currently pay their trust interest into. The Legal Practitioners Fidelity Fund (LPFF) is in the process of taking over ownership of these account, and practitioners will be advised in due course of any changes.
Section 78(1) of the Attorneys Act was replaced by s 86(2) of the LPA. (100% of trust interest earned, less approved recoverable bank charges, will be paid monthly to the LPFF as provided for by Rule 126.96.36.199 made under the authority of s 95 (1) of the LPA).
Section 86(3) : S 78(2)(a) of the Attorneys Act was replaced by s 86(3) of the LPA. (100% of trust interest earned will be paid on an annual basis to the LPFF as provided for by Rule 188.8.131.52 made under the authority of s 95 (1) of the LPA).
Section 86(4): S 78(2A) of the Attorneys Act was replaced by s 86(4) of the LPA. (With effect from 1 March 2019, 5% of the trust interest earned will be paid monthly to the LPFF in terms of s 86(5)) as provided for by Rule 184.108.40.206 made under the authority of s 95 (1) of the LPA).
Section 86(5): It was resolved by the Attorneys Fidelity Fund’s Board of Control at its meeting held on the 25 March 2018 to exempt the implementation of s 86(5) until 1 March 2019. This decision was taken to ensure that the payment of this interest is synchronised with the tax year thereby reducing the administrative burden for practitioners and their clients. Due to this exemption, s 86(5) will only come into effect on 1 March 2019 and practitioners and the banks are not required to deduct and pay the 5% interest over to the LPFF until 1 March 2019. Official confirmation of this can be obtained from the LPFF: Jan de Beer, Risk Management Executive, LPFF, tel 012 622 3900 or e-mail: firstname.lastname@example.org.
With effect from 1 March 2019, the Banks that have entered into a banking arrangement with the LPFF will automatically sweep the 5% of trust interest earned on s 86(4) trust investments in terms of s 86(5) to the LPFF bank account.
The LPFF is in the process of signing a banking arrangement, in terms of section 63(1)(g) of the LPA, with the following banks:
• Albaraka Bank
• Grindrod Bank
• HBZ Bank
• Investec Bank
• Mercantile Bank
• Standard Bank
Section 86(6): In terms of s 86(6), a legal practitioner referred to in s 84(1) may not deposit money in terms of s 86(2) nor invest money in terms of s 86(3) and (4) in accounts held at a bank which is not party to an arrangement as provided for in s 63(1)(g), unless prior written consent of the LPFF has been obtained.
A legal practitioner referred to in s 84(1) must comply with the terms of an arrangement concluded between the LPFF and a bank as provided for in s 63(1) (g).
The banks will be communicating with their practitioner clients directly in terms of how they will be accounting for and reporting on the 5% interest paid over to the LPFF.
The banks will be required by the South African Revenue Service (SARS) to issue an IT3b tax certificate to the legal practitioner or the legal practitioner's client for the 95% interest earned on any separate s 86(4) trust savings or other interest-bearing account. For example, if the interest for the month is R100, then the IT3b will be issued for R95.
The bank will issue an IT3b to the LPFF for 5% of the interest earned in the s 86(4) account. For example, if the interest for the month is R100, then the IT3b will be issued for R5.