Work of the National Forum on the Legal Profession
Below is a chronological outline of the NF’s work from its establishment in February 2015 until the implementation of the Legal Practice Council on 31 October 2018.
31 August 2018: The Regulations under s 109(1)(a) of the LPA were approved by both the National Council of Provinces and the National Assembly late in August and were gazetted on 31 August 2018 in Government Gazette 41879. These deal with the election procedure for election of legal practitioners for purposes of constituting the Council (including the ballot papers); the establishment, composition and powers of Provincial Councils; Practical vocational training (PVT) requirements that candidate attorneys and pupils must comply with before they can be admitted by the court as legal practitioners and the right of appearance of pupils in court or any other institution.
The s 94 Regulations (also referred to as the s 109(1)(bA) Regulations), which are a prerequisite for the implementation of Chapter 2 of the LPA (in terms of s 109(1)(bA)), still need to be approved by the National Assembly before they can be published.
Memorandum: National Forum on the Legal Profession – Candidate Attorneys serving under articles of clerkship during transition to Legal Practice Council
The National Forum on the Legal Profession has provided a guidance memorandum to candidate attorneys currently serving under articles of clerkship and who seek guidance on what their position will be after s 120(4) of the Legal Practice Act 28 of 2014 comes into force. On that date the provincial law societies will be dissolved and the Legal Practice Council will assume jurisdiction over all legal practitioners and candidate legal practitioners. That date is expected to be 31 October 2018 (the transition date). At the transition date there will be a number of candidate attorneys who will be at various stages of their training under articles. The memorandum seeks to provide guidance to those individuals in planning their careers as attorneys. It cannot cover all circumstances but it is intended to deal with as many situations as possible.
Download the memorandum here.
The following tasks of the NF have been completed:
A Code of Conduct for all legal practitioners (LPs), including non-practising LPs, candidate LPs and corporate legal entities was drafted and published. The Code was gazetted in February 2017 but will only begin to be applied by the new Legal Practice Council (LPC) when it starts to regulate the profession.
Rules were finalised by the NF after drafts were published for comment by interested parties. The LSSA submitted comment on the first draft of the rules. The majority of the LSSA’s comments were taken into consideration in the latest draft. The NF met on 7 July 2018 to approve the rules required by ss 95(1), 95(3) and 109(2) of the LPA. The final version is due to be gazetted on 20 July 2018.
Regulations were finalised by the Justice Department after recommendations by the NF and after consultation between the Minister and the NF. The s 109 Regulations (as settled between the Minister and the NF in June 2018) and the s 94 Regulations (submitted by the NF to the Minister in January 2018) have to be merged by the Department, approved by Parliament and promulgated before Chapter 2 of the LPA can come into operation and the new LPC can be established.
The following aspects required by the LPA were not dealt with in the draft regulations submitted to the Minister, for the reasons provided:
- Admission and enrolment of foreign legal practitioners: This can only be drafted after the Minister has consulted with the Minister of Trade and Industry and the LPC.
- Community service: This can only be drafted after the Minister has consulted with the LPC to identify the types of appropriate community service.
- Prescribed fees: This can only be drafted after the South African Law Reform Commission has submitted its report ito s 35(4). See also item below.
Rules Board calls for comment on new fees ito S35(1) of the Legal Practice Act
The Rules Board for Courts of Law has issued a notice calling on interested parties to comment on the Rules Board’s plan to issue a tariff for litigious and non-litigious fees all legal practitioners (admitted and enrolled attorneys and advocates) may charge, in terms of s35(1) of the Legal Practice Act 28 of 2014.Please note that comments should be submitted to the Rules Board by 13 August 2018.
Comments may be sent via hand delivery, post, fax or email
Physical address: 2nd Floor Centre Walk East Tower, 266 Pretorius Street, Pretoria
Postal address: P O Box 13106, The Tramshed, 0126
Facsimile: +27 (0)12 326-8018
Email: Charmaine Kemp (ChKemp@justice.gov.za)
Further enquiries may be directed to +27 (0)12 326-8014
The National Forum (NF) has been in operation since February 2015 and is due to terminate on 31 October 2018, when the Act is due to be implemented in full and the 4 statutory Law Societies are due to be abolished. Click here for a list of tasks that the NF has completed or is nearing completion.
The Rules in terms of ss 95(1), (3) and 109(2) of the LPA – which will apply to all legal practitioners – were gazetted for comment on 2 February 2018. Download the Rules for comment here. Please note that the deadline for comment has been extended to 5 April 2018 – read the letter from the NF Chairperson extending the deadline here.
The Rules deal with: Fees and charges; the Legal Peactce Council; the Provincial Councils; Professional practice, Education and training; Admission and enrolement; Rendering of legal servcies; Law clinics; Disciplinary rules; Procedural rules for the Fidelity fund; Accounting rules and the Legal Practice Fidelity Fund.
The National Forum held its eleventh meeting on 27 January 2018. The Rules in terms of ss 95(1), (3) and 109(2) – which will apply to all legal practitioners – will be gazetted for comment on 2 February 2018. Discussions relating to agreements for the transfer of staff and assets from the law societies to the LPC have been finalised.
The Legal Practice Amendment Bill was passed by the National Council of Provinces on 28 November 2017 and has been sent to the President for assent. It was passed by the Justice Portfolio Committee on 1 November 2017 and by the National Assembly on 5 December 2017. It has been sent to the President for assent. Among the amendments, the following are for noting:
- Clause 4 of the Bill amends section 33 of the Act which provides for the authority to render legal services. Clause 4 amends s 33(1) and (3) to provide that only practising legal practitioners may perform certain acts or render certain services by inserting the word ‘practising’.
- Clause 11 amends s 114 of the Act which regulates the position of existing advocates, attorneys, conveyancers and notaries. It looks after vested interests. Clause 11 provides that attorneys who had the right of appearance in the High Court of South Africa or the Constitutional Court in terms of any law before the commencement of the Act, will retain that right after the commencement of the Act.
Tenth plenary meeting of the National Forum on the Legal Profession – 14 October 2017
The National Forum (NF) met on Saturday, 14 October 2017 for its tenth plenary meeting. It resolved to deliver its recommendations to the Minister in terms of s 97(1)(a) of the Legal Practice Act (LPA), before the end of October. The recommendations were handed to the Minister on 26 October 2017. The recommendations deal with the following aspects:
- Election of the Legal Practice Council (LPC). View here.
- Establishment of Provincial Councils (PCs). View here.
- Election of PCs and their composition, powers and functions. View here and here.
- Practical vocational training (PVT) requirements. View here.
- Right of appearance of candidate legal practitioners. View here.
- Winding up of the NF. View here.
- LPC funding model. View here.
- LPC cost structure. View here.
Download the full recommendations to the Minister here.
The NF handed the Minister four sets of recommendations relating to practical vocational training (PVT): one by the attorneys’ branch of the profession, one by the GCB and AFT, one by the National Forum of Advocates and a fourth which is a compromise proposal. In the meantime the NF stakeholders will consider the compromise proposal, and if substantial consensus is reached, they will inform the Minister of the agreement.
Within six months of receiving the recommendations, as well as the draft regulations based thereon, the Minister must take these to Parliament. If he wishes to amend the draft regulations, he must consult the NF.
The NF also has to make some of the rules of the future LPC in terms of s109(2), by publishing them in the Gazette by 31 October 2017, for comment by interested parties. The rules relate to examinations or assessments for admission, conveyancing and notarial practice; practical vocational training (PVT), procedures for disciplinary bodies and issues relating to complaints against legal practitioners. These have been finalised by the NF, except for the aspects relating to PVT.
One of the outstanding issues is the transfer of staff and assets from the provincial law societies to the LPC. The law societies wish to retain a portion of their cash assets to transfer to the Law Society of South Africa or its successor in title in order to fund activities to represent and support legal practitioners. It is envisaged that the LPC will perform purely regulatory functions.
In the meantime, approval by Parliament of the Legal Practice Amendment Bill is awaited. This will amend the implementation timeframes to allow the four statutory law societies to continue to regulate the attorneys’ profession for a six-month period while the LPC comes into operation, but without jurisdiction. This will allow for a proper and orderly handover.
A team from the National Forum (NF) has completed its recommendations to the Minister, including three alternative draft Regulations on practical vocational training (the proposals from the Law Society of South Africa, the General Council of the Bar/Advocates for Transformation and the National Forum of Advocates). These will be presented for approval to the NF plenary meeting on 14 October 2017 and, if adopted, will be submitted to the Minister by 31 October 2017.
The deadline for the conclusion of the agreements between the NF ad the statutory provincial a law societies on the transfer of staff and assets to the Legal Practice Council is also 31 October 2017.
7 August 2017: Following an earlier six-month extension, the Minister has granted an extension to the National Forum for requirements as per section 97 (1) and (2) of the Legal Practice Act until 31 October 2017. See extension letter.
31 July 2017: In commenting on the Legal Practice Amendment Bill [B11-2017] the Law Society of South Africa has called for the playing fields to be levelled between attorneys and advocates as regards right of appearance in the higher courts. Read more here.
The next plenary meeting of the National Forum is scheduled for 14 October 2017.
Ninth Plenary Meeting of the National Forum on the Legal Profession 30 June 2017
The National Forum on the Legal Profession (NF) met on 30 June 2017 to finalise a number of matters in preparation for its recommendations to Justice Minister Michael Masutha on 1 August 2017. This was the NF’s ninth plenary meeting since it was established in March 2015.
In general the NF noted that, due to the looming deadline to make recommendations to the Minister, time was running out to reach consensus on matters where there is no agreement among stakeholders. On such matters, the different views will be submitted to the Minister for him to make a final decision. One such matter relates to the format and content of practical vocational training (PVT) for candidate legal practitioners. As no agreement has been reached between the attorneys’ profession and some groups in the advocates’ profession, different options will be submitted to the Minister.
The NF has reached agreement on the following issues, which it was enjoined to make recommendations on in terms of s 97(1) read with s 109 of the
Legal Practice Act 28 of 2014 (LPA):
- An election procedure to constitute the LPC: The NF is recommending two separate voters’ rolls for attorneys and advocates, with attorneys voting for their 10 representatives and advocates for their 6 representatives on the LPC respectively. The attorneys’ composition will be 70% black and 30% white attorneys; and half must be women. The advocates’ representation will be 2 black women, 1 white woman, 2 black men and 1 white man.
- Provincial councils and their areas of jurisdiction: The NF will recommend 9 provincial councils; one in each province, with their areas of jurisdiction being within the official boundaries of the relevant province.
- The LPC should be based in Midrand, with the provincial councils based as follows: ◾Eastern Cape – East London
- Free State – Bloemfontein
- Gauteng – Pretoria
- KwaZulu-Natal – Durban
- Limpopo – Polokwane
- Mpumalanga – Nelspruit/Mbombela
- North West – Mahikeng
- Northern Cape – Kimberley
- Western Cape – Cape Town
- The LPC should establish a committee comprising two advocates and two attorneys at each seat of the High Court where there is no provincial council office.
- The LPC should be based in Midrand, with the provincial councils based as follows: ◾Eastern Cape – East London
- The composition, powers and functions of the provincial councils.
- The manner in which the provincial councils must be elected: The NF has drafted rules for the election of the provincial councils modelled on the election of practitioners to the LPC.
- The right of appearance of candidate legal practitioners: This is dealt with in s 25(5) of the LPA, but the NF plans to request an amendment to the LPA to afford pupil advocates the same rights as candidate attorneys. However, this is inextricably linked with the PVT aspects, which are yet to be finalised.
- The NF has conducted a cost analysis of the operation of the LPC and the provincial councils. Based on its analysis, and in an attempt to keep the levies affordable for legal practitioners, the NF foresees a shortfall in the LPC’s budget for the first year of some R28 million. The NF intended requesting the Minister to consider recommending that the shortfall be subsidised by the Treasury via the Justice Department’s budget. Some NF members expressed reservations that this could impact on the independence of the profession. However, generally the NF is concerned that, if this cannot be done, there will be no option but to increase the levies for practitioners. This, in turn, may have a detrimental effect on newly qualified practitioners entering the profession as well as on other practitioners to remain in the profession.
If accepted, the recommendations will enable the Minister to issue the required regulations, which need to be promulgated in time for the LPC to be established when Chapter 2 of the LPA comes into effect. This is envisaged to be on 1 February 2018.
The rules to be gazetted in terms of s 109(2) of the LPA have been completed save for those relating to PVT, where the Minister must decide on the model. The completed rules relate to procedures to be followed by disciplinary bodies as well as the manner and form in which complaints of misconduct relating to legal practitioners, candidate legal practitioners or juristic entities must be lodged with the LPC. The NF must gazette the rules for comment. The LSSA will inform practitioners immediately once these are gazetted to give you an opportunity to comment to the NF.
Fees and charges: The NF has also prepared the fees and charges payable by legal practitioners to the LPC for various applications, enrolment, certificates and conversion of enrolment, right of appearance, fees for fidelity fund certificates, annual fees to be paid by practitioners etc. These too must be gazetted by the LPC.
Another aspect which still requires finalisation is the agreement for the transfer of assets and staff from the statutory provincial law societies to the LPC. Since the four law societies do not have consensus currently on the terms of the agreement, the Law Society of South Africa is to convene a meeting of the law societies in an attempt to find a consensus and uniform position by mid-July. There is no provision in the LPA for the Minister to make a decision regarding staff and assets, so this is an aspect which must be agreed between the law societies and the NF in order to move forward.
Timeframes for the implementation of the LPA are as follows:
1 August 2017
The NF is to make recommendations to the Minister (s 97(1)(a)).
Agreements between the NF and law societies with regard to transfers must be signed (s 97(2)(a)).
The NF is to issue rules on training and discipline through publication in the Government Gazette for comment (s 109(2)).
1 February 2018: Implementation of Chapter 2 in terms of s 120(3)
Minister’s proclamation for the establishment of the LPC and provincial councils. (This is subject to the timeous amendment of the LPA in terms of the
Legal Practice Amendment Bill, currently before the Justice Portfolio Committee). The LPC and provincial councils will exist without jurisdiction and the provincial law societies will continue to regulate the attorneys’ profession for 6 months to ensure a smooth transfer.
The NF is to make all the rules in terms of s 95(1)).
The Minister is to issue the regulations (s 109(1)).
1 August 2018: Implementation of the rest of the LPA in terms of s 120(4)
All rules and regulations need to be in place.
The provincial law societies will be abolished and the regulatory functions of advocates’ structures will be transferred to the LPC.
The LPC and provincial councils will commence regulating the legal profession.
The NF will be wound up after a final meeting with the LPC in terms of s 105(3).
Eighth Plenary Meeting of the National Forum on the Legal Profession 6 May 2017
The National Forum on the Legal Profession held its eighth meeting on 6 May 2017.
Having received a six-month extension from Justice Minister Michael Masutha to submit its recommendations to him, the National Forum (NF) is racing against time to finalise its recommendations before the extended deadline of 1 August 2017.
Although it has finalised most of the rules and regulations required, irreconcilable differences between attorneys and advocates as regards practical vocational training (PVT) are holding back some of the education-related rules, and thus the entire set from being gazetted for comment. NF Chairperson and Deputy Chairperson, Kgomotso Moroka SC and Max Boqwana, will seek to break the deadlock on the PVT issues in order to finalise matters before the deadline.
Before the rules and regulations made by the NF in terms of s 109 can be presented to the Minister, they must be gazetted for public comment. These relate to
(i) A competency-based examination or assessment for candidate legal practitioners, conveyancers and notaries;
(ii) the minimum conditions and procedures for the registration and administration of practical vocational training;
(iii) the procedure and directions pertaining to the assessment of persons undergoing practical vocational training;
(iv) the criteria for a person, institution, organisation or association to qualify to conduct an assessment;
(v) the procedures to be followed by disciplinary bodies;
(vi) the manner and form in which complaints of misconduct relating to legal practitioners, candidate legal practitioners or juristic entities must be lodged with the Council; and
(vii) any other matter in respect of which rules must be made in terms of [Chapter 10].
The LSSA will alert practitioners through an advisory once the rules are gazetted and practitioners will have 30 days to scrutinise the rules and submit comments to the NF.
In addition, the Legal Practice Amendment Bill, which was submitted to Parliament at the end of April 2017, empowers the NF to make rules in terms of s 95, which must also be gazetted for comment. An amendment also empowers the NF to draft regulations in terms of s 94 for consideration by the Minister.
As regards the Bill, the NF will make submissions to Parliament on some omissions that still create technical anomalies.
The NF considered the recommendation that the Legal Practice Council (LPC) should convene an annual general meeting of legal practitioners. However, the general view was that the LPC is a regulatory body with the primary function of protecting the public. It will communicate with legal practitioners (attorneys and advocates), but the Legal Practice Act does not provide for an AGM to engage with them.
Besides some of the education-related issues, the NF has finalised and approved for submission to the Minister –
- the regulations relating to election procedures for the LPC and the ballot paper: the NF envisages that elections for the first LPC will be held soon after Chapter 2 of the Act, bringing the LPC into operation, comes into effect. In terms of the current timeframes, this is due to happen in February 2018. The Amendment Bill provides that the existing provincial law societies will continue to regulate attorneys for six months while the LPC is being set up before being abolished six months after Chapter 2 comes into effect. The LPC will then take over regulation of all legal practitioners;
- the composition of the nine provincial councils (PCs): It is recommended that each PC should consist of six attorneys and four advocates, except the Gauteng PC which should consist of eight attorneys and four advocates;
- the powers and functions of the PCs,
- the seat of the LPC to be in Midrand;
- the seats of the PCs as follows:
– Eastern Cape – East London;
– Free State – Bloemfontein;
– Gauteng – Pretoria;
– KwaZulu-Natal – Durban;
– Limpopo – Polokwane;
– Mpumalanga – Nelspruit;
– North West – Mahikeng;
– Northern Cape – Kimberley;
– Western Cape – Cape Town;
- the staffing requirements for the national and provincial offices; and
- the draft funding requirements and sources of funding for the LPC: Once all the education aspects have been finalised, the funding model will be completed and it will then be possible to set realistic annual levies for legal practitioners.
As regards the certificate for right of appearance in the higher courts for attorneys in s 25(3) of the LPA, the NF’s Rules and Governance Committee has been requested to discuss this requirement, which could be regarded as an unfair discriminatory burden for attorneys.
New NF members
Two new members joined the NF – Mashudu Kutama replaced Lutendo Sigogo who resigned at the beginning of the year after becoming President of the Law Society of the Northern Provinces. Mr Kutama is a nominee of the LSSA (Black Lawyers Association). Matthew Klein replaced Mark Hawyes as representative of the National Bar Council of SA.
The Minister of Justice and Constitutional Development granted a six-month extension period to the National Forum. View letter.
Adv Matthew Klein has replaced Adv Mark Hawyes as representative of the National Bar Council of South Africa on the NF.
Cabinet approved the Legal Practice Amendment Bill, 2017 for introduction into Parliament on 29 March 2017. The Cabinet statement of 30 March records that
‘The Bill amends the Legal Practice Act, 2014 (Act 28 of 2014) in order to address practical and technical issues of a non-contentious nature.
The Bill also seeks to regulate the prescription of the areas of jurisdiction of the Provincial Councils, to provide that only practicing legal practitioners may perform certain acts or render certain services, to further regulate the duties of banks in respect of trust accounts, to regulate the duration of the National Forum on the Legal Profession and to provide for the dissolution date of the law societies.’
►View the Legal Practice Amendment Bill, 2017 approved by Cabinet.
The Minister has granted an extension of time to the National Forum (NF) to finalise outstanding issues and negotiations with the statutory, provincial law societies. The timeframes for the implementation of the Legal Practice Act (LPA) (amended in view of the extension granted by the Minister) –
1 August 2017:
- NF to make recommendations to the Minister (s 97(1)(a))
- Agreements between NF and law societies with regard to transfers (s 97(2)(a))
- NF to issue Rules on training and discipline – Publication in Government Gazette for comment etc (s 109(2)).
1 February 2018: Implementation of Chapter 2 ito s 120(3)
- Minister’s proclamation for the establishment of the Legal Practice Council (LPC) and provincial councils (PCs). (Subject to timeous amendment of the LPA: LPC and PCs to be without jurisdiction and law societies to continue to regulate for 6 months; NF to make all Rules ito s 95(1))
- Minister to issue Regulations (s 109(1))
1 August 2018: Implementation of the rest of the LPA ito s120(4)
- All Rules and Regulations need to be in place
- Law societies to be abolished and regulatory functions of advocates’ structures to be transferred to LPC & PCs
- LPA and PCs to commence regulating the legal profession
- NF to be wound up after final meeting with the LPC ito s105(3).
The Code of Conduct for legal practitioners, candidate legal practitioners and juristic entities was gazetted on Friday, 10 February 2017.
The Code is not in force yet, but will apply to all legal practitioners (attorneys and advocates) as well as candidate legal practitioners and juristic entities when the Legal Practice Act comes into operation (envisaged to be in 2018).
The National Forum of the Legal Profession adopted the Code of Conduct, prepared by its Rules Subcommittee in terms of s 97 (1)(b) of the Legal Practice Act 28 of 2014, at its meeting in November 2016.
The Code of Conduct will be taken up by the Legal Practice Council (LPC) when it comes into effect in 2018. In terms of s 36, the LPC must publish the draft of the Code of Conduct 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 under the Legal Practice Act dispensation. Failure to adhere to the code will constitute misconduct.
Download the Code of Conduct.
Mr Mashudu Kutama has replaced Lutendo Sigogo of the NF.
The January meeting of the National Forum has been postponed in order for it to finalise some of the issues which the different stakeholders are grappling with. These include practical vocational training as well as the election of Legal Practice Council councillors and provincial councils’ councillors.
The Legal Practice Amendment Bill, 2017 makes provision for the LPC and PCs to come into effect without jurisdiction, and for the law societies to continue to regulate the attorneys’ profession for six months to ensure a smooth transition and hand-over to the LPC. View the
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.
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.
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.
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.
- Read GG 38412/23-01-2015 (PDF – 340KB).
- Read the LSSA press release (PDF – 65KB) welcoming the implementation of the Natioanl Forum.
- See the LSSA representatives on the National Forum.
22 September 2014
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 (PDF – 366KB).
- Advisory by The Presidency (23 September 2014). Read advisory.
- LSSA welcomes promulgation of the Legal Practice Act 28 of 2014. Read press release.
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.