Attorneys Amendment Bill [B9 – 2014]

The Portfolio Committee on Justice and Correctional Services invites you to submit written submissions on the Attorneys Amendment Bill [B9 – 2014].

The purpose of the Attorneys Amendment Bill is to:
▪ amend the Attorneys Act, 1979, as an interim measure, pending the enactment of legislation aimed at rationalising the legal profession, so as to address disparities in relation to attorneys and candidate attorneys in the territories comprising the former Republics of Transkei, Bophuthatswana, Venda and Ciskei, and, for that purpose, repeal the laws of the former territories in so far as they are still applicable to attorneys and candidate attorneys in these territories;
▪ further regulate the engagement of candidate attorneys and their right of appearance in courts; to give effect to a Constitutional Court judgment;
▪ further regulate juristic persons conducting a legal practice;
▪ enable actions against the Attorneys Fidelity Fund to be instituted in other courts than the High Court;
▪ restructure the areas of jurisdiction of law societies;
▪ amend or delete certain obsolete provisions and expressions;
▪ provide for transitional arrangements;

Please indicate your interest in making a verbal presentation. Public hearings will be held in Parliament.

Comments can be emailed to Mr. V Ramaano at [email protected] by no later than Monday, 18 August 2014.

ForPublic hearings' dates and enquiries please contact Mr V Ramaano on tel (021) 403 3820 or cell 083 709 8427

Issued by Hon. M Motshekga, MP, Chairperson: PC on Justice and Correctional Services

Background
On independence, the former TBVC states enacted their own laws regulating the attorneys' profession in certain instances. The former Republics of Bophuthatswana and Venda enacted their own laws regulating attorneys and these laws are still in existence. In 1998, the Act was amended in order to extend insurance cover under the Fund to the areas of the former Republics of Bophuthatswana and Venda, in an effort to protect public interest in relation to trust funds and as an interim measure, pending the rationalisation of the legal profession by means of the Legal Practice legislation. The Law Society of the Northern Provinces (''the LSNP'') was given concurrent disciplinary jurisdiction over attorneys practising in the two areas because the issuing of the Fund certificates and the control over trust funds by way of audits had to be attended to by the LSNP.

The LSNP experiences challenges on a regular basis as a result of the continued existence of separate homeland legislation. Particularly, the Bophuthatswana Attorneys, Notaries and Conveyancers Act, 1984 (Act No. 29 of 1984), still regulates attorneys in the area of the former Republic of Bophuthatswana. Challenges in respect of the area of the former Republic of Bophuthatswana mainly relate to- (a) the lack of proper disciplinary and regulatory control being exercised by the Law Society of Bophuthatswana; and (b) candidate attorneys in the area of the former Republic of Bophuthatswana are not required to attend an approved practical legal training course which is considered as essential under the Act, thus resulting in the service by candidate attorneys in this area under articles of clerkship not being recognised as proper service for purposes of the Act.

Problems relating to the Law Society of Bophuthatswana were also highlighted by Judge Harms, the then Deputy President of the Supreme Court of Appeal, in the case of Law Society of the Northern Provinces v Mogami and Others1, giving an indication of the escalation of the problem. The courts, and in particular the Supreme Court of Appeal, recently raised the question whether the time has not come ''for a plea to the Minister of Justice and Constitutional Development to consider whether it (the Law Society of Bophuthatswana) serves a useful purpose''.

Furthermore, in terms of the Act, candidate attorneys who serve articles of clerkship and who attend the six months' practical legal training course under the auspices of the Law Society of South Africa (''the LSSA'') are eligible to claim a reduction of the six months from their two years of articles of clerkship. The same benefit is not available to candidate attorneys in the area of the former Republic of Transkei where the Attorneys, Notaries and Conveyancers Admission Act, 1934 (Act No. 23 of 1934), still applies.

While the Department has been reluctant to promote amendments to the Act on an ad hoc basis, pending the enactment of the Legal Practice legislation, which will address the rationalisation of the legal profession comprehensively, including the above-mentioned challenges, it is becoming increasingly urgent to promote the amendments contained in the Bill in the interest of the public and of the legal profession, especially since the enactment and final implementation of the Legal Practice legislation, which adopts an incremental approach, might still take some time.