The Committee heard submissions on the Legal Practice Amendment Bill from the National Bar Council of South Africa (NBCSA), the Paralegal Association of South Africa (PASA), the Banking Association of South Africa (BASA), the National Forum on the Legal Profession, the Attorneys’ Fidelity Fund (AFF), and the Law Society of South Africa (LSSA).
The National Bar Council of South Africa objected to clause 3 of the Bill, which amends section 33 of the Legal Practice Act, arguing that it lacks a definition of ‘practicing legal practitioner.’ It submitted that the current reading of section 33(1) and (3) in the Act should be retained as the amendment in the Bill will create an unnecessary distinction between legal practitioners. Moreover, if clients are made to remunerate both advocates in possession of a Fidelity Fund Certificate and attorneys, it will inflate legal costs.
Paralegal Association of South Africa recommended a clear legislative framework on entry into the legal profession, and proper categorisation, training, and monitoring of paralegals.
The Banking Association of South Africa submitted that the proposed amendments in clause 3 of the Bill, which seems to draw distinctions between “practicing legal practitioners” and “legal practitioners,” exclude corporate counsel from the definition of legal practitioners.
The National Forum supported the Bill, but sought an amendment of section 4 of the Act to avoid conflict between the South African Legal Practice Council and the four law societies. It also sought amendments to section 25(3) & (5) to eliminate unfair discrimination against attorneys over rights of appearance, ensure statutory recognition of the rights of candidate legal practitioners to appear in the lower courts and tribunals and earn fees, remove the liability of shareholders and partners in a business venture for any theft committed by their colleagues (section 34), ensure smooth transfer from the Board of Control of the Attorneys’ Fidelity Fund (section 62), ensure a legal practitioner pays outstanding subscription fees and levies before obtaining a Fidelity Fund Certificate (section 85), and confirm the rights of appearance of attorneys in the superior courts (section 114).
The Attorneys Fidelity Fund proposed a subsection to section 62 of the Act to enable ‘members of the board of control of the Attorneys Fidelity Fund who hold office as members of that board at the date of commencement of Chapter 2 [to] remain in office in that capacity as members of the Board for a period of six months after that date or until the members referred to in subsection 1(a) have been elected, whichever occurs later.’
Law Society of South Africa complained that the Act is unclear on uniform training of legal practitioners, nor allows for foreign qualifications from SADC and the rest of Africa. It also complained that clause 6(e) of the Bill has the unintended consequence of prolonging the coming into effect of the Act to July 2018, while the National Forum and the Minister of Justice are required to reach consensus within six months. It recommended deletion of the words following “institution” in sections 25(2) and 25(3) and (4) of the Act, and replacement of all reference to “candidate attorney” in section 25(5) with “candidate legal practitioner.” It urged the Bill dispense with the requirement for a resolution of the law society regarding alienation of immovable assets.
Members agreed that South Africa should look towards best legal practices on the continent rather than relying on English practice. They affirmed that the Bill ought to liberate the Act from the clutches of the English legal system. They expressed concern over poor networking between the National Bar Council, Law Society, National Forum, and Attorney’s Fidelity Fund, noting with displeasure an imbalance in the legal fraternity on the ambit of practice of attorneys and advocates and their areas of expertise. Although they welcomed most of the submissions, they stated that amendments to the Bill at this stage must be well justified in the spirit of access to justice and quality legal services. They identified the key issue at stake as lack of consensus in the National Forum and acknowledged that passage of the Bill is needed urgently to remedy fragmentation in the legal profession. Some Members expressed concern over the inclusion of corporate counsel without proper legal qualifications in the definition of legal practitioners, and suggested that corporate counsel are best regulated by codes of conduct. They criticised the National Forum for insufficient consultation with stakeholders and poor custodianship of transformation. They unanimously called for a fused legal profession in South Africa, equitable remuneration between advocates and attorneys, and quickened transformation. They mandated the Department to inaugurate a task force to coordinate the goal of fusion in the legal profession.
The Chairperson remarked that the National Bar Council was not represented at a recent conference in Kigali, which discussed paralegals. He stated that there will be no confidence in judicial institutions unless access to justice is ensured for the masses. Legislation is therefore urgently needed to regulate the operation of paralegals.
National Bar Council of South Africa submission
Mr Andre Paries presented the submission of the over 800-strong National Bar Council of South Africa (NBCSA). Since its proposals go beyond the amendments in the Legal Practice Amendment Bill, the NBCSA urges the Committee to consider Rule 249 of the Assembly Rules. It provides that “if a bill has been published for public comment in terms of Rule 241 or 248, the Assembly committee to which the bill is referred must arrange its business in such a manner that interested persons and institutions have an opportunity to comment on the bill.” Mr Paries recalled that when the Act was adopted, its memorandum of objectives highlighted that the legal profession is not representative of South Africa’s demographics. The Minister of Justice restated the same concern when he launched the National Forum for the Legal Profession in 2015. Furthermore, entry into the legal profession is regulated by outdated and overly restrictive prescripts, while access to justice to the poor is limited. Mr Paries affirmed that the NBCSA is represented in the National Forum with one seat. It is satisfied with some clauses in the Bill and unsatisfied with others. The amendments in the Bill are:
(a) Clause 1 amends section 6 of the Act, which provides for the powers and functions of the South African Legal Practice Council (“the Council). The Bill seeks to add as functions of the Council the establishment, promotion, administration or assistance in the establishment, promotion or administration of insurance schemes, medical aid schemes, medical benefit schemes, pension funds, provident funds, pension schemes or benevolent schemes for legal practitioners, for employees of legal practitioners and for officials and employees of the Council.
(b) Clause 2 amends section 23 (2)(b) of the Act, which provides for the establishment of Provincial Councils. The proposed amendment will allow the Minister to prescribe the areas of jurisdiction of Provincial Councils in consultation with the Council.
(c) Clause 3 amends section 33 of the Act, which provides for authority to render legal services. Clause 3 amends section 33 (1) and (3) to provide that only practising legal practitioners may perform certain acts or render certain services by inserting the word “practising.”
(d) Clause 4 amends section 91(4) of the Act to provide that the Legal Practitioners’ Fidelity Fund Board may also determine the period for which a bank statement must be issued and also replaces the word ‘statement’ with the words ‘transaction history’
(e) Clause 5 amends section 96 of the Act by providing that the National Forum ceases to exist on the date of the meeting with the Council as envisaged in section 105(3), or such other date as the Minister may determine after consultation with the National Forum.
(f) Clause 6 amends section 97 of the Act and proposes that the mandate of the National Forum should be broadened to include the mandate to advise the Minister on the first set of regulations that must be made in terms of section 94 of the Act and to make the first set of rules in terms of section 95 of the Act.
(g) Clause 7 deals with consequential amendments to section 109 of the Act which confirm and give effect to the extension of the mandate of the National Forum as contemplated in clause 6
(h) Clause 8 amends section 117 of the Act and proposes that existing law societies must continue to perform their powers and functions until the date of transfer of assets, rights, liabilities, obligations and staff, from the current law societies to the Council or Provincial Councils.
The NBCSA disagrees with clause 3 of the Bill because:
There is no definition of the term ‘practicing legal practitioner.’ Does ‘practising legal practitioner’ apply only to those legal practitioners who attend or appear in court? Does it exclude consultants who, though render or offer various legal services, do not appear in court? Will such consultants not be entitled to receive rewards or commission for rendering legal services?
The current reading of section 3 (1) and (3) in the Act should be retained as the proposed amendment in the Bill will adversely affect legal practitioners by creating an unnecessary distinction between legal practitioners.
Paralegals should be allowed to render legal assistance in their own ways, especially to indigent litigants at grassroots level. Access to justice to the poor is an essential feature of a democratic system. The framing of the Act on legal practitioners was unnecessarily disturbed, thereby hampering the operation of paralegals. This submission does not mean that consumers should not be protected from unscrupulous legal practice.
Based on Rule 249(1) and (3) of the Assembly Rules, the NBCSA also proposes amendments to section 34(2)(b) of the Act, which is not part of the proposed amendments in the Bill. Section 34(2)(b) states: “An advocate … may only render those legal services rendered by advocates before the commencement of this Act … if he or she is in possession of a Fidelity Fund certificate and conducts his or her practice in accordance with the relevant provisions of Chapter 7 …” The question is: will advocates who possess a Fidelity Certificate be permitted to perform those functions which are performed by attorneys such as pleadings? Is the construction of section 34 (2) (b) aligned to what the Act seeks to achieve? The NBCSA therefore proposes that section 34(2)(b) be amended to read: “An advocate contemplated in paragraph (a)(ii) may render legal services as determined by the Council in the Rules, if he or she –
(a) is in possession of a Fidelity Fund certificate and conducts his or her practice in accordance with the relevant provisions of Chapter 7 with particular reference to section 84, 85, 86 and 87;
(ii) has notified the Council thereof in terms of section 30(1)(b)(ii).
The NBCSA’s submission is informed by the fact that South Africa’s legal profession was influenced by legal transplant. In England and Wales where South Africa’s legal profession was borrowed, advocates (barristers) cannot be briefed by members of the public without going through solicitors. However, legal practice there was revolutionised by the introduction of a Public Access Scheme, which allows clients to go directly to advocates for advice, resubmission and drafting without need for solicitors’ intervention. The NBCSA therefore submits that clients should not be made to remunerate both advocates in possession of a Fidelity Fund Certificate and attorneys, as this will inflate legal costs. To make legal services cheaper and more accessible, an investigation should be conducted into guidelines for instructing advocates. The Committee should therefore invoke Rule 249(1) to consider the NBCSA’s proposed amendment to section 34(2)(b) of the Act.
The Chairperson remarked that in the spirit of decolonisation, South Africa should look towards best legal practices on the continent rather than relying on English practice. He cited Namibia and Zimbabwe as examples of countries South Africa can learn about fusion of the legal profession.
Mr B Bongo (ANC) sought clarity on the relationship between the NBCSA and the National Forum.
Mr Paries replied that the NBCSA has one-seat representation in the National Forum.
The Chairperson asked the NBCSA to explain how a single seat representation can aid transformation, noting that transformation seems to be very slow in the legal profession.
Mr Paries responded that the NBCSA has a mix of practitioners from different backgrounds and locations in South Africa. Its members were more previously disadvantaged in the past than they are now. Most of the practitioners in the NBCSA work for the Legal Aid Board. The racial composition of the NBCSA is not represented in the delegation before the Committee because it received its notice to appear late.
Mr Swart asked NBCSA if it made representations on the mode of briefing advocates during the consultation process leading to the adoption of the Act. If advocates want to do attorneys’ work, are they prepared to so two years articles and Board exams? NBCSA’s suggestion for an additional amendment to the Bill is problematic because Parliament is not sitting for the next four to five weeks. It should therefore narrow its proposals on advocates doing attorneys’ work. Secondly, the phrase ‘in consultation with the Minister’ implies consensus. Does NBCSA believe that consultation with the Minister of Justice means consensus? This issue, which impacts on parliamentary independence, also arose during the adoption of the Act. At that time, opposition parties raised concerns over the powers given to the Minister for the regulation of the legal profession. Accordingly, NBCSA should clarify its position on the independence of the legal profession.
Ms M Mothapo (ANC) expressed concern over poor networking between NBCSA, the Law Society of South Africa, the National Forum, and the Attorney’s Fidelity Fund. She sought clarity on this since it affects the operation of paralegals.
Mr L Mpumlwana (ANC) appreciated the concerns of NBCSA over section 34(2)(b). He stated that the Bill ought to liberate the Act from the clutches of the English legal system. The key issue is whether it is correct to retain section 34(2)(b) in its present format or amend it. The right to practice law cannot be given with one hand and taken away with the other.
Mr Bongo expressed interest in hearing views from outside the legal profession on the issues presented to the Committee. He remarked that there is imbalance in the legal fraternity on the ambit of practice of attorneys and advocates and areas of expertise. This imbalance must be addressed by the National Forum. Since NBCSA is part of the National Forum, why does it not canvas its submission before the Forum? The legal profession needs to be radically transformed to bridge the knowledge gap between certain segments of the legal fraternity.
The Chairperson asked why law students do not sit in the National Forum whereas they sit in university councils. Given that law students are the future of the legal profession, he called for inclusivity in the National Forum.
Mr W Horn (DA) stated that amendments to the Bill at this stage must be well justified since they should have been made at the time of the drafting of the Bill. He observed that the National Forum was primarily set up to ensure harmonisation and transformation of the legal profession. On inclusivity and expertise, standardisation should not undermine legal expertise because ultimately it would negatively affect access to justice and the quality of legal services. Legal practitioners should not be ‘jack of all trades.’
Mr Matthew Klein of NBCSA stated that agreements are difficult to reach in the National Forum. The biggest problem in the legal profession is that South Africa inherited a double legal system and has retained it. The revolutionary solution would be to allow all lawyers to be legal practitioners and thus allow attorneys to do the same work as advocates. Advocates and attorneys are competitors. In practice, the difference between an attorney and advocate has been eradicated.
Mr Joaquim de Freitas of NBCSA recalled past racism against black lawyers in the General Council of the Bar. Today, 90% of lawyers in NBCSA are ‘people of colour.’
The Chairperson remarked that the most disadvantaged lawyers are black Africans, not necessarily Indians and coloureds.
Mr de Freitas noted that the Legal Practice Bill has pended for too long because certain stakeholders are ‘playing games’ with it. There is conflict in the ‘different Bars’ because everyone is hanging on to the past. Since 1994, attorneys have been increasingly arrogating to themselves the functions of advocates. For example, he did not want to become an attorney; he wanted to be an advocate in order to eventually become a judge. In those days, you could not become a judge if you were an attorney. Today, the four-year LLB programme is the route to becoming a legal practitioner. So, why are people still being divided into classes of legal practitioners?
The Chairperson remarked that lawyers are the ones dividing themselves into classes and failing to present a united front to Parliament
Mr de Freitas responded that ‘this whole National Forum thing is a sham’ because there is no level playing field. Advocates, who are outnumbered (4 000 to 6 000 advocates compared to over 20 000 attorneys), operate predominantly in the high courts. It takes about four to five law firms to support one advocate. But now, the attorneys no longer need the advocates. Advocates are the ones who need specialisation because attorneys are better prepared in court. The National Forum is a sham because representation is based on numbers and attorneys will always have the upper hand with their numerical advantage. Attorneys will always outvote advocates. This is a concern with the incoming Legal Practice Council. It is like getting into a fight with one hand behind your back and blindfolded too.
The Chairperson remarked that if the National Forum is a sham, then Parliament was made complicit in ‘creating a sham.’ Accordingly, the problems in the National Forum need to be sorted out.
Mr de Freitas responded that the General Council of the Bar are not present because they are not really interested in eradicating the disparity between advocates and attorneys.
Mr S Swart (ACDP) objected on the ground that the General Council of the Bar is represented on the National Forum. He cautioned Mr de Freitas not to cast aspersions on his professional colleagues. He identified the problem as a lack of solidarity in the National Forum.
Mr Mpumlwana said that dual legal practice is unfair and hinders transformation. He noted that Canada has a fused legal profession.
Mr de Freitas said that there are different advocate bodies in the National Forum. Examples are Advocates for Transformation, who are part of the General Council of the Bar, NBCSA, and one or two other groups. These advocates find it difficult to reach consensus because of their selfish interests. The NBCSA has only one representative, thereby making it easy to reach consensus. However, it sits on only one or two of six committees and thus finds it difficult to effect change because it is outnumbered. This is the source of his frustration and description of the National Forum as a sham.
Another NBCSA delegate stated that their concern is to prevent the inclusion of a rule in the Bill which is ‘not in the Act or on par with the Act.’
Mr Swart identified the key issue as lack of consensus in the National Forum. He disagreed with the argument that the problem is attorneys’ numerical advantage. In terms of section 96 of the Act, there are eight attorneys and five advocates, who are from NBCSA, the National Forum of Advocates, and the Advocates for Transformation. He suggested that the National Forum file a progress report to the Minister of Justice. The issues raised by NBCSA were debated over a period of ten years and cannot be addressed without substantial amendments to the Act. The NBCSA should focus on a narrow amendment to assist the Minister help the National Forum to reach consensus.
The Chairperson called for a national conference on transformation involving law student and humanity student councils, who are the leaders of tomorrow. It is unacceptable that the work of paralegals is being hampered by undue delay over the passage of the Legal Practice Bill. The Committee will resolve on a way forward. Law must be decolonised to make justice accessible to African people.
Paralegal Association of South Africa (PASA) submission
Ms Nanandi Simone Albers, PASA Director, presented the concerns of PASA on the Amendment Bill. She remarked that law is not just about rules. More people are representing themselves in court due to restrictive legislative framework on entry into the legal profession and costs of hiring legal practitioners. Paralegals need to be properly categorised, trained, and monitored. For example, many divorce cases are better handled by paralegals with assistance from the clerk of court. The Department of Higher Education should be involved in the training of paralegals just as it is involved in the training of candidate attorneys. Senior paralegals are more experienced and do far more work than candidate attorneys.
Mr Bongo observed that passage of the Bill is needed as soon as possible to remedy the fragmentation in the legal profession. He suggested a study visit to other jurisdictions to obtain best practices on harmonising legal practice in South Africa.
Mr Horn sought clarity on what is expected of Parliament on the Amendment Bill.
Mr Mpumlwana appreciated the concerns of PASA and promised that Parliament would push through the passage of the Bill.
The Chairperson remarked that universities are doing considerable research in community courts. He called for alternative literature on paralegals and access to justice. Some of these offices have run into problems of management and funding. The research over the last two years has discovered elitism and autonomism in the paralegal sector because of lack of regulation. There could be a contradiction between the Act and Paralegals Act regarding the qualifications of legal practitioners.
Ms Albers responded that large groups have been formed in the paralegal sector because of an inadequate legal framework. Most advice offices involved in legal aid are operated by paralegals.
Banking Association of South Africa (BASA) submission
Ms Ayesha Hansa and Mr Albert Zougman traced the basis of BASA’s comments to Part VII [dealing with “corporate counsel”] of the Code of Conduct of 10 February 2017, in terms of section 97(l)(b) of the Act. BASA’s primary concern is that the term ‘legal practitioner’ as defined in the Act seems to apply to only practicing attorneys and advocates, and not to corporate counsel. BASA is attempting to engage with the National Forum on this. Ms Hamza gave several examples from the Act and the Amendment Bill, which indicate the exclusion of corporate counsel in the definition of legal practitioners. These include sections 23(7), 30(1), 34, and 118. She indicated BASA’s willingness to provide comprehensive comments to address the issue and assist in the legislative drafting process. Mr Albert explained the practical difficulties caused by the exclusion of corporate counsel from the definition of legal practitioners. These are:
- Many legally qualified corporate counsel are not admitted attorneys or advocates (“Legal Practitioners”): Would the Act exclude them even though they render the same legal services?
- Since the Act protects the interests of the public and corporate counsel owe their loyalty primarily to their employers, care should be taken to identify and address the interests the Act seeks to protect.
- Often corporate counsel go beyond rendering legal services. Care should be taken to address such situations in the Act, especially if corporate counsel’s services are not regarded as legal “practice”
BASA therefore submits that the proposed amendments in clause 3 of the Bill, which seems to draw distinctions between “practicing legal practitioners” and “legal practitioners,” do not address the shortcomings in the Act on the inclusion of corporate counsel in the definition of legal practitioners. It proposes a consultative process for meaningful engagement on this, noting that BASA is not represented in the National Forum.
The Chairperson remarked that law lacks a social or public interest conscience because people see the law through the eyes of business.
Mr Mpumlwana sought clarity on the complaint about corporate counsel. Do they need categorisation like paralegals?
Mr Horn asked, with respect to the Code of Conduct, whether the complaint relates only to corporate counsel who are not qualified legal practitioners or to all corporate counsel.
Mr Roberts explained that a corporate counsel is a legal practitioner employed by a firm to represent its interests. The traditional term is a legal adviser. Some are qualified legal practitioners while some are not. The Act is limited in that it excludes corporate counsel from the definition of legal practitioners.
Mr Bongo expressed concern over the inclusion of non-certified legal advisers in the definition of legal practitioners simply because they possess law degrees.
Ms C Pilane-Majake (ANC) remarked that the proposed Legal Bill is focussed on regulating the legal profession. Given that some corporate counsel lack legal qualifications, this area of the legal profession is rightly regulated by the Code of Conduct. The Bill is different because it seeks to regulate people ‘who are actually qualified to be lawyers.’
Mr Mpumlwana stated that admitted attorneys are bound by the ethics of their law society. Any attorney who decides to become a corporate counsel should continue to be bound by the law society’s ethical code. A distinction should thus be drawn between qualified and unqualified corporate counsel.
National Forum on the Legal Profession submission
Ms Elizabeth Makhanani Baloyi-Mere from the General Council of the Bar, stated that the National Forum tries to implement the provisions of the Act and tries to arrive at consensual decisions. It will make submissions to the Minister on ways to achieve transformation.
Mr Jan Stemmett, chair of two committees in the National Forum, added that the National Forum supports all the amendments in the Bill, having contributed to many of them. He explained that the National Forum seeks an amendment of section 4 of the Act to avoid conflict between the South African Legal Practice Council and the existing four law societies. The proposed amendment to section 25(3) seeks to regularise the rights of appearance of attorneys and advocates to eliminate the unfair discrimination against attorneys, while section 25(5) seeks to ensure statutory recognition of the rights of candidate legal practitioners wishing to become advocates to appear in the lower courts and tribunals and earn fees. This need motivates the proposed amendment to section 30 of the Act. The proposed amendment of section 34 seeks to remove the liability of shareholders and partners in a business venture for any theft committed by their colleagues. Section 62 amendment seeks to ensure a smooth transfer from the Board of Control of the Attorneys’ Fidelity Fund, section 85 seeks to ensure a legal practitioner pays his or her outstanding subscription fees and levies before obtaining a Fidelity Fund Certificate, while section 114 seeks to confirm the rights of appearance of attorneys in the superior courts.
The Chairperson remarked that the National Forum has been accused of being a ‘sham’ and of institutional racism through its indiscriminate de-rolling of legal practitioners.
Mr Mashudu Kutama from the Black Lawyers’ Association (BLA) responded that the BLA allows candidate attorneys to determine their choice of practice pathway. He denied that attorneys are disproportionately represented on the National Forum, arguing that legal practitioners tend to represent their colleagues at the National Forum with selfish motives.
Mr Bongo remarked that a few years have passed since the Act was promulgated. In that time, the National Forum has not presented before Parliament on strategies for improving the legal profession. He lamented that it has made no serious effort to harmonise the legal profession, as evident in Mr de Freitas’ description of the Forum as ‘a sham.’ If the National Forum cannot bring synergy in the legal profession, who can do it?
The Chairperson noted that the National Forum is like a constellation of states that are very fragmented.
Ms Pilane-Majake remarked that the National Forum is the custodian of transformation, but is not conducting enough consultations with relevant stakeholders. Had there had been adequate consultations, the concerns of BASA would have been handled by the National Forum. The problem is that the Portfolio Committee is unfamiliar with the activities of the National Forum.
Mr Horn clarified that the Act requires the National Forum to report to the Minister, who then reports to Parliament. The National Forum is the umbrella of the Black Lawyers Association, NADAL and the General Council of the Bar. The National Forum has no specific duty to consult. Since various bodies constitute the NF, consultation is presumed. The NF needs to convince Parliament on its proposed amendments such as fees and vocational training. It must also comment on the merits of re-opening the proposals made by the National Bar Council.
The Chairperson remarked that representativeness under apartheid and democracy are different. The NF was set up to implement transformation.
Mr Horn denied that he gave the impression that apartheid structures were retained in the NF.
Mr Mpumlwana advised the NF to share its problems with its oversight bodies, in this case, Parliament. If it fails to do this, Parliament will assume that accusations against it are true.
Mr Kutama stated that the National Forum is like a midwife trying to deliver transformation. Its presence in Parliament today is to address the Legal Practice Amendment Bill, not report on its transformation initiatives. There is no fusion in the legal profession in South Africa yet.
The Chairperson urged the National Forum to agree that it has failed due to institutional bottlenecks.
Ms Pilane-Majake stated that as long as the old clubs still exist in the legal profession, then the National Forum has not succeeded as a vehicle of transformation.
Ms Baloyi-Mere explained that the NF seeks to regularise the remuneration of candidate attorneys.
Mr Stemmett stated that the NF has submitted three reports to the Minister and cannot be held responsible for what the Minister does with them. He admitted that the NF is still struggling to close the gap on the education/training of legal practitioners and how to handle the four law societies. Other than these, the NF is making progress.
Mr Mpumlwana stated that it is important to reach agreement on a fused legal profession in South Africa. The Act does not prescribe fusion and consensus needs to be reached on this.
The Chairperson affirmed that fusion is needed in the legal profession.
Attorneys’ Fidelity Fund (AFF) submission
Mr Strike Madiba, AFF Chair, and its Chief Executive Officer, Mr Motlatsi Molefe, said that the AFF wishes to add a subsection to section 62 of the Act on the composition of the Legal Practitioners’ Fidelity Fund Board and propose amendments as follows:
(1) Subject to the provisions of subsection (3), the Board consists of the following persons …
(3) The members of the board of control of the Attorneys Fidelity Fund who hold office as members of that board at the date of commencement of Chapter 2 shall remain in office in that capacity as members of the Board for a period of six months after that date or until the members referred to in subsection 1(a) have been elected, whichever occurs later.
Mr Mpumlwana sought clarity on the interest generated from the Fidelity Fund, and the quantum of funds expended on legal assistance to the public.
Ms Pilane-Majake noted that the National Forum understands its custodial role in the transitional period leading to the Legal Practice Council.
Mr Mpumlwana asked how the [public] funds in the Fidelity Fund and its accumulated interest will be rolled over to the incoming Legal Practice Council.
Mr Madiba affirmed that the Fidelity Fund is for the benefit of the public, and not law societies.
Law Society of South Africa (LSSA) submission
Mr Walid Brown, LSSA Co-Chair, announced his appearance with Mr Lutendo Sigogo, president of the Black Lawyers Association. Mr Brown denied that the legal profession has not been trying to transform or increase access to justice for the public. Certain bodies in the legal profession are opposed to change. For example, at the advent of democracy, lawyers’ demographics was 90% white and 10% black. Now, it is 60% white and 40% black, of which 60% are male and 40% are female. So, while transformation still needs to be done, progress has been made. Considerable work has been done by the National Forum on the Act since 2015. However, some segments of the legal profession such as the General Council of the Bar hinder access to justice, uniformity of training, and ultimately, fusion in the legal profession. He identified two issues at stake for the LSSA in the Bill:
(1) The Act is unclear on uniform training of legal practitioners. It does not address the position of attorneys in possession of law degrees other than the LLB degree, who have been issued with right of appearance certificates under the Right of Appearance in Courts Act. LSSA believes that such attorneys should retain their existing rights. Currently, the Act restricts the right of attorneys to appear in the High Court, the Supreme Court of Appeal or the Constitutional Court. In terms of section 25(3) of the Act, attorneys wishing to appear in these courts must apply to the registrar for a certificate of right of appearance.
(2) The Act does not allow for foreign qualifications from SADC and the rest of Africa, which defeats the purpose of section 24(3) regarding the right of foreign legal practitioners.
LSSA therefore recommends that the words following “institution” in sections 25(2), (3) and (4) of the Act be deleted, while all reference to “candidate attorney” in section 25(5) be replaced with the words “candidate legal practitioner.”
Mr Sigogo stated two concerns. The first is that clause 6(e) of the Bill has the unintended consequence of prolonging the coming into effect of the Act to July 2018. The clause states: ‘The National Forum must, at least six months before the date of commencement of Chapter 2, make recommendations to the Minister for purposes of making regulations contemplated in section 94.” Moreover, the National Forum and the Minister of Justice are required to reach consensus within six months. The second concern is on the Attorneys Act. It provides that alienation of the immovable assets of the law society should be done following a resolution by members of the law society in an AGM. The Bill needs to dispense with the requirement for a resolution of the law society. Again, section 97(2)(a) of the Act, which provides that the National Forum and LSSA must reach agreement in terms of the kind of assets to be transferred, is similarly problematic.
The Chairperson commended Mr Sigogo and Mr Brown’s submissions. He called for coordination in finalising the Bill, noting that there is evidence of personnel capacity and expertise in the submissions.
Mr Lawrence Bassett, Chief Director of Legislation Development in the Department of Justice and Constitutional Development (DoJCD), requested a written copy of the submission.
Mr Bongo echoed the Chairperson’s call for coordination. He stated that transformation requires an integrated approach because it involves control and management. Fragmented transformation is not noticeable. Also, legal opinions from universities on constitutionality of legislation can be misleading. He cautioned against a blanket admission of foreign legal qualifications, since legal systems differ across countries. If there’s confusion in the legal profession, what hope does South Africa have for development? He called on Mr Basset to ‘apply his mind to the’ concerns raised about section 25 of the Act by LSSA because uniformity is needed in the legal profession. He ended by promising a firmer approach by Parliament on disunity and lack of transformation in the legal profession.
Ms Mothapo aligned herself with the views expressed by Mr Basset and the Chairperson over LSSA’s submission. However, she expressed concern over the lack of female representation in the LSSA delegation. She sought clarity on its submission on transfer of assets of LSSA in terms of section 60 of the Attorney’s Act.
Mr Mpumlwana called for equitable remuneration between advocates and attorneys. He observed that transformation in LSSA is slow. He urged stakeholders in the legal profession to quicken the pace of transformation and the road to fusion in legal practice. He asked LSSA to articulate its role to a fused legal practice in South Africa.
The Chairperson expressed satisfaction that the Committee is now aware of the problems besetting the passage of the Bill. He called for a clear pathway to fusion in the legal profession and instructed the DoJCD to draw capacity from different stakeholders to achieve a fused legal profession.
Mr N Matiase (EFF) queried the efficiency of LSSA. However, he noted that Parliament and the Executive constitute the superstructure on which LSSA and other bodies in the legal profession operate. What is hindering transformation in the legal profession? For example, there has been a huge outcry by black lawyers over disproportionate briefing patterns. The problem seems to be the legal superstructure, which is modelled on the English legal system. The legal system merely assimilates the English legal system. Accordingly, the South African legal profession needs to be deconstructed.
Mr Mpumlwana suggested that all the recommendations made to the Committee be collated.
Ms Pilane-Majake welcomed the LSSA submission. She called for coordination to realise the goals of transformation, restructuring, and regulation of the legal profession. The question the DoJCD should bear in mind is this: to what extent is the new arrangement going to nullify the old?
The Chairperson called for all the contributions made to the Committee to be harnessed. This will enable a radical transformation of the legal profession so that transformation and access to justice can be achieved.
- University of Johannesburg submission
- Sasol submission
- South African Human Rights Commission submission
- Permanent Court of Arbitration submission
- Paralegal Association of South Africa submission
- National Bar Council of South Africa submission
- National Forum submission
- Law Society of South Africa submission
- Hague Conference on Private International Law submission
- Gatsheni Advisory submission
- Fidelity Fund submission
- ClearlawSA Pty Ltd submission
- Commission for Gender Equality submission
- Banking Association South Africa presentation
- Banking Association South Africa submission
- Attorneys Fidelity Fund submission
- Adv. Henk Horn submission
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