Meeting with Legal Practice Council to discuss matters of mutual interest

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Justice and Correctional Services

08 June 2021
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

Video: Portfolio Committee on Justice and Correctional Services, 08 June 2021

The Legal Practice Council (LPC) addressed the Committee to discuss matters of mutual interest largely relating to the impact of the COVID-19 pandemic on the legal profession, the challenges facing legal practitioners, and the support available for young black attorneys. The meeting took place on a virtual platform

The Legal Practice Council engaged with the Safety and Security Sector Education and Training Authority (the SASSETA) to re-look its programmes to include funding and training of legal practitioners, including pupils. The Legal Practice Council secured stipends for pupils undergoing pupillage, for the first time in the LPC’s history. The COVID-19 pandemic had a severe impact on the legal profession, with immeasurable financial losses which the profession has not yet recovered from. Many practitioners lost work, and various legal firms had to close provincial offices. The pandemic and national lockdowns have caused a significant court backlog which slowed down the available dispute resolution processes.  The Legal Practice Council plays a dual role of regulating the affairs of legal practitioners, and working in collaboration with legal practitioners’ voluntary bodies, which are primarily formed by the practitioners.

The Committee asked for information on how the Legal Practice Council ensures complaints registered relating to improper or unprofessional conduct by legal practitioners are resolved speedily, because this speaks to the integrity and independence of the legal profession. Members noted the significant backlog which amassed in court cases because of the historical burden of cases, as well as the impact of the COVID-19 pandemic. Members sought clarity on the measures put in place to address the backlog.  Members asked for more details on the satisfaction levels of complainants regarding quality and speed at which complaints are resolved at the Legal Practice Council; and asked for more details on how complaints are handled generally. The Committee said 21 000 complaints in one year, reflects a serious reputational risk to the legal profession, and asked for a breakdown of the complaints and details on what is being done to mitigate the extent of these complaints.

Meeting report

The Chairperson welcomed Members and the delegation from the Legal Practice Council (LPC). When it assumed Office in 2019, it took a decision for the Committee to interact with all the important stakeholders in the legal profession. This was however delayed, as there were other pressing issues that required the attention of the Committee. It is an important task to engage with the Legal Practice Council, as it is the entity tasked with regulating the legal profession.

The purpose of the meeting was for the Committee to meet with the LPC to discuss matters of mutual interest, largely relating to the impact of the COVID-19 pandemic on the legal profession, the challenges facing legal practitioners, and the support available for young black attorneys.

The delegation from the Legal Practice Council consisted of Ms Kathleen Dlepu, Executive Committee Member and Chairperson, LPC; Adv Ghandi Badela and AdvJan Stemmett, Executive Committee Member; LPC.

The Chairperson said the Legal Practice Act 28 of 2014 was implemented. It is important for the Committee to engage with the Legal Practice Council to get first-hand information on the challenges facing legal practitioners, and the support available for young attorneys who come from vulnerable or previously disadvantaged groups, such as women, disabled people, and black people.

Briefing by the Legal Practice Council on matters of mutual interest

The first item on the agenda was for LPC to brief the Committee on matters of mutual interest, largely relating to the impact of the COVID-19 pandemic on the legal profession, the challenges facing legal practitioners, and the support available for young black attorneys. Ms Dlepu, the Chairperson of the LPC, presented the briefing to the Committee.

Introduction and the impact of the Legal Practice Council

The Legal Practice Council is a national, statutory body that was established in terms of Section 4 of the Legal Practice Act 28 of 2014. The Legal Practice Council replaced the four former statutory law societies and is mandated to regulate legal practitioners, including attorneys, advocates, and juristic entities.

The Legal Practice Council opened its offices in November of 2018 and established five more offices in Mpumalanga, Northern Cape, Eastern Cape, North-West, and Limpopo to join the already existing offices under the erstwhile law societies in Gauteng, Free State, KwaZulu-Natal and Western Cape. There are nine provincial Legal Practice Councils that are all fully functional. This means both members of the public and members of the profession have improved access to the regulator and all the services provided by the Legal Practice Council, which includes the enrolment of legal practitioners, the coordination and administration of attorney’s admission, conveyancing, notarial exams, registration of Practice Vocational Training contracts for candidate attorneys and pupils, and receiving and handling public complaints about legal practitioners, and the subsequent disciplinary processes which follows.

There are over 6 000 new legal practitioners and over 8 000 Practice Vocational Training contracts in South Africa. The Legal Practice Council coordinated five attorney’s admissions, conveyancing, and notarial exams. Candidates now register online for their exams, which has streamlined the application process. The document titled Criteria for the Conferment of Skills was submitted to the Department of Justice for input and approval. The Criteria for the Accreditation of Legal Education Institutions was published with the goal of ensuring and protecting the integrity of our legal system. The norms and standards for compulsory training of post-qualification and professional development for the admission of legal practitioners, was also developed. This will ensure every legal practitioner has the requisite training to be admitted, in line with the Legal Practice Act.

The Legal Practice Council engaged with the Safety and Security Sector Education and Training Authority (the SASSETA) to re-look its programmes, and this includes funding, and training legal practitioners, including pupils. The Legal Practice Council secured funding for pupils for the first time in the profession. Pupils will receive stipends, while undergoing pupillage. The Legal Practice Council submitted its recommendations regarding Section 34 of the Legal Practice Act to the relevant Minister. The recommendations deal with the recognition of paralegal and community-based organisations, multidisciplinary practices, and practical vocational training which includes the pro bono legal services provided by legal practitioners.

The impact of the COVID-19 pandemic on the legal profession and challenges faced:

The COVID-19 pandemic had a severe impact on the legal profession, with immeasurable financial losses which the profession has not yet recovered from. A lot of legal practitioners have been lost, and various legal firms had to close provincial offices. The pandemic and national lockdowns caused a significant court backlog which slowed down the available dispute resolution processes. The Legal Practice Council established a Benevolent Scheme of R15 million to support small firms and candidate legal practitioners. Negotiations were entered into with legal practitioners to ensure annual fees could be paid in instalments.

The challenges include equal access to work opportunities, the response to the COVID-19 pandemic, gender disruptions within the profession, which is still male-driven, the barriers to the profession especially for women and black graduates, the lack of funds for law graduates who want to enrol in pupillage, and the profession’s reputation which is deteriorating, with an increasing number of complaints (over 21 000) from the public.

The support available to young, black lawyers:

The Legal Practice Council engaged with the SASSETA to take another look at its programmes and to include funding and training of legal practitioners, including pupils. The Legal Practice Council secured funding for pupils for the first time in the history of the profession. Pupils will receive stipends while undergoing pupillage. LPC currently has 76 pupils nationally. The Legal Practice Council has made sure it continues to fund some accredited legal education institutions. These institutions assist to increase access to the profession, by providing legal education. LPC also approved funding for 19 law clinics, because of the important role clinics play, not only  in assisting ordinary members of the public, but also in training law graduates, and thereby affording them an opportunity to access work in the profession.

The Legal Practice Council plays a dual role. It regulates the affairs of legal practitioners, and works in collaboration with legal practitioners’ voluntary bodies, who are primarily formed by the practitioners. The entity will continue to engage with all stakeholders which engage with the legal profession, in all forums available.

Discussion

The Chairperson thanked the delegation from the Legal Practice Council for the briefing. He asked for the presentation to be submitted to the Committee, so it can be circulated to Members.

Mr W Horn (DA) thanked the Legal Practice Council for the information presented to the Committee. He referred to the practical training for candidate attorneys and pupils, and asked if the Legal Practice Council has done an assessment of the shortening of the LL.B over the last few years. He asked what impact this had on the preparedness of those graduates who start articles or pupillage; he asked if amendments were required for the practical training in relation to the modules which were removed from the standard curriculum for the LL.B; he asked about the knock-on effects in this regard; and he asked for information on how the Legal Practice Council ensures complaints registered regarding improper or unprofessional conduct by legal practitioners are resolved speedily. This speaks to the integrity and independence of the legal profession.

Adv G Breytenbach (DA) noted the significant backlog which amassed in court cases because of the historical burden of cases, as well as the impact of the COVID-19 pandemic. She asked if the Legal Practice Council put measures in place with Legal Aid South Africa or the National Prosecuting Authority (NPA), to make legal practitioners available to help with the resolution of the backlog, even if it is on a pro bono basis. She asked what measures are being explored to address the backlog; she asked for a response in writing, on the matter of a person she mentioned to LPC earlier, where a complaint was raised to the Legal Practice Council, and no feedback was give; she asked to be provided with the background to the complaint, and details on what was done to resolve the issues raised by the complainant.

Ms N Maseko-Jele (ANC) thanked the Legal Practice Council for the briefing made to Members. She asked for clarity on the issue of wellness, and the workload on attorneys and advocates, while working on serious and complex cases. She wanted to know what measures are put in place to address the challenges faced by legal practitioners; she asked for more details on the satisfaction levels of complainants regarding the quality and speed at which complaints are resolved at the Legal Practice Council; and asked if the Legal Practice Council is satisfied with its progress in addressing the challenges faced by legal practitioners.

Ms W Newhoudt-Druchen (ANC) thanked the delegation for the briefing. She asked how many members the Legal Practice Council has in total, and she asked if every LL.B graduate must register with the Legal Practice Council to be able to practice law. She said 21 000 complaints are quite significant and asked for details on how complaints are handled overall. She asked how the Legal Practice Council assists companies and law firms which closed because of the COVID-19 pandemic; and asked for details on the collaboration between the Legal Practice Council and Legal Aid South Africa.

Mr S Swart (ACDP) thanked the Legal Practice Council for the presentation. He said the term of office for its current Executive Management or Council Members expires soon, and asked for clarity on the process undertaken to replace the current incumbents. He asked for details on the measures undertaken towards the resolution of the backlog, and wanted clarity on the impact of the backlog on trials. He asked if there has been any investigation into law firms accused of charging in duplicate for RAF-matters. Agreeing with Ms Newhoudt-Druchen, he said 21 000 complaints are quite significant, and asked if the Legal Practice Council has the capacity to deal with complaints of this scale. He thanked the delegation for the hard work.

Mr Q Dyantyi (ANC) appreciated the R15 million dedicated to helping small law firms during the COVID-19 pandemic. He applauded the Legal Practice Council for its initiative and leadership in this regard. He asked for clarity on how a drivers’ licence is a barrier to the legal profession. He did not support the proposal to do away with the requirement of a drivers’ licence. He said 21 000 complaints shows a serious reputational risk to the legal profession. He asked for a breakdown of the complaints, and asked what is being done to mitigate the scale and extent of these complaints made by the public.

Responses by the Legal Practice Council

Adv Stemmett said the challenges facing the legal profession are significant. The major challenge is dealing with the Legal Sector Code, which is internally disputed between the provincial Legal Practice Councils. It deals with doing away with the choice of a legal practitioner based on knowledge, and choosing a legal practitioner based on skin colour instead. While the Legal Practice Council accepts transformation is a national goal, it is an issue which must be carefully considered. The local and national implications must be explored in a specialist area such as the legal profession. Another challenge is the undue tension between the Legal Practice Council and the General Legal Counsel of the Bar Association. The third issue is the use of electronic filing and video conferencing brought on by the COVID-19 pandemic, which should be encouraged to reduce legal costs and to improve the efficiency of the legal profession. This can go a long way to addressing the backlog of the courts.

The Chairperson said this meeting was the beginning of many interactions with the legal profession, and thanked Adv Stemmett for his contributions. He granted him leave to attend a court engagement and released him from the meeting.

Ms Trudie Nichols, Member of the Legal Practice Council, said the Legal Practice Council consists of different committees which feed into the work of the overall entity. Regarding the LL.B curriculum, she said it is not in the purview of the Legal Practice Council to comment, as it is required by the Legal Practice Act to admit students who submit proper qualifications, if the minimum qualifications are satisfied. It is the task of the Council of Higher Education to deal with complaints received regarding the reduced LL.B and the quality of the graduates. The quality of graduates remains a concern for the Legal Practice Council, but it is the purview of the education sector, with some input from the legal sector. The disciplinary processes are facilitated throughout the provinces and are mainly the function of the provincial offices of the Legal Practice Council. Once a member of the public lodges a complaint against a legal practitioner, an investigation committee is formed to investigate the complaint. If there is a prima facie basis for a case or disciplinary inquiry to be instituted, then such processes are subsequently followed. If necessary, disciplinary consequences are implemented in the form of suspension of the legal practitioner, or the legal practitioner is struck of the roll in which case a decision should be made if the firm’s trust accounts are suspended in the interest of the public. If the complaint is not supported by evidence, then the legal practitioner is exonerated. The complainant is then informed of the appeal mechanisms in place. People who lodge complaints are assisted in the process, and every effort is made to ensure language is not a barrier.

Ms Charity Nzuza, the Chief Executive Officer, Legal Practice Council, said the entity was shocked to receive so many complaints in one year. There is some sort of mistrust between members of the public and the legal professional. Not even half of the complaints received merited further investigation or disciplinary processes. The outcome of complaints is communicated to the complainants. The Legal Practice Council has a total of 37 000 practicing legal practitioners, and about 7 000 of these are advocates. There are also 30 000 non-practicing legal practitioners. Speaking on the term of office of the Executive Management, she said it ends on 31 October 2021. On 1 July, the Legal Practice Council will commence with the election of the new Council which will be announced by September 2021.

There is an issue with involving legal practitioners to resolve court backlogs, as the new legislation dealing with this has not been promulgated yet. The Legal Practice Council sent notices urging legal practitioners to take up matters on a pro bono basis. However, it cannot be mandatory. The new legislation is set to amend this and give guidance on how many hours of community service legal practitioners will be required to do by law.

Regarding Adv Breytenbach’s referral to a specific complaint, Ms Nzuza requested the complaint be forwarded to the Legal Practice Council for urgent attention. It is mandatory for every admitted attorney and advocate to be registered with the Legal Practice Council. Only practicing legal practitioners are charged the annual levy of R 4000, and non-practicing legal practitioners are not charged, although the Legal Practice Council regulates these practitioners and these practitioner’s adherence to the law. Legal Aid South Africa is represented on the Legal Practice Council.

Adv Badela said the idea of resolving the backlog through nightly court sessions is something which should be brought to the attention of the judiciary, as those cases are run by the courts. The difficulty with the virtual court system is things are not always done as it would have been done normally, and thus the feasibility of this proposal is not in the purview of the Legal Practice Council. It must be noted, the Legal Practice Council can only investigate complaints when it is made by a complainant. There is a need to ensure institutional memory is passed along. This can be done by ensuring not all the councillors of the Legal Practice Council are terminated at once, which would mean the Legal Practice Council is run by an entirety of new officials with no institutional experience. It is important for there to be an easier transitioning process to ensure the issues raised are adequately addressed. Any legal practitioner providing legal services must be registered.

Ms Nichols said the COVID-19 pandemic continues to have a serious impact on legal practitioners, along with the consequences of the national lockdowns. Legal practitioners experienced a large reduction in income from a lack of new clients, and not receiving payments from existing clients. The first thing legal practitioners had to do was to lay off staff, including junior staff, candidate attorneys, and administrative staff. The smaller black-owned legal practices were affected the worst of all. This has negatively affected the transformative goal and imperative in the legal profession.

Ms Dlepu said the Attorneys’ Fidelity Fund reduced funding to the Legal Practice Council, as compared to the previous financial years. The funding was reduced to R35 million. The Legal Practice Council funds the education of attorneys, advocates, and funds many of the law clinics. In 2020, the Legal Practice Council managed to gather R50 million to assist those legal practitioners who were not able to generate an income. Only 60% of legal practitioners were able to pay levies during the last year. She said a wellness programme for legal practitioners will be considered, but the Legal Practice Council only has such a programme in place for its own staff.

Mr Dyantyi said the Committee should be given a breakdown of the issues with the Legal Sector Code, for the Committee to be of assistance in this regard. The Legal Sector Code was a heavily debated issue, and the concerns raised by the Legal Practice Council must be taken into consideration. He asked for clarity on the caseload of the Legal Practice Council in dealing with the complaints and the issues faced by the entity.

The Chairperson referred to comments made regarding delays in the establishment of the appeal tribunal of the Legal Practice Council, and multi-disciplinary practices which will be established. He asked for clarity on this, and asked if there are any risks involved. In the Legal Practice Act’s amendments, there is a provision dealing with the admission of foreign law firms to practice within South Africa. He asked for the Committee to be furnished with a breakdown of what the associated risks will be.

Ms Nzuza said the Legal Practice Council takes into consideration treaties and international agreements, regarding allowing foreign law firms to practice within South Africa. The delays in the establishment of the appeal tribunal were due to it being made up of a quorum of people who are appointed by the ombudsman, with technical formalities which must be adhered to.

Adv Badela referred to the question about allowing international or foreign law firms to practice in South Africa. He said it is crucial for the same to be allowed for Southern African Development Community (SADC) countries. There is no legal framework which allows people to provide legal services across the border. This is so despite the African Free Trade Continental Agreement, which sought to facilitate regional integration, and after this, the integration of the whole continent. He urged the Committee to find ways to facilitate and promote this process with the incoming legal counsel of the Legal Practice Council. This will facilitate the harmonisation of the legal profession in Africa.

The Chairperson thanked the delegation from the Legal Practice Council for the briefing and thanked Members for the contributions during the meeting.

The meeting was adjourned.

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