INTRODUCTION

The much contested Legal Practice Act 28 of 2014 (the Act) is as of 22 September 2014 now in force and effect, well, not actually. The Act is to take effect in staggered stages as per an elaborate roll out plan as elaborated upon below. This article provides a quick snapshot of the important provisions for practioners and the public that they serve.

PURPOSE AND PLACE

The Act acknowledges that the profession is fragmented and divided with different laws applying in different parts of the Republic and that access to legal services and opportunities within the profession are restricted. The Act’s stated purpose is to create a single regulatory body, to ensure that legal services are accessible to the public and entry into the profession is unrestricted in order to bring the legal profession in line with the Constitution’s transformative ideal.

REPEALS, ROLL-OUT & TRANSITIONAL ARRANGEMENTS

At the outset one must be aware that although this Act is in force, it is not yet in effect. Section 120 provides that chapter 10 (National Forum) will come into operation on a date to be fixed by proclamation. Chapter 2 (South African Legal Practice Council) will only come into operation 3 (three) years after Chapter 10 and the rest of the Act will come into operation on a date to be proclaimed after the commencement of Chapter 2.

Nevertheless it is here and it is law and it is set to govern the entire legal profession so best get to know it. The Act will be all-encompassing and is set to repeal a long list of established legislation including the Attorneys Act 53 of 1979 and the Admission of Advocates Act 74 of 1964.

In a nutshell, the first step will be the establishment of a transitional entity called the National Forum on the Legal Profession (“National Forum”) which will, amongst many things, make recommendations to the Minister on the election procedure of the Council, the Provincial Councils, the practical training requirement of candidate attorneys. Further, the National Forum will negotiate the transfer of the assets, rights, liabilities, obligations and staff of existing law societies to the Council. This entity will cease to exist with the coming into operation of South African Legal Practice Council which will be the single unified regulatory body of the legal profession. 

SINGLE REGULATORY BODY

The Act envisages that all legal practioners will subject to the jurisdiction of the South African Legal Practice Council (“Council”) which will, inter alia, regulate the conduct and affairs of all practioners (attorneys and advocates), develop norms and standards and develop programmes to empower the previously disadvantage. The Council will consist of 23 members, 16 of whom will be practicing legal practioners (attorneys and advocates). The Council will establish at least four Provincial Councils whose jurisdiction will be determined by the Minister.

INDEPENDENCE OF THE PROFESSION

In the drafting and comments stages of this Act, much was made of the encroachment by the executive on the independence of the legal profession. What has come out in the wash? Certain safeguards have been put into place to ensure this independence. For example, the Minister may designate 3 of the 23 Council members but such appointees must have knowledge and experience in the legal profession as per Section 7.

Furthermore, these 3 Ministerial appointees may not be public servants, members of Parliament or office-bearers in any organization of a political nature. This appears to be aiming in the right direction.

However, there are still a few concerning provisions in the Act which may infringe on the independence of the profession. The most concerning provision is Section 14 which allows the Minister to dissolve the Council and appoint her own interim Council if she loses confidence in the Council’s ability to perform its functions. There are certain safeguards surrounding this dissolution power which go some of the way to alleviating concerns.

Before dissolving the Council, the Minister must first give the Council notice, reasons and an opportunity to respond, after which, the Minister, if still unsatisfied, must request that the ombudsman investigate and make recommendations. If after the investigation the Minister is still unsatisfied, she may only dissolve the Council upon application to the High Court.

This places the power back into the hands of the legal profession who presumably could be joined as interested parties. In addition, if a High Court orders that the Council be dissolved the interested party may appeal the matter all the way to the Constitutional Court. Consequently, should the Minister decide to dissolve the Council, such a decision will be thoroughly tested.

It must be noted that the Minister has the power to make regulations concerning, amongst other things, the election procedure of the Council. However, such a regulation would require the approval of Parliament before coming into force.

BLURRED LINES: ATTORNEYS AND ADVOCATES

In terms of Section 34(2)(a)(ii) of the Act, an advocate may render legal services in expectation of a fee upon receipt of a request directly from a member of the public provided that the advocate is in possession of a Fidelity Fund Certificate and a trust account. Will this drastically alter the legal landscape? Attorneys with the requisite certificate have been allowed to appear in the High Court since the enactment of the Right of Appearance in Courts Act 62 of 1995. Yet, very few attorneys present themselves to argue matters, especially in the High Court. The profession appears to acknowledge that attorneys and advocates each play specialized roles in the service of a client’s legal interests. This natural and necessary divide may therefore continue in spite of such a provision.

PRACTIONERS’ NEEDS TO KNOWS

Fees: Legal practioners may still charge fees in excess of tariff by agreement in writing with the client. This may change but not in the near future. The South African Law Reform Commission will investigate and report to the Minister on the desirability of giving users the option of voluntarily agreeing to pay fees in excess of that prescribed.

Costs Estimate Notice: Legal practioners must take heed of the following: when first receiving an instruction the client must be provided with a cost estimate notice in writing specifying the likely financial implications, the practioner’s hourly fee, the client’s right to negotiate the fee, an outline of the work to be done, the likelihood of engaging an advocate, the financial implications of withdrawing from litigation and the costs recovery regime as per Section 35(7). Failure to provide such a notice constitutes misconduct and the client is not required to pay until the Council has reviewed such a matter.

Legal Service only a practioner may render: subject to any other law only a practioner may in expectation of a few appear in court or the like and draft documents to be used in court proceedings as per Section 33(1). This severally curtails the list of protected legal practioners’ work as per the Section 83(8)(a) of the Attorneys Act 53 of 1979 which is set to be repealed in its entirety.

CONCLUSION

The Act is set to dramatically alter the legal landscape. However, even though it has now become law the practical on-the-ground effect will only be felt in a few years’ time. Just how shaken the ground will be is uncertain given the fact that the Act envisages a plethora of regulation to be promulgated after many years of investigation, recommendation and report back. As many years as this Act was in the making, it will take just as long before its true nature is revealed and implemented.

Written and prepared by Patrick Wainwright, BKM Attorneys

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