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Lawyers' turn for call-up
by Richard Stokes
For the hundred years since Union, the legal profession has been regulated by two bodies – attorneys by the Law Society and advocates by the General Council of the Bar. The Legal Practice Bill proposes that both bodies be replaced by the South African Legal Practice Council (“the Council”).
The Bill lists certain problems with the legal profession, namely: (i) It is regulated by different laws in different regions, and is thus divided; (ii) it is not representative of the demographics of South Africa; (iii) entry into it depends, partly, on “outdated or unnecessary prescripts” (it would be interesting to know what the legislators mean by this); and (iv) access to legal services is limited.
The Bill sets out to correct these problems, as well as, inter alia, to: (i) transform and unite the legal profession; (ii) remove any barriers for entry into the profession; (iii) strengthen the independence of the profession; (iv) ensure the accountability of the profession to the public; (v) and establish a Legal Services Ombud.
Among the noteworthy provisions of the Bill are that an attorney may at any time apply to the Council to convert his or her registration to that of an advocate, and vice versa. The Bill prescribes that the Council must make rules setting out the circumstances in which, and the criteria to be complied with, to give effect to such a conversion.
Much has been said lately about the prescription of community service for legal practitioners, with senior members in the Justice department stating that legal practitioners will be required to perform community service similar to that performed by newly qualified doctors. The Bill states that the Minister may, on recommendation of the Council, prescribe community service which may include service during training by candidate lawyers or recurring service by practitioners (upon which their continued registration will depend).
“Community service” may mean, for example, delivering legal services to the public, providing legal training on behalf of the Council, serving as a judicial officer such as commissioner in the small claims court, or serving as a prosecutor. There are no grounds to assume that such community service will be limited to the rural areas, as has been published in major online sources lately.
A very interesting new addition proposed by the Bill is that the Minister may (“request the President to”) confer the status of Senior Legal Practitioner upon a deserving practitioner. Which is to say, we will henceforth have Senior Attorneys in the same way as we have always had Senior Counsel.
Online sources have recently quoted sources in the Justice Department as saying that the Bill aims to make legal fees more affordable. These sources claim that fee parameters similar to that of medical aid tariffs will be put in place and a legal practitioner will not be able to charge more than 100% of the tariff. The Bill in its current form however does not say this but merely states that the council may make rules on the setting and collection of fees. It is unclear at the moment precisely how much leeway practitioners will have in this regard.
To the man in the street this may seem like a fantastic idea, however it is not practical as the larger law firms with enormous overheads would simply not be able to survive charging within a prescribed tariff. Of course one does not know exactly what the tariff would be, but if the aim of the Bill is to make access to legal services more affordable then one can only assume that the prescribed tariff would be on the low side.
At this stage it is unclear whether these promised changes will occur, or will wash away as rhetorical utterances. It is even less clear whether changes made will become lasting changes. Some of the more drastic changes referred to in local online sources do not appear in the Bill itself, but may come up in the regulations. A full review of this proposed legislation is difficult without said regulations, as it is comparable to reading a novel which includes only the introduction and conclusion. |
