General Council of the Bar's submission on the 2012 Legal Practice Bill, to the Parliamentary Portfolio Committee, Cape Town, February 2013
2012 LEGAL PRACTICE BILL
GCB SUBMISSIONS
TO THE PARLIAMENTARY PORTFOLIO COMMITTEE FEBRUARY 2013
INTRODUCTION
1. The General Council of the Bar of South Africa ("GCB") is:
1.1. a voluntary association that has existed since 1946;
1.2. a federal body representing the organised advocates' profession in South Africa and has ten constituent societies of practising advocates called Bars. There is a Bar at the seat of almost every High Court of South Africa;
1.3. governed by a council consisting of delegates of the constituent Bars and an executive. In terms of the constitution of the GCB, not less than half of the executive is to consist of persons nominated by Advocates for Transformation.
1.4. a member of the International Bar Association ("the IBA");
1.5. recognised in section 7(2) of the Admission of Advocates Act, 74 of 1964;
1.6. recognised by the Courts and has been regarded as the "organised profession". That is illustrated by inter alia the following passage from a reported matter:
"Whatever the exact figures, it is clear that the vast majority of practising advocates belong to the constituent Bars of [the GCB] which have always been regarded as the organised profession. Moreover, their rules of conduct and ethical rules have evolved over long periods of time, the majority of such constituent Bars having been in existence for long periods of time. The Court in disciplinary matters has always, without being bound thereby, taken cognisance of such rules of conduct and ethical rules..." [1]
2. By virtue of the considerations set out herein, the status of the GCB and the constituent Bars, referred to above, should neither be ignored nor be terminated.
3. A copy of the GCB's constitution is annexed hereto, marked "GCB1". The preamble reads as follows:
"We, the affiliated Bars of the General Council of the Bar of South Africa, duly cognisant of our duties and responsibilities to the broader society in which we operate, hereby commit ourselves to the promotion of democracy, to the protection and the enhancement of the rule of law, to the ideal of an open society founded upon human dignity, the achievement of equality and the advancement of human rights and freedoms."
4. These comments on the 2012 Legal Practice Bill ("the Bill") have been prepared in collaboration with the constituent Bars and in amplification of these submissions the written comments received from the following Bars are annexed hereto: Johannesburg ("GCB2"), Cape Town ("GCB3"), KwaZulu-Natal ("GCB4") and Northern Cape ("GCB5").
5. The GCB notes the introduction of the Bill which, inter alia, seeks legitimately to address the following issues:
5.1. The fact that the practice of law is regulated by different laws which apply in different parts of the national territory and as a result is fragmented;
5.2. The fact that access to affordable legal services is not a reality for most South Africans;
5.3. The fact that the advocates' and attorneys' professions are not representative of the demographics of South Africa;
5.4. The fact that access to legal services is limited;
6. The GCB welcomes:
6.1. the introduction of the Bill as a means to address the aforesaid inadequacies.
6.2. the acknowledgement in the Bill, of the right of advocates to practise their profession[2].
6.3. the fact that a stated objective of the Bill is to strengthen the independence of the advocates and attorneys professions[3] and to ensure that the rule of law is upheld.
7. The GCB is committed to working with government and the legislature, the Law Society of South Africa, the BLA, Nadel and all other stakeholders in order to address the legitimate concerns of such stakeholders and, to this end, to engage in frank and robust discussion with the legislative and executive arms of government, based on the following principles:
7.1. that advocates should have the right to freedom of association, in particular the right to organise themselves in their own bodies.
7.2. that the advocates' profession should be recognised as a distinct profession within the wider realm of legal practice, and to this end should be able to:
(a) administer a system of pupillage or practical training required for admission to the profession and in so doing promote access to the profession by historically disadvantaged individuals;
(b) formulate and administer a set of rules of conduct for its members and a disciplinary system for the infraction thereof;
(c) employ personnel and own assets for the administration of the profession;
(d) ensure that the fees charged by its members are reasonable.
8. The GCB considers the retention of the above principles as being in accordance with the aims and objectives of the Bill.
7. Those principles are fundamental and the provisions of the Bill must be scrutinised to ensure that they comply with those principles.
8. Before the provisions of the Bill are considered individually, it is essential to consider and contextualise the interaction between regulation, governance, independence of the profession, unity, and the specialised roles of attorneys and advocates respectively.
REGULATION
9. Section 22 of the Constitution provides that the "practice of a trade, occupation or profession may be regulated by Law".
10. Insofar as the Bill creates a statutory framework recognising the independence of the profession, the continued existence of attorneys and advocates, minimum academic qualifications, the creation of the Legal Practice Council ("the Council"), a Legal Services Ombud ("an Ombud") and the Attorneys Fidelity Fund, it provides for regulation of the legal profession as contemplated in section 22 of the Constitution.
11. The establishment of the office of an Ombud in the Bill creates a mechanism to ensure that the legal profession operates within the framework of the Bill. An Ombud will serve as a watchdog through whom the Minister and members of the public can ensure compliance with the objectives of the Bill. Particular reference is made to clauses 47 and 49.
12. Whilst it is the prerogative of the Minister to provide the statutory framework within which the legal profession is to be regulated by professional bodies, the State may not be involved in the governance and management of the profession.
GOVERNANCE AND INDEPENDENCE OF THE PROFESSION
13. The Bill correctly emphasises the independence of the legal profession in the preamble and in clause 5(e). It should therefore be ensured that the balance of the provisions of the Bill comply with that requirement.
14. It is of particular importance to bear in mind the distinction between the Minister's prerogative to provide the statutory framework within which the legal profession is to be regulated by professional bodies as discussed above and the governance/management of the profession in which the State may not be involved.
15. In a policy document adopted by the IBA in 1990, entitled the "IBA Standards for the Independence of the Legal Profession" ("the standards document"), the IBA recognised that the independence of the legal profession constitutes an essential guarantee for the promotion and protection of human rights, and that professional associations of lawyers have a vital role to uphold professional standards and ethics, to protect their members from improper restrictions and infringements, to provide legal services to all in need of them, and to co-operate with governmental and other institutions in furthering the ends of justice.
Clause 17 of the standards document records the following:
"There shall be established in each jurisdiction one or more independent self-governing associations of lawyers recognised in law, whose council or other executive body shall be freely elected by all the members without interference of any kind by any other body or person. This shall be without prejudice to their right to form or join in addition other professional associations of lawyers and jurists." [4]
16. Shortly before his death Justice Chaskalson (formerly CJ) recently stated the following concerning the Bill as it currently exists[5]:
"The United Nations Basic Principles on the Role of Lawyers provides:[6]
Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training, and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external influence
According to the preamble to the Basic Principles their provisions,
Should be respected and taken into account by governments within the framework of national legislation and practice.
The drafters of the Bill have not done this. The Bill does not respect the freedom of lawyers to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. These functions are now to be dealt with in terms of the Bill, and the assets, liabilities and staff of existing associations dealing with such matters, are to be transferred to new bodies to be established in terms of the Bill.
...
The Ombud and the Minister are both appointed by the President which means that members of the executive have significant powers to control important aspects of the functioning of the legal profession. There is no reason to believe that these powers will be abused. But that is not the point. We do not know what might happen in the future. A structure is being proposed which opens the door to important aspects of the profession being controlled by the executive, and that is inconsistent with an independent legal profession.
...
The legal profession has a duty to itself and to the people of our country to do all that it can to protect its independence. That involves ... raising its voice against measures calculated to erode that independence. The Legal Practice Bill in its present form is such a measure."
UNITY
17. Unity will be attained by the fact that one statute will provide for the statutory framework within which the members of the two professions will be regulated and that a single forum, the Council, will be created where a unified approach to principles such as the rule of law, access to justice and ethics can be formulated.
18. However, unity does not (and should not) mean fusion of the two professions.
SPECIALISED ROLES OF ATTORNEYS AND ADVOCATES
19. The Bill, in accordance with the Constitution, provides for the continuation of the two professions.
20. Whilst the Council will create a useful platform for the two professions collectively to ensure that the objects of the Bill be met, the Council (that only needs to have four meetings per year - clause 15) will not have the capacity to govern and manage the two professions on a day-to-day basis.
21. Given the magnitude of the day-to-day governance/management of the two professions, their respective peculiarities and the significant extent to which the governance/management of the professions depends on the involvement of their members without remuneration, the governance/management of the two professions must be left to two dedicated structures representing attorneys and advocates respectively. That will not detract from the notion of unity contemplated in the Bill and discussed above. Matters of principle aside, the question of capacity cannot be ignored.
22. Such structures will also be in the interest of the independence of the profession. That is necessitated by the specialised focus of each of the two professions. In the words of Justice Cameron[7]:
"...it is in the public interest that there should be a vigorous and independent Bar serving the public, which, subject to judicial supervision, is self-regulated, whose members are in principle available to all, and who in general do not perform administrative and preparatory work in litigation but concentrate their skills on the craft of forensic practice."
23. In 1991 Kentridge QC, with reference to the rule of law, the cab-rank rule, the independence of advocates and the specialised skills of attorneys and advocates stated[8]:
"Rule of law
I believe that all of us advocates, through our membership of our profession and the nature of our work in the courts have helped to maintain the idea of the rule of law as a counter-balance to naked executive power.
...
During the particular period [apartheid] I am speaking of, cases often arose of a political nature; that is to say, cases where some individual came into conflict with the political objectives of the State and found himself consequently in either a criminal or a civil court. In these cases there were nearly always... members of the Bar available to act for them, however unpleasant this task sometimes seemed.
...
Cab-Rank rule
This rule requires that a member of the Bar should be prepared to accept at a reasonable fee any brief in a court in which he ordinarily appears....it requires that an advocate should not refuse to act for a client because that client is unpopular or regarded as socially or politically undesirable.
...
The conditions of attorneys' practices are such that they cannot apply such a rule. Their relationship with clients has to be closer than that of advocates and it is often a continuing one. They are entitled and indeed obliged to have regard to the views of their partners and to the effect that a particular case may have on their practices.
...
Independence of advocate
This brings me naturally to the two closely related aspects of the Bar as a profession. The first is the independence of the advocate. He is a sole practitioner, and his professional ethos requires him to maintain his independence.
...
Specialised skills
...the regular and exclusive practice of advocacy brings with it a level of competence invaluable not only to the client but to the court.
...
Many attorneys and academics whom I know personally or through their writings are superb lawyers - what they cannot match is the sharpening of forensic skills which comes from the constant debate which takes place between advocates and the Bench, and the practical knowledge of what happens on the floor of a court.
...
The future
...it is the independent Bar inseparably from the independent Bench, which is the protection of the citizen against the state.
...
(T)he separate Bar will be needed as much in the future as it is now."
24. In 1997 Justice Mahomed (then CJ) stated[9]:
"There were other influences and traditions at the Bar which never died and which must be crucial for the commitment made by the new Constitution to bring real justice, dignity and freedom to all the citizens of this potentially extremely exciting country, of so much promise and richness; so much romance and cruelty. I am infinitely richer for the opportunity to be exposed to these influences and traditions.
What are these traditions?
The first is the tradition of thorough scholarship, pursuit of forensic excellence, capacity for rational thought, intense intellectual energy and unremitting discipline which barristers have always been expected to apply in the discharge of their briefs. There must be few endeavours in all civilization which can compare to the totality of commitment and the punctilious regard for detail which a competent and conscientious advocate harnesses in support of his or he case. This is a great and impressive tradition bred in very competitive conditions, which enriches the level of legal debate in the resolution of jurisprudential and factual disputes, and, ultimately, in a very crucial sense, the quality and legitimacy of the Bench, and the image of justice itself.
A second and related tradition is a fierce independence and an uncompromising standard of intellectual integrity and capacity for objectivity which informs the best at the Bar. It was sometimes displayed with a towering magnificence, and with it came a depth of courage and a willingness to champion causes and litigants often unpopular in the public perception.
These traditions are formidable."
25. In 1999 Bizos SC[10] referred to the following comment made by Kentridge QC in 1994 and 1998 when he, relying on his experience of over forty years at the time, said that the Bar should remain an independent referral profession of single practitioners:
"There are few things as essential to the maintenance of liberty in a state as the existence of an independent body of advocates ready to appear for every kind of person in every kind of case".
Bizos SC continued to state the following:
"I share Kentridge's view. I too rely on my experience of almost forty-five years. The independence of the Bar made it possible for some of us to take cases which we would not have been able to do during the apartheid years on behalf of those who opposed the government's policies, legislation and practices. The substantially reduced fees we charged would have upset our partners if we were not single and independent practitioners. Long and difficult trials would have kept us out of the office to the disappointment of the partnership and its clients. The conflicting interests between the rich and the poor, organised commerce and industry on the one hand and the trade unions on the other, would have raised eyebrows if a senior partner regularly appeared for one of the sides and not the other.
The distance placed between the advocate and the client with the instructing attorney between them is a healthy one.
...
One of the important advantages in not taking instructions directly and in not handling funds is that an advocate who has a court practice is able to concentrate and devote almost his full time and attention to the case that he is conducting at a particular time. If he has to equip, start and run an office the additional cost will be passed on to the client. The reason why attorneys have not availed themselves of the right to appear in trials is because they are unable to both administer an office and give their full time and attention to the case that they are expected to conduct.
...
(I)t would be a serious mistake if the fundamental distinction between the two professions is ended. The public, the vast majority of attorneys and advocates will be the losers. The Bar has recently provided evidence that it is committed to the transformation of the profession and the judiciary becoming more representative in relation to race and gender.
...
Let us not even unwittingly destroy any portion of its essential fabric. If we do, the administration of justice and our society will be the losers."
26. In 2010 Wallis JA[11], by way of reference to his own experience, illustrated the role of the Bar and the importance of an independent Bar. He stated the following:
"I started practise at the bar in 1973 at the height of the apartheid regime's dominance of South Africa and became the chairman of the GCB in 1994 with the advent of democracy in South Africa. During the 20 years in between I appeared in the case that stopped the Nationalist Party from implementing apartheid by giving away large tracts of South Africa to a feudal monarch in Swaziland. I advised and represented trade unions, church organisations and my local university when they were under attack by the government. I appeared for detainees held under the 1985 state of emergency. That was my experience but it is merely a footnote to the work that my colleagues at the Bar did throughout this time. There is a lengthy honour roll of names such as Maisels, Fischer, Mahomed, Kentridge, Langa, Chaskalson and Bizos to mention only those who may be familiar to you.
South African lawyers know what it is like to practise law in a society where the rule of law is ignored; where law is an instrument of oppression not a guarantor of freedom, and where the legal profession's independence - not only instrumental independence but independence in mindset and approach to the practice of law - is essential in order to protect ordinary members of society from an over-powerful government. It was that independence, nurtured by the fact that every advocate was bound by the cab rank rule; that every advocate was available in every case to high and low; that every advocate was free from the commercial restraints that partnerships and corporate structures impose upon their members, that enabled many advocates in South Africa to fight for the rule of law, to resist apartheid and to use the courts creatively to bring about change. I stress advocates because with only a very few honourable exceptions the large firms of attorneys would not touch that kind of case for fear of its commercial implications and it was left to small, under-resourced attorneys to come to the Bar to ensure that their cases were properly contested.
It is largely because of those traditions of independence that we were able to reconstruct our legal system after apartheid and create legal institutions that function in a democratic society under the rule of law. Tampering with these fundamentals places the ability of the profession to play that role at risk. And we should remind ourselves that it is when societies are at risk that we need lawyers to play that role. It is easy when the mood is sunny and the waters seem tranquil to say that we have a society governed by the rule of law. But storm clouds gather easily."
CONSIDERATION OF SPECIFIC PROVISIONS OF THE BILL
27. Specific provisions of the Bill will now be considered with these principles in mind.
Definitions - Clause 1
28. In view of the essence of the referral rule, dealt with above, it is proposed that the definition of "advocate" be amended to read as follows:
"means a legal practitioner practising as a sole practitioner on a referral basis and without a Fidelity Fund certificate"
29. It is proposed that a definition of "legal profession" be inserted and that it reads as follows:
"means the attorneys profession and the advocates profession"
Purpose of the Act - Clause 3
30. Clause 3(a) - immediately after the word "Constitution" at the end of the clause, the following words ought to be inserted:
"and ensures that the rule of law is upheld"
This will be in accordance with the wording of the preamble, specifically the second point under the words ‘AND IN ORDER TO'.
31. Clause 3 ought to include a sub-clause reading as follows:
"protect and promote the independence of the legal profession ".
32. Clause 3(b)(i) - It is objectionable to require that advocates' fees, in all instances, are to be "affordable and within reach of the citizenry".
32.1. In terms of a Bar rule that has been in existence for decades, advocates' fees, in all instances, must be reasonable. The final determination of the reasonableness of fees has been, and should continue to be, the prerogative of the courts. When a party cannot afford the fees customarily charged by an advocate, that advocate may reduce her/his fees. That has been done frequently.
32.2. In addition, pro bono services may be rendered.
32.3. Clause 3(b)(i) therefore ought to read as follows: "structures to determine reasonable fees chargeable by legal practitioners for legal services rendered and the provision of pro bono work."
32.4. The proposed wording will comply with the object of the Council provided for in clause 5(b) which is to "ensure that fees charged by legal practitioners for legal services rendered are reasonable and promote access to legal services".
33. Clause 3(b)(ii) - It is unrealistic and not in the public interest to expect of candidate legal practitioners to render community service. They are occupied by their full training programme and have not reached the level of competence required to render legal services.
34. Clause 3(c) ought to be amended to read "create a single statutory body to regulate the affairs of all legal practitioners in pursuit of the goal of an accountable, efficient and independent legal profession."
35. The transformation of the legal profession is contemplated in clause 3, read with the preamble andclause 5. However, no substance is given to this goal in the Bill. See in this regard the comments in:
35.1. Part III at pages 42-55 of the Johannesburg submissions, "GCB2". The transformative measures undertaken by the Bar itself are illustrated therein.
35.2. Paragraphs 61-64 at pages 24-25 of the Cape submissions, "GCB3". It is explained therein why appropriate transformation measures require the close co-operation of briefing attorneys and established advocates and that detailed measures must be devised and implemented at the regional or local level.
Objects of Council
36. Clause 5(a) - delete the word "unified". It has been explained above that unity will be achieved by way of the creation of the Council but that the two specialised legal professions will continue to exist.
37. Clauses 5(l) & 6(1)(t) - insert immediately after the word "Charter" the words "insofar as the provisions thereof are consistent with the provisions of this Act".
38. Further comments on the objects of the Council will be made when the structure proposed by the GCB is discussed below.
Termination of Voluntary Associations of Advocates
Effect of Clauses 97(2) and 116
39. A major concern is the termination, in effect, of voluntary associations of advocates and the "transfer of their assets, rights, liabilities, obligations and staff" contemplated in clause 97(2) read with 116. The effect thereof is that all voluntary associations of advocates will cease to exist at the commencement of Chapter 2 (see clause 116) and all assets, rights, liabilities, obligations and staff of the voluntary associations of advocates will vest in the Council or Regional Councils (clause 97(2)).
40. The net result of this will be that the GCB (and other voluntary associations of advocates) will effectively cease to exist. The provision for arbitration in clause 97(4) does not leave any room for the continued existence of these societies. In any event, the provision for arbitration is inappropriate as arbitration in terms of the Arbitration Act, 42 of 1965, cannot determine status, constitutional or otherwise, and the Arbitration Act cannot be a vehicle for compulsory arbitration.
Objections
41. These provisions impugn basic principles of fundamental rights (see the rights to freedom of association and property), commercial law (see the transfer of assets, rights, liabilities and obligations) and labour law (see the transfer of employees). Clause 97(2) read with clause 116 will probably not pass Constitutional muster.
42. Moreover, these provisions do not take proper account of the way in which the LSSA and the GCB function. Reference is made to inter alia the following considerations.
43. The day-to-day management of the LSSA, regional Law Societies, the GCB and constituent Bars is a massive operation depending largely on the day-to-day involvement, commitment and skills of the many legal practitioners who serve on their professional bodies' governing and disciplinary structures as well as those who assist on an ad hoc basis. Certainly in the case of the GCB and its constituent Bars, these tasks are performed without remuneration. Those services include the administration of pro bono services and transformation programmes (see for example Part III at pages 42-55 of the Johannesburg submissions, GCB2"). There is no realistic prospect that the Council (which only needs to have four meetings per year) can fulfil the same functions as effectively as the LSSA and the GCB.
44. The differences between the attorneys' and advocates' professions are such that day-to-day focused attention to the specific respective needs of the two professions is necessary. In Rösemann v General Council of the Bar of South Africa[12] reference was made to "the reality of two distinct professions engaged in different fields of legal expertise". It was further stated[13]:
"The training of each profession is different and results in different skills. ... The result of this divergence is (or should be) the production of two classes of professionals, each skilled in its chosen field, but not substantially equipped to operate in the sphere of the other profession".
And[14]:
"Such balance as one is able to strike suggests to me that the existing public interest is, in general, best served by the established division of the professions".
45. As it is, the LSSA, the GCB and the societies serving under their auspices, with the assistance of their individual members, are occupied fulltime by the task of attending to the specific needs of the two professions. That focus will be lost if the Council is to manage both professions to the extent envisaged in the Bill, particularly having regard to the effect of clause 97(2) read with clause 116.
46. Even within the advocates' profession each constituent Bar has its peculiarities determined by the demographic composition of each region, prevalent issues in each region, the demand for legal services in each region and the number of legal practitioners in each region. Consequently, each of the twelve constituent Bars has its own Council and sub-committees (certain constituent Bars have more than twenty sub-committees). In addition, ad hoc committees are appointed regularly.
47. Each society has its own peculiar investments/funds created for dedicated purposes. By way of example reference is made to the Cape Bar's Davis Trust (a testamentary trust with a specific narrow objective for the benefit of members of the Cape Bar that may not be altered without a court order) and the dedicated funds, to which members have contributed, created for members on maternity leave and for bursaries to African black female members (to address the shortage of African black female advocates at the Cape Bar) as well as general bursaries for pupils.
48. Over the years it has been illustrated how the GCB and its constituent bars have been able to serve justice expeditiously exactly because they govern/manage themselves. In addition to the aforequoted examples mentioned by Justices Mahomed and Wallis, Kentridge QC and Bizos SC, reference is made to some further examples:
48.1. Acting appointments on the Bench, pro bono or amicus curiae appearances and matters concerning the day-to-day interaction between the Bench and the Bar have been dealt with, quite often at short notice, by way of communication between constituent Bars and members of the Bench within the area of jurisdiction of those constituent Bars.
48.2. Members of the public and attorneys regularly approach constituent Bars with requests for pro bonoservices and in general those services are arranged without any delay.
48.3. Amongst its members, the Bar fulfils an important role in the continuous legal education of its members. This is particularly so for its junior members who have the in-built resource of their more experienced senior colleagues in the day-to-day challenges of practice. Members of the Bar practise in close proximity to each other and, in general, have an open door policy which facilitates the passing on of skills and hands-on mentoring of junior members.
48.4. The Bar provides critical support to the public in the pursuance of justice and the Rule of Law. By way of illustration the following two examples will suffice:
48.4.1. Members of the Bar have been charging substantially reduced fees for services rendered to interested parties at hearings of the Commission mandated to investigate matters of public, national and international concern arising out of the tragic incidents at the Lonmin mine in Marikana in August 2012 which led to the deaths and injuries of several people.
48.4.2. When xenophobic violence occurred in the Western Cape during May 2008, the Cape Bar immediately co-ordinated pro bono services and to that end initiated a meeting with roleplayers such as attorneys, the Human Rights Commission and several non-governmental organisations.
48.5. During April 2012 the GCB, at short notice, sent three of its members to join barristers from London in advocacy training of Zimbabwean lawyers at the request of the Law Society of Zimbabwe. Similar voluntary training has been provided to Namibian lawyers. The Bar's activities extend beyond South African borders and it is a valuable resource for Southern Africa.
48.6. Members of the Bar appear in international courts (eg. the Hague) and have often, on short notice, worked in international agencies such as the IBA on international fact finding or observer missions seeking to safeguard the Rule of Law
48.7. The Bar's contribution to the advent of democracy in this country is well-documented.
48.8. Accordingly, the Bar constitutes an important national, international and African resource.
49. It stands to reason that the profession will be burdened with substantial costs resulting from the required financing of the Council and Regional Councils. That will have an adverse effect on junior members in particular.
50. It is not an exaggeration to state that an inevitable and substantial disruption of the legal profession will follow if clauses 97(2) and 116 are enacted. Members of the public as well as the profession will be best served by the following relatively simple amendments to the Bill. These proposed amendments will leave the governance and management of the profession intact whilst granting the Council the opportunity to assess ways in which the objectives of the Bill can be achieved more effectively, without causing a major disruption to the management of the profession to the detriment of the profession and members of the public.
STRUCTURE PROPOSED BY THE GCB
51. Delete the existing contents of clauses 97(2) and 116.
52. Chamber of Advocates and Chamber of Attorneys in the Council
52.1. The GCB previously proposed that, between the Council and the Regional Councils, two intermediary statutory councils be created to co-ordinate the management and governance of attorneys and advocates respectively and to assist the Council. That proposal has been rejected by other stakeholders and therefore, in an attempt to find common ground, the GCB is now proposing that, within the Council two chambers be created to co-ordinate the management and governance of attorneys and advocates respectively and to assist the Council.
52.2. For present purposes these chambers are referred to as Chamber of Advocates and Chamber of Attorneys respectively.
52.3. The LSSA will become the statutory Chamber of Attorneys.
52.4. The GCB will become the statutory Chamber of Advocates and provision will be made for the incorporation of all practising advocates in this entity.
53. Regional Councils
53.1. Regional Councils of Attorneys are to be created in accordance with the needs of the attorneys' profession. The Bill makes no provision for the funding of Regional Councils. The GCB proposes that each Regional Council of Attorneys be funded by the attorneys registered with it and each Regional Council of Attorneys may determine the sum of the contributions to be made by the attorneys registered with it.
53.2. Regional Councils of Advocates
53.2.1. A regional council of advocates will be created in each area of jurisdiction of the High Court. This serves one of the principle objects of the Bill, namely access to justice as well as access to the profession and is consonant with the practical reality that almost all advocates practice geographically at the seat of the High Court.
53.2.2. Existing regional Bar Councils will become those statutory regional councils and in areas where no councils exist, they will be created.
53.2.3. Every practising advocate must be a member of a regional council of advocates and must keep chambers approved by that regional council.
53.2.4. Every regional council of advocates shall be subject to the rules of the Chamber of Advocates.
53.2.5. Each Regional Council of Advocates is to be funded by the advocates registered with it and each Regional Council of Advocates may determine the sum of the contributions to be made by the advocates registered with it.
Objects of Legal Practice Council
54. As per clause 5 of the Bill with the following amendments:
54.1. Clause 5(g) - delete the word "determine" at the beginning of that clause and replace it with "monitor".
54.2. Clause 5(k) - Make provision for the protection of the interests and independence of the profession by inserting immediately after the words "the administration of justice", the words "the interest and independence of the legal professions".
Powers, Duties and Functions of Legal Practice Council
55. As per clause 6 of the Bill with the following amendments:
55.1. Clause 6(1)(k) - delete the word "develop" at the beginning of that clause and replace it with "monitor the development of".
55.2. Clause 6(4) - the only funding to be raised by the Council by way of fees and charges are to be for the fulfilment of its functions. The two Chambers and the Regional Councils are to be funded as set out below.
55.3. Clause 6(5)(a) - the meaning of "conduct visits" ought to be clarified. It ought to be restricted to local educational institutions.
55.4. Clause 6(5)(d) - delete.
55.5. Clause 6(5)(e) - delete the word "determination" and replace with "monitor".
Objects of Chambers
56. The objects of the Chamber of Attorneys are to:
56.1. co-ordinate the management and governance of attorneys in accordance with the provisions of this Act;
56.2. determine, in consultation with the Legal Practice Council, and enforce appropriate standards of professional practice for attorneys and ethical conduct of attorneys;
56.3. provide, in consultation with the Legal Practice Council, high standards of legal education and training for attorneys;
56.4. co-operate with the Legal Practice Council to enable the latter to fulfil its duties and functions.
57. The objects of the Chamber of Advocates are to:
57.1. co-ordinate the management and governance of advocates in accordance with the provisions of this Act;
57.2. determine, in consultation with the Legal Practice Council, and enforce appropriate standards of professional practice for advocates and ethical conduct of advocates;
57.3. provide, in consultation with the Legal Practice Council, high standards of legal education and training for advocates;
57.4. co-operate with the Legal Practice Council to enable the latter to fulfil its duties and functions.
Powers, Duties and Functions of Chambers
58. The Chambers may, and where required in the circumstances, must, do all that is necessary or expedient to achieve their objects referred to above.
59. The Chamber of Attorneys will be funded by the Regional Councils of Attorneys and the Chamber of Attorneys may determine the sum of the contributions to be made by the Regional Councils of Attorneys from time to time.
60. The Chamber of Advocates will be funded by the Regional Councils of Advocates and the Chamber of Advocates may determine the sum of the contributions to be made by the Regional Councils of Advocates from time to time.
61. Consequential amendments need to be effected where necessary.
Transitional Council
62. There will be no necessity for a Transitional Council if the structure proposed by the GCB is accepted.
63. A Transitional Council will delay the implementation of the objectives of the Bill.
64. If the provisions for a Transitional Council are to be retained:
64.1. Provision ought to be made for equal representation of attorneys and advocates.
64.2. Advocates for Transformation are represented in the GCB and should not be represented individually in the Transitional Council.
64.3. Advocates ought to have a veto right in respect of issues peculiar to advocates.
64.4. The Minister should not have the power to make regulations contemplated in clause 108 (1)(b). If provision is made for such power, it ought to be exercised in consultation with the Transitional Council.
64.5. In terms of the two schools of thought referred to below under the discussion of the composition of the Council, the Minister should either not be represented on the Transitional Council or he should have no more than one representative.
64.6. The removal of a member should not be left to the opinion of the Transitional Council. See the submissions in paragraph 18.6 at pages 40-41 of the Johannesburg comments ("GCB2").
Composition of Legal Practice Council
65. Clause 7(1)(a) envisages the appointment of 16 legal practitioners, comprising 10 practising attorneys and 6 practising advocates. Provision ought to be made for 20 legal practitioners and equal representation of attorneys and advocates, namely 10 practising advocates elected by practising advocates and 10 attorneys elected by attorneys.
66. Different views exist regarding Ministerial appointees to the Council. Both views will be articulated below.
The view that Ministerial appointees are not objectionable
67. According to this view, Ministerial appointees should be reduced to a single appointee (see page 26 paragraph 13.5.1 of the Johannesburg submissions, "GCB2") and by virtue of the following considerations the provision for such an appointee does not offend the independence of the legal profession:
67.1. There are public interest matters which are a legitimate province of the government.
67.2. Whilst government should not be involved in governance/management of the professions, regulation of matters such as access to justice and compulsory community service is government business.
The view that Ministerial appointees are objectionable
68. According to this view, it is agreed that there are public interest matters, such as access to justice and compulsory community service, which concern the government. The appointment of a Legal Services Ombud and the provisions of Chapter 5 of the Bill create a strong mechanism available to members of the public and the government to ensure that the objectives of the Bill, including access to justice, be addressed sufficiently by the professions and that the Minister be informed in this regard. Reference is made to the following provisions of Chapter 5:
68.1. In terms of clause 47 the Ombud must protect and promote the public interest.
68.2. In terms of clause 48(4) the Council must assist and protect the Ombud to ensure his/her effectiveness.
68.3. In terms of clause 49 the Ombud has wide-ranging powers, including the power to:
68.3.1. investigate and make recommendations to the Council and the Minister on any matter which he considers may affect the integrity and independence of the legal profession and public perceptions of the integrity and independence of the legal profession - clause 49(1)(a).
68.3.2. make recommendations to the Council and the Minister as to steps that ought to be taken to promote high standards of integrity in the legal profession - clause 49(1)(g).
68.4. In terms of clause 53 the Ombud must prepare and submit to the Minister an annual report which must include the following documents:
68.4.1. A report of the activities undertaken in terms of the functions of the Ombud.
68.4.2. A statement of the progress made during the preceding year towards achieving the objects of Chapter 5.
68.5. In terms of clause 53(3) the Minister must table in Parliament each annual report submitted by the Ombud.
69. The interests of the public and government are therefore protected as:
69.1. The legal profession is compelled to ensure access to justice and to render community service.
69.2. The Ombud will be a watchdog who has to report to the Minister and who can be approached by the Minister and members of the public if they are of the view that the legal profession does not comply with the objectives of the Bill.
70. In this context Clauses 7(1)(b), 7(1)(c) and 7(1)(e) ought to be deleted as they constitute an infringement of the independence of the legal profession. Once appointed to the Council its members should act independently (and should be perceived to act independently) and in the best interests of the profession and the public and not as delegates or representatives of any sectoral interests. It has to be borne in mind that the government often is a party to litigation. In any event, the contemplated appointees can certainly not be of assistance in matters concerning the governance/management of the profession.
Dissolution of Council
71. Clause 14 empowers the Minister to dissolve the Council if the Minister, on good cause shown, loses confidence in the ability of the Council to perform its functions effectively and efficiently or on any reasonable grounds.
72. This provision ought to be deleted as it constitutes an infringement of the independence of the profession.
73. If the Minister has any problem with the Council that cannot be resolved by way of consultation between the Minister and members of the legal profession, the Minister may approach the Ombud as contemplated in Chapter 15.
Decisions of Council
74. Clause 17 - advocates ought to have a veto right in respect of matters peculiar to advocates.
Establishment of Regional Councils - Clause 23
75. Reference is made to the structure proposed above.
Admission
76. Clause 24(1)(d) requires that an application for admission as a legal practitioner be served on the Council. Regional Councils in the jurisdiction where such applications will be brought will mostly be better positioned than the Council to investigate the background of applicants, where necessary. Consequently it is proposed that, in addition to service on the Council, service be effected on the Regional Council for Attorneys (in the event of an application for admission as an attorney) or the Regional Council for Advocates (in the event of an application for admission as an advocate) in the area of jurisdiction of the court where the application is launched.
Vocational Training
77. Clause 26(1)(a)(iii) - due to falsification of foreign degree certificates courts, in certain instances, have refused to admit persons who allegedly had a law degree obtained in a foreign country and recognised by the South African Qualifications Authority. This provision therefore ought to be reconsidered.
78. Clause 26(1)(b) empowers the Minister to prescribe the practical vocational training requirements. This is inimical to the principle of independence of the professions. It should be left to the professions.
79. The proposed Chamber of Attorneys and Chamber of Advocates must determine the requirements for vocational training of attorneys and advocates respectively. That has been the case for many years during which the two professions have been conducting intensive vocational training in accordance with their specific requirements.
80. LSSA:
80.1. The LSSA's vocational training has been designed in accordance with the specific requirements of attorneys and having regard to the fact that they take instructions and receive funds directly from clients.
80.2. Thus, vocational training for attorneys includes, by way of example, a focus on administration of estates, bills of costs, drafting of wills and management of trust accounts.
81. GCB:
81.1. Advocacy skills are a major focus. The GCB and constituent Bars have developed intensive and effective pupilage and advanced advocacy skills training programmes in collaboration with their members, the judiciary and legal practitioners from foreign jurisdictions. The true cost of such training amounts to millions of rand per annum. By way of example reference is made to a report prepared by the Cape Bar in 2010 (annexure "GCB11") which reflects that approximately 1927 hours per annum are spent on advocacy training for pupils by members of the Cape Bar and that the true cost of such training at the Cape Bar alone in 2010 was approximately R2,5 million per annum.
81.2. Mock hearings for pupils are conducted at chambers and in court on Friday afternoons and Saturday mornings under supervision of trained members and judges. The high standard that has been maintained is epitomised by the fact that not even judges and senior counsel who act as trainers are allowed to do so before being trained as trainers at a training event organised by the GCB every year and attended by South African as well as foreign legal practitioners and judges.
81.3. The intense training at constituent level and the presence of pupils in chambers enable trainers to identify pupils who need extra attention and those pupils can be attended to outside court hours if it is not possible during court hours.
81.4. The GCB and its members have been funding annual advanced advocacy training involving trainers and participants not only from South Africa but also other SADEC countries, the UK, Australia, Hong Kong and Pakistan
Access to Justice
Community Service:
82. Clause 29 provides that the Minister may prescribe the requirement for community service. "Community service" is not defined in the Bill but in sub-clause (2) a number of examples of what may be considered to be community service are given. Subject to what is set out below, the introduction of a system of community service may assist in promoting access to justice.
83. In the first place, community service should not be confused with pro bono work. The GCB and its constituents have adopted comprehensive pro bono rules. In essence, these provide for advocates to perform services at no fees to persons who are not able to pay for the services rendered. The pro bono systems are successful. One example of the success of the system comes from Johannesburg where the statistics show that the members of the Johannesburg Bar have rendered these services at approximately 20 hours per advocate per year (see paragraph 26 at pages 63-65 of the attached Johannesburg submissions - "GCB2"). The pro bono system has proven successful in improving access to justice and the failure of the Bill to contain any framework for pro bono is an unfortunate oversight. It is suggested that a new clause be introduced along the following lines:
"1. All advocates and all attorneys must undertake and perform pro bono service as determined by the Legal Practice Council.
2. Taking into account the differences between attorneys and advocates, the Council must formulate, adopt and publish requirements for pro bono service which requirements must: -
(i) Contain a definition of pro bono service which definition must take into account that the essential purpose of pro bono service is for practitioners to deliver legal services for no remuneration to the indigent who do not have to pay for the services in order to facilitate access to justice;
(ii) prescribe time periods that legal practitioners are obliged to perform pro bono work;
(iii) describe the classes of work that qualify as pro bono work;
(iv) prescribe procedures whereby legal practitioners have to report on the pro bono work that they performed;
(v) describe circumstances that will excuse or exempt legal practitioners from performing pro bono work;
(vi) prescribe sanctions should a legal practitioner fail to perform pro bono work or to report as required."
84. In the second place, the community service as contemplated in the Bill is vague, contradictory and impractical to implement. It is suggested that clause 29 should simply be an enabling provision and that the particulars of the system be determined by the Legal Professional Council.
85. In any event, clause 29(2)(f) refers to "any other service as may be determined by the Council". Various forms of legal services have already been provided for in subsections (a) to (e), leaving room for the argument that subsection (f) contemplates non-legal services. That will be untenable and it is proposed that subsection (f) be deleted.
Fee Structure:
86. Clause 35 read with clause 94(1)(i) empowers the Minister to determine a fee structure for legal practitioners.
87. It is a diminution of the independence of the profession. See paragraphs 24-25 at pages 56-63 of the Johannesburg submissions ("GCB2") and paragraph 74 at page 39 of the KwaZulu-Natal submissions ("GCB4").
88. Notwithstanding any provision in any statute, it should be left to the Chamber of Advocates to determine fee guidelines for advocates.
Forms of Legal Practice -Referral Rule
89. Clause 34(2)(b) - Exceptions, if any, to the referral rule ought to be determined by the Chamber of Advocates.
90. The Supreme Court of Appeal [15], when it considered the Bar's referral rule, illustrated why its extent ought to be determined by the Bar. The following was stated by the Court:
"One cannot, as IAASA [a group of advocates who persistently defy the referral rule] requests us to do in its counter-application, simply put a pen through the Bars' referral rules even though one may feel that changes in certain areas may be justified. It is not for us to take such a bold step. Nor, I venture to suggest, would it be appropriate for the Legislature to do so. The rules have been designed by the Bars for practice in a divided profession in what is plainly the public interest. Experienced members of the Bars are much more aware than we are of the problems in, and the needs of, the profession and of the available facilities to overcome them. It should be left to them to consider in what respects and to what extent change is required. I say this despite the fact that the Courts will be the final arbiters of the validity of any changes that may be effected insofar as they may reflect on the propriety of advocates' conduct. It would be foolish for us to interfere in the way in which IAASA asks us to do knowing full well that, by doing so, we will force South Africa out of step with comparable Commonwealth countries and bring an end to a practice which clearly serves the interests of the public."
91. The proviso in clause 34(2)(b) ought to be deleted. In any event, "after consultation" should read "in consultation".
92. Immediately after the words "by attorneys" in clause 34(3), the words "and directly by members of the public" ought to be inserted.
Code of Conduct
93. Clause 36 provides for a code of conduct to be developed by the Council. In accordance with the structure proposed by the GCB a code of conduct for attorneys will be developed by the Chamber of Attorneys after consultation with the Chamber of Advocates and a code of conduct for advocates will be developed by the Chamber of Advocates after consultation with the Chamber of Attorneys.
94. The aforequoted passage from the judgment of the Supreme Court of Appeal in the De Freitas matter, when it considered the Bar's referral rule, illustrates why the development of a code of conduct for advocates should be left to the Bar.
Disciplinary Proceedings
95. Clauses 37-42 provide for the establishment of investigating committees by the Council, the hearing of disciplinary matters by committees established by the Council, review by the Ombud, and appeals to appeal tribunals.
96. In terms of clause 40(3), the relevant disciplinary body may order the legal practitioner to pay compensation to the complainant. Thus, where a client complains that her/his legal practitioner's misconduct has caused loss, that loss may be assessed by the disciplinary body and a compensatory order may be made without the intervention of a court! This is unacceptable. Misconduct is not necessarily the cause of damages, if any, suffered by a client. Moreover, the function of the courts will be usurped by disciplinary committees.
97. The powers of the Ombud provided for in clause 41 are extraordinary and whereas an appeal lies against the decision of a disciplinary body, no appeal appears to lie against the decision of the Ombud. It will be fairer and more acceptable to delete the provisions of clause 41 and to amend clause 42 to provide for an appeal by a complainant, similar to the right of appeal enjoyed by a legal practitioner.
98. The proceedings contemplated in clauses 37-42 are cumbersome and do not take proper account of the substantial number of disciplinary matters dealt with on a regular basis. In order to expedite matters disciplinary hearings at the Bar mostly take place after hours.
99. The proposed Chamber of Attorneys (when attorneys are involved) and the Chamber of Advocates (when advocates are involved) should deal with disciplinary matters internally (with participation of a lay person as may be determined by the Council). A right of appeal to a tribunal appointed by the Council (with possible participation of legal academics or retired judges) will best meet the interests of members of the public.
100. In amplification reference is made to the submissions in paragraphs 57-58 at pages 22-23 of the Cape comments ("GCB3").
Legal Services Ombud
101. It is reiterated that Chapter 15 creates a mechanism to ensure compliance with the objectives of the Bill by the legal profession. The Minister and members of the public will therefore have a remedy if they have any complaints in this regard.
102. Clause 48(1) - The Ombud must be appointed on the recommendation of the Council to preserve the independence of the profession.
103. The powers reposed in the office of the Ombud are too wide, unchecked and unclear. In amplification reference is made to the submissions in paragraph 16 at pages 33-35 of the Johannesburg comments ("GCB2").
Chapter 8 - General Provisions
104. Clause 92(1) - In the second line "an attorney" ought to be deleted and replaced with "a legal practitioner" to accommodate advocates. In the last line the word "instructing" ought to be inserted immediately before the word "attorney".
Chapter 9 - Regulations and Rules
Regulations
105. Clause 94(1) - the words "after consultation" ought to read "in consultation".
106. In accordance with the necessity for the independence of the profession and the considerations set out above, clauses 94(1)(b), (c), (i), (n) and (p) ought to be deleted. In any event, the Council will be able to make, and when necessary amend, rules relating to the matters addressed in those provisions more swiftly and efficiently than the Minister can by regulations.
107. Clause 94(1)(g) - It is not clear what "transformational legal education and training" means.
Rules
108. Clause 95(1) - In accordance with the Chambers structure as proposed earlier herein, clauses 95(1)(j), (k), (l), (m), (o), (q), (r) and (s) ought to be revised.
Chapter 10 - Transitional Provisions
Existing Legal Practitioners - Clause 113:
109. One of the most important activities of the Bars and the GCB is the training of pupils. The strength of this training is that it is conducted by experienced practising advocates who know the ropes, that is, the esoteric nuances and influences implicit, and the responses necessary, in court advocacy which only a person experienced in court advocacy and persuasion can properly know. The aim of all this training has been to produce an ethical and independent class of practitioners who specialise in pleading cases in the High Courts and giving legal advice, sometimes of a very complicated nature, to a standard appropriate in the High Courts.
110. An essential ingredient of the success of this training is the rule that members of the Bar must keep chambers in the same precinct. That facilitates hands-on training on a daily basis. The duty to keep chambers in a precinct is an equally indispensable feature of the system of continuing legal education which is the product of the communal practice arrangements which the constituent Bars mandate. Every advocate is both teacher and pupil, a system which has made an inestimable contribution to the fact that the Bars are a resource.
111. The Bill ought to provide the Chamber of Advocates with the power to determine a mechanism to ensure that advocates who are practising when the Act commences and who have not passed the GCB's pupillage examinations and practical requirements for membership of the GCB, comply with the standards to which pupils are subjected. That can be achieved through, for example, continuing legal education. This is a constructive proposal and not a bar. It is in the public interest that practising advocates at least satisfy the requirements of the GCB before they are permitted to practise. As a corollary, each practising advocate who is not a member of a constituent Bar when the Act commences, must be compelled to keep chambers approved by a regional council of advocates. The need for these measures has been illustrated by, for example, Mojapelo DJP's account of the inferior quality of advocacy displayed in courts by advocates who have not been trained properly[16]. He specifically referred to the "independent Bar"(advocates who are not members of the GCB and its constituent Bars) when he stated the following regarding the undesirability of an undergraduate LLB degree:
"Legal training
I was previously, while still an attorney, a proponent of the five/four-year undergraduate LLB degree in order to increase entry into the legal profession. Let me be one of those who admit openly: It has not worked and it has not produced the product we expected. I have seen the product arrive raw in our courts, especially via the independent Bar route, where people simply take their LLB certificates and apply for admission as advocates. There is no prior training other than this LLB degree and the product is unleashed on the High Courts. In most cases the product can barely utter a few coherent sentences, never mind articulate the case of his client. Trying to assist the product from the Bench is like pulling out teeth. Often one gets the impression that the poor client would have been better off on his own. We may have produced quantity but certainly not quality." [17]
112. Advocates who were admitted under the 1964 Act and who have never practised before, have not acquired a right to practise and should be compelled to meet the requirements of the Legal Practice Act before they are permitted to practise.
113. Clause 114 ought to be amended accordingly.
114. The problem with the requirement in the first line of clause 113(1), i e that a person's name must appear on the roll of advocates, is that the names of several admitted practising advocates do not appear on the roll. The requirement should therefore rather be that the person must be an admitted practising advocate and not appearance of her/his name on the roll of advocates.
Senior Legal Practitioner:
115. No provision is made for the future conferral of senior status. This omission from the previous draft has taken place without any consultation with the profession and without any prior indication that this omission was intended.
116. In terms of clause 113(4) every person who, on the date referred to in clause 119(4), has the status of senior counsel retains that status after the commencement of the Act. The date referred to in clause 119(4) is a date after the commencement of chapter 2 (when the Council commences to function)[18], fixed by the President by proclamation in the Gazette.
117. It is proposed that the principle of conferral of senior status on attorneys and advocates be considered and determined by the proposed Chamber of Attorneys and Chamber of Advocates respectively.
Footnotes:
[1] General Council of the Bar of South Africa v Van der Spuy 1999 (1) SA 577 (TPD) at 594 B-C
[2] As contemplated in the Constitution of the Republic of South Africa, 1996
[3] This principle is recognised by the International Bar Association. The independence of the judiciary and the independence of the legal profession go hand in hand.
[4] Emphasis supplied
[5] In his address to the Cape Law Society on 9 November 2012, entitled "The Rule of Law: The importance of independent courts and legal professions" - annexed hereto, marked "GCB6".
[6] Para.24, United Nations Basic Principles of the Role of Lawyers, available at www2.ochr.org.english/law/lawyers/htm
[7] De Freitas v Society of Advocates of Natal 2001 (3) SA 750 (SCA) at 763 para [10]
[8] Consultus (October 1991), 100-103 - annexed hereto, marked "GCB7".
[9] (1997) 114 SALJ 604 at 606-608 - annexed hereto, marked "GCB8".
[10] Consultus (December 1999), 23-24 - annexed hereto, marked "GCB9";
[11] In a paper delivered at the World Bar Conference in Sydney during April 2010 - annexed hereto, marked "GCB10".
[12] 2004 (1) SA 568 (SCA), at 576 para [26]
[13] at 577 para [27]
[14] at 579 para [31]
[15] De Freitas v Society of Advocates of Natal 2001 (3) SA 750 (SCA), at 760F-H para [16]
[16] In his address to the annual general meeting of the Limpopo Law Council on 7 September 2012. A copy of his speech as it appears on the website of De Rebus, is annexed hereto, marked "GCB 12".
[17] Emphasis supplied.
[18] In terms of clause 119(3) chapter 2 comes into operation three years after the date of commencement of chapter 10 (when the transitional Council commences to function) or on any earlier date fixed by the President by proclamation in the Gazette.
In terms of clause 119(2) chapter 10 comes into operation on a date fixed by the President by proclamation in the Gazette.
Source: www.pmg.org.za
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