SUMMARY OF SUBMISSIONS ON THE ATTORNEYS AMENDMENT BILL, 1998 [B7-98]

SUMMARY OF SUBMISSIONS ON THE ATTORNEYS AMENDMENT BILL, 1998 [B7-98]
(11/5/98)

The submissions received on the Attorneys Amendment Bill, 1998, are briefly summarized hereunder.
A. GENERAL
1. CAPE BAR COUNCIL (ATT 1) AND THE LAW SOCIETY OF THE TRANSVAAL (ATT 5)
The above organizations have no comment to offer on the provisions of the Bill.

B. COMMENTS IN RESPECT OF SPECIFIC CLAUSES OF THE BILL

1. CLAUSE1(b)

1.1 ATTORNEYS FIDELITY FUND - (ATT 7)
(a) The Attorneys Fidelity Fund (the Fund) proposes that the words "in so far as such investment is governed by any other law" in the proposed section 47(6) be deleted. (See amendments)
(b) The Fund supports the Portfolio Committee's proposal that provision must be made for some form of sanction to be applicable in instances where a practitioner fails to disclose the provisions of section 47(1)(g) of the Attorneys Act, 1979, to an investor. In this regard the Fund proposes that the following subsection be inserted into section 83 of the Attorneys Act, 1979, which provides for punishable offences:

"Any practitioner receiving money in circumstances contemplated in section 47(4) and who fails upon receipt of such money to furnish the depositor with a notice in such form as may be determined by the board of control from time to time warning such person that in terms of the provisions of section 47 (1)(g) the Fund shall not be liable in respect of any loss suffered consequent upon the theft of such money shall be guilty of an offence and on conviction liable to a fine not exceeding R25 000.". (See amendments)

2. CLAUSE 3

2.1 THE LAW SOCIETY OF BOPHUTHATSWANA - (ATT 2 and ATT 3)

2.1.1 ATT2
(a) The Law Society of Bophuthatswana (BLS), for the reasons set out in the above submission, finds the Bill "unacceptable as it comes as a clear attempt to have the BOP LAW SOCIETY annexed to the TRANSVAAL LAW SOCIETY using the Fidelity cover as a guise.".

(b) The BLS points out that, although its members appreciate the urgent need for fidelity fund cover, they will not regard themselves as bound by the intended legislation.

(c) The members of the BLS demand that if the Minister is serious about extending fidelity fund cover to them, it must be done in consultation with them and without having to make the control of the BLS by the TRANSVAAL LAW SOCIETY a pre condition.

(d) The BLS demands that the Bill be withdrawn and that the Minister initiates negotiations with all role players regarding the possible extension of fidelity fund cover to attorneys falling under the jurisdiction of the BLS, as well as the criteria and conditions under which such cover must be extended.

(e) The members of the BLS insist that they have a constitutional right to participate and to be represented in all negotiations regarding the restructuring of the attorneys' profession and indicate that any attempts to ignore the BLS and to continue with unilateral restructuring will be opposed.

2.1.2 ATT3
(a) The BLS welcomes the extension of fidelity fund cover to the attorneys practising within its jurisdiction.

(b) The BLS indicates that it has been resolved that it will remain autonomous and an entity on its own until the rationalization of the attorneys' profession has been finalized. Members of the BLS hold the view that there is no need nor necessity to cede the administration thereof to a similar statutory body.

(c) It is proposed that-

(i) the administration of the BLS be left unchanged until the rationalization of the attorneys' profession has been finalized;

(ii) Chapter II of the Attorneys, Notaries and Conveyancers Act, 1984, of the former Bophuthatswana, which provides for the establishing of an Attorneys Fidelity Fund and matters related thereto, be repealed as a whole; and

(iii) the corresponding Chapter II of the Attorneys Act, 1979, be inserted into the Bophuthatswana Act.

2.2 THE ASSOCIATION OF LAW SOCIETIES (ALS) - (ATT 6)
(a) The ALS supports the Bill.
(b) The Cape Law Society, via the ALS, offers the following comment:
"There seems however to be some anomaly in relation to the proposed amendment to section 55 of the Act. In the draft versions, there was no connecting and between (aa) and (bb). Is it intended to amend the Act so that a practising practitioner is only defined as a person who not only is required to have a certificate but also is already in possession of one? The same does not apply to practitioners outside the 4 areas mentioned. This appears to be inconsistent.".

2.3 THE ASSOCIATION OF LAW SOCIETIES (ALS) - (ATT 6a)
The Law Society of the Free State, via the ALS, proposes that provision be made for the attorneys practising in Thaba Nchu to resort under the jurisdiction of the said Law Society rather than to resort under the jurisdiction of the Transvaal Law Society, as is contemplated in the Bill.

3. CLAUSE 4

3.1 ATTORNEYS FIDELITY FUND - (ATT 4 AND 4a)
The Fund proposes that a reference to "section 79" of the Attorneys Act, 1979, dealing with registered trust property, be included in Clause 4 of the Bill.

4. CLAUSE 5

4.1 THE ASSOCIATION OF LAW SOCIETIES (ALS) - (ATT 6)
The Cape Law Society, via the ALS, proposes that the wording of subsection (3) be tightened as it is not clear whether the reference to "subsection (1)" is to subsection (1) of Clause 5 or to subsection (1) of section 55.