ATC131106: Report of the Portfolio Committee on Justice and Constitutional Development on the Legal Practice Bill [B20 – 2012], (National Assembly – section 76), dated 6 November 2013

Report of the Portfolio Committee on Justice and Constitutional Development on the Legal Practice Bill [B20 – 2012], (National Assembly – section 76), dated 6 November 2013

The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Legal Practice Bill [B20 – 2012] (National Assembly – section 76), referred to it and classified by the Joint Tagging Mechanism as a section 76 Bill, presents the Bill [B20B - 2012]:

The Democratic Alliance and African Christian Democratic Party dissented.

The Committee wishes to report further:

1.     The Committee is acutely aware of the lack of unity that characterises the regulation of the legal profession at present, having experienced this challenge in its deliberations. The Bill recognises that fragmentation within the profession operates in many ways and is further compounded by disparate laws that apply in different parts of the country. In addition, the Committee has looked into the demographics of the profession, which still do not reflect those of the country – even broadly. Entry to the profession is a challenge for many aspirant practitioners especially those lacking resources at the outset of their career, and restrictive and outdated prescripts create further hurdles. Also, the Committee agrees that access by members of the public to legal services can be limited – especially for the poor. While the Bill seeks to address all of the above concerns, the Committee trusts that the legal profession will draw together to ensure meaningful and proper implementation of its provisions and that implementation will not be frustrated because of their frustrations.

2.     The Bill provides for a single, unified, statutory body – the South Africa Legal Practice Council - to regulate all legal practitioners, as well as candidate legal practitioners while also recognising the profession’s independence. The Council’s goals include facilitating the realisation of a transformed and restructured legal profession; ensuring that fees charged are reasonable and promote accessibility to legal services; promoting and protecting the public interest; preserving and upholding the independence of the profession, as well as enhancing its integrity and status; and promoting access to a profession that broadly reflects the demographics of South Africa.

3.     The Bill also provides for the establishment of provincial councils by the Council with delegated powers. At the outset the Council must establish at least four provincial councils and it is envisaged that other provincial councils will be established progressively taking into account several factors, including the availability of resources. Notably, the Bill provides for the dissolution of the four statutory law societies and their incorporation within the Council but the voluntary associations, including the existing Bar Councils, are not affected.

4.     The Committee is aware that there was concern that the composition of the South African Legal Practice Council would not facilitate an independent profession. The Bill provides that the Council will consist of 23 members, of which 16 - by far the majority - are elected by the legal profession itself. The Committee determined the ratio of attorneys to advocates on the Council, namely ten attorneys and six advocates, based on the fact that the legal profession has more attorneys than advocates. In terms of non-legal practitioners, the Council will consist of two legal academics, a person designated by Legal Aid South Africa, a person designated by the Legal Practitioners’ Fidelity Fund and three ministerial appointees.

5.     The Minister has the power to dissolve the Council should it become dysfunctional. The Committee recognizes the concern that this power could be abused unless there were checks in place. The Bill, therefore, provides for a number of processes that include investigation by the Ombud. Only once all these processes have been followed and the Minister remains unconvinced of the Council’s ability to perform its functions efficiently and effectively and that it is in the interests of administration of justice that the Council be dissolved, must he or she apply to the High Court for an order dissolving the Council. In this way, the Judiciary becomes the final arbiter in such proceedings.

6.     The Bill seeks to ensure that legal services are accessible. It is well known that legal fees are beyond the reach of many, if not most, South Africans. The Committee, however, was struck that while some practitioners appear to be in a position to charge a great deal for their services, others struggle to make a living. In seeking a mechanism that would best address the problem; the Committee concluded that the South African Law Reform Commission is best placed to make an inquiry into the challenges relating to legal fees. Until then fees charged by legal practitioners – both litigious and non-litigious – must be in accordance with the tariffs determined by the Rules Board for Courts of Law. In addition, the Minister may determine maximum tariffs payable to legal practitioners instructed by any state department or provincial or local government in any matter.

7.     The Bill sets out minimum qualifications for entry to the profession, as well as the requirement of practical vocational training and community service for both candidate legal practitioners and legal practitioners. The Committee believes that undertaking community service has many benefits, and will contribute to enhance the profession in the eyes of the public. The Committee is aware that there may be instances where the expectation that a legal practitioner perform community service may be onerous and makes provision for an exemption.

8.     The Committee is aware that many complaints relate to the fees charged. The Bill, therefore, provides that legal practitioners must give clients a cost estimate when taking instructions, as well as inform them of the processes involved. The intention is that the relevant provisions will assist to demystify fees charged and promote greater transparency and accountability in this regard in pursuit of greater affordability of legal services within our democratic dispensation in order to more fully realize the freedoms enshrined in the Constitution, 1996.

9.     Only a legal practitioner admitted or enrolled in terms of the Bill’s provisions, may render legal services for reward. The Committee is aware that some advocates do take briefs directly from members of the public. The Bill therefore provides that a member of the public may approach an advocate directly with a request to take on a matter but requires that he or she must be in possession of a Fidelity Fund certificate to ensure members of the public are protected as a result of any theft of money or property given in trust.

10.  In the course of its deliberations, the Committee’s attention was drawn to developments in other parts of the world relating to other forms of legal practice. In order to improve access to the legal profession and access to justice generally, the Bill provides that the Council must investigate and make recommendations to the Minister regarding other forms of legal practice, including limited liability legal practices and multidisciplinary practices. Importantly, the enquiry must address the statutory recognition of paralegals.

11.  The Bill seeks to promote transparency surrounding disciplinary matters where misconduct on the part of the legal practitioner or candidate legal practitioner is alleged. To facilitate this, for example, the particulars of disciplinary matters must be published on the Council’s website. The Council is also charged with drawing up a code of conduct for the profession, which must be published to inform the public of its contents.

12.  The Bill establishes an Office of Legal Services Ombud which is intended to protect and promote the interests of consumers of legal services; ensure the fair, efficient and effective investigation of complaints of alleged misconduct by legal practitioners; and promote high standards and promote independence of the legal profession. The requirement that the Ombud be independent and impartial is strengthened as an Ombud is appointed from the ranks of judges retired from active service and is, therefore, subject to the same requirements and protections applicable to this category of judges.

13.  The Committee was made aware of the danger that it is possible for a single claim, if it is large enough, to bankrupt the Fidelity Fund as was the case in New Zealand. To prevent this, the Bill now limits the Fund’s liability to an amount determined by the Minister from time to time.

Report to be considered.