LAW SOCIETY OF SOUTH AFRICA

Transcription

1 Presentation by: LAW SOCIETY OF SOUTH AFRICA on:

2 Background April 2000 Task Team appointed by Minister of Justice and Constitutional Development The mandate to investigate and make proposals as regards the regulation of the legal profession in South Africa. Principle representatives were: Advocates for Transformation Corporate Lawyers Association Criminal Law Bar Deans of the SA University Law Faculties General Council of the Bar Independent Association of Advocates of SA National Paralegal Institute

3 Background The National Community-Based Paralegal Association Justice Department, and The Law Society of South Africa representing the statutory law societies, Black Lawyers Association and National Association of Democratic Lawyers At an early stage it became clear that there were significant differences between the LSSA and the rest. The differences proved irreconcilable. LSSA and the rest of Task Team submitted different Draft Bills to Minister in March LSSA s Bill is the view of the majority of legal practitioners of South Africa

4 Agreement The following fundamental points of principle were agreed on: All legal practitioners should be regulated within a single statutory framework which makes provision for specialization of functions. The purpose of regulation should be to serve the public interest. The ultimate regulatory body should operate at a national level. The national regulatory body should have a mixed membership of practitioners and non-practitioners of which the former should be in the majority. Provision must be made for regional operational levels. The office of Legal Service Protector should be created.

5 Agreement The Fidelity Fund should continue to exist under the control of the newly constituted t board. The four-year LLB Degree should continue to be the principle requirement for legal practice. There must be mandatory practical legal training. Lawyers who do not render services to the public at large should not be registered legal practitioners nor have the right of audience in the courts. A specialist qualification is required for the practice of conveyancer and notary. The development of paralegal work should be promoted and supported.

6 Disagreement Most fundamental difference between LSSA s Bill and Task Team s Bill is the structuring and membership of the body which is to represent and govern legal practitioners on a national level. The different conceptual approaches go to the heart of the matter. The LSSA s main objective with its bill is to promote on a national basis the common interest of members of the legal profession and the welfare of the profession, having regarded all times to the broad interest of the public whom the profession serves and secure throughout the Republic of South Africa, in so far as it is practicable, uniformity, simplicity and efficiency in the practice of law, in legal procedure and the administration of justice This underlying principle is clearly reflected in the LSSA s draft bill. The Task Teams Bill will perpetuate t the divided id d bar syndrome.

7 Disagreement The differences in two bills can be summarized as follows: LSSA 1. Vision: As above. 1. None. Task Team 2. The sole and ultimate statutory 2. A Legal Practice Council (LPC) power to regulate the legal which has no members a juristic practice profession vests in the person with limited statutory South Africa Legal Practice regulating powers. Society (Society) a body corporate and of which all legal practitioners are members 3. The different branches of the 3. No clear distinction is made profession are recognised in a between advocates and distinction between legal attorneys. practitioners who practice with a Fidelity Fund Certificate and those who do not.

8 Disagreement LSSA Task Team 4. Separate paralegal forum 4. A paralegal committee is to be (the forum) is established and established as a substructure t all registered paralegals are of the LPC. members of this forum. 5. The affairs of the Society are 5. The LPC is to be composed of managed by National Legal the following persons appointed Practice Council (NC) by the Minister: composed of: 24 Legal practitioners 12 legal practitioners 16 with Fidelity Fund Certificates (attorneys) and 8 without Fidelity Fund Certificates (advocates). 2 paralegal practitioners. 1 Chairperson of the Board of Control of the Fidelity Fund. designated by organizations representing legal practitioners. 2 persons designated by organisations representing paralegal practitioners. 1 teacher of law.

9 Disagreement LSSA 2 Ministerial appointees being 1 legal academic and 1 consumer of legal services. 6. The affairs of the paralegal forum are managed by the Executive Committee composed of: Task Team 2 persons representing the interest of users of legal services. 1 additional person appointed by the Minister. 1 person designated by the Legal Practice Fidelity Fund Board who does not have the right to vote. 6. No separate body for paralegals. 8 paralegal practitioners. 2 legal practitioners appointed by the NC.

10 Disagreement LSSA 2 Ministerial appointments at least 1 to be a consumer of paralegal services. 7. The Society and the Forum are separate legal entities, but close cooperation is ensured by members serving on each others governing bodies. 8. To ensure the practical and effective execution of its duties, the NC can create regional chapters and delegate some of its powers to these. The chapters in turn will be composed of sectoral chambers catering separately for advocates and attorneys. These chapters/chambers in turn however will elect the legal practitioners to serve on the NC. Task Team 7. No separate bodies. 8. Any organisation of legal practitioners or paralegal practitioners may apply to the LPC for accreditation as an Accredited Professional Organisation (APO). Once accredited (which must be reapplied for every three years) an APO governs its members independently and is responsible for inter alia:

11 Disagreement LSSA Task Team Its own Code of Conduct, the discipline of its members, practical and continuing training of its members. The APO itself can determine who can become members and what the annual membership fee should be and furthermore it can prevent any of its members from rendering legal services or appearing in any court with a member from any other APO. The APOs will nominate 12 legal practitioners and 2 paralegal practitioners to serve on the LP, subject to Ministerial approval.

12 Disagreement LSSA 9. All legal practitioners will be subject to the NC s statutory t t disciplinary powers which will be delegated to the regional chapters / chambers. Task Team 9. Legal practitioners will be disciplined i d by their APO and any legal practitioner who does not join an APO will be subject to the disciplinary powers of the LPC.

13 Advantages / Disadvantages- Proposed Structure Vocational training will be standardized, but with allowance for specialisation. Legal practitioners can make different career choices without additional training. Same Codes of Practice, procedures and Ethics will apply to all legal practitioners. Complaints procedures Vocational training will be determined by each different APO. Legal practitioners will be locked into their chosen APO. Each APO will determine its own Code of Conduct and Ethical rules. Each APO will have its own against legal practitioners complaints procedures. will be uniform. The NC will be representative The LPC will only be of all legal practitioners. representative of accredited PO s. The NC in conjunction with its The LPC will have to maintain a chapters / chambers will form separate infrastructure to deal cohesive infrastructure. with legal practitioners who do not join an APO. The LSSA s Bill regulates The Task Team s Bill regulates legal practitioners. legal services.

14 Disadvantages - Task Team s Bill A fragmentation of the profession. Different interest groups forming APO s and vying / competing with each other to be represented on the LPC. Different standards of Ethics within the profession. Different levels of training and competence of legal practitioners. Perpetuating the exclusivity of certain APO s s. The LPC not being representative of all legal practitioners. The LPC having to maintain its own infrastructure (over and above those of the APO s) to deal with legal practitioners who do not wish to become members of any particular APO. It places the Minister of Justice in an inenviable position to decide It places the Minister of Justice in an inenviable position to decide which APO s to recognise for the purposes of nominating people to serve on the LPC.

15 Disadvantages - Task Team s Bill An unnecessary drain on resources. Regulating legal services instead of legal practitioners will take away certain existing rights. Many legal practitioners will not join an APO and will relish the release from the constraints of a statutory body and welcome the administrative inefficiency of a remote LPC. Even with the safeguard that the accreditation of an APO can be withdrawn, there will be a period, perhaps lengthy, while the APO is degenerating before the LPC can take over and put structures and mechanisms in place to take over the administration, regulation and discipline of the members of the now defunct APO. Access to the profession will be severely curtailed. The profession will be unable to speak with a united voice on matters of national and international ti importance such as: The rule of law, the upholding of democracy, human rights abuses, access to justice and access to the profession.

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