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Take responsibility

5 May 2011

Said Minister of Justice and Constitutional Development, Jeff Radebe during his keynote address at the 2011 LSSA AGM. Despite several drafts of the Bill and many debates and discussions between the judiciary and the legal profession and several compromises being made there was still no consensus in some aspects. In moving forward the legal profession would have another opportunity to have input during the parliamentary process when the Bill is sent to Parliament after the Local Elections. While not incorporating many of the suggestions made by the LSSA, greater responsibility has instead being assigned to the Transitional South African Legal Practice Council (TC), the statutory body which will govern the profession for two years until the South African Legal Practice Council (LPC) comes into being.

Two issues which the TC will have to deal with of interest to conveyancers are:

  1. The definition of 'conveyancer', which in the old Bill was an 'attorney' registered and enrolled to practice as a conveyancer, now reads in the new Bill 'any person' so registered and enrolled. The department representatives did, however, indicate that this may have been an oversight.
  2. The introduction in the new Bill, of what has been described as 'fairly radical', was that the interest on trust accounts opened in terms of s 88(4)(a) - the equivalent of s 78(2a) of the attorneys act 53 of 1979 - must be paid to the Fidelity Fund. This means that clients will not be entitled to interest earned on deposits paid to attorneys, for example, for property transactions. In addition, attorneys will have to open trust accounts at a bank that the Fidelity Fund has made an arrangement with regarding interest and other issues.

Some of the issues the TC will have to deal with include:
  • the election procedure for the first council;
  • the establishment of the first regional councils and their jurisdiction, powers, duties and functions;
  • the process to abolish the law societies;
  • practical vocational training requirements for candidate attorneys and pupils; and
  • a mechanism to determine a fee structure,including for contingency fees.
Other changes from the old to the new Bill are:
  • The controversial provision that the Minister appoint councillors for both the TC and the council has been removed. Now TC councillors will be nominated by the various legal professional organisations, including the LSSA bodies and the General Council of the Bar, and the TC, in turn, will recommend an election procedure for the councillors of the first council.
  • The definition of 'legal services', which in the old Bill was extensively defined, is not defined in the new Bill.
  • The purpose of the Act is wider in the new version and now includes as a purpose, to put in place a mechanism to determine fees chargeable by legal practitioners for legal services rendered that are affordable and in reach of the citizenry.
  • Sections 5(a) and (b) are new additions to the Bill relating to the objects of the council. Section 5(a) relates to the realisation of a transformed legal profession and s 5(b) places an obligation on the council to ensure that legal fees are reasonable and promote access to justice.
  • Advocates no longer have a loaded vote. In the old Bill, advocates' individual votes were counted as two votes in matters affecting the affairs of advocates.
  • The new Bill retains the referral nature of the profession. Whereas the old Bill allowed advocates to accept briefs directly from the public in certain circumstances, this has been removed from the new Bill.
  • The President, after consultation with the council, will now appoint the Legal Services Ombud, whereas under the old Bill the President would appoint the ombud on the Minister's recommendation. The ombud also no longer needs be a retired judge of the High Court.
Article in May De Rebus





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