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Introduction of the Legal Practice Amendment Bill [B - 2017] by Hon. M. Motshekga

14 November 2017

The Bill amends the Legal Practice Act, 2014, to address a number of practical and technical issues to ensure a smooth transition to the new dispensation as provided for in the Act.

The Legal Practice Act, 2014, was passed to address a range of challenges to do with the legal profession, in particular, the need for transformation to ensure a profession that broadly reflects the diversity and demographics of the Republic under a single regulatory body.

The Act provides for the establishment of a single, unified, regulatory body - the South African Legal Practice Council - for the legal profession (for both attorneys and advocates). In order to lay the foundation for the new dispensation, the Act provides for the establishment of a transitional body, the National Forum on the Legal Profession, which has a limited lifespan in which to carry out specific tasks.

At present, only, Parts 1 and 2 of Chapter 10 of the Legal Practice Act are in operation (they came into operation on 1 February 2015). These Parts deal with the establishment and mandate of the National Forum on the Legal Profession. However, Chapter 2 of the Act comes into operation three years after the date of commencement of Chapter 10 or on any earlier date ?xed by the President by proclamation in the Gazette. Chapter 2 addresses the establishment of the South African Legal Practice Council. As the Chapter 10 of the Act commenced on 1 February 2015, Chapter 2 will come into operation on 1 February 2018.

The Legal Practice Act, 2014, provided that the National Forum was to have 24 months to make recommendations to the Minister on matters that include:

The National Forum is also tasked with preparing and publishing a code of conduct for all legal practitioners (both attorneys and advocates); and must make rules of various matters.

However, as the National Forum was unable to finish its work within the 24 months (1 February 2017), the Minister has extended its lifespan further.

The Legal Practice Amendment Bill was referred to the Committee on 26 April 2017. The Bill seeks to regulate further:

The Committee was briefed on its contents on 10 May 2017. Following this, the Bill was advertised countrywide for public comment.

Certain submissions addressed aspects of the Legal Practice Act, 2014, that do not form part of the Bill, as introduced. Although the Committee was largely sympathetic, to include amendments that address these aspects now would considerably delay the passage of the Bill. The Committee felt it necessary/desirable, for now, to prioritise a smooth/seemless transition to the Legal Practice Council. However, the Committee has asked the Department to prepare a further amendment Bill to address the submissions that were identified as falling outside of the ambit of the Bill as introduced.

The Committee made further amendments to the introduced Bill, including:

A new clause 1 amends section 4 of the Act. The amendment clarifies that the South African Legal Practice Council will only begin to exercise jurisdiction over legal practitioners and candidate legal practitioners when section 120(4) comes into operation ) (i.e. on a date proclaimed by President in the Gazette) to avoid any conflicting jurisdiction between the Council and the law societies.

In clause 3, section 23 of the Act is amended to provide that the Council must establish provincial councils; the areas of jurisdiction must correspond to that of the Divisions of the High Court of South Africa in terms of the Superior Courts Act, 2013. A consequential amendment allows the Council to delegate to the Provincial councils the powers and functions, which, in the interests of the legal profession, are better performed at provincial level.

A new clause 5 is inserted to amend section 62(3) of the Act. The amendment seeks to ensure a smooth transfer from the `outgoing` Board (of the Attorney`s Fidelity Fund) to a `new` Board (of the Legal Practitioners` Fidelity Fund), by allowing for the members of the old Board to stay in office for a period of six months after the commencement of Chapter 2 of the Act or until the new Board has been elected.

A new clause 8 amends section 96 of the Act and provides that the National Forum will cease to exist on the date of the meeting with the Council, envisaged in section 105(3) (the meeting is a handover meeting between the National Forum and the Council). However, that date cannot be later than 31 October 2018.

A new clause 11 is inserted to amend section 114(5) of the Act to clarify that every attorney, who has the right of appearance in the High Court of South Africa, the Supreme Court of Appeal and the Constitutional Court, on the date referred to in section 120(4) of the Act (i.e. the date on which the President proclaims the commencement of the remainder of the Act), will retain that right after the commencement of the Act.

A new clause 13 amends section 120(3) of the Act to provide that Chapter 2 will come into operation on a date fixed by the President by proclamation in the Gazette. At present, Chapter 2 of the Act, which addresses the South African Legal Practice Council, provides that the Chapter will commence within three years of Chapter 10 of the Act commencing (i.e. 1 February 2018) or earlier.

     
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