Maintaining the true spirit of an independent legal profession

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History of the NBCSA

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  1. Evolution of the National Bar Council of South Africa

(a) Formation of the Independent Association of Advocates of South Africa

In 1994 a group of 50 advocates from all over South Africa gathered in Pretoria to discuss the shortcomings in the structure of the advocate’s profession as well as the broader legal profession. Advocates were feeling constrained by the rigours of the existing single Bar.  The main issues discussed were the accessibility of the legal profession to the public, the provision of support to advocates who were not members of any Bar and the provision of a flexible yet structured environment for those advocates who did not want to become members of an existing Bar.

With the above in mind, it was decided to form a new organization called Independent Association of Advocates of South Africa (IAASA), the forerunner to the National Bar Council of South Africa (NBCSA), with the following principles:

  • The enhancement of the profession by allowing advocates to accept briefs directly from the public;
  • Healthy competition between lawyers, including advocates and attorneys, which will translate into a better and more cost effective service to the public; and
  • Assistance to previously disadvantaged individuals to enter the profession without having undue barriers of entry placed on their way.

It is no coincidence that IAASA was formed in 1994, the year of our new democracy, as IAASA strongly supports the principles espoused first in the interim constitution and then in the 1996 constitution, and will continue to fight for an accessible legal profession to serve the public and the freedom of members to choose the form of their practice.

As the beginning of the bar, Adv De Freitas recalls:

I was still in the Department of Justice in 1994 when I came across a Sunday paper advertising the formation of a new legal body called the Independent Association of Advocates of South Africa. This caught my attention. I travelled to Pretoria in September 1994 and was pleasantly surprised to find a large lecture/boardroom packed to capacity with lawyers of all colour. There was genuine excitement in the room. There was the promise/hope of change. The general consensus was that a new legal body of lawyers was desperately needed in our country – a body capable of representing all the peoples of our country, where all lawyers would be equal. It was the expressed desire of those gathered that this body would counter-weight the dominance of the General Council of the Bar and the Law Society”.

In the spirit of change, the idea of a dual or fused Bar was introduced by a confident and soft spoken lawyer whom I did not know then, Matthew Klein. This was a new idea which was hotly debated by those present. Some felt that there should be a new, but integrated bar and sidebar. After some discussion it was accepted that this new legal creature would be cautiously welcomed, along with the rider that IAASA would need to acquire a fidelity fund trust of some sort to protect the public.

All accepted that change was happening and there was goodwill expressed. Of course there were dissenting voices who expressed fearful reservations about this change, being easily embraced by the powers that existed at the time. And they were prophetically accurate.

In attendance on that day were attorneys, advocates as well as legal advisors and other legal persons who were from the republic as well as from the former TBVC’ states. Many, if not most, were seasoned lawyers, for example the then Chief Justice of Venda, the President of the Labour Relations Tribunal, senior attorneys and counsel at the “established bars”

IAASA was invited by then Minister of Justice, Mr. D Omar, to attend the National Legal Forum to discuss changes to be made in the legal system. IAASA tirelessly campaigned for change in the profession, and also served on the Ministerial Task Team on the proposed Legal Practice Bill (now the Legal Practice Act 28 of 2014). It is worth noting that piloting this piece of legislation to fruition took a period in excess of 20 years.

(b) Litigation against Members of IAASA.

The newly formed IAASA’s members did not go unchallenged in their boldness.  M Klein was threatened to be struck from the roll of advocates and Adv J de Freitas faced a court challenge. In the profession, any advocate or advocates choosing to practice independent of the traditional Bar Council, were quickly referred to as the rebels, despite IAASA implementing its own rules of ethics and conduct.  This was followed by a series of litigation against some members of IAASA.

Among these court challenges was Society of Advocates of Natal v De Freitas and Another (Natal Law Society intervening) 1997 (4) SA 1134 (N).  In this matter the full Court of the Natal Provincial Division of the High Court found:

  1. De Freitas guilty of unprofessional conduct and suspended him from practice for a period of six months.
  2. Dismissed a counter- application by IAASA for an order declaring that any advocate was, alternatively, advocates who are members of IAASA have the right to accept instructions from any person with or without the intervention of an attorney, to perform any functions of an advocate.

Application for leave to appeal was dismissed by the Natal High Court. Thereafter Advocate de Freitas and IAASA applied to the Chief Justice (now called President of Supreme Court of Appeal) for leave to appeal. The application was referred to court for argument. Although the Supreme Court of Appeal dismissed the application by De Freitas and IAASA, it is crucial to reflect on the remarks made by the Supreme Court of Appeal in the De Freitas and Another v Society of Advocates and Another 2001 (3) SA 750 (SCA). Hefer ACJ held:

  1. Since Mr. De Freitas is not a member of the Society of Advocates (Natal) he is neither bound by the latter’s rules( referring to the Society of Advocates (Natal) nor subject to its internal disciplinary jurisdiction (para  5)
  2. The referral practice that we know in this country is not that advocates may not under any circumstances accept instructions directly from clients. Various exceptions are allowed one of which counsel may be instructed directly by the Legal aid Board. In other matters the rules of the various Bars do not correspond in all respects. Advocates in the Western Cape may, for example take direct instructions for opinions, from a restricted list of clients, which members of others Bars may not do (para 8).

Cameron JA in his separate judgment opined as follows (para 3 of separate judgment)

That the rule (referral rule)is not of unquestioned antiquity, nor of uncontrolled ambit appears from Attorney-general v Thatham 1916 TPD 160 at 168 -9 , where the Full Bench of the Transvaal Provincial Division refused to regard as unprofessional the conduct of advocates in advising a client without the intervention of an attorney and charged a fee for this service.

Cameron JA remarked as follows: (para7 of separate judgment)

The information supplied to us from the United Kingdom and Australia indicates that in most areas where the division within the legal profession is maintained, the referral rule has been substantially adapted, so that, subject to strict safeguards, specialist litigation practitioners are indeed now entitled to take work directly from the public or sections of it. In this the Bar in our country appears to be behind its peers even in the United Kingdom wher, at the English Bar, detailed rules providing for direct access in strictly circumscribed cases now exist

Cameron JA also held that: (para 10 of separate judgment)

“ I do, however consider that the Bar should be encouraged to investigate with urgent speed whether accommodations of the referral rule along the lines already practiced in comparable jurisdictions should not be introduced were as a means of possible enhancing public access to legal services and reducing the cost of at least some of  those services.

(c) From IAASA to National Bar Council of South Africa

On 9 June 2013, the Annual General Meeting of IAASA accepted a name change to be known as the National Bar Council of South Africa, or NBCSA.

2. A reflection on the Legal Practice Act

The Legal Practice Act, 2014 was passed in 2014. The NEC of National Bar Council of South Africa participated during the proceedings of the Portfolio Committee on Justice and Constitutional Development when the Bill was processed in Parliament prior to it being passed as an Act of Parliament.

In terms of section 96 of the Act, NBCSA has one seat on the National Forum established in terms of the Act. An important development couched in the Act is section 34 (2) of the Act.

Section 34(2) reads as follows:

“ (2) (a) An advocate may render legal services in expectation of a fee, commission, gain or reward as contemplated in this Act or any applicable law-

  • upon receipt of a brief from an attorney; or
  • upon receipt of a request directly from a member of the public or from a justice centre for that service, subject to paragraph (b)( emphasis)

Paragraph (b) referred to above reads as follows:

“(b)     An advocate contemplated in paragraph (a)(ii) may only render those legal services rendered by advocates before the commencement of this Act as determined by the Council in the rules, if he or she-

  • is in possession of a Fidelity Fund certificate and conducts his or her practice in accordance with the relevant provisions of Chapter , with particular reference to sections 84, 85, 86 and 87;
  • has notified the Council thereof in terms of section 30(1)(b)(ii).

Section 34 (2)(c) reads as follows:

“ An advocate may render legal services in criminal or civil matters in expectation of a fee, commission, gain or reward as contemplated in this Act or any applicable law upon receipt of a request directly from a justice centre for that service, in which event the provisions of paragraph (b) do not apply.

In the same vein section 34(3) of the Act provides as follows:

“(3). The Council must make rules relating to the briefing of advocates-

  • by attorneys; and
  • directly by members of the public.(emphasis)

 

A proper construction of section 34 is that an advocate may take instructions directly from the public must be in possession of a Fidelity Fund certificate (section 84 (1) and such advocate must apply to the Council for such certificate as determined in the rules (Section 85 (1). Further, such advocate must operate a trust account (section 86 (1). Such trust account practice must keep proper accounting records containing particulars and information in respect of money received and paid on its own account, any money received, held or paid on account of any person, money invested in a trust account or other interest-bearing account and any interest on money so invested which is paid over or credited to it. (section 87 (1)

It is critical to note that the Council will make rules to regulate instances where advocates take instructions from members of the public. The Council has not yet been established. It is envisaged that when the mandate of the National Forum as envisaged in the Act has come to an end, the Council ( South African Legal Practice Council) referred to in Chapter 1 of the Act, will make the rules referred to in section 34 (3).

At this stage, advocates are not allowed to take instructions directly from members of the public without the intervention of an attorney.

3. Developments on relations with other Bars

Of importance to note is that if complaints are lodged with the General Council of the Bar or any of its constituent Bars against any of our members by members of the public, practitioners or the courts, the GCB refers such matters to NBCSA for investigation and finalization. This is a great improvement on the co-operation between the Bars which indeed promotes the spirit of independence of each Bar.