Commencement is dealt with in section 120.

There are 3 commencement dates:

1) Date One for NF: Chapter 10, already in force. This chapter deals with the National Forum. The duties of the National Forum:

1. a) make recommendations to the Minister (section 97) ; the regulations are now before parliament
2. b) to publish a code of code of conduct (sec 97 (1) (b) ),this has been done, but it is not in force yet, the LPC to take it further. When the NF published the Code, no opportunity was given for comment by others, section 36 rules that it is the duty of the LPC. The LPC will call for comments. (There are many queries to be raised on the code)
3. c) to publish rules,which has been done.

2) Date 2 for LPC: Chapter 2 for LPC: The date has been fixed for 31 October 2018. Before this takes place, the NF must hold elections for LPC, the regulations by the Minister must go through parliament. (There are many other events but not really applicable to advocates, see Annexure “A”)

3) Date 3: The remaining provisions of this Act come into operation on a date, after the commencement of Chapter 2, fixed by the President by proclamation in the Gazette.

All advocates must register with the LPC, the definition of an advocate (sec 1) is “’advocate’ means a legal practitioner who is admitted and enrolled as such under this Act”. You will have to register but you will not have to undergo further exams unless you want to become a fidelity fund advocate.

The NF called upon the various Bars, including the NBCSA, to provide a list of names of members with other information who would then be on the LPC roll.

The registration process is already provided for – see section 114(1) read with section 114(2)(c) and section 114(3).

The LPC, the PLPC, the Board and the Ombud (‘Ombud’ means the person appointed by the President as a Legal Services Ombud in terms of section 47)

1. The LPA
2. Rules
3. Regulations
4. Code of Conduct

There are three kinds of legal practitioners defined in section 34 of the LPA: attorneys, advocates and fidelity fund advocates who are advocates in possession of a Fidelity Fund certificate. (See Annexure “B” for section 34)

This is where you get clients direct.

The biggest advantage is that you do not have to worry about an attorney not paying your bill but the downside is that you will have to get the money from your client.

The other caution is that you will have to comply with the requirements of the Board concerning auditing, extra fees to the Board etc.

The wording of the LPA is such that it looks like there is a limitation on the advocate. However, the rules tried to overcome this.

Rule 33 deals with legal services which may be rendered by advocate in possession of Fidelity Fund certificate [section 95(1)(zA) read with section 34(2)(b)] An advocate referred to in section 34(2)(a)(ii) of the Act who is in possession of a Fidelity Fund certificate may render all those legal services which advocates were entitled to render before the commencement of the Act, and may perform such functions ancillary to his or her instructions as are necessary to enable him or her properly to represent the client.[1] And see annexure “N”.

An advocate practising without a Fidelity Fund certificate who wishes to convert his or her enrolment to that of an advocate conducting a practice with a Fidelity Fund certificate must similarly satisfy the Council that he or she has the required knowledge of accounting. If the applicant has previously practised as an attorney he or she will have the required knowledge of accounting.

In the case of an application for admission as an advocate intending to practise with a Fidelity Fund certificate, proof that the applicant has satisfied the requirements of the Council in terms of section 85(1)(b) of the Act in relation to a legal practice management course, and has passed the examination required to be passed by attorneys so as to reflect that the applicant has the required knowledge of accounting for the keeping of accounting records referred to in section 87 of the Act and for compliance with the accounting rules published by the Council from time to time; attendance report issued in respect of attendance of the applicant at a practical legal training course approved by the Council. See in general Annexure “M” and “N”.
The question was also asked whether one could now already do a course in practice management or not. The attendance of a legal practice management course through LSSA/LEAD is a possibility. One can even write the LSSA exam on accounting. The NF asked the Law Societies to issue a letter to all attorneys, see annexure “Q”, a similar letter had to go out to all law societies.

Section 28 of the LPA is applicable as seen in annexure “L”

Admission as advocate with a fidelity fund certificate: In  the case of an application for admission as an advocate intending to practise with a Fidelity Fund certificate, proof that the applicant has satisfied the requirements of the Council in terms of section 85(1)(b) of the Act in relation to a legal practice management course, and has passed the examination required to be passed by attorneys so as to reflect that the applicant has the required knowledge of accounting for the keeping of accounting records referred to in section 87 of the Act and for compliance with the accounting rules published by the Council from time to time; attendance report issued in respect of attendance of the applicant at a practical legal training course approved by the Council. See in general Annexure “M” and “N”.

An advocate applying for conversion of his or her enrolment to that of an attorney must satisfy the Council that he or she has the required knowledge of accounting (rule 30.4.4.1). And see annexure “O” and “Q”

The regulations  provide as follows:

Attendance at any training course approved by any existing society of advocates or the General Council of the Bar for which the pupil had registered before the date referred to in section 120(4) of the Act and in respect of which the required attendance was completed within a period of twelve months after that date will be regarded for purposes of these regulations as compliance with the requirements of sub-regulation (1)(b).

A person wishing to qualify to be admitted and enrolled as an advocate who, before the date referred to in section 120(4) of the Act, has passed all parts of the examinations conducted by the General Council of the Bar or any other society of advocates contemplated in section 112(1)(a)(ii) of the Act will  be deemed to have complied with rule 21.1.

A person wishing to qualify to be admitted and enrolled as an advocate who, before the date referred to in section 120(4) of the Act, had passed one or more parts of the examinations referred to in rule 21.6 but at that date had not yet passed all parts of those examinations, shall have the right to be examined or assessed on those parts which he or she had not yet passed and, upon successfully completing those parts of the said examinations which he or she had not passed at that date, he or she will be deemed to have complied with rule 21.1; provided, however, that if the pupil concerned had not passed the parts of the said examination which he or she had not successfully completed prior to the date referred to in section 120(4) of the Act within a period of three years from that date, then he or she shall no longer have the right to be examined or assessed on any part of those examinations  provided that a person wishing to be qualified to be admitted and enrolled as an advocate who, before the date referred to in 120(4) of the Act, has passed one or more parts of a training course approved by the General Council of the Bar or any other society of advocates, as contemplated in section 112(1)(a)(ii) of the Act, but at that date had not yet passed all parts of those examinations, shall have the right to be examined or assessed on those parts which he or she had not yet passed and, upon successfully completing those parts of the said examinations which he or she had not passed at that date, he or she will be deemed to have complied with this rule 21.4; provided further, however, that if the pupil concerned had not passed the parts of the said examination which he or she had not successfully completed prior to the date referred to in section 120(4) of the Act within a period of three years from that date, then he or she shall no longer have the right to be examined or assessed on any part of those examinations.

Section 35 is a very controversial section. The Rules Board are currently awaiting inputs from stakeholders; final date for comments was 31 July 2018. The proposal is that there should be a rule made by the Rules Board to set MAXIMUM fees.

Apart from this debate, advocates should study section 35 as it puts a duty on advocates to prior to even starting with a case, give an estimated fee. And this is also applicable to getting a brief. The full text is found in Annexure “E”.

No, the LPC will establish disciplinary bodies.⁵ However, the Bar associations could have their own disciplinary matters consisting of breaching of “house rules”.

Election of the 10 Attorneys and 6 Advocates to serve on the first LPC is intended to be conducted in August 2018 by an election service provider under supervision of the NF. An Election Committee was appointed by the NF for this purpose. Three additional members are due to be appointed to the LPC by the Minister, 2 by the Law Teachers and 1 each by the Fidelity Fund and Legal Aid South Africa.

The practical vocational training (PVT) requirements that pupils must comply with. A person with a LLB degree who wants to be admitted as an Advocate, must serve under a PVT contract for 12 months & complete 400 hours course work before or during the 12 months PVT & pass the prescribed examination.

There will be Bar associations who will be offering pupillage but the Bar association must be accredited by the LPC. No Bar has been accredited as there is no LPC in place. See Annexure “H”.

The pupil and master(who will now be called a “training supervisor”) will sign an agreement, thus entering into a contract.

See in general concerning a pupil: Annexure “L” and “M” and “R” (the contract)

The trial advocacy training programme referred to in rule 19.1 – shall comprise training under the direct supervision of an advocate who has been practising as such for a continuous period of not less than five years, or of an attorney who has the right of appearance in the High Court, the Supreme Court of Appeal and the Constitutional Court and has exercised the right of appearance in those courts regularly for a continuous period of not less than five years or for an aggregate period of five years during the preceding seven years; shall require involvement in the programme by the attorney of not less than 40 hours in the aggregate over a period of no longer than six months; may require attendance by the attorney at lectures and workshops, and the completion of written assignments, of sufficient standard to provide training to the attorney in the practical aspects of court work and trial advocacy; shall require the supervisor, at the completion of the programme, to issue a certificate to the attorney that he or she has successfully completed the trial advocacy training programme.

Regulation 8 is applicable: Right of appearance of pupils in court or any other institution

8. A pupil is entitled to appear —

(a)       in any court, other than the High Court, the Supreme Court of Appeal or the Constitutional Court; and

(b)       before any board, tribunal or similar institution on behalf of any person,

instead of and on behalf of and with the approval of the person under whose supervision he or she is undergoing his or her practical vocational training.

Practising Advocates will pay subscriptions of R2 500 including VAT per year (except LPs admitted and enrolled for less than 12 months, who will pay R1 500 including VAT per year). The first subscriptions, calculated poro rata, are due to be levied by the LPC from 1 November 2018 to 30 June 2019.

Unless the LPC amends the Rule relating to subscriptions (after input from LPs), the subscriptions payable by all practising LPs from 1 July 2019 onward will be R2 500 per year (except LPs admitted and enrolled for less than 12 months, who will pay R1 500 including VAT per year).

– All non-practising Attorneys and Advocates will pay subscriptions of R800 including VAT per year.

But there are other costs that will have to be paid!! See Annexure “K”.

See Annexure “F”

Regulation 3 rules this, see Annexure “G” and “J”

Within 2 months from 31 October 2018, The establishment of Provincial Councils are in Regulation 3(1) The nine Provincial Councils contemplated in section 23 of the Act are –

(a)       the Eastern Cape Provincial Council with its office in East London;

(b)       the Free State Provincial Council with its office in Bloemfontein;

(c)       the Gauteng Provincial Council with its office in Pretoria;

(d)       the KwaZulu-Natal Provincial Council with its office in Durban;

(e)       the Limpopo Provincial Council with its office in Polokwane;

(f)        the Mpumalanga Provincial Council with its office in Nelspruit;

(g)       the Northern Cape Provincial Council with its office in Kimberley;

(h)       the North West Provincial Council with its office in Mahikeng;  and

(i)        the Western Cape Provincial Council with its office in Cape Town.

(2)       Every Provincial Council must, upon its establishment, establish at least one committee of the Provincial Council at every centre within the province concerned at which there is a seat of a Division of the High Court but no office of the Provincial Council.

(3)       The committee contemplated in subregulation (2) must consist of two attorneys and two advocates, appointed by the Provincial Council for such periods as may be determined by the Provincial Council to assist it in the exercising of its powers and the performance of its functions.

Advocates will have to qualify as assessors, the NBCSA will elect members to be assessors. Rule 25: Every person appointed by the Council for the purpose of arranging, controlling and conducting assessments in respect of the subjects referred to in -rule 21.2, shall be a person who has been a practising attorney for not less than seven years;rule 21.5, shall be a person who has been a practising advocate for not less than seven years: provided that in the case of a candidate legal practitioner intending to be admitted and enrolled as an advocate conducting a trust account practice, at least one of the persons conducting the assessment must be a person who has been a practising attorney for not less than seven years;rule 21.8, shall be a person who has been a practising notary for not less than seven years; andrule 21.9, shall be a person who has been a practising conveyancer for not less than seven years.

The periods of practice which are required to qualify an attorney, or an advocate, or a notary, or a conveyancer, as the case may be, to conduct assessments may be reduced by the Council in its discretion if in any particular instance the person concerned had other prior experience to qualify him or her to conduct an assessment.

Where the Council engages an institution or organisation to conduct the assessment on its behalf, that institution or organisation will be required to ensure that the persons employed by it to arrange, control and conduct assessments shall be individuals with the qualifications referred to in rule 25.2.

See annexure “P”