The Legal Practice Act, 2014 was assented to by the President yesterday and will repeal all South African legislation which currently regulates the admission and profession of attorneys, conveyancers, notaries and advocates. This grand repeal will happen on a date fixed by the President by proclamation in the Government Gazette.
The Legal Practice Act, 2014 – forced disruption in the legal profession
Much has been said about the Legal Practice Bill (as it then was while in draft form) and many of its provisions have been subject to rigorous debate. Among other things, the long standing divide between attorneys and advocates will, to a large extent, fall away (certainly from a regulatory perspective). The so-called “split profession” will be regulated by a single council, the Legal Practice Council. Many have voiced concerns that the Legal Practice Act is an erosion into the independence of the judiciary, which independence is vital to the upholding of the rule of law in South Africa’s constitutional democracy. The changes will certainly cause a fair amount of disruption; entrepreneurial and otherwise.
Will the Legal Practice Act, 2014 foster transformation?
When it comes to transformation, the legal profession, often stuck in traditional and archaic ways of doing things, is in desperate need of something to shake it up and help it out. It is in a rut that it has not been able or willing to lift itself out of as this recent study shows.
The first line of the purpose of the Legal Practice Act, 2014 is this:
“To provide a legislative framework for the transformation and restructuring of the legal profession in line with constitutional imperatives so as to facilitate and enhance an independent legal profession that broadly reﬂects the diversity and demographics of the Republic;”
The preamble goes on to state:
“WHEREAS section 22 of the Bill of Rights of the Constitution establishes the right to freedom of trade, occupation and profession, and provides that the practice of a trade, occupation or profession may be regulated by law;
AND BEARING IN MIND THAT—
• the legal profession is regulated by different laws which apply in different parts of the Republic and, as a result thereof, is fragmented and divided;
• access to legal services is not a reality for most South Africans;
• the legal profession is not broadly representative of the demographics of South Africa;
• opportunities for entry into the legal profession are restricted in terms of the current legislative framework;
AND IN ORDER TO—
• provide a legislative framework for the transformation and restructuring of the legal profession into a profession which is broadly representative of the Republic’s demographics under a single regulatory body;
• ensure that the values underpinning the Constitution are embraced and that the rule of law is upheld;
• ensure that legal services are accessible;
• regulate the legal profession, in the public interest, by means of a single statute;
• remove any unnecessary or artiﬁcial barriers for entry into the legal profession;
• strengthen the independence of the legal profession; and
• ensure the accountability of the legal profession to the public… Parliament of the Republic of South Africa enacts as follows:”
It remains to be seen how the Legal Practice Act, 2014 will be administered and how effective it will be. It makes provision for the Minister of Justice and Constitutional Development to make regulations and rules for the implementation of the Legal Practice Act and these will give us greater insight into how the Legal Practice Act may work in practice.
The concerns about the erosion of the independence of the judiciary may be addressed by the fact that, to date, the judiciary has proved itself to be robust and independent. The Constitution is the supreme law in South Africa and if the Legal Practice Act does indeed undermine the independence of the judiciary, one can be sure that the Constitutional Court will be asked to rule on this. Inevitably, as with many other pieces of legislation, there will be unforeseen and unintended consequences. However, the Legal Practice Act, 2014 is a road to transformation that may be traveled upon. For the reason set out in its preamble, and given the current untransformed state of the legal profession, we support the aims of the Legal Practice Act in the promotion of equality and transformation in the legal profession itself, as well as in the sectors that the legal profession serves.