Theme 4: The Legal Profession Study Notes

General Overview of the Legal Profession

  • Traditional Characterization: The legal profession is traditionally regarded as very old-fashioned. This characterization is evidenced by:     * The formal clothing/robes worn by judges and lawyers.     * The split nature of the profession between advocates and attorneys.     * Specific forms of address used for presiding officers.     * The general use of specialized language.     * The formal nature of legal processes.
  • Classification of Careers: Careers in the legal profession are categorized into two main sectors:     * The private sector.     * The public sector.
  • Textbook References: Detailed information regarding these roles can be found on page 338 or 346 of the assigned textbook.

The Private Sector: Attorneys

  • Definition: Attorneys are general legal practitioners who act as legal administrators.
  • Daily Work and Duties:     * General legal administration.     * Lodging expert applications to the relevant High Courts for admission as practicing attorneys.     * Specialization in specific areas of law.
  • Commisioning Authority: All attorneys are considered ex officio commissioners of oaths. This allows them to:     * Commission documents.     * Administer oaths or affirmations.     * Take solemn or attested declarations from any person.
  • Admission Requirements: Regulated by Section 24 of the Legal Practice Act. A candidate attorney must meet the following criteria:     * Educational Qualifications: Possession of an LLB degree. Law degrees from foreign countries are acceptable if they are deemed equivalent to the LLB and recognized by the South African Qualifications Authority (SAQA) established under the National Qualification Framework Act 2008.     * Practical Vocational Training (PVT): Completion of requirements as a candidate legal practitioner. This includes two years serving as a candidate attorney.     * Community Service: Mandated for candidate legal attorneys.     * Legal Practice Management Course: Mandatory coursework for candidate legal practitioners.     * Citizenship: Must be a South African citizen or a permanent resident of the Republic of South Africa.     * Character Standard: Must be a "fit and proper" person.         * Lecturer's Commentary: This standard is taken very seriously. A person might be considered unfit if they engage in behavior like gossiping or telling stories that suggest they cannot carry themselves with the required professional integrity.     * Application Process: A copy of the application must be served on the Legal Practice Council (LPC) according to rules made under Section 95 subsection 2, Section 95 subsection 3, and Section 109 subsection 2 of the Legal Practice Act, as published in the Government Gazette.
  • Practice Structures: Attorneys can practice independently, as part of a partnership, at a juristic entity (such as a state attorney), or at law clinics.

Regulatory Bodies for Attorneys

  • Law Societies of South Africa (LSSA): This is the umbrella body responsible for operating the Legal Education and Development division.
  • South African Legal Practice Council (LPC): This is a single professional regulatory operating structure for both attorneys and advocates.     * Responsibilities: Imposing a Code of Conduct on legal practitioners and handling issues of misconduct.     * Code of Conduct: Published in 2009 under Section 36 of the Legal Practice Act 28 of 2014.     * Academic Progression: Students will study the LPC and legal ethics in-depth in the "Legal Ethics" module during their next year of study.

Right of Appearance in Higher Courts

  • Historical Context: Historically, attorneys did not have the right of appearance in the High Court or the Constitutional Court. This changed with the Right of Appearance in Courts Act 1995, which allowed attorneys to apply to the Registrar of the High Court for these rights.
  • Current Regulation: The Right of Appearance in Courts Act was repealed by the Legal Practice Act 28 of 2014.     * The right of appearance for legal practitioners and candidate attorneys is now dealt with under Section 25 of the Legal Practice Act.
  • Requirements for Rights of Appearance:     * The applicant must be admitted as an attorney of the High Court.     * The applicant must be in good standing with the regulatory body (previously the Law Society, now the Legal Practice Council).     * Successfully obtaining these rights allows the attorney to appear in the High Court, the Supreme Court of Appeal (SCA), and the Constitutional Court.     * Timeline: Usually happens after completing board exams and the required years as a candidate attorney.

The Private Sector: Advocates

  • Definition: Advocates are specialist litigators. They are generally not approached directly by clients.
  • Referral System: Traditionally, a client approaches an attorney, who then briefs an advocate. There are now two groups of advocates under the Legal Practice Act:     * Advocates who may only act upon receiving a brief from an attorney.     * Advocates in possession of a Fidelity Fund certificate who have notified the LPC; these advocates can accept briefs directly from members of the public without an attorney.
  • Function and Specialization:     * Attorneys brief advocates when a matter is more complicated than the attorney can handle, when it needs to go to the High Court, or when specialized input/advice is required.     * Advocates are described as more "academic" in their approach.     * Primary Tasks: Drafting pleadings, writing legal opinions, and appearing in court.     * Appearance: Advocates have the right of appearance in all courts.
  • Admission Requirements:     * Possession of an LLB degree.     * Practical Vocational Training (Pupillage): Completion of 12 months of service under an already admitted advocate (previously called pupillage).     * Coursework: Completion of a structured program of not less than 400 hours.     * Bar Examinations: Successful completion of five bar examinations.     * Financial Consideration: Pupillage is generally unpaid for the full 12-month duration.
  • Professional Associations: Advocates are not part of firms or partnerships. Instead, they work for their own account but usually form part of an association called "The Bar."     * Membership in the Bar is not mandatory.     * The Bar Association serves as the umbrella body regulating the profession.
  • Seniority: Advocates with long-standing experience may have their status elevated to Senior Counsel (SC). Judges are traditionally appointed from the ranks of Senior Counsel.

Specialized Attorney Roles: Conveyancers and Notaries

  • Conveyancers:     * Specialization: They deal with the transfer of land.     * Admission: They must be qualified attorneys who have passed an additional specialized conveyancing exam.     * Study Intensity: The workload is significant, involving studying "thick binders" (roughly two binders full to the brim) for multiple exams typically taken on a single day.     * Timeline: Studying often begins six months in advance (e.g., starting in March for a September/October exam).     * Success Rates: The speaker mentions a perceived pass rate of approximately 5%5\%.
  • Notaries:     * Specialization: Qualified attorneys allowed to draw up specific legal documents required by law, such as Antenuptial Contracts.     * Admission: Requires passing another additional qualifying exam.     * Execution Tools: Notaries use personal stamps/seals to execute documents, similar to old-fashioned wax seals on letters.

Legal Careers in the Public Sector

  • Department of Justice and State Departments: Various roles are offered within the public sector.
  • Prosecutors:     * National Director of Public Prosecution (NDPP): Responsible for instituting criminal proceedings.     * Delegates: High Courts utilize State Advocates; Lower Courts utilize Public Prosecutors.     * Specialist Sections: The Office for Serious Economic Offenses investigates and prosecutes serious economic crimes.     * Anecdote: The speaker observed a criminal court proceeding where the prosecutor appeared exhausted and, during a break, took off his robes to reveal he was wearing jeans and a sweatshirt underneath.
  • Presiding Officers:     * Consists of Judges and Magistrates.     * Judges were previously appointed only from senior advocates but are now also appointed from other branches of the profession.
  • State Attorneys:     * Perform the same work as ordinary attorneys, but their clients are exclusively state departments.     * State departments can be parties in civil cases.
  • State Legal Advisers:     * Perform legal research.     * Check existing legislation.     * Draft new statutes.     * Provide legal advice to specific state departments.
  • Registrar of the High Court:     * Appointed for every seat of the High Court.     * Responsibilities: Receiving fines, finalizing the court roll, and issuing summonses for court appearances.
  • Clerk of the Court:     * Functions in the Magistrate's Court. The role is the lower court equivalent of the Registrar in the High Court.