SU 7 IURX 171 Chapter 11

Legal Practitioners and Legal Officials in the South African Legal

System

KNOW

 the sources of legal ethical rules;

IDENTIFY AND DISCUSS

 Identify and discuss the basic characteristics expected in an attorney and/or advocate;

EXPLAIN

 Explain what the term ‘fit and proper’ entails;

DESCRIBE

 Describe a lawyer’s duty to his client, court and society;

DEBATE

 Debate current ethical issues and think critically about existing practices;

APPLY

 Apply ethical rules to practical scenarios

INTRODUCTORY STATEMENT
 A legal system is most often thought of as a system of rules and principles.
 In this way of thinking, a legal system is the content of law – its commands, prohibitions
and powers, as well as its defences and immunities.
 The practice of law is generally not routine and can be very stressful.
 Legal representatives handle a variety of legal tasks for their clients.
 To be a good legal representative you will need certain skills and characteristics.
 This is called “being a fit and proper” person for the profession.
 There are also a variety of ethical issues that confront a legal representative in his or her
work.
 There is a duty on a legal representative to his client which must be balanced with his or
her duty to the court and society.
 To confront these issues, a legal representative must be attentive to ethical issues and
must be able to make an informed choice when confronted with such issues in practice.
 Pius Langa, who finished his career as Chief Justice of South Africa, worked as a court
interpreter at one significant stage
  Discussions on how to restructure and transform the South African legal profession
were initiated by the Minister of Justice and Constitutional Development in 2001
 After more than a decade, the Legal Practice Act was enacted by Parliament on 20
September 2014, and finally came into (near) full commencement on 1 November 2018.
 The LPA is now the single source of legal authority for the legal profession, repealing
the Attorneys Act and the Admission of Advocates Act in their entirety.
 The commencement of the LPA has not necessarily resolved debates on the
restructuring and transformation of the legal profession.
 Indeed, the LPA has also prompted new lines of debate, for example, on the
requirement for candidate legal practitioners to undertake community service.
 The debates are therefore continuing as key actors and institutions proceed with the
LPA’s implementation

IMPORTANT CONCEPTS
1.Professionalism
• Professionalism is … the work of someone who is ‘dedicated to the practice and
refinement of his or her [learned] skill during the working days of the week an
accomplished expert, a full-time specialist cultivating a particular kind of skill or activity’.
• Professionalisation of an activity is ‘a measure of the societal
strength and authority of an occupational group’.
• Higher duty of care – legal profession
• Higher level of skill
• Privacy of communication = professional privilege
• Professional bodies and strict disciplinary rules/codes

2.Legal privilege
• Communication between client and lawyer is privileged.
• Privileged: May not disclose to anyone, not even the court, without client’s
permission.
• Is there privilege between doctor and patient, priest and church member, psychiatrist
and patient?
Blue Chip Consultants (Pty) Ltd v Shamrock 2002 (3) SA 231 (W)
• Defendant wanted to call evidence relating to privileged communications between
attorney and plaintiff's managing director and main witness, explaining that the
evidence related to the character of the managing director.
• Plaintiff refused to waive privilege.
• The court refused to call the witness, holding that: “There are sound reasons for
respecting the attorney client privilege”.
 • The desirability for skilled legal representation in litigation is axiomatic (self-evident or
unquestionable).
• In order for such representation to achieve its purpose, our system is predicated on
the need for establishing trust between the lawyer and his client and securing freedom
of communication between them without fear of disclosure.
• That can only be attained if communications are treated as confidential and inroads
are confined to clear cases of greater competing interests.

3.Position of trust
• Client
• Community
• Court
• Legal system and Constitution

4. Code of conduct for legal practitioners

Legal ethics
• What is a trust account?
• When can you take a client’s money from your trust account?
• Can you represent a client who admitted do you that he is guilty?
• Can you represent both parties in a case?
• Can you appear against a prior client?
• Can you have an affair with one of your client?
Ethics:
• Moral principles that govern a person’s behaviour. System of accepted beliefs that
control behaviour,
especially a system based on moral values.
• Legal ethics is the minimum standards of appropriate conduct within the legal
profession.
• It is the behavioural norms and values which govern judges and lawyers.
• It involves duties that the members owe one another, their clients, and the courts.
• Respect of client confidences, candour toward the tribunal, truthfulness in statements
to others, and professional independence are some of the defining features of legal
ethics.

5.“Fit and proper”

The requirement of being a "fit and proper" person
for the legal profession - Slabbert
 • What are the legal requirements for a person to be removed from the roll of practicing
legal practitioners?
• Do practitioners always act in a “fit and proper“ manner?
• Slabbert state that continuous moral development is important. Do you agree?
• When the court must decide to remove a person from the roll, it consider whether or
not the person is fit and proper.
• This is done by weighing up the conduct against the conduct expected from an
attorney/advocate.
• Main consideration is protection of the public.
• In your opinion, is the current test of being a fit and proper person still needed and
appropriate?
• The requirement for being considered a "fit and proper" person is neither defined nor
described in legislation, despite the fact that it is a stringent requirement.
• Given the lack of definition, it has to be interpreted in a subjective manner and
applied by seniors in the profession and ultimately by the courts.
• The onus is on the person who is applying to be admitted as a legal practitioner to
show that he/she is fit and proper, it is then in the discretion of the court to find that a
person is indeed a fit and proper person to be so admitted and enrolled.
• Fit and proper usually refers to the fact that a person is honest and behave or will
behave ethically.

Tania McAnearney “The steady erosion of ethics” 2008 Without Prejudice 38 – 40

• A practitioner must avoid all conduct which, if known, could damage his/her
reputation as an honourable lawyer and honourable citizen. (Tania (2008) 38)
• An attorney’s conduct must, at all times, be professional and ethical.
• According to the Law Society of South Africa’s (LSSA) Code of Ethics for Legal
Practitioners, adopted by the AGM of the LSSA in March 2006, all practitioners must:
• Honour, respect and promote the values enshrined in the Bill of Rights;
• Maintain the highest degree of honesty, integrity and independence at all times;
• Act with care and skill, honour undertakings and maintain the reputation and high
standards required in the performance of their duties;
 Conduct themselves with courtesy and respect towards participants in proceedings,
especially persons without legal representation, so as to ensure compliance with the
rules and procedures for the fair conduct of such proceedings;
• Maintain the highest standards of professionalism and promptly respond to
correspondence and messages from colleagues, clients and members of the public;
• Comply with all ethical and professional rules of practice;
• Respect the legal privilege and confidentiality that exists with clients and former
clients;
 • Subject to the laws as regards contingency fees, and the rules and guidelines as
regards advertising, not engage in any form of activity that may be construed as touting;
• Extend to all colleagues, judges, academics, professionals, litigants and students,
including persons from foreign jurisdictions, cordiality and respect at all times. (Tania
(2008) 38)
• Thou shalt not steal; and
• Thou shalt not lie. (Tania (2008) 40)

CASE LAW
CASE 1:Mafokate v The Law Society of Northern Provinces
(786/12) [2013] ZASCA 125 (23 September 2013)
• The attorney committed misconduct by failing to account to clients.
• He did not have any accounting records and could not provide adequate
explanation.
• The evidence presented must be subject to proper analysis.
• Striking off an attorney from the roll does not follow as a matter of course from the
finding that the attorney is not a fit and proper person to continue to practice.
• If there are exceptional circumstances in favour of the attorney, he or she may be
suspended from practice.
• The applicant had two clients: Samuel Muchanga alias Malesela Piet Mabitsela and
Busang.
• Court a quo should have subjected the evidence to analysis due to the nature of
enquiry involved in the proceedings under s 22(1)(d) of the Attorneys Act.
• Law Society, Northern Provinces v Mogami 2010 1 SA 189 (SCA), para 4
• The application involves a three-stage enquiry.
1.First, the court must determine whether the alleged offending conduct has been
established on a preponderance of probabilities, which is a factual enquiry.
2. Second enquiry is whether the person concerned is 'in the discretion of the
court' not a fit and proper person to continue to practice.
The exercise involves the weighing-up of the conduct complained of against the
conduct expected of an attorney and, to this extent, is a value judgment.
3. Third enquiry is whether in all the circumstances the person in question is to be
removed from the roll of attorneys or whether an order suspending him or her from
practice for a specific period will suffice. (Jasat v Natal Law Society
2000 3 SA 44 (SCA); Malan v Law Society, Northern Provinces 2009 1 SA 216 (SCA),
para 10)

 Zondi AJA found the appellant guilty of unprofessional conduct which in the
circumstances of the case rendered him unfit to continue to practice as an attorney.
• This finding does not, however, necessarily mean that the appellant's name should be
struck from the roll of attorneys.
 • In other words, removal does not follow as a matter of course.
• The appellant may be suspended from practice for a given period if upon
consideration of all the facts the court finds that after a period of suspension the
appellant will be fit to practice as an attorney.(Para 20)
• The sanction is also a matter for the discretion of the court of the first instance.
 Whether a court will suspend or strike the attorney's name from the roll depends upon
such factors as the nature of the conduct complained of, the extent to which it reflects
upon the person's character or shows him or her to be unworthy to remain in the ranks
of the profession, the likelihood or otherwise of a repetition of such conduct and the
need to protect the public. (Para 21)
• It has been said that the law exacts from any attorney uberrima fides – the highest
possible degree of good faith – in his or her dealing with his or her clients which implies
that at all times his or her submissions and representations to his or her clients must be
accurate, honest and frank. (Para
22; Law Society, Transvaal v Matthews 1989 4 SA 389 (T) 396)
• The court upheld the decision of the court a quo to remove the applicant from the roll
of attorneys

CASE 2 The Law Society of Northern Provinces v Scholtemeyer

Case No: 44079/2012 (12 June 2013)
• The respondent was found guilty of unprofessional conduct. He did not account to
his client properly and did not keep proper records of his activities or transactions.
• He was removed from the roll of attorneys.
• Court exercise its discretion using three-stage inquiry:
a) The first inquiry is for the court to decide whether or not the alleged offending
conduct has been established on a preponderance of probabilities;
b) The second inquiry is whether, as stated in section 22(1)(d) of the Act, the
practitioner concerned "in the discretion of the Court" is not a fit and proper person
to continue to practice. This is a value judgment;
c) The third inquiry is whether in all the circumstances, the practitioner in question is
to be removed from the roll of attorneys or whether an order suspending him
from practice for a specified period will suffice. Ultimately this is a question of degree
and in the discretion of the court. (Para 6; Jasat v Natal Law Society 2000 3 SA 44 (SCA)
51B-C)

The legal profession:

• Private practitioners – attorneys, advocates, notaries, conveyancers and paralegals.
• Public practitioners – public prosecutors, state attorneys, state advocates and state
legal advisers.
• Presiding officers – judges and magistrates; commissioners; traditional leaders
 • Court officials and functionaries – Master of the High Court, the registrar of the High
Court, the clerk of the High Court, the
family advocate, the sheriff and the police.
• Protectors – public defender, Public Protector and the ombudsman
• Other bodies – South African Law Reform Commission and the South African Human
Rights Commission.
• Careers involving law: legal adviser, legal academics (academic jurists), public interest
organisations (Legal Aid Clinics/ Legal
Resources Centre)
• The career options differ in terms of the training required after attainment of a
recognised legal qualification, the manner in
which professionals have organized themselves into societies and associations, and
whether the career is based primarily in
the public or private sector

LEGAL PRACTICE ACT 2014

The Legal Practice Act 28 of 2014 aims:
1. 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;
2. to provide for the establishment, powers and functions of a single South African
Legal Practice Council and Provincial Councils in order to regulate the affairs of legal
practitioners and to set norms and standards;
3. to provide for the admission and enrolment of legal practitioners;
4. to regulate the professional conduct of legal practitioners so as to ensure
accountable conduct;
5. to provide for the establishment of an Office of a Legal Services Ombudsman for the
appointment, powers and functions of a Legal Services Ombudsman; to provide for
a Legal Practitioners’ Fidelity Fund and a Board of Control for the Fidelity Fund; and
6. to provide for the establishment, powers and functions of a National Forum on the
Legal Profession;
7. and to provide for matters connected therewith.
From https://www.gov.za/documents/legal-practice-act

Application of the Legal Practice Act

 This Act is applicable to all legal practitioners and all candidate legal practitioners.
 Most provisions came into operation 31 October & 1 November 2018
Definitions: (Sect 1 of the Act)
1. ‘‘Candidate attorney’’ means a person undergoing practical vocational training with
a view to being admitted and enrolled as an attorney;
 2. ‘‘Pupil’’ means a person undergoing practical vocational training with a view to
being admitted and enrolled as an advocate;
3. ‘‘Candidate legal practitioner’’ means a person undergoing practical vocational
training, either as a candidate attorney or as a pupil.
4. ‘‘Legal practitioner’’ means an advocate or attorney admitted and enrolled as such.
5. ‘‘Attorney’’ means a legal practitioner who is admitted and enrolled as such under
this Act;
6. ‘‘Advocate’’ means a legal practitioner who is admitted and enrolled as such under
this Act.
7. ‘‘Practical vocational training’’ means training required in terms of this Act to
qualify as a candidate attorney or pupil in order to be admitted and enrolled as an
attorney or advocate.

Purpose of Act (Section 3)

1. Provide a legislative framework for the transformation and restructuring of the
legal profession that embraces the values underpinning the Constitution and
ensures that the rule of law is upheld.
2. Broaden access to justice.
3. Create a single unified statutory body to regulate the affairs of all legal
practitioners.
4. Protect and promote the public interest.
5. Provide for the establishment of an Office of Legal Services Ombud.
6. Efficient and transparent procedure for the resolution of complaints.

South African Legal Practice Council

• Replaced LSSA (Law Society of South Africa)
• Realise goals of Act, reasonable fees & access, regulate all LPs, enhance and
maintain integrity of profession, high standards of training etc.
• Establishment of provincial councils
• Exercises jurisdiction over all legal practitioners and candidate legal
practitioners as contemplated in this Act.
• Objects of the Council, section 5 of the Act.
• Powers of the Council, section 6 of the Act

Composition of Council (Section 7)

• 16 legal practitioners
• 10 practising attorneys and six practicing advocates.
 • Two teachers of law, one being a dean of a faculty of la at a university in the
Republic and the other being a teacher of law.
• Three fit and proper persons designated by the Minister, who, in the opinion of
the Minister and by virtue of their knowledge and experience, are able to assist
the
Council in achieving its objects.
• One person designated by Legal Aid South Africa.
• One person designated by the Board, who need not necessarily be a legal
practitioner.

Admission and Enrolment into the legal profession

• Section 24 of the Act.
• Minimum qualifications and practical vocational training, section 26 of the Act.
• Practical vocational training, section 27 of the Act.
• Community service, section 29 of the Act.
• Forms of legal practice, section 34 of the Act.

Admission: Section 24
• May only practice as legal practitioner if enrolled the Act.
• Apply to the High Court to be admitted
• Show that you are qualified
• SA citizen or permanent resident
• Fit and proper person
• Copy of application is served on the Council

Right of appearance of Legal Practitioners and candidate Legal Practitioners

• If admitted- can practice throughout Republic (unless struck off
roll/suspended)
• LP has right to appear in any court in RSA, board, tribunal or similar
• BUT if attorney – need to apply to right of appearance in HC, SCA & CC
(requirements – practicing for 3 yrs, LLB, not struck off roll/suspended,
appropriate experience as prescribed)
• Candidate attorney in lower courts, board, tribunal on behalf of supervisor
(CA can appear in regional Mag Court only after 1 year training)

Minimum qualifications: Section 26

• LLB degree
 • Practical vocational training
• Community service
• Legal practice course
• Passed admission exams
(additional exams for notary/conveyancer)
Authority to render legal service: Section 33
• Only person admitted as a legal practitioner may hold himself or herself as
such.
• Appear in court, charge fees etc.
Forms of legal practice: Section 34

ATTORNEY ADVOCATE
can render legal 1.can render legal
services for fee upon services for a fee:
request directly from
2.upon receipt of a brief
the public for that
from attorney;
service or
2. request directly from
public/justice centre
ONLY IF in possession of
FFC and notified council

Practice for own 3.Can’t divide fee

account or part of (partnership/commission
commercial juristic etc) – only own account)
entity (partnership,
commission allowed)

Only practice for 4.For own account

own account
As part of 5.Law Clinic
partnership or
company comprised
entirely out of
attorneys

Legal Aid 6.Legal Aid

Part of Law Clinic

Employment of the 7.Employment of the

 state state
SA Human Rights 8.SA Human Rights
Commission Commission

Code of Conduct for Legal Practitioners PART II - Code of Conduct: general provisions
Item 2. The provisions of Part II of the code shall apply to, and be observed by, all legal
practitioners, candidate legal practitioners and juristic entities including, where the context
requires, legal practitioners who are not in private practice.
Item 3. Legal practitioners, candidate legal practitioners and juristic entities shall -
3.1 maintain the highest standards of honesty and integrity;
3.2 uphold the Constitution of the Republic and the principles and values
enshrined therein, and without limiting the generality of these principles and
values, shall not, in the course of his or her or its practice or business activities,
discriminate against any person on any grounds prohibited in the Constitution;
3.3 treat the interests of their clients as paramount, provided that their conduct
shall be subject always to:
3.3.1 their duty to the court;
3.3.2 the interests of justice;
3.3.3 the observation of the law; and
3.3.4 the maintenance of the ethical standards prescribed by this code, any
other code of ethics applicable to them and any ethical standards generally
recognised by the profession;
3.4 honour any undertaking given by them in the course of their business or
practice, unless prohibited by law;
3.5 refrain from doing anything in a manner prohibited by law or by the code of
conduct of the profession which places or could place them in a position in
which a client's interests conflict with their own or those of other clients;
3.6 maintain legal practitioner/client privilege and confidentiality regarding the
affairs of present or former clients or employers, according to law;
3.7 respect the freedom of clients to be represented by a legal practitioner of
their choice;account faithfully, accurately and timeously for any of their clients'
money which comes into their possession, keep such money separate fromtheir
own money, and retain such money for so long only as is strictly necessary;
3.9 retain the independence necessary to enable them to give their clients or
employers unbiased advice;
3.10 advise their clients at the earliest possible opportunity on the likely success
of such clients' cases and not generate unnecessary work, norinvolve their
clients in unnecessary expense;
 3.11 use their best efforts to carry out work in a competent and timely manner
and not take on work which they do not reasonably believe theywill be able to
carry out in that manner;
3.12 be entitled to a reasonable fee for their work, provided that no member
shall fail or refuse to carry out, or continue, a mandate on the groundof non-
payment of fees and disbursements (or the provision of advance cover therefor)
if demand for such payment or provision is made atan unreasonable time or in
an unreasonable manner;
3.13 remain reasonably abreast of developments in the law and legal practice in
the fields in which they practise;
3.14 behave towards their colleagues, whether in private practice or otherwise,
including any legal practitioner from a foreign jurisdiction, andtowards members
of the public, with integrity, fairness and respect and without unfair
discrimination, and shall avoid any behaviour which is
insulting or demeaning;
3.15 refrain from doing anything which could or might bring the legal profession
into disrepute;
3.16 unless exempted therefrom, pay promptly to the Council or any organ of
the Council, or to the Fund, all amounts which are legally due orpayable in
respect of fees, charges, levies, subscriptions, penalties, fines or any other
amounts of whatsoever nature levied on legal
practitioners, candidate legal practitioners or juristic entities in terms of any
powers arising under the Act or the rules;
3.17 comply with the provisions of this code and any other code applicable to
them and with those of the rules with which it is their duty to comply.

The LPA makes provision for a new legal role-player in the form of the Legal Services Ombud.
 The President must appoint a retired judge to be the Legal Services Ombud. The Ombud
is charged with protecting and promoting the public interest in the rendering of legal
services under the LPA;
 ensuring the fair, efficient and effective investigation of complaints of alleged
misconduct against legal practitioners;
 promoting high standards of integrity in the legal profession;
 and promoting the independence of the legal profession.

1. ATTORNEY
attorney is a legal practitioner, admitted and enrolled in terms of sections 24 and 30 of
the LPA and indicating in their application for enrolment that they intend to practise as
an attorney
  a candidate attorney enters into a 24-month practical vocational contract with an
experienced practitioner (also commonly known as ‘articles of clerkship’).
 All articles of clerkship must be registered with the Legal Practice Council.
 The contract provides for the law graduate to be trained in legal practice, with a view to
preparing the candidate attorney to write the attorneys’ ‘competency exam’ at the end
of the period of vocational training.
 Articles may be reduced to 12 months if the candidate undertakes ‘a programme of
structured course work, comprising compulsory modules, of not less than 400 notional
hours’ (usually delivered at a LEAD school for Practical Legal Training (PLT)).
 The competency exam, namely the Attorneys’ Admission Examination, used to be set
and administered by the Law Society of South Africa and comprised four papers (on
court procedure and motor vehicle accident fund claims, administration of estates,
general attorneys’ practice, and attorneys’ bookkeeping respectively).
 section 25 of the LPA places a restriction on that and provides that an attorney must
have an LLB and three years of professional practice and must apply to a High Court for
the right of appearance in the High Court
 Section 29 of the LPA provides that community service may include community service
As a component of practical vocational training, as well as a minimum Period of
recurring service on which one’s continued enrolment as a Legal practitioner could
depend.
 There are three ways in which an attorney can practise:
(i) as a sole practitioner;
A sole practitioner, for example, is solely liable for the obligations and debts of running the
practice
(ii) in partnership with other attorneys in a law firm; and
In a partnership, all partners are jointly and severally liable for the obligations and debts of the
practice.
(iii) by establishing their practice as a professional company (personal liability
company), designated by ‘Inc.’ after its name.

 By law, all practising attorneys must operate two separate bank accounts, one for the
monies of the practice and one into which clients’ funds are deposited and maintained.
 The latter account is called a trust account. The LPA has an entire chapter devoted to the
handling of trust monies
 The key obligation of the legal practitioner is that if they receive or hold money or
property belonging to another person in the course of their practice, they must obtain a
Fidelity Fund certificate from the Legal Practice Council.
  Should a legal practitioner’s misconduct result in a financial loss to a client, such as
through the misappropriation of trust account monies, the Legal Practitioners’ Fidelity
Fund will compensate the client for such losses.
DEFINATION OF A NOTARY
 A notary is a legal practitioner practising as an attorney who has passed the notarial
practice exams and may thus be enrolled as a notary, to perform notarial work in
addition to the work of an attorney.
 they have a particularly important role to play as regards trust in society, centred on the
authentication of documents. Deeds executed by notaries may include certain
servitudes, notarial bonds, and antenuptial and postnuptial contracts.
 . A notaries’ protocol is an official register of all deeds dealt with by the notary. It
contains original copies of these deeds in numerical and date order, and serves as a
public record of these legal documents, which must be kept safe and secure.
DEFINATION OF A CONVEYANCER
 A conveyancer is a legal practitioner practising as an attorney who has passed the
conveyancing exams and is therefore entitled to be enrolled as a conveyancer and to
perform this work.
 A conveyancer’s work centres on facilitating transfers of immovable property and the
registration of such changes of ownership with the Registrar of Deeds.
 In terms of the Deeds Registries Act, a conveyancer’s work includes the preparation and
drafting of certain documents, most notably mortgage bonds, related powers of
attorney, deeds of transfer and certificates of title, among others
 Conveyancers may have to deal with municipalities, the South African Revenue Service,
banks and estate agents as part of their work. They may also deal with the Deeds Office,
 for example, to conduct searches relating to land title and for lodging various documents
for scrutiny and other purposes with the Deeds Registry.
2. (b) Advocates
 An advocate is a legal practitioner, admitted and enrolled in terms of sections 24 and
30 of the Legal Practice Act and indicating in their section 30 application for
enrolment that they intend to practise as an advocate.
 Practitioners practising as advocates are often skilled litigators who argue matters
before presiding officers, usually judges in the High Courts.
 Due to the content of their practical vocational training, advocates may appear in
High Court upon enrolment and do not require three years of practice to do so.
 They often associate with other advocates in groups of offices called advocates’
chambers, but do not practise in partnerships.
 Almost all the work of most advocates is provided to them in the form of briefs,
which come from attorneys.
  Briefs are instructions from attorneys to act for a client in a particular matter.
 Most advocates are instructed by attorneys and are paid by them Attorneys and are
paid by them.
 A candidate legal practitioner intending to practise as an advocate is called a pupil.
 Pupillage consists of a period of practical vocational training which is usually unpaid
but includes mentoring provided by an experienced advocate designated for this
purpose for one year. On completion of pupillage, the pupil writes a competency
exam.
 practitioner practising as an advocate who has gained sufficient experience and
recognition may be appointed by the President of the Republic as senior counsel or
‘silk’.
 This honour is also known as ‘taking silk’, referring to the silk robe which is worn by
senior counsel (SC).
PUBLIC PRACTITIONERS
State legal advisers in the Office of the Chief State Law Advisor (OCSLA) provide legal advice to
and conduct research for government departments.
 They also draft legislation and take up advisory roles, for instance, in the diplomatic
service.
 Parallel to the advocates among private legal practitioners, state legal advisors also
examine all Constitutional Court judgments and make recommendations to the
executive.
Paralegals
 The Greek prefix ‘para’ roughly translated means ‘beside’. Thus, a paralegal is a person
who works beside attorneys and in other legal environments, for example, as a person
not professionally qualified but working in the legal departments of commercial
enterprises or banks.
 Paralegals assist legal practitioners with tasks ancillary to legal matters such as legal
research, debt collection and the managing of a professional practice.
 A paralegal, by definition, is not admitted as a legal practitioner.
 Paralegals receive training from a variety of organisations and at different levels,
including under the auspices of the National Paralegal Institute of South Africa.
 Training may consist of, for example, a National Diploma in Law (Paralegal Studies) or a
similar qualification.
 This is usually a two-year programme that prepares a candidate to provide support
functions in, among others, law firms, legal advice bureaus and the Department of
Justice and Constitutional Development.
  The South African Qualifications Authority (SAQA)- accredited National Certificate:
Paralegal Practice Learnership (NQF5) is a short course that is also offered by some
institutions in South Africa.
 The LPA does not regulate the paralegal profession. However, the Legal Practice Council
is tasked to make recommendations to the Minister of Justice on the statutory
recognition of paralegals, within two years of the commencement date of the LPA.
Judges, magistrates and other presiding officers
Judicial Service Commission (JSC) Members of the JSC include the
Minister of Justice, the Chief Justice of South Africa, the President of the Supreme Court of
Appeal (SCA), two practising advocates, two practising attorneys, six members of the National
Assembly, including three from opposition parties, four members of the National Council of
Provinces (NCOP), and one law teacher or academic.
Judges of the High Court and the SCA are appointed by the President in consultation with the
President of the Constitutional Court And National Assembly party leaders, based on a list of
candidates Created and submitted by the JSC.
Magistrates
 The Constitution is careful to place magistrates within the judiciary. Magistrates are
independent judicial officers who perform similar functions to judges, but in the lower
courts, namely, the district and regional magistrates’ courts.
 They are regulated primarily by the Magistrates’ Courts Act 32 of 1944, but also gain
additional powers from other Acts such as the Criminal Procedure Act 51 of 1977.
 Persons qualified to be appointed magistrates will have an LLB or will have passed the
Public Services Senior Law Examination. Complaints of misconduct against magistrates
are dealt with by the Magistrates’ Commission.
Other presiding officers: Small Claims Court commissioners
 Under the Small Claims Courts Act, qualified persons, usually experienced professionals
such as advocates or attorneys, act as judicial officers in matters falling under the
jurisdiction of the Small Claims Court.
 Such practitioners employ both their substantive legal knowledge, but also an
equitable, problem-solving approach, when making judgments in such matters.
 Parties in the Small Claims Court are not usually represented by legal professionals.
Traditional leaders
 Section 211 of the Constitution makes provision for traditional leaders to take part in
the administration of their local communities and the administration of justice.
Academic research tends to view traditional justice structures less as courts and more
as vernacular dispute resolution structures
 C O U R T OFFICAILS

The Master of the High Court

 A Master of the High Court is appointed by the Minister of Justice under the
Administration of Estates Act for each High Court.
 The general role of this officer is to exercise control over the administration of deceased
estates and related matters.
 The Master maintains registers of documents relating to deceased and other estates,
including wills.
Court administrative officials: Registrar of the High Court and clerks of the court
 A Registrar is appointed for every High Court. This official sees to the administration of
the court and processes and stores important documentation relating to High Court
matters, such as pleadings.
 The Registrar’s office sees to the issuing of summonses, the receipt of fines, the
management and processing of court files, and the compilation of the court roll, among
other functions.
FAMILY ADVOCATE
 Family advocates are public servants appointed by the Minister of Justice for each High
Court as envisaged by the Mediation in Certain Divorce Matters Act
 The key focus of this office is to secure the welfare of minors or dependent children in
divorce and matrimonial matters, for example, in issues related to custody and
guardianship.
 Family Advocates play a crucial role in actualising the constitutionally Mandated
principle of the ‘best interests of the child’ in matters that Come before the courts.
THE POLICE
Their service is grounded in section 205 of the Constitution and detailed in the South African
Police Service Act.
LEGAL INTERPRETERS
Interpreters often play a Crucial role in the actual functioning of court proceedings. Interpreters
Attempt to convey the meaning of the speaker (e.g. the judge, the legal Practitioner, or the
witness) to the listener
Other legal officials and functionaries
The Registrar of Deeds
 The Chief Registrar of Deeds is seated in Tshwane (Pretoria), with several Registrar of
Deeds Offices located in major regional and jurisdictional centres.
 In terms of the Deeds Registries Act, this office has several functions, including to keep,
in secure form, records of title to land and immovable property, to amend these if
properly instructed as a result of cession or other transfer of rights, and to provide the
public with access to these records.
Commissioner of oaths
 A commissioner of oaths is the holder of a public office in terms of the Justices of the
Peace and Commissioner of Oaths Act.
 This office is not remunerated and is often held ex officio, for example, by attorneys.
 A commissioner of oaths may also be appointed directly as a result of application to the
Minister.
 Many persons who do not have an LLB serve as commissioners of oaths.
 A commissioner of oaths performs several functions, which include administering the
prescribed oath to parties wishing to make an affidavit and certifying it,
 The word ‘affidavit’ comes from the Latin phrase meaning ‘he has stated an oath’.
 An affidavit is a sworn statement made under oath before an official designated to
certify something.
Marriage officer
 A marriage officer is a person designated as such under the Marriage Act and under the
Civil Union Act.
 A marriage officer may legally solemnise marriages under the laws of South Africa.
 This function is independent of the ceremony that usually accompanies such events.
 In other words, a religious functionary like a priest or rabbi may have religious authority
to conduct a wedding ceremony, but must generally also be recognised under civil
authority as a marriage officer to conclude a legally recognised and valid marriage or
union between two parties.
 A person may be deemed to be a marriage officer by the Minister, even if they have de
facto not been appointed as such an officer at the time of solemnising a marriage.

Exercise – The legal practioners duty to the client, court and society.
1) What must legal practitioners always maintain?
2) How does the Constitution influence what is expected of a legal practitioner? Do you agree
with this? Can you think of other ways notlisted in the Code that the Constitution may influence
what is expected of legal practitioners?
3) The Code states that legal practitioners should always treat their client’s interest as
paramount; however, this is tempered to a certain degree. Discuss.
4) In the Code, the relationship between a legal practitioner and his client is set out. List the
duties of the legal practitioner towards his client.
5) What are the skills needed from a legal practitioner that you can identify from the Code?
Make a list of the skills you identified.
6) The Code states that a legal representative may not do anything that may bring the legal
profession into disrepute. Do you agree with this statement? Make a list of things you think that
a legal representative might do that would bring the legal profession into disrepute.

Advocates - admission

• Advocates must be admitted to practice by a division of the High Court.

The Admission of Advocates Act 74 of 1964 indicates that in order to be enrolled as an
advocate, a candidate must satisfy the court that he/she is:
• Over the age of 21;
• a ‘fit and proper’ person;
• duly qualified (minimum academic qualifications being the
LLB degree);
• A South African citizen or a permanent resident; and
• NOT enrolled as an attorney on the attorney’s roll.
• After taking the prescribed oath and being admitted by the
court, the advocate’s name is entered on the roll of advocates
(register) maintained by the Department of Justice.Q

Attorneys - admission

• Attorney Act - any person intending to become an attorney must, apart from obtaining an LLB
degree:
1. Serve a 2 year period articles of clerkship under the supervision of a qualified attorney
OR
2. Serve articles of clerkship for a period of 1 year and in addition attend a practical training
course for an uninterrupted period of at least 4 months.
3. Perform community service approved by the Law Society for an uninterrupted period of
at least 1 year. Community service entails full-time service related to the application of
law at a certified law clinic or for the Legal Aid Board.
4. After this practical training, candidate attorneys must pass a practical exam administered
by the Law Society. If the prospective attorney complies with all the theoretical, practical
and personal requirements
5. being 21 years of age
6. a ‘fit and proper person’ etc
7. The High Court must admit the attorney into practice by having his/her name entered on
the attorney’s roll.