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Attorneys

All
God save your majesty!
Cade
I thank you, good people – there shall be no money; all shall eat and drink on my score, and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord.
Dick
The first thing we do, let’s kill all the lawyers.
Cade
Nay, that I mean to do.

So wrote William Shakespeare in his stage play Henry VIth, Act 4 Scene 2. Jack Cade was the traitor who espoused a kind of communistic social revolution. Dick, the one who uttered the famous phrase, was a butcher who offered nothing else in the play, and indeed is a character soon forgotten. Of course, Dick’s idea sounds great – that is, until you need a lawyer.

The Attorneys Act 19791 regulates the profession of attorneys,2 notaries3 and conveyancers.4 It falls under the authority of the Minister of Justice and Correctional Services, but for all intents and purposes, the policies and purposes of the Act are implemented by Law Societies in each province.

A. Admission to practice, and practice

  1. ‘Practitioners’, for the purposes of the Act, are attorneys, notaries and conveyancers. To be able to practice as one, the High Court must give you permission to do so – this is called being ‘admitted to practice’. It is an offence to practice as such a practitioner unless you are admitted.5

  2. One of the criteria to be admitted to practice is that you have served a certain period of ‘articles’ – like an apprenticeship. In some cases – say, if you were admitted to practice in another country – this requirement of articles can be excused. However, then, you may not practice as an attorney for your own account (in other words, you must be an employee in a firm of attorneys, not a partner) for a period of three years from the date of your admission to practice in South Africa. It is a crime to contravene this provision.6

  3. It is an offence to use any name, title or description implying or creating the impression that you are admitted to practice if this is not the case.7

  4. It is an offence for any person (practitioner or not) to canvass, advertise or tout for work in connection with the drawing up of a will.8

  5. It is an offence for any person to canvass, advertise or tout for work in connection with the administration, liquidation or distribution of:9
    • a deceased estate; or an
    • insolvent estate, or
    • the estate of a mentally ill person, or one under legal disability.
  6. It is also an offence for any person to canvass, advertise or tout for work in connection with the judicial management or liquidation of a company.10 11

  7. It is a criminal offence to represent another person in legal proceedings unless you are an attorney admitted to practice, or an advocate.12

  8. It is an offence to continue to practice if you have been struck off the roll of practitioners, or have been suspended from practice.13

  9. It is an offence to employ someone who has been struck off the roll, or suspended from practice, except with the permission of the Law Society concerned.14

  10. It is a criminal offence for a practitioner to divide, make over or share, in any way, his professional fees with any person other than another practitioner (or a legal practitioner outside of the Republic).15

B. Certain documents prepared by practitioners only

  1. It is a criminal offence for anyone, who is not a practitioner, to draw up or prepare the following documents for reward:
    • any document relating to immovable property;1617
    • any will;18
    • any memorandum, articles of association, or prospectus of any company;19
    • any document relating to a partnership;20
    • any documents for use in civil litigation.21

C. Fidelity Fund

This is a fund established to protect the public in the event of (certain kinds of loss) suffered as a result of the conduct of legal practitioners.

  1. It is an offence to practice as a practitioner without being in possession of a proper Fidelity Fund certificate.22

  2. One form of loss that the Fund does not cover is where a practitioner has stolen money he has been instructed by a client to invest. Where a practitioner receives such an instruction, he commits an offence if he does not notify23 the person in question (and before he receives the money) that the Fund will not cover the client in the event of such theft.24

D. Trust accounts

  1. All practising practitioners must maintain a separate trust account, and all monies received on behalf of another person must be deposited into that trust account.25 It is an offence to contravene this provision.26

  2. A further trust account may be kept for trust moneys not immediately required for any particular purpose.27 It is an offence if this account does not bear a reference to section 78(2)(a) of the Attorneys Act.28
  3. The same applies to a separate trust account opened for the purposes of investment – it must bear a reference to section 78(2A) of the Attorneys Act.29 It is an offence to fail to comply with this provision.30

  4. The interest on moneys deposited in any trust account, other than a section 78(2A) account, must be paid across to the Fidelity Fund,31 and it is a criminal offence not to do so.32

  5. Any practising practitioner shall keep proper accounting records of the trust account(s), in respect of all money received, held, or paid by him, or invested by him, and all interest accrued.33 He commits a criminal offence if he fails to observe these provisions.34

E. Council inquiries

The Council of each provincial Law Society has the power to inquire into allegations of unprofessional, dishonourable, or unworthy conduct by any attorney, notary or conveyancer.35 The Council has a wide variety of powers relative to such an inquiry.36

  1. Any person who has been summoned to such an inquiry who:
    • fails (without sufficient cause) to attend at the time and place specified in the summons;37
    • fails (without sufficient cause) to remain in attendance until excused from further attendance by the person presiding at the enquiry;38
    • refuses to take the oath (or make an affirmation) when required to do so;39
    • fails to produce any book, document, record or thing which he has been required to produce;40 or
    • fails to answer fully and satisfactorily to the best of his knowledge and belief any question lawfully put to him,41

    is guilty of an offence.

  2. Of course, it is an offence to give false evidence after having been sworn or after having made an affirmation.42
  1. As amended; the latest amendment was effected by Act 40 of 2014. 

  2. An attorney is who you go and see when you need to sue someone, have been sued, are about to get divorced, form a company, etc. Generally speaking, your ‘lawyer’ is an attorney. 

  3. A notary is an attorney with an extra qualification in the preparation of certain legal documents and the performance of specific legal formalities. 

  4. A conveyancer is an attorney with an extra qualification, namely to do with the transfer of immovable property. He’s the one you go to see for the documents and advice when you are buying or selling a house, or registering a mortgage bond. 

  5. Section 83(1). 

  6. Section 13A read with section 83(7). 

  7. Section 83(1). 

  8. Section 83(2) read with section 83(7). 

  9. Section 83(2) read with section 83(7). 

  10. The provisions in A.4, A.5 and A.6 do not apply in certain stipulated respects. See section 83(11) for the exemptions. 

  11. Section 83(2) read with section 83(7). 

  12. Section 83(3) read with section 83(7). 

  13. Section 83(4) read with section 83(7). 

  14. Section 83(5) read with section 83(7). 

  15. Section 83(6) read with section 83(7). 

  16. Section 83(8)(a)(i). 

  17. Not including contracts of lease for periods not more than three years; conditions of sale; and broker’s notes. 

  18. Section 83(8)(a)(ii). 

  19. Section 83(8)(a)(iii). 

  20. Section 83(8)(a)(iv). 

  21. Section 83(8)(a)(v). 

  22. Section 83(10). 

  23. There is a prescribed form to be used for this notification. 

  24. Section 47(7) read with sections 47(4), 47(1)(g) and section 47(10). 

  25. Section 78(1). 

  26. Section 83(9). 

  27. Section 78(2)(a). 

  28. Section 78(2)(b) read with section 83(9). 

  29. Section 78(2A). 

  30. Section 83(9). 

  31. Section 78(3). 

  32. Section 83(9). 

  33. Section 78(4). 

  34. Section 83(9). 

  35. Section 71(1). 

  36. Section 71(2) to (4). 

  37. Section 83(15)(a)(i). 

  38. Section 83(15)(a)(i). 

  39. Section 83(15)(a)(ii). 

  40. Section 83(15)(a)(iii). 

  41. Section 83(15)(a)(iv). 

  42. Section 83(15)(b).