After almost ten years of debate, the Minister of Justice
revealed the Department of Justice's plans to allow for
advocates to approach the public directly. This plan however has
over the last year been met with staunch criticism from various
members of the legal sector at large as it essentially seeks to
repeal the existing legislation governing attorneys and advocates
– namely, the Attorneys Act1 and the Admission of
Advocates Act2. According to the report of Advocate
Ishmael Semenya3, he stated that "this would be
the single most anti-transformative measure ever to happen in the
legal profession and would essentially de fact and de jure (in fact
and in law) obliterate the advocate
The Legal Practice Bill
Currently, members of the public do not deal directly with
advocates who argue cases on their behalf. A member wishing to have
their matter argued must approach an attorney who will then (should
the need arise) approach an advocate to argue a matter before
court. This is sometimes known as the "referral system".
However according to clause 34(2)(b) of the Legal Practice Bill,
B20 of 20125 ("the Bill"),
advocates will now be afforded the opportunity to accept briefs
(instructions) directly from the public
provided they meet certain requirements6. In other
words, attorneys of record will no longer play the middle man
between members of the public and advocates requested to argue on
their behalf. Members of the public will no longer be required to
use the services of an attorney prior to engaging an advocate and
will have the choice of approaching either legal
The pros and cons of the Legal Practice Bill
Should Parliament pass the Bill, legal practice in South Africa
will change dramatically. For members of the General Council of the
Bar, the fear is that should the Bill be assented to law there will
be no distinction between advocates and attorneys. For John
Jeffrey8, his argument was that many countries had
eradicated the notion that advocates are not allowed to deal
directly with the public.9 Others have argued that the
referral system remains quite costly for members of the public as
they are essentially almost double charged to access legal recourse
by paying for two "lawyers" to service one matter. JB
Skhosana10 stated that in making use of both an attorney
and an advocate, "there usually remains no agreement with
the advocate as they are contracted by the attorney who is paid in
absentia." According to Nic Swart11, the
passing of this bill would mean that "advocates would be
directly responsible for any financial and administrative
implications, in addition to the management of the matter
previously attended to by attorneys as the middle
Although the Department of Justice under the auspices of the
Government seems quite adamant that the Bill will be promulgated,
we are yet to see what the final verdict will be regarding this
contentious clause in the Bill and whether Parliament will
ultimately allow for it. For now, the role of an attorney and an
advocate remains distinguishable and their practice separate.
1.53 of 1976.
2.74 of 1964.
3.Chairperson of the General Council of the Bar.
4."Advocates profession will be
'obliterated' – Semenya"
Legalbrief Today Issue 3316 published on 15 July 2013.
5.Published in Government Gazette No. 35357 on 15 May 2012,
this Bill is yet to be promulgated to law; however, is likely
to be completed within the next year (and according to John
Jeffrey, before the 2014 national elections).
6.Advocates wishing to accept briefs directly from the
public will be required to have fidelity fund certificates
which include insurance to cater for any professional negligence
which may ensue.
7.Section 34(2)(b) specifically provides that:
"An advocate may render legal services in
expectation of a fee, commission, gain or reward determined
in accordance with this Act or any other applicable law – (a)
upon receipt of a brief from an attorney; or (b)upon receipt of a request directly from a member
of the public for that service,
provided that such request complies with any regulation that the
Minister may make after consultation with the
Council". (My emphasis) For the purposes of
this footnote, "Council" refers to the South
African Legal Practice Council.
8.Deputy Justice Minister.
9.Jeffrey made this comment at the Public Interest Law
Gathering at WITS University on Friday, 12 July 2013.
10.Deputy Chief Law Advisor to the State.
11.Chief Executive of the Law Society of South
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Generally, Garnishee proceedings is done in two different stages. The first stage is for the garnishee order nisi, while the second stage is for the garnishee order absolute.
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