Legal Practice Council totally inappropriate with prescriptive measures
The Solidarity Occupational Guild for Legal Practitioners expressed its concerns regarding proposals made by the Legal Practice Council with regard to amendments to the Legal Practitioners Act.
Recently it was reported that the Legal Practice Council was determined to prohibit law firms from setting the requirement that prospective candidate attorneys should have their own vehicle and driver’s licence, and the Council indicated that such a requirement would be “anti-transformative”. In addition, it was also reported that an investigation indicated that dozens of advertisements require proficiency in Afrikaans in addition to English, and some advertisements only required that a candidate should speak Afrikaans.
According to the draft notice, the Council is of the opinion that this practice is anti-transformative and detrimental to persons from disadvantaged backgrounds. The proposed amendment goes further to stipulate that a principal will be prohibited from offering an employment contract that contains any “unreasonable” or “unusual” provisions. However, this creates uncertainty because no criterium is set as to what is considered to be “unreasonable” or “unusual”, or regarding who would determine what is “unreasonable” or “unusual”.
“This would mean that an attorney would be guilty of misconduct if his job advertisement required a suitable candidate legal practitioner to have a valid driver’s licence, and that he or she should own or have access to a motor vehicle,” said Henru Krüger, Sector Head of the Occupational Guild for Legal Practitioners at Solidarity. Furthermore, there has haver been a provision in law regarding what is considered to be “unusual”.
The Guild for Legal Practitioners believes that a definite distinction should be made between the practical, inherent requirements for a position that are non-discriminatory and in line with existing labour legislation, and requirements that are discriminatory and have been described as such in the Constitution.
“It must be mentioned that many attorneys need candidate attorneys to be able to travel to perform important tasks, such as serving certain types of notices, and in many cases the candidate attorney must be able to travel alone. It may also be essential to know if a candidate attorney has a valid driver’s licence in cases of possible vicarious responsibility with regard to a driving incident, a collision or an accident,” Krüger added.
The language requirement is merely a practical, non-discriminatory element determined by the client base to be served, and it has already been recognised as such by the Legal Aid Council and pointed out in leading research. In 2019, the Legal Practice Council tried to abolish Afrikaans unilaterally without a proper consultation process, but this was stopped in court by the “Vereniging vir Regslui vir Afrikaans” (a society for Afrikaans legal practitioners).
This amendment will have the following implications for the legal profession:
Under these circumstances, fewer law firms will appoint candidates, and those that do will appoint fewer than they would have done in other circumstances.
It will raise costs and cause uncertainty for those in the legal profession. It will also keep young people from entering the profession at a time when we are experiencing unprecedented unemployment among the youth in our country.
It is a damning preview of what the Legal Practice Council signifies to the legal profession if it increasingly interferes in the daily running of the profession instead of regulating the profession, and the Council is used to impose political and ideological agendas on the legal profession.
The point about language also has implications for freedom of association in addition to the practical challenges it poses.
“It is crucial that this profession and its various rights should be protected, and not subjected to prescriptions from a Council that promotes ideology and does not consider the real implications,” Krüger concluded.
Statement issued by Henru Krüger, Sector Head of the Occupational Guilds: Professional Sector, Solidarity, 17 July 2020