The legal profession in South Africa and Germany with a special focus on the reform of South African Legal Practice Act
In South Africa, a distinction must be made between the legal professions. There are “attorneys” and “advocates”.
Attorneys often deal with the out-of-court legal matters of a client. However, they can also represent a client before the Magistrate's Court, and under certain circumstances also before the High Court. This is set out in the Right of Appearance in Courts Act 62 of 1995, 3 (where the High Court is still referred to as the Supreme Court). An Attorney who wishes to appear before the High Court must apply for that to do so. This is subject to the following requirements: Firstly, proof of a relevant degree and work as an attorney for at least three years. In addition, the attorney must not have been suspended during this time.
Attorneys take on the role of a general practitioner and are the first point of contact for a client's legal problems. Therefore, they often offer a wide range of legal areas and legal services.
An advocate represents clients in court. Contact between a client an advocate is made via an attorney, i.e. an attorney refers a client to an advocate. In contrast to an Attorney, an Advocate is authorized to represent a client before all courts in South Africa. Furthermore, Advocates work alone and are not permitted to enter into partnerships with other Advocates. This ensures the independence of Advocates so that no conflicts of interest arise. An Advocate is often a specialized practitioner and therefore offers a less broad field of law. It is not possible to be an attorney and an advocate at the same time.
South African law has undergone a reform with regard to the organization of the legal profession. This reform is regulated in the Legal Practice Act No. 28 of 2014, that has been in force since 1 November 2018 and will be examined in more detail below.
Advocates and attorneys can join together in (now voluntary) associations. These originally had the function of regulating the respective legal profession in South Africa. For example, they could issue regulations on the admission of advocates or attorneys. Since the Legal Practice Act No. 28 of 2014, this task has been transferred to the Legal Practice Council. This consists of various legal practitioners and scholars and in turn has various sub-councils, the Provincial Councils.
The aim of the Legal Practice Act is to make legal services accessible to the general population. For most South Africans, using the services of a lawyer is not a reality, as the Act states. This is to be achieved, for example, by providing financial support to non-profit organizations that provide poor sections of the population with access to legal services. The Act also contains useful approaches for achieving its objective beyond this. In practice, the concept has proven to be helpful, but not a non-plus-ultra solution. This is partly due to the fact that the previously independent attorneys and advocates are now subject to a state-controlled supervisory body.
The problem lies in particular in the fact that the law gives the Minister of Justice extensive powers over the Legal Practice Council. For example, the Minister of Justice stipulates the procedure by which the members of the Council are elected. The Act also provides for the possibility of dissolving the Council if the Minister loses confidence in the Council. However, various conditions are attached to this and various procedural steps must be taken. As a result, this can give the Minister of Justice, in his function as an executive body, considerable control over the Legal Practice Council as a judicial body.
The division into advocate and attorney is unknown to German law. Both activities are combined in one person, the lawyer. The lawyer is an independent organ of the administration of justice and exercises a liberal profession, §§ 1, 2 BRAO.
Professional legal training in Germany is a general training, so that a lawyer is qualified to advise clients in all areas of law after passing both state legal examinations. However, it is common for lawyers to complete additional training to become a specialist lawyer and to work in these specialized areas of law in their professional practice. This ensures the quality of their advice.
A lawyer who is a member of his bar association is authorized to represent clients before any court and in any instance. Only the highest federal courts are subject to the exception that only selected lawyers are admitted.
For administrative and local courts, there is no obligation to have a lawyer, but there is for all other courts.
by Berfin Öztürk