THE ALS PRACTICE MANUAL

(THE LAW SOCIETY OF THE NORTHERN PROVINCES)

Rules: Transvaal

THE LAW SOCIETY OF THE TRANSVAAL

(THE LAW SOCIETY OF THE NORTHERN PROVINCES)

__________________________

RULES

made under the authority of section 74 of the Attorneys Act 53 of 1979, and promulgated in Government Gazette No. 7164 of 1 August 1980 as amended by Government Gazette No. 16511 of 7 July 1995, by Government Gazette No. 17190 of 17 May 1996, by Government Gazette No. 17617 of 22 November 1996 by Government Gazette No. 17932 of 18 April 1997, by Government Gazette No. 18152 of 12 July 1997, by Government Gazette 18313 of 3 October 1997, by Government Gazette 19446 of 13 November 1998, by Government Gazette 21175 of 19 May 2000 and by Government Gazette 22160 of 23 March 2001.

Arrangement of rules Rule Nos.

PART I

1. DEFINITIONS

In these Rules, unless the context otherwise indicates-

1.1 “Accountant” means a person who is registered as an accountant and auditor in terms of the public Accountants and auditors Act, 1951, and who practises as a public accountant as defined in that Act;

1.2 “Accounting records” means the records which a firm is required to keep in terms of rule 68.1;

1.3 “Branch office”, in relation to a practising member, means an office at or from which the firm of which he or she is the proprietor or a member or by which he or she is employed practises, but which is not a main office;

1.3A “Business account transactions” means transactions in regard to which records are required to be kept in terms of rule 68.1.2;

1.4 “Circle” means an association of members formed in terms of section 69 (j) of the Act; (1.17)

1.5 “Council” means the council of the society; (1.13)

1.6 “Court” means the Transvaal Provincial Division; (1.5)

1.7 “Declared member” means, subject to rule 7.2.1.2., a person who has been declared a member in terms of section 57(2) of the act for so long as he or she does not become a practising member; (1.26)

1.8 “Election” means an election of members to the Council in accordance with the relevant provisions of Part IV of these rules; (1.25)

1.9 “Firm” means-

1.9.1 a partnership of practitioners;

1.9.2 a sole practitioner for his or her own account;

1.9.3 a professional company; who or which in each case conducts the practice of a practitioner; (1.3) “General meeting” means a general meeting of members convened in accordance with section 68 (a) of the Act; (1.1)

1.10 “Main office”, in relation to a practising member-

1.11.1 means the premises at and from which the practice of the firm of which he or she is the proprietor or a member or by which he or she is employed is as a whole administered and controlled, including such premises in two or more buildings situate in sufficiently close proximity to one another to allow the administration of those premises as a single composite entity; and-

1.11.2 includes premises declared or determined as such in terms of rule 2.1 or rule 2.4 as the case may be. (1.6)

1.11 “Member” means a member of the society in terms of section 57 of the Act; (1.8)

1.12 “Place of abode” means the place at which a declared member ordinarily resides; (1.28)

1.13 “Practising member” means a practitioner who is a member in terms of section 57 (1) of the Act; (1.10)

1.14 “President” means the president of the society of the person acting as such in terms of section 6 3(4) of the Act; (1.11)

1.15 “Principal place of practice” means the place at which the main office of a practising member is situate, notwithstanding that he or she may habitually or temporarily practise at or from a branch office; provided that the principal place of practice of a member who is a member of more than one firm or who is the proprietor of one firm and a member of another or others shall be deemed to be the place of the main office of that one of those firms which has its main office closest to his residential address; (1.27)

1.16 “Province” means the Province of the Transvaal; (1.12)

1.17 “Registrar” means the Registrar of the Court; (1.4)

1.18 “Secretary” means the secretary of the society and includes an assistant secretary of the society; (1.16)

1.19 “Society” means the Law Society of the Transvaal; (1.9)

1.20 “Special meeting” means a meeting of members convened in accordance with section 68 (b) of the Act; (1.18)

1.21 “The Act” means the Attorneys Act 1979; (1.2)

1.22A“Trust account transactions” means transactions in regard to which records are required to be kept in terms of rule 68.1.3;

1.22 “Trust banking account” means and includes all trust accounts kept by a firm in terms of section 78 (1) of the Act;

1.23 “Trust cash” means any cash held in trust by a firm other than in a trust banking account or a trust investment account;

1.24 “Trust creditor” means a person on whose account money is held or received as contemplated by section 78 (1) or invested as contemplated by 78 (2) or section 78 (2A) of the Act;

1.25 “Trust investment account” means and includes all accounts kept by a firm in terms of section 78 (2) or section 78 (2A) of the Act;

1.26 “Trust money” means money held or received on account of any person as contemplated by section 78 (1) or invested as contemplated by section 78 (2) or section 78 (2A) of the Act;

1.27 “year” means a year commencing on the 1st July and terminating on the 30^th June; (1.7) and other expressions defined in the Act shall bear the respective meanings assigned to them by section 1 of the Act, save that in Parts XII and XIII of these rules the word “practitioner” shall mean any attorney, notary or conveyancer whose name has been placed on the Roll of the Court, whether or not he or she is a member.

2.1 If a firm at any time administers and controls its practice as a whole from premises in two or more buildings which do not, in the opinion of the council, constitute such a single composite entity as is contemplated in the definition of “main office” in rule 1.11.1 the council may require that firm to declare to it in writing, within a time stipulated by the council, which one, or more of those buildings as may, in the opinion of the council, constitute such an entity, contains or contain its main office, and thereafter that firm shall administer and control its practice as a whole from the premises so declared.

2.2 The council may make such enquiry, including inspection of the premises concerned, as it deems fit, and the member concerned shall furnish the council with such information and render such assistance as it may require, to enable it to form an opinion in terms of rule 2.1.

2.3 A declaration made by a member under rule 2.1 shall remain effective until such time as he or she-

2.3.1 moves his or her main office from the premises which are the subject of the declaration; or

2.3.2 makes a declaration in terms of rule 2.1 in respect of other premises.

2.4 Should a firm fail, within the time stipulated by the council, to make a declaration under rule 2.1, the council may by notice in writing to the firm determine which of the premises concerned constitute its main office, whereupon the remaining provisions of this rule 2 shall mutatis mutandis apply as though those premises had been so declared by the firm.

PART II

MEMBERS

Register of practitioners and members

3.1 Every person who is admitted and enrolled or readmitted and re-enrolled as an attorney of the Court or whose name has been placed or again placed on the Roll of the Court shall within 30 days after the date of his or her admission and enrolment or of his or her readmission and re-enrolment or after the date on which his or her name has been so placed or again placed on the Roll, as the case may be, lodge with the secretary a statement, and with the Registrar a duplicate of that statement, containing the following information:

3.1.1 his or her full name, date of birth and residential address;

3.1.2 whether or not he or she practises or is about to commence practice;

3.1.3 if he or she does not practise, his or her business address and postal address and telephone numbers, if any;

3.1.4 if he or she practises, the address of his or her main office and its postal address and telephone numbers, if any;

3.1.5 whether he or she conducts practice-

3.1.5.1 for his or her own account, and, if so, whether alone or in partnership (stating the full names of his or her partners) or as a member of a professional company (stating the full names of his or her co-directors); or

3.1.5.2 as an employee.

3.1.6 if he or she practises for his or her own account the address and postal address and telephone numbers, if any, of every branch office and of every building at and from which he or she practises;

3.1.7 the name under which the firm of which he or she is proprietor or a member or by which he or she is employed conducts practice;

3.1.8 if he or she is employed by any person who does not practise, the nature of his or her employment and the name and business address and postal address and telephone numbers, if any, of his or her employer; and shall, within 30 days of any change taking place in any of the above particulars, lodge with the secretary a statement of such change and with the Registrar a duplicate of that statement.

3.2 The council may require that the information referred to in this rule shall be submitted on a form to be determined by the council, but nothing in this subrule contained shall relieve a member of the duty to comply with the requirements of rule 3.1.

4.1 The secretary shall keep a register, in such form as may be determined by the council, in which he or she shall maintain a record in relation to each person concerned, of the information lodged with him or her from time to time in accordance with rule 3.1 and indicating whether such person is a member of not and, if so, whether he or she is a practising member or a declared member.

4.2 The secretary shall also record in the register in relation to each person concerned-

4.2.1 the date of his or her admission and enrolment and, where applicable, of his or her readmission and re-enrolment as an attorney, notary or conveyancer of the Court and, where applicable, the date upon which his or her name was placed or was again placed on the Roll of the Court and, where applicable, the date upon which he or she became a practising member or a declared member as the case may be,

4.2.2 where applicable, the date upon which he or she ceased to be a practising member or a declared member, as the case may be,

4.2.3 where applicable, the date of his or her removal from the roll of attorneys or of notaries or of conveyancers or of his or her suspension from practice and the period of the suspension.

5.1 the register referred to in rule 4 shall be kept at the secretariat and shall, during ordinary business hours, be open for inspection, free of charge, by any member, by the Secretary General of the Association of Law Societies of the Republic or any person authorised by him or her in writing and by the secretary of any other law society referred to in section 56 of the Act or any person authorised by him or her in writing, and the secretary may furnish any of those persons in writing and free of charge with such information as he or she may require from the said register.

5.2 Upon payment of such fee as may be fixed by the council the secretary may furnish any person other than the persons referred to in rule 5.1 with a certificate containing some or all of the following information extracted from the register, but with no other information, namely:

5.2.1 the name and address of any practising member;

5.2.2 the name and business address, or where no business address is registered, the residential address, of any declared member;

5.2.3 whether a member has ceased practising or ceased to be a declared member, as the case may be.

6.1 The information appearing in the register referred to in rule 4 shall, in the absence of any manifest error in an entry, for all purposes be deemed to be correct.

6.2 A communication or notice intended for any person whose name is recorded in the register shall, if not delivered to him or her personally, be posted to him or her addressed to him or her at the address entered in the register-

6.2.1 if he or she is a practising member, as that of his or her main office, or

6.2.2 if he or she is a declared member, as that of his or her main office, or

6.2.3 if he or she is a declared member who has disclosed neither a business address nor the address of an employer, or if he or she is any other person who does not practise, as his or her residential address;

6.3 A communication or notice so posted shall be deemed to have been duly and properly received at the time when it would have reached the person to whom it is addressed in the ordinary course of post.

Declaration of persons as members

7.1 In declaring a person to be a member of the society under section 57 (2) of the Act, the council shall have regarded, inter alia, to the following considerations:

7.1.1 the nature and length of duration of his or her employment or of the profession, business or other occupation practised, conducted or engaged in by him or her;

7.1.2 whether or not he or she practises or resides outside the province;

7.1.3 where application to be so declared a member is made by him or her, the reasons which he or she advances in support of his or her application;

7.1.4 whether, if he or she is employed, his or her employer supports or objects to his or her admission to membership and, in either case, the reasons advanced for the support or objection;

7.1.5 whether he or she would, in the opinion of the council, be a person whom the council would consider fit and proper to practice in the province.

7.2 Every such declaration shall be conditional upon-

7.2.1 the person concerned-

7.2.1.1 having, should the council so require, before being declared a member, furnished the society with his or her written acknowledgement that he or she is aware that he or she is bound by the rules of the society and the ethical code of the profession and that, in the event of his or her being so declared, he or she will be bound by the rulings and determinations of the Council;

7.2.1.2 ceasing to be a declared member upon the date of a written notice to him or her by the council that, because of a change of his or her employment or of his or her profession, business or other occupation, or because, in the opinion of the council, there has been a material alteration in the circumstances upon which the council based its decision to declare him a member or because that decision was based upon information which, in the judgment of the council, was erroneous, false or misleading, or on account of conduct on the part of the declared member which in the opinion of the council is unethical or improper, the council deems it desirable that his or her declared membership should cease;

7.2.2 such further conditions as the council may see fit to impose in writing in declaring him to be a member;

7.2.3 the right of the council from time to time, in its discretion, by means of written communications to the member concerned, to impose such conditions as it could have imposed in terms of rule 7.2.2, or to add to or otherwise vary any such conditions previously imposed.

7.3 Before issuing a notice in terms of rule 7.2.1.2 the council shall afford the member concerned an opportunity to be heard, and, either in the notice itself, or, if so required by him or her, after the notice has been issued, shall furnish the member concerned with written reasons for its decision.

Information as to whether practitioner practises in the province

8. Any practitioner who claims or is considered prim facie by the council to be practising in the province shall furnish the council with such information as it may reasonably require establishing whether or not he or she is a practising member.

9.1 The council may, by resolution to which every member of the council has signified his or her written approval, appoint as an honorary member of the society any person who is not a member of the society and whether or not he or she is or has formerly been a practitioner.

9.2 Any person so appointed shall remain an honorary member of the society during the pleasure of the council, and may, upon invitation by the council, attend meetings and other gatherings of members, but shall have no right of audience, save at the invitation or with the consent of the chairman, not have a vote at any meeting of members and shall not be liable for the payment of any subscription. Levy, fee or other charge, nor shall he or she be eligible for election to the council.

9.3 The secretary shall record in a separate and clearly distinguishable part of the register referred to in rule 4, the names and addresses of all honorary members.

PART III

MEETINGS OF MEMBERS

General meetings

10. The Council shall convene a general meeting to take place on a date not later than the 31 December in each year.

1. Notice of every general meeting shall be posted to every member by the secretary on or after the 1 July in each year and at least 42 clear days before the date of the meeting and shall-

11.1 state the date, the time of commencement and place thereof;

11.2 state the business to be transacted thereat as set forth in rule 12;

11.3 if an election is due to be held in the year concerned, call for nominations in terms of rule 31;

11.4 call for notices of special business in terms of rule 14; and

11.5 state-

11.5.1 the number of ordinary monthly meetings held by the council during the preceding year;

11.5.2 how many of those meetings each member of the council in office at the time attended;

11.5.3 such comment, if any, as the president may direct in cases which are in his or her view appropriate as to the reasons for the absence of any member from any such meeting.

1. The business to be transacted at a general meeting shall be-

12.1 the confirmation of minutes referred to in rule 13.2;

12.2 the consideration and adoption of the president’s report together with the annual financial statements of the society for the preceding year;

12.3 at a general meeting first following an election, to receive the result of that election;

12.4 the appointment of the auditor or auditors and the fixing of the amount of his or her or their remuneration;

12.5 the consideration and transaction of any business which the council may deem expedient to submit to the meeting;

12.6 the consideration and transaction of any special business of which due notice as provided in rule 14 shall have been given by any member.

1. The procedure at a general meeting shall, unless varied by the chairman, be as follows:

13.1 the chair shall be taken as directed by rule 27;

13.2 the minutes of the preceding general meeting and of all intervening special meetings shall be read, or taken as read if the meeting so decides, and confirmed;

13.3 the president’s report shall then be considered together with the annual financial statements of the society for the preceding year signed by the auditor and all matters arising therefrom shall be open for discussion and adoption with or without modification;

13.4 in a year in which an election has been held, the chairman shall then announce the names of the candidates elected as members of the council for the ensuing period of office;

13.5 nominations for the post of auditor or auditors shall be called for by the chairman and if only one auditor or firm of auditors be nominate, he or she or it shall be declared appointed; otherwise, the election of an auditor or firm of auditors shall take place in manner prescribed by the chairman and the person or firm so elected shall thereupon be appointed auditor or auditors; and the remuneration of the outgoing auditor or auditors for the past audit shall be fixed by the meeting or, if so decided by the meeting, left to the incoming council to fix;

13.6 any business or matter which the council may have deemed it expedient to introduce shall then be discussed and deal with or the opinion of the meeting take thereon;

13.7 after all the business submitted by the council has been deal with, any special business of which notice has been duly given and which may be lawfully deal with at the meeting shall be considered and deal with.

14.1 Notice of any special business to be raised by any member at a general meeting shall be given to the secretary in writing at least 28 clear days before the date of the meeting;

14.2 notice of such special business shall be posted to each member by the secretary at least 14 clear days before the date of the meeting;

14.3 whenever a notice of special business has been given by a member and included as business to be transacted at a general meeting, and the member who gave the notice is not present at that meeting and has not withdrawn it, any member there present may, with the consent of the chairman, adopt it as his or her own, and move it as if the notice had been given by him or her, failing which, that business shall be removed from the agenda.

Special meetings

15. The council may on such dates and at such times and places as it may determine convene special meetings.

16. The council shall upon a requisition in writing made by not less than one hundred members or by a majority of circles convene a special meting every such requisition shall specify the business required to be dealt with at that meeting, shall be signed by the members or, as the case may be, by the chairman of the circles making the requisition and shall be lodged with the secretary.

1. Notice of every special meeting shall be posted to every member by the secretary at least 14 clear days before the date of the meeting and shall state-

17.1 the date and place and the time of commencement thereof; and

17.2 the business for which the meeting is convened;

Provided that-

17.3 should it be a matter of urgency, as to which the council shall be the sole judge, such shorter period of notice as the council may determine may be given;

17.4 in the case of a meeting requisitioned under rule 16 the meeting shall be convened for a date not more than 30 clear days after the lodgement of the signed requisition with the secretary and shall be held at such time and at such place in Pretoria or Johannesburg as the president may determine.

18. No business other than that for which a special meeting has been convened may be dealt with at that meeting.

Provisions common to all meetings of members

19. If on the day appointed for the holding of a general meeting or of a special meeting there shall not be a quorum present at the time appointed for the meeting or within 15 minutes thereafter, no business shall be dealt with, and-

19.1 if that meeting be a general meeting or a special meeting other than one requisitioned under rule 16, it shall stand adjourned to the corresponding time on the seventh day thereafter at the same place and the members then personally present shall, if they be less than fifteen, but are all practising members, nevertheless form a quorum; provided that if the lastmentioned day be a public holiday the meeting shall not take place on that day but shall stand adjourned instead to the corresponding time and the same place on the next succeeding business day, not being a public holiday, a Saturday or a Sunday;

19.2 if that meeting be a special meeting requisitioned in accordance with Rule 16 and there be not a quorum present at the time appointed for that meeting or within 15 minutes thereafter, the meeting shall be considered dissolved.

20. Unless the chairman otherwise decides, no notice of any meeting adjourned as in rule 19 provided need be given.

21. Any meeting of members at which a quorum shall be present may be adjourned to such time, date and place as may be decided at the meeting.

22. No business shall be transacted at an adjourned meeting other than the business competent to be considered and uncompleted at the meeting which was adjourned.

23. The following rules of debate and conduct shall be observed at all meetings of members:

23.1 subject to the provisions of this rule 23, members shall be given due and sufficient opportunity to speak on any subject under debate or discussion but no member shall be entitled, without the leave of the chairman, to speak more than once on the same subject, except by way of explanation; provided that the mover of any motion shall be allowed to speak in reply, after which the debate or discussion shall be closed;

23.2 the mover of an original motion shall not against the evident sense of the meeting, as expressed by the chairman, speak for more than 15 minutes; no other speaker shall, nor shall the mover in reply, as against such evident sense expressed as aforesaid, speak for more than 10 minutes;

23.3 while an original motion is under debate no further motion shall be received except the following motions of course;

23.3.1 to amend the motion;

23.3.2 that the meeting be adjourned;

23.3.3 that the debate be adjourned;

23.3.4 that the question be not now put;

23.3.5 that the meeting proceed to the next business;

23.4 an amendment shall-

23.4.1 be relevant to the motion on which it is moved;

23.4.2 if so required by the chairman, be reduced to writing, signed by the mover, handed to the chairman and read by him or her before being moved;

23.4.3 be disposed of before-

23.4.3.1 any subsequent amendment be moved;

23.4.3.2 the original motion be proceeded with;

23.4.4 if carried, cause the original motion as thereby amended to become the original motion before the meeting and to which any subsequent amendment may be moved;

23.4.5 not be permitted if it alters the original motion in such a way as to make it a new motion actually or in effect or effectively negates the original motion;

23.5 a member shall not be entitled to move the amendment of the same motion on more than one occasion;

23.6 a motion that the meeting be adjourned-

23.6.1 may, at any time except during the course of a speech by another member or while a vote is being taken, be moved by a member who has not already participated in the debate on the question then before the meeting;

23.6.2 shall provide for the date, place and time of the resumed meeting;

23.6.3 shall, if carried forthwith cause the meeting to be adjourned; provided that if so directed by the chairman, business other than opposed business shall first be disposed of;

23.6.4 shall, if not carried, prevent the acceptance of another such motion until half an hour thereafter;

23.6.5 may not be moved or seconded by the same member more than once during the course of one meeting;

23.6.6 may be spoken to by the mover for not longer than five minutes but shall not be spoken to by the seconder beyond formally seconding it and shall not be further discussed save in relation to any amendment to the period of the adjournment or by that member who first rises to speak in opposition to it and who may do so for not longer than five minutes;

23.6.7 shall, if carried during a debate on any question and before the conclusion thereof, entitled the member who moved the adjournment to speak first on that question at the adjourned meeting;

23.7 a motion that the debate be adjourned-

23.7.1 may, at the conclusion of any speech during the debate, be moved by a member who has not already participated in the debate;

23.7.2 shall, if carried, cause the meeting forthwith to proceed to the next business on the agenda and the adjourned debate, unless otherwise resolved, to be resumed at the next general meeting;

23.7.3 shall, at the resumption of the adjourned debate, entitle the member who moved the adjournment to speak first;

23.7.4 shall, if not carried, prevent the acceptance of another such motion until half an hour thereafter;

23.7.5 may not be moved or seconded by the same member more than once during the course of the same debate;

23.7.6 may be spoken to by the mover for not longer than five minutes but shall not be spoken to by the seconder beyond formally seconding it and shall not be further discussed save in relation to any amendment to the period of the adjournment or by that member who first rises to speak in opposition to it and who may do so for not longer than five minutes;

23.8 a motion that the question be not now put-

23.8.1 may, at the conclusion of any speech while an original motion, but not an amendment thereto, is under debate, be moved by a member who has not already participated in that debate;

23.8.2 may be moved immediately after an amendment to the original motion has been moved and before debate thereon has commenced and shall take precedence over such amendment;

23.8.3 shall be accepted or rejected by the chairman in his or her discretion and its rejection shall preclude the moving of another such motion during the same debate until half an hour thereafter;

23.8.4 may not be amended;

23.8.5 shall, if not carried, cause the original motion to be put to the vote forthwith without further discussion;

23.8.6 shall, if carried, prevent the original motion from being put to the vote at that meeting but shall not prevent it from being moved afresh at a subsequent meeting;

23.8.7 shall be superseded by a motion that the meeting be adjourned;

23.8.8 may be spoken to by the mover and by any other member once only for not longer than five minutes each save that the mover shall have the right to reply for not longer than five minutes;

23.9 a motion that the meeting proceed to the next business-

23.9.1 shall be an interrupting motion;

23.9.2 may, at the conclusion of any speech while an original motion or any amendment thereto is under debate, be moved by a member who has not already participated in that debate;

23.9.3 shall be accepted or rejected by the chairman in his or her discretion;

23.9.4 may not be spoken to by the mover or seconder beyond formally moving or seconding it;

23.9.5 may not be further discussed save that the chairman shall upon accepting the motion, immediately offer the mover of the original motion the opportunity where applicable of exercising his or her right to reply to the debate on the original motion, whereafter the chairman shall at once put the interrupting motion to the vote;

23.9.6 shall, if not carried, cause the debate on the original motion or on the amendment to be resumed at the point where it was interrupted, provided that, if the mover of the original motion has exercised his or her right of reply and there be further debate on the original motion, the mover thereof shall have the right of replying only to such further debate;

23.9.7 shall, if not carried, preclude the mover and seconder thereof from again moving or seconding another such motion during the same debate and the chairman from accepting another such motion by another member during the same debate until half an hour thereafter;

23.9.8 shall, if carried, cause the original motion together with amendments thereto, if any, to lapse and no decision in regard thereto shall be deemed to have been taken.

23.10 a motion shall be seconded before being put to the meeting;

23.11 the chairman may call the attention of the meeting to continued irrelevance, tedious repetition, unbecoming language, or any breach of order on the part of a member and may order such member to discontinue his or her speech, or to withdraw a remark, and, in the case of aggravated breach of order, defiance or serious impropriety, to withdraw from the meeting.

23.12 The ruling of the chairman in regard to the application or the interpretation of or other matter arising out of or connected with any of the provisions of this rule 23, shall be final and binding.

24.1 Except where in these rules otherwise provided, all questions discussed at general or special meetings shall be decided by a simple majority of members voting either in person or by proxy as provided in rule 25.

24.2 In all such questions the chairman at the meeting shall, in the event of an equality of votes, have a second or casting vote in addition to his or her deliberative vote.

24.3 Voting in person shall be by way of show of hands; provided that if the chairman so directs or if a poll is, at the request of a member, favoured by show of hands of at least one fourth of the members present in person, the vote shall be taken by poll in such manner as the chairman shall direct.

25.1 At all general and special meetings votes may be given (except where otherwise in these rules provided) in person or by proxy.

25.2 The proxy holder shall be a member and shall be appointed by a written proxy substantially in the form prescribed in the First Schedule to these Rules, which shall be completed and signed, and the votes and acts of such proxy holder shall be as valid and effectual as if made, done or given by the member in person, and every such proxy shall only continue in force for the particular meeting for which it was given, and for any adjournment thereof.

25.3 The proxy form shall contain a statement of the subject on which the holder thereof is to vote and also in what manner the holder is to vote in respect thereof or whether he or she may vote thereon as he or she thinks fit.

25.4 A proxy holder shall not be entitled to act as a proxy for more than five members at any general or special meeting.

25.5 Whenever a motion in respect whereof proxy votes have been lodged in accordance with rule 25.6 is put to the vote, the voting procedure shall be as follows:

25.5.1 the votes of those members who vote in person both for and against the motion shall first be counted;

25.5.2 the votes of those members who vote by proxy both for and against the motion shall next be counted in the manner set forth under rule 25.5.5;

25.5.3 the total number of votes counted in accordance with rules 25.5.1 and 25.5.2 shall be taken into account in determining the result of the voting;

25.5.4 proxy holders who exercise a vote by proxy shall do so by handing to two scrutineers, appointed by the chairman from among the members present who do not themselves hold proxy forms, their proxy forms on which they shall have endorsed at the foot in the case of those motions where they have been instructed to vote as they think fit (including motions of course) the manner in which they have elected to vote;

25.5.5 the scrutineers shall scrutinise each proxy form so handed to them and, having satisfied themselves that the form bears the date stamp of the secretariat as in rule 25.6.2 provided and that the vote has in each case been cast as authorised, shall count the number of proxy votes cast both for and against the motion and shall report the result to the chairman who shall add them to the respective number of votes cast both for and against the motion by the members who voted in person and shall forthwith announce the result of the voting to the meeting and his or her announcement shall in the absence of manifest error for all purposes be taken as correctly reflecting that result;

25.5.6 if after a vote has been taken on a motion of course on which a proxy has cast his or her proxy vote, the original motion, in respect of which the proxy holder has been authorised to vote by proxy, is put to the vote, the secretary shall return his or her proxy form to the proxy holder concerned to enable him or her to cast his or her proxy vote on the original motion.

25.6.1 The signed proxy form bearing the original signature of the member shall be lodged with the secretary not less than 24 hours prior to the time fixed for the commencement of the meeting at which the proxy is intended to be acted upon.

25.6.2 The secretary shall thereupon satisfy himself or herself that each such proxy form complies with these rules and has been duly completed and shall then place the date stamp of the secretariat upon the form as evidence that these rules have been compiled with in relation thereto.

25.6.3 The secretary shall ensure that all original proxy forms bearing the stamp of the secretariat as aforesaid are available at the place of the meeting and under his or her charge at least one hour before the time of commencement of the meeting, and shall hand to a proxy holder on request, and having identified him or her as such proxy holder, his or her proxy form so stamped.

25.7 No proxy vote shall be recognised which is not dealt with and cast in accordance with provisions of this rule.

25.8 No member shall be entitled to vote by proxy in case of the question of the removal from office of a member of the council in terms of rule 46 or on any question directly affecting any member personally.

26.1 Minutes of the proceedings of every meeting of members shall be kept by the secretary or, in the event of his or her absence, by any other person appointed for the occasion by the chairman at that meeting, a fair copy of which minutes shall be entered in a minute book to be kept for that purpose and shall, subject to any necessary correction having been made, be signed as correct by the chairman at the first succeeding meeting of the council.

26.2 Such minutes shall be held available at the secretariat for inspection, free of charge, by any member on request.

27. At all meetings of members the president, if he or she shall be present, and if not, then the vice-president, and in the absence of the president and the vice-president, then a member of the council nominated by the members of the council there present, and in the absence of the president, vice-president and all the members of the council, then a member of the society, to be elected at the meeting, shall preside as chairman, provided that the member who takes the chair as president or vice-president at the commencement of a general meeting shall continue to act as chairman for so long as he or she is present at that meeting, notwithstanding that he or she may during the course of that meeting cease to be president or vice-president or a member of the council.

28. QUORUM AT MEETINGS OF MEMBERS

Subject to rule 19.1, the quorum at a general or special meeting shall be 15 practising members personally present throughout the meeting.

Matters requiring special approval of members

29.1 The alienation or mortgaging of any immovable property of the society, the appointment of its auditors and the fixing by the council of any subscription, fees, levies or other charges payable to the society by members shall be subject to the approval of a simple majority of the members who are present or represented at a general meeting or at a special meeting convened for one or more of those purposes.

29.2 On questions referred to in rule 29.1 the chairman at the meeting shall not have a second or casting vote.

PART IV

THE COUNCIL

Number of council members and when elections to be held

30.1 The council shall consist of fourteen persons being members, but of

whom not more than two may be declared members.

Of such fourteen members-

30.1.1 not more than eight in number shall-

30.1.1.1 where they are practising members, have their principal places of practice; and

30.1.1.2 where they are declared members, have their places of abode in the province of Gauteng;

30.1.2 not more than two in number shall-

30.1.2.1 where they are practising members, have their principal places of practice; and

30.1.2.2 where they are declared members, have their places of abode respectively in each of the Northern province, the North-West province and the province of Mpumalanga. (Rule 30.1 is suspended until 30 June 2004, where after it shall again be of full force and effect)

30.2 An election shall be held in the manner in these rules prescribed in the year first following upon the year in which these rules are promulgated and in every third year after the year in which the first such election is held. (Rule 30.2 is suspended until 30 June 2002)

30A.1 The council shall consist of twenty persons being members, but of whom no more than two may be declared members.

Of such twenty members-

30A.1.1 not more than four in number shall-

30A.1.1.1 where they are practising members, have their principal places of practice; and

30A.1.1.2 where they are declared members, have their places of abode, in the province of Gauteng;

30A.1.2 not more than two in number shall-

30A.1.2.1 where they are practising member, have their principal places of practice; and

30A.1.2.2 where they are declared members, have their places of abode, respectively in each of the Northern Province, the North West Province and the Province of Mpumalanga;

30A.1.3 not more than five in number shall-

30A.1.3.1 where they are declared members, have their principal places of practice; and

30A.1.3.2 where they are declared members, have their places of abode; within the area of jurisdiction of the Society, and shall be members in good standing of the Black Lawyers’ Association; and

30A.1.4 not more than five in number shall-

30A.1.4.1 where they are practising members, have their principal places of practice; and

30A.1.4.2 where they are declared members, have their places of abode, within the area of jurisdiction of the society, and shall be members in good standing of the National Association of Democratic Lawyers.

(This rule is valid until 30 June 2004)

The effect of Rules 31 up to and including Rule 42 is suspended until 30 June 2004 except if these rules are duly amended before the latter date, whereafter they shall again be of full force and effect.

Manner of election of member of the council

31.1 After the issue of the notice of the general meeting in accordance with rule 11 in a year in which an election is due to be held, any two members may, in the manner herein prescribed, nominate any member of members, other than themselves, as a member or members of the council for the then ensuing period of office.

31.2 All such nominations shall be made over the signature of the two nominating members in a document which shall identify each nominee named therein-

31.2.1 where he or she is a practising member, by-

31.2.1.1 his or her name;

Suspension and removal of member of council

46.1 The council may at a special meeting of the council convened for the purpose of considering his or her suspension suspend a member of the council from office for any reason, other than a contravention of rule 43, which is considers would justify his or her removal from office; provided that-

46.1.1 the quorum at such meeting shall be ten members of the council, exclusive of the member whose suspension is to be considered, present at the commencement of the meeting;

46.1.2 the council shall convene a special meeting of members to be held within one month of its resolution suspending the member concerned, for the purpose of considering and thereafter confirming or rejecting a proposal by the council that the council remove the suspended member form office as a member of the council;

46.1.3 if such proposal is rejected by the special meeting of members, the suspension from office of the member concerned shall thereupon immediately terminate.

46.2 The council shall remove from office any member of the council whom it has suspended from office and whose proposed removal form office has been confirmed by the society in accordance with rule 46.1.2.

Temporary appointments as members of the council

47. In making an appointment to the council-

47.1 to fill a vacancy caused by the vacation of office by a member of the council in terms of section 62(2)(a) of the Act; or

47.1.1 to fill a vacancy caused the increase in the number of the members of the council in terms of section 62(2)(b) of the Act; or

47.2 to act in the place of a suspended member of the council in terms of section 62(3) of the Act; or

47.3 by co-optation in terms of rule 32.2, rule 32.3 or rule 38.4; the council shall ensure that the allocation of seats on the council is maintained at-

(Rule 47.3 effective only until 30 June 2004)

47.4 four members who have their principal places of practice or their places of abode, as the case may be, in the province of Gauteng;

(Rule 47.4 effective only after 30 June 2004)

47.5 two members who have such places of practice or places of abode, as the case may be, in each of the Northern province, the North-West province and the province of Mpumalanga;

47.6 five members who have such places of practice or places of abode, as the case may be, within the area of jurisdiction of the Society, in good standing of the Black Lawyers’ Association;

(Rule 47.6 effective only until 30 June 2004)

47.7 five members who have such places of practice or places of abode, as the case may be, within the area of jurisdiction of the Society, in good standing of the National Association of Democratic Lawyers.

(Rule 47.7 effective only until 30 June 2004)

48.1 Meetings of the council shall, so far as practicable in the opinion of the council, be held at least once in each calendar month on such dates and at such times and places as may from time to time be determined by the council or, otherwise, by the president, and shall be convened by the council at its preceding meeting or, should the council fail to do so, by the president; provided that the president may at any time mero motu convene a meeting of the council in such manner as he or she shall determine; provided further that the secretary shall forthwith, if requested in writing so to do by not less than three members of the council, convene a special meeting of the council at such time and place as he or she may determine by not less than seven nor more than 14 days’ notice in writing stating the business to be considered.

48.2 When convening a meeting mero mutu, the president may, in cases which are, in his or her judgment, of sufficient urgency, give notice, in such manner as he or she thinks fit, only to those members of the council who are readily accessible at the time, provided that no decision shall be taken at such a meeting unless a quorum be present and the decision be unanimous.

48.3.1 A resolution, other than a written resolution, taken on the motion of the president on a matter which is, in his or her opinion, of sufficient urgency, shall, though not taken at a meeting of the council but by such other means of communication as the president may deem fit to employ, if all those members of the council who are readily accessible have been consulted and if the majority of all members of the council who are then in office have expressed their assent, be as valid and effectual as if it had been passed at a meeting of the council duly convened and held.

48.3.2 Every such resolution shall as soon as possible thereafter be recorded in writing and such record shall be deemed to be a minute of a meeting, shall be entered in the minute book referred to in rule 50 and shall be noted by the next following meeting of the council.

49. Save where otherwise provided in these rules, three members of the council shall form a quorum.

50. Minutes shall be kept in a minute book to be maintained by the secretary of every meeting of the council and at each ordinary monthly meeting of the council the minutes of the previous ordinary monthly meeting and of all meetings held since shall be read, or if so resolved by the council, taken as read and shall, subject to any necessary correction, be signed by the chairman as being a correct record of the proceedings of the meeting or meetings concerned.

51. No resolution passed at any meeting of the council shall be rescinded at any subsequent meeting unless notice of the intention to propose such rescission shall have been given in the notice of the meeting; provided that such notice may be dispensed with by the council if, at its meeting at which the proposed rescissions to be considered, every member of the council then in office is present and agrees to waive notice and to the motion being moved.

52. Subject to the provisions of the Act and of these rules, the council may make, vary and rescind regulations for its meetings and proceedings and for the appointment and regulation of the proceedings of its committees.

Execution of documents

53. Any deed or other document which the council resolves to execute shall, unless otherwise directed by the council, be signed by the president and the secretary.

PART V

OFFICERS

Election of president and vice-president

54. A president and a vice-president as contemplated by section 63(1) of the Act shall, in that order, be elected annually on the day on which the general meeting is held-

54.1 in a year in which an election has been held, by the members of the incoming council as soon as may be practicable after the receipt by the general meeting of the result of that election;

54.2 in each other year, by the members of the council then in office at a convenient time after the chair has been taken in terms of rule 27.

Periods of office of president and vice-president

55.1 Subject to subsections (2), (3) and (4) of section 63 of the Act, a president and a vice-president shall hold office from the time of his or her election as such until the next election of the president and the vice-president in terms of rule 54.

55.2 The president and the vice-president in office at the date of promulgation of these rules shall each continue, subject to the subsections (2), (3) and (4) of section 63 of the Act, to hold office as such until the first election of a president and a vice-president respectively in terms of rule 54.

55.3 A retiring president and a retiring vice-president shall each be eligible for re-election to those respective offices.

Secretary

56. The secretary shall, in addition to the duties and functions assigned to him or her under the Act, these rules or any other law, perform such functions and duties as may be assigned to him or her by the council whether of a general or particular nature.

PART VI

CIRCLES – FINANCIALAID

57. The council may contribute towards the reasonable expenses of a circle such amounts as it may from time to time determine and the circle concerned shall, particulars as it may require to enable such determination to be made.

PART VII

ARTICLES OF CLERKSHIP AND CONTRACTS OF SERVICE

AND CANDIDATE ATTORNEYS

58. Articles of clerkship and contracts of service shall be substantially in the form set out in the Second Schedule to these rules. The council shall have the right to reject any articles of clerkship or contract of service submitted to it for registrations which in its opinion do not comply with the Act or these rules or which contain any improper or objectionable provisions.

59.1 In any case which comes to its notice in which the council is satisfied, after due enquiry, that the principal-candidate attorney relationship between a member and his or her candidate attorney has broken down or deteriorated to such extent that the candidate attorney is unlikely to receive adequate training under the direction of that member, the council may order that member, and that candidate attorney-

59.1.1 To make due endeavour within a period stated by the council to find another member who is able and willing to take that candidate attorney into service under articles of clerkship or contract of service;

59.1.2 Before or immediately after the end of that period to report to the secretary in writing the name of such other member, if found, or, if no such member has at the end of that period been found, to report immediately to the secretary in writing on the endeavours made and the reasons for failing to find such other member;

59.1.3 in the event of such other member being found, to effect due cession of the articles of clerkship or contract of service to that other member within a period stated by the council.

59.2 In the event of the secretary receiving a negative report under rule

59.1.2 he or she may, if satisfied that reasonable endeavours were made to find such other member, grant a reasonable extension of the first-mentioned period, at the end of which, the member concerned and the candidate attorney shall make a further such report to him or her as in rule 59.1.2 referred to.

59.3 The secretary shall immediately report to the president the fact of receipt and the contents of any report received by him or her under this rule 59 and whether, and for what period, or not he or she has granted an extension of the first-mentioned period, and shall also report to the president the fact of non-receipt after the first-mentioned period or any extension thereof of any report from the member or the candidate attorney.

59.4 If no such other member is found within the first-mentioned period or any extension thereof, the council may, if satisfied after further due enquiry that the aforesaid breakdown or deterioration of relationship has not been remedied, cancel the articles of clerkship or contract of service.

59.5 Any member and any candidate attorney who fails, without sufficient cause, to comply with the provisions of this rule or with any order of the council made in terms thereof shall be guilty of unprofessional conduct.

1. A member who, whether by agreement with his or her candidate attorney or otherwise, cancels articles of clerkship or in relation to whom articles or a contract of service to which he or she is a party otherwise terminate, shall, within 30 days of the cancellation or other termination, notify the secretary in writing of that fact furnishing the reasons for the cancellation or other termination. Where articles or a contract of service are lawfully cancelled in this manner or by order of the court of by order of the council or otherwise lawfully,\ terminate, but not otherwise, the secretary shall endorse the fact and nature of the cancellation or other termination upon the duplicate original or the articles of clerkship or a contract of service kept by him or her.

1. A candidate attorney shall be entitled to be released from neither office duties for not less than four nor more than eight hours per week in order to attend university or other classes for the purpose of qualifying for the profession.

61.1 A candidate attorney shall be entitled to be released from neither office duties for not less than four nor more than eight hours per week in order to attend university or other classes for the purpose of qualifying for the profession.

61.2 A candidate attorney who has been released from office duties in order to attend such classes shall furnish proof to the satisfaction of his or her principal that he or she has attended at least three-fourths of such classes.

62.1 No member shall permit his or her candidate attorney to appear on his or her behalf in any court or before any board, tribunal or similar body contemplated in section 8(1) of the act unless and until he or she shall have satisfied himself or herself that the clerk is in possession of a certificate issued under section 8(3) or section 86(2)(d)(ii) of the Act.

62.2 No candidate attorney shall so appear unless he or she is in possession of such a certificate.

63. A member shall notify the secretary in writing of any intended absence, of which he or she is aware, of his or her candidate attorney, from his or her office for a period of more than 30 consecutive working days.

PART VIII

PRESIDENT’S ANNUAL REPORT, SOCIETY’S FINANCIAL

STATEMENTS AND AUDIT

64. The council shall cause proper accounts to be kept of the income and expenditure of the society and of the assets and liabilities of the society, and the accounts shall be closed annually on the last day of the year, whereafter the annual financial statements for that year shall be prepared for submission to the next general meeting.

65. At least seven clear days before every general meeting the president’s report together with the annual financial statements of the society duly signed by the auditor or auditors in respect of the preceding year shall lie for inspection of members at the secretariat and a copy thereof shall be posted to each member.

66. There shall be one auditor, who shall be an accountant, or a firm of auditors who shall be accountants, and who shall be appointed at each general meeting. He or she or it shall remain in office until the appointment of his or her or its successor at the next succeeding general meeting, the retiring auditor or firm being eligible for reappointment. The outgoing auditor or firm shall be deemed to continue in office until the close of the general meeting at which his or her or its period of office terminates, or if for any cause his or her or its successor shall not be appointed at such meeting, then until the appointment of his or her or its successor.

67. If any vacancy should arise in the office of auditor, such vacancy shall be filled by the council and the auditor or firm of auditors so appointed shall hold office for the remainder of the period of office for which his or her or its predecessor was appointed.

PART IX

ACCOUNTING

68. Accounting requirements-general

68.1 Accounting records

A firm shall keep in an official language of the Republic such accounting records as are necessary to represent fully and accurately in accordance with generally accepted accounting practice the state of affairs and business of the firm and to explain the transactions and financial position of the firm including and without derogation from the generality of this rule-

68.1.1 records showing its assets and liabilities;

68.1.2 records containing entries from day to day of all moneys received and paid by it on its own account;

68.1.3 records containing particulars and information of all moneys received, held and paid by it for and on account of any person as well as of all moneys invested by it in terms of section 78(2) or section78(2A) of the Act and of any interest referred to in section 78(3) of the Act which is paid over or credited to it, as well as any interest credited to or on any separate trust savings or other interest-bearing account referred to in section 78(2A).

68.2 Generally accepted accounting practice

In determining what is meant by “generally accepted accounting practice” regard shall be had, inter alia, to any rulings of the council published to members.

68.3 Distinguishing between trust account and business account transactions. The accounting records shall distinguish in readily discernible form between business account transaction and trust account transactions.

68.4 Retention of accounting records

A firm shall retain accounting records-

68.4.1. for at least five years from the date of the last entry recorded in each particular book or other document of record;

68.4.2. save with the prior written consent of the council, or when removed there from under other lawful authority, at no place other than its main office or a branch office but, in the latter case, only in so far as they relate to any part of its practice conducted at that branch office.

68.5 Updating accounting records

A firm shall regularly and promptly update its accounting records and shall be deemed not to have complied with this rule, inter alia, if its accounting records have not been written up for more than one month and have not been balanced within two months after each date on which the trust creditor’s lists referred to in rule 69.7 are to be extracted.

68.6.1 Trust money to be kept separate from other money

Trust money shall in no circumstances be deposited in or credited to a business banking account, while money other than trust money at any time found in a trust banking account shall be transferred to a business account without undue delay: provided that a firm which-

68.6.1.1 makes transfers from its trust banking account to its business banking account at least once a month; and

68.6.1.2 ensures that each such transfer covers the total amount due to it and debited as at a date not earlier than one week prior to the date of transfer shall be deemed to have complied with this rule.

68.6.2 Transfers from trust banking account

When making a transfer from its trust banking account to its business banking account, a firm shall ensure that-

68.6.2.1 the amount transferred is identifiable with and does not exceed the amount due to it; and

68.6.2.2 the balance of any amount due to it remaining in its trust banking account is capable of identification with corresponding entries appearing in its trust ledge.

68.7 Accounting to clients

Every firm shall within a reasonable time after the performance or earlier termination of any mandate account to its client in writing. Each account shall contain-

68.7.1 details of all amounts received by it in connection with the matter concerned, appropriately explained;

68.7.2 particulars of all disbursements and other payments made by it in connection with the matter;

68.7.3 fees and other charges charged to or raised against the client and, where any fee represents an agreed fee, a statement that such fee was agreed upon and the amount so agreed;

68.7.3 the amount due to or by the client; and the firm shall retain a copy of each such account for not less than five years.

68.8 Payment of amounts due to clients

A firm, unless otherwise instructed, shall pay any amount due to a client within a reasonable time.

68.9 Payment to other practitioners and to medical and other experts

68.9.1 A firm shall, within a reasonable time, pay the reasonable fees and disbursements of another legal practitioner practising anywhere within or outside the Republic in respect of work entrusted to such practitioner by the firm unless-

68.9.1.1 at the time of giving initial instructions in regard to such work it advised such practitioner that it did not hold itself responsible for the payment of such fees and disbursements; or

68.9.1.2 payment is being withheld for a reason which the council deems good and sufficient.

68.9.2 The provisions of rule 68.9.1 shall apply mutatis mutandis in respect of any medical practitioner or other expert engaged or consulted by a firm.

1. Accounting requirements-trust account transaction

69.1 Prompt deposits of trust money

A firm shall promptly on the date of its receipt, or the first banking day following its receipt on which it might reasonably be expected that it would be banked, deposit in its trust banking account all money received by it on account of any person.

69.2 Transfers from trust investment account to trust banking account

Any amount withdrawn by a firm from a trust investment account shall promptly be deposited by it in its trust banking account.

69.3 Trust balances not to exceed trust moneys and trust accounts not to be in debit

69.3.1 ensure that the total amount of money in its trust banking account, trust investment account and trust cash at any date shall not be less than the total amount of the credit balances of its trust creditors;

69.3.2 ensure that no account of any trust creditor is in debit;

69.3.3 employ and maintain a system to ensure that the requirements of subrules 69.3.1 and 69.3.2 are not infringed when amounts are transferred from its trust banking account to its business banking account.

69.4 AMOUNTS RECEIVED IN ADVANCE TO BE DEPOSITED IN TRUST BANKING ACCOUNT

A firm shall ensure that amounts received in advance to cover a prospective liability for service rendered or to be rendered or disbursements (including counsel’s fees) to be made are deposited forthwith to the credit of its trust banking account.

69.5 WITHDRAWALS FROM TRUST BANKING ACCOUNT

A firm shall ensure that withdrawals from its trust banking account are made only-

69.5.1 to or for or on behalf of a trust creditor;

69.5.2 as transfers to its business banking account, provided that such transfers shall be made only in respect of money claimed to be due to the firm.

69.6 TRUST CHEQUES TO BE MADE PAYABLE TO OR TO ORDER OF DESIGNATED PAYEE AND NO TRANSFERS TO BE MADE TO BUSINESS BANKING ACCOUNT UNTIL DISBURSEMENTS MADE OR LIABILITY INCURRED AND FEE DEBITED

69.6.1 Any cheque drawn on a firm’s trust banking account shall be made payable to or to the order of a payee specifically designated;

69.6.2 No transfer from its trust banking account to its business banking account shall be made in respect of any disbursement (including counsel’s fees) or fees of the firm until-

69.6.2.1 the disbursement has actually been made by the firm;

69.6.2.2 a contractual obligation has arisen on the part of the firm to pay the disbursement; and

69.6.2.3 the fee or disbursement has been correctly debited in its accounting records.

69.7 EXTRACTS OF LISTS OF TRUST CREDITORS

69.7.1 Every firm shall extract at intervals of not more than three calendar months in clearly legible manner a list of amounts then standing to the credit of any person, who shall be identified therein by name, in respect of all money held or received by it on account of such person and shall total such list and compare the said total with the total of the balance standing to the credit of the firm’s trust banking account, trust investment account and amounts held by it as trust cash, in order to ensure compliance with rule 69.3.

69.7.2 The balance listed in respect of each such account shall also be noted in some permanent, prominent and clear manner in the ledger account from which that balances was extracted.

69.7.3 Each such list shall be part of the accounting records of the firm to be retained for the five year period referred to in rule 68.4.1.

69.8 Notification of trust banking accounts and furnishing of details

Every firm shall-

69.8.1 immediately notify the council in writing of the name and address of the bank of banks at which are kept its trust banking account or accounts and shall thereafter notify the council immediately of any change in the name and address of such bank or banks;

69.8.2 whenever so required by the council, furnish to the council within 10 days or such longer period as the council may stipulate a signed statement issued by the bank or banks with which it keeps its trust banking account or accounts and a signed statement issued by the financial institution with which the firm keeps any trust investment account setting out the balance at such date or dates as may be specified by the council.

69.9 Trust account investments in terms of section 78(2A)

A member who invests funds on behalf of any person without that person’s prior written instructions (specific or general) shall-

69.9.1 not invest such funds otherwise than in a trust savings or other interest bearing trust account with a banking institution or building society;

69.9.2 obtain that person’s written confirmation of the investment as soon as is reasonably possible or notify him or her forthwith thereof in writing; and

68.9.3 forthwith cause the relative trust savings or other interest bearing trust account to be endorsed in terms of section 78 (2A) of the Act;

70. Reports by accountants

70.1 Appointment of accountants

A firm shall at its expense once in each calendar year, or at such other times as the council may require, appoint an accountant approved by the council to act on behalf of and as the representative of the fund to discharge the duties assigned to him or her in terms of rule 70.4.

70.2 Accountant’s access to accounting records and firm’s duty to assist

A firm shall allow an accountant appointed under rule 70.1 access to such of its records as he or she may deem it necessary to examine for the purposes of discharging his or her duties under rule 70.4 and shall furnish the accountant with any authority which may be required to enable him to obtain such information, certificates or other evidence as he or she may reasonably require for such purposes.

70.3 Firm’s duty to ensure report issued

A firm shall ensure that the report to be furnished by an accountant in terms of rule 70.4 is so furnished within or at the required time; provided that the council may in its discretion and on such conditions as it may stipulate, on written application by a firm relating to a particular report, condone a failure by that firm to comply with this requirement.

70.4 Duties of accountant

Every accountant who has accepted an appointment in terms of rule 70.1 shall-

70.4.1 within six months of the annual closing of the accounting records of the firm concerned, or at such other times as the Council may require, furnish the council with a report which shall be in the form of the Third Schedule to these rules;

70.4.2 without delay report in writing directly to the council if, at any time during the discharge of his or her function and duties under this rule-

70.4.2.1 it comes to his or her notice that at any date the total of the balances shown on trust accounts in the accounting records of the firm exceeded the total amount of the funds in its trust banking account, its trust investment account and its trust cash;

70.4.2.2 any material queries regarding its accounting records which he or she has raised with the firm have not been dealt with to his or her satisfaction;

70.4.2.3 any reasonable request made by him or her for access to its accounting records and supporting documents or for any authority referred to in rule 70.2 has not been met to his or her satisfaction.

70.5 Copy of report to be sent to firm

A copy of the report on the prescribed form required under rule 70.4.1 and any report made in terms of rule 70.4.2 shall be sent by the accountant to the firm concerned.

70.6 Form to be obtained from secretary

The form as prescribed under rule 70.4.1 shall be obtained only from the secretary who shall issue it on request to any firm or to any accountant appointed in terms of this rule.

70.7 Council may dispense with report by accountant

In any case where the council is satisfied that it is not practicable to obtain the services of an accountant for the issuing of a report as prescribed under rule 70.4, it may in lieu thereof accept as compliance with the requirements of rule 70.4 such other evidence as it may deem sufficient.

PART X

GENERAL PRACTICE

Branch offices

71. No member shall have or retain any branch office unless it is at all times when practice is being conducted thereunder the effective supervision of a member who, if he or she is not the first-mentioned member himself or herself or a partner of that member, shall be an employee of that member who has been approved for the purpose by the council in writing: provided that the opinion of the council as to whether or not a branch office is at any time under such effective supervision shall be binding and shall, if negative entitle the council to order the first-mentioned member immediately to rectify his or her default or otherwise to close that office as a branch office.

Professional independence

1. A member shall preserve his or her professional independence.

72.1 Without derogating from the generality of this rule, he or she shall-

72.1.1 at all times preserve the relationship of an independent contractor with his or her client and, subject to rule 72.2., shall not arrange for nor receive remuneration for professional services other than at the professional fee prescribed by law or by ruling of the council or customarily chargeable or, subject to rule 86.1 and rule 89.24, agreed in regard to a specific mandate;

72.1.2 not hold a consultation with a client elsewhere than in his or her office, save where the circumstances reasonably require or render it desirable that it be held elsewhere.

72.2 Arranging with a client for or receiving from a client a retainer fee as consideration for his or her appointment as the general attorney of that client or for his or her retention in respect of a special matter of complexity and anticipated long duration shall not be a contravention of rule 72.1.1, provided that, in addition thereto, the member charges the prescribed or customary or agreed fee in respect of professional services rendered to that client.

Drawing and taxation of bills of costs

73.1 Subject to the right of a party to the matter concerned to be present, a firm shall not permit the taxation of a bill of costs to be attended by any person other than a person referred to in rule 73.2.

73.2 The taxation of a bill of costs shall, where attended, be attended by the member presenting the bill or on whose behalf the bill is presented or by his or her partner or full-time employee, being a member or an articled clerk as aforesaid and being, in each case, a person familiar with the subject matter of the taxation: provided that the first-mentioned member or his or her correspondent, as the case may be, shall assume full responsibility for the content of the bill submitted and for the taxation.

Professional companies

74.1 It shall be the obligation of every member of a professional company which practices in the province or which has a registered office situate in the province-

74.1.1 to ensure that the Registrar and the secretary are notified in writing-

74.1.1.1 in the case of such companies which were incorporated before the promulgation of these rules and which have not yet done so, within 30 days of the date when the company registers such registered office or the date when it so commences practice, whichever of the two dates is the earlier, of

74.1.1.1.1 the name of the company, its registration number and the date of its incorporation and the address of its registered office;

74.1.1.1.2 the full names, dates of birth, residential, business and postal addresses of every member of the company;

74.1.1.1.3 the address of every place of practice within the Republic where the company practises or in which it shall have any interest, with the postal addresses and telephone number used in connection with the practice carried on at each such place;

74.1.1.1.4 any other information which the council may from time to time require;

74.1.1.2 of any change in any of the information given in terms of rule 74.1.1.1 within 30 days of such change taking place;

74.1.2 to supply the council, whenever so required, with notarially certified copies of the memorandum and articles of association, certificate of incorporation and certificate to commence business relating to such company together with notarially certified copies of all amendments made to any of the a foregoing to the date of such supply.

74.2 the secretary shall enter the information furnished under rule 74.1.1 in a separate part of the register kept under rule 4, suitably cross-referenced in relation to the other information therein relating to the member concerned and to the place where documents supplied by that member under rule 74.1.2 are filed.

75. HOLDING OUT AS SPECIALIST PRACTITIONER

Subject to the provisions of these rules and of any other law, a firm may hold himself or herself out as specialising in any branch of the law only in such manner and subject to such conditions as the council may from time to time determine, the council being the sole judge as to the appropriate time at which to make any such determination and as to the content of such determination.

76. PRACTITIONERS WHO CEASE TO PRACTISE AND WINDING UP OF ABANDONED PRACTICES

76.1 Before applying for the removal of his or her name from the Roll of the Court a practitioner, who practises or has practised for his or her own account in the Province, shall-

76.1.1 advise the council in writing of that fact;

76.1.2 unless exempted by the council, furnish the council with a certificate by an accountant approved by the council, or such other proof as the council may require, that proper provision has been made for the liquidation, taking over or protection of all trust money;

76.1.3 satisfy the council by affidavit or otherwise, as the council may require, that-

76.1.3.1 all obligations to clients have been discharged or duly assigned with such consents as may be necessary;

76.1.3.2 any other requirements which the council deems necessary for the protection of trust money or other assets held in trust, the completion of work on hand, the handling of queries and in general, the orderly winding up of his or her practice or former practice, have been met;

76.1.4 state in his or her application that he or she has complied with the provisions of this rule 76.1.

76.2 Before or as soon as may be after ceasing voluntarily to practise for any reason other than pursuant to rule 76.1 a practitioner, who practises or has practised for his or her own account in the Province, shall comply with the provisions of rule 76.1 other than those of paragraph 4 thereof and shall thereafter inform the secretary in writing of any changes in his or her business, postal and residential addresses for a period of three years from the date of his or her ceasing to practise or for so long as his or her name remains upon the Roll of the Court, whichever period is the shorter.

76.3 Without derogating from the provisions of rules 76.1 and 76.2, should a practitioner who practised as the sole proprietor of a practice in the Province for any reason whatsoever have ceased so to practise without having, in the view of the secretary, made adequate arrangements for the continuance or winding up of his or her practice or for the protection of his or her or his or her clients’ affairs or property, any firm may, at the request and under the direction of the secretary, take such steps as may appear necessary to ensure that such practice is wound up with reasonable expedition, subject to any right which such firm may have to recover the reasonable expenses of such winding up or other compensation from such practitioner or from his or her estate or from any other source. Where the up the practice of the practitioner concerned, he or she will also be entitled to recover from the practitioner or from his or her estate, on behalf of the society, the reasonable expenses incurred by him or her and reasonable compensation for the work done by him or her in connection with his or her assistance or intervention.

Investment of funds by members on behalf of persons, otherwise than in terms of rule 77A

77.1 A member shall not invest any funds on behalf of any person otherwise than in accordance with the written instructions of that person detailing the manner and form of the investment.

77.2 The written instructions referred to in rule 77.1-

77.2.1 Shall be obtained by the member concerned before the investment is made, save that, in cases of emergency, he or she may obtain them as soon as possible thereafter and shall forthwith upon making the investment request the person concerned in writing to furnish him or her with such instructions, detailing in that request the manner and form of the investment;

77.2.2 May be incorporated in a written contract to which the person giving the instructions is a party.

77.3 If the member does not receive the written instructions to be obtained by him or her in terms of rule 77.2.1 within one month after his or her written request he or she shall forthwith notify the secretary in writing and at the same time furnish him or her with copies of all relevant letters of request and responses, if any.

Investment Practice Rules

77A Investment practices

77A.1 Definitions

77A.1.1 A firm shall for the purpose of the rule be deemed to be carrying on the business of an investment practice if it invests funds on behalf of a client or clients or if it controls or manages, whether directly or indirectly, such investments by the collection of interest or capital redemption payments on behalf o the investing clients.

77A.1.2 A “client” shall for the purpose of this rule include any person on whose behalf a firm invests funds or manages or controls investments whether or not such person is otherwise a client of the firm concerned.

77A.1.3 This rule shall not apply to-

77A.1.3.1 investments made pursuant to section 78(2A) of the Attorneys’ Act, No. 53 of 1979;

77A.1.3.2 any other investment of a temporary nature that is made in the course of and incidental to a conveyancing or other matter, including litigation, to which the investing client is a party; or

77A.1.3.3 investments made by members in their capacity as executors, trustees, curators or in any similar capacity in so far as such investment is governed by any other statutory enactment or regulation.

77A.1.4 A firm shall not be deemed to be carrying on the business of any investment practice in terms of rule 77A.1.1 as long as investments under its control, exclusive of investments referred to in rule 77A.1.3.3, do not amount in the aggregate to more than R100 000 and are held on behalf of not more than 10 clients.

77A.2 Accountant’s report

77A.2.1 every firm shall not later than six months after the end of its financial year furnish the secretary of the Society with a report by the auditor referred to in rule 70.1 stating that to the best of the accountant’s knowledge and belief-

77A.2.1.1 the firm had not, during the period under review, carried on the business of an investment practice; or

77A.2.1.2 the firm had carried on the business of an investment practice and had complied with this rule 77A.

77A.3 Mandates

A firm carrying on a investment practice shall obtain an investment mandate from each client before investing funds for that client. The form of the investment mandate should be substantially in the form referred to in the Fourth Schedule to these rules.

77A.4 Annual reports to clients

Every firm carrying on an investment practice shall, not later than six months after the financial year end of such firm, supply every client from whom it is required to hold a mandate in terms of rule 77A with a report reflecting all relevant details of such client’s investments. The firm shall send such report by pre-paid registered post or shall deliver it by hand, in which latter case it shall obtain a written acknowledgement of receipt. A copy of such report shall also be made available at any other time upon the reasonable request of a client.

77A.5 Accounting records

77A.5.1 every firm carrying on an investment practice shall, in addition to its normal accounting records, also keep proper accounting records and supporting documents in respect of the investments made by it or under its control.

77A.5.2 the accounting records and other supporting documents referred to in rule 77A.5.1 shall be retained by the firm in such manner as to enable it to furnish each client upon request with all current details of the client’s investments. Such accounting records and other supporting documents shall be maintained in sufficient detail and be cross-referenced to the trust account records retained in respect of each client, in such a way as to provide an adequate and clear audit trail which will enable a particular transaction to be identified at any time and traced through the accounting records to the client. The system shall collect the information in an orderly manner and the accounting records and other supporting documents shall be properly arranged, filed and indexed so that access may be gained promptly to any particular record. Where accounting records are maintained by means other than on paper, facilities shall exist for such records to be reproduced in printed form.

77A.5.3 All accounting records required to be retained in terms of this sub rule and copies of all reports despatched in terms of rule 77A.4 shall be retained for at least five years from the date of the last entry recorded in each particular book or other document of record, unless there is statutory provision to the contrary, and shall be held at the same office as the firm’s other accounting records.

77A.6 Investment register

Every firm carrying on an investment practice shall, in addition to its normal accounting records, also maintain an investment register containing at least the following information.

77A.6.1 The names and addresses of the investors and the amounts invested;

77A.6.2 the names and addresses of the borrowers (where applicable) and the amounts borrowed (where applicable);

77A.6.3 the dates on which the loans are granted (where applicable) or investments made;

77A.6.4 the period of the loan (where applicable);

77A.6.5 the applicable interest rate;

77A.6.6 the security and particulars of where the authority, the document denoting the debt and bonds or other documents are filed;

77A.6.7 list of the total amounts received from investors;

77A.6.8 a list of the total amounts invested with borrowers (where applicable);

77A.6.9 a list of moneys invested with a financial institution in the interim with identification of which the money belongs to, the interest rate and where and how it was invested together with all other particulars;

77A.6.10 a list of the moneys in the trust banking account pending registration of bonds or investment in any other medium;

77A.6.11 an annual reconciliation of the lists mentioned in rules 77A.6.7 to 77A.6.10;

77A.6.12 a statement of whether the firm or any partner, director or employee of the firm, or any company, close corporation or other entity in which such partner, director or employee has an interest, has borrowed any moneys of the investors.

77A.7 Money market transactions

77A.7.1 No firm may syndicate deposits or other money market investments in any manner otherwise than by accepting funds as agent for each participating client and placing such funds with a deposit-taking institution on the money market in the name of the client. The deposit-taking institution shall acknowledge receipt of each deposit or money market investment and such written receipts shall be retained by the member as part of his or her accounting records.

77A.7.2 All moneys received by a firm for investment with a deposit-taking institution, shall be paid to such institution as soon as reasonably possible after receipt by the firm, having regard to matters such as whether a payment made by cheque has been cleared with the drawee bank.

77A.7.3 For the purpose of this rule “deposit-taking institution” shall mean any institution registered in terms of the Deposit-Taking Institutions Act, No. 94 of 1990.

77A.8 Restrictions applicable to certain investments

A firm may not invest on behalf of a client-

77A.8.1 in shares, or debentures in any company which is not listed on the Johannesburg Stock Exchange, unless it is a subsidiary of a listed company; or

77A.8.2 in money market type investments, other than in the client’s name in a deposit-taking institution; or

77A.8.3 in loans in respect of which, in the firm’s opinion, there is not adequate security; unless the client’s specific written authorisation for each such investment has first been obtained.

77A.9 Existing investment practices

77A.9.1 notwithstanding the terms of this rule, a firm which has an existing investment practice on the date on which this rule comes into effect shall-

77A.9.1.1 not accept new funds for investment without complying with this rule;

77A.9.1.2 in respect of all existing investments, secure compliance with this rule within six months from the date on which it comes into effect;

77A.9.1.3 not be required to commence compliance with rule 77A.5 until the end of February of the calendar year following the year in which the period of grace stipulated in rule 77A.9.1.2 expires;

77A.9.1.4 not be required to lodge its first annual auditor’s report in terms of rule 77A.4 until the expiry of three months after the end of the financial period in which the period of grace stipulated in rule 77A.9.1.2 expires;

77A.9.2 Any firm which, as part of its investment practice, already holds or manages an investment which does not comply with rule 77A.8, shall not later than six months after the date on which this rule comes into effect either obtain the client’s written consent to such investment or relinquish the management of such investment.

77A.10 Unprofessional conduct

Failure to comply with the provisions of this rule shall constitute unprofessional conduct on the part of the partner or directors of the firm.

Practice in association with other lawyers

78.1 A member wishing to practise in association with any person (in this rule called the associate) who carries on the practice of a lawyer outside the Republic shall make written application to the council for permission to do so and shall not, in the absence of such permission, commence or, subject to any rights existing immediately prior to the date on which these rules are promulgated, continue to do so.

78.2 In considering such an application the council shall have regard, inter alia, to the following considerations:

78.2.1 whether it is satisfied that there is in existence in the country in which the associate practises a fund, which is, in the opinion of the council, a sound and effective fund, equivalent to or of the nature of the Attorneys, Notaries and Conveyancers Fidelity Guarantee Fund, referred to in section 25 of the Act;

78.2.2 whether it is satisfied that the associate is effectively covered by such fund and that, if the rules, constitution or other founding or governing instrument of that fund provide for a practising certificate, certificate of membership or other similar document to be held by lawyers whose fidelity it guarantees, the associate holds such currently valid certificate or other document.

78.3 If not satisfied in terms of rule 78.2.1 or 78.2.2 the council shall refuse such permission but this rule shall not derogate from the council’s right to refuse such permission, even if so satisfied, on any other ground which it deems fit.

78.4 Before granting such permission the council shall be satisfied, inter alia, that-

78.4.1 the associate is in lawful practice in the country in which he or she practises and in good standing in his or her profession there;

78.4.2 standards of conduct which are, in the opinion of the council, sufficiently high are observed in the country in which the associate practises;

78.4.3 the associate is required to observe the ethical standards and rules of an appropriate law society, bar association or other similar body having jurisdiction over the associate.

78.5 A member to whom such permission is granted shall-

78.5.1 Forthwith notify the council if the circumstances contemplated under rule 78.2.1 or 78.2.2 at any time cease to exist;

78.5.2 Whenever applying for a fidelity fund certificate at the same time furnish the secretary with a certificate signed by him or her that those circumstances and the circumstances contemplated under rule 78.4.1 still exist, and for purposes of section 42(3)(a) of the Act of the secretary shall regard the requirements of this rule 78.5.2 as requirements of the society.

78.6 The council shall withdraw such permission if it comes to its notice that any of the circumstances contemplated under rule 78.2.1 or 78.2.2 or rule 78.4 have ceased to exist in relation thereto or that the member to whom it was granted has ceased to practise or has been suspended from practice or forbidden to practise in the province and may withdraw such permission if it comes to its notice that the associate concerned or the member to whom it was granted has been guilty of any unprofessional or dishonourable or unworthy conduct which is, in the opinion of the council, of a sufficiently serious nature to render it undesirable that the practice in association should continue.

78.7 While holding such permission the member shall disclose on his letterheads, professional cards and other stationery the name and place of practice of his or her associate and the fact of the practice in association, and may, subject to the law or any professional rules of the other country concerned, allow similar information relating to the member to be disclosed on the letterheads, professional cards and other stationery of his or her associate.

78.8.1 A member may not practise in association with a practitioner who practises within the Republic but outside the province unless that practitioner-

78.8.1.1 is enrolled in the Court;

78.8.1.2 holds a valid Fidelity Fund certificate.

78.8.2 The provisions of rule 78.7 shall apply mutatis mutandis to such practice in association.

78.9 For purposes of this rule, other than rule 78.8.2, the expressions “practice in association” and “practise in association” include practice or practise in partnership or as members of a professional company.

79. EMPLOYMENT BY MEMBERS OF UNQUALIFIED CLERKS

79.1 For purposes of this rule the term “clerk” means any person other than another member or a candidate attorney, who is employed by a member or whom a member intends to employ for purposes of doing legal work in the course of the conduct of that member’s practice, and “legal work” means original work of a kind which a practitioner is qualified and entitled to do in the course of his or her practice.

79.2 A clerk shall, in relation to the legal work which he or she does in the course of his or her employment by a member, be under the direct supervision of that member or of his or her partner.

79.3 A member or, as the case may be, any member of a firm, who or which employs a clerk, shall be responsible for observance by the clerk in relation to the practice of that member, of every rule of professional conduct which the member himself or herself would be required or expected to observe.

79.4 Conduct on the part of the clerk, in relation to the practice of his or her employer, which would, if perpetrated by a member, be in the judgment of the council after due enquiry, unprofessional or dishonourable or unworthy conduct shall entitle the council, in addition to any disciplinary action which it may be entitled to take against any member referred to in rule 79.3, to order that member or the firm of which he or she is a member, to terminate the employment of that clerk as soon as that may lawfully be done.

79.5 No member to whose knowledge a former clerk has had his or her employment as a clerk terminated under rule 79.4 may employ or continue to employ that former clerk in any capacity whatsoever without the written permission of the council being first obtained.

79.5A No member may employ or continue to employ in any capacity whatsoever, without the written permission of the council being first obtained, any person whom, to the knowledge of the member, the council has found not to be a fit and proper person for purposes of section 4 of the Act, or in respect of whom the council has cancelled or suspended his or her articles of clerkship in terms of section 72(1)(b)(i) of the Act.

79.6 The secretary shall maintain in a separate part of the register kept under rule 4 a list of the names of all former clerks whose employment has been terminated under rule 79.4, suitably cross-referenced in relation to the other information therein relating to the member or members by whom or by whose firm of which they were members the former clerk was employed.

79.7 Subject to rights existing immediately prior to the date on which these rules are promulgated, no member may employ a clerk under a contract of employment which cannot, unless the council otherwise permits in writing, be terminated by the employer on notice of one month or less.

PART XI

PROFESSIONAL FEES, TARIFFS AND ALLOWANCES

Assessment of fees payable to a member

80.1 It shall be a competent for the Council or any Committee appointed by the Council for that purpose, at the request of any person or member, to assess the fees and reasonable disbursements payable by such person to a member in respect of the performance of work in his or her capacity as a practitioner, provided that the Council or the Committee shall not assess fees or disbursements;

80.1.1 in instances where a state official is empowered to do so; or

80.1.2 where the work concerned is already covered by a statutory tariff; or

80.1.3 in litigious matters, unless the parties agree that the fees and disbursements are subject to assessment by the Council or a Committee appointed by the Council for that purpose.

80.2 With a view to affording the member concerned reasonable and adequate remuneration for the services rendered by him or her, the council or the committee, as the case may be, shall, on every assessment, allow all such fees and disbursements as appear to it to have been reasonable for the performance of the work concerned and in so doing shall take cognisance of the following:

80.2.1 the amount and importance of the work done;

80.2.2 the complexity of the matter or the difficulty or novelty of the work or the questions raised;

80.2.3 the skill, labour, specialised knowledge and responsibility on the part of the member;

80.2.4 the number and importance of the documents prepared or perused, without necessarily having regard to length;

80.2.5 the place where and circumstances in which the services or any part thereof were rendered;

80.2.6 the time expended by the member;

80.2.7 where money or property is involved, its amount or value;

80.2.8 the importance of the matter to the client;

80.2.9 the quality of the work done;

80.2.10 the experience or seniority of the member;

80.2.11 any tariff of fees approved by the society for the sole purpose of serving as a guide to members;

80.2.12 any tariff of fees prescribed by the council in accordance with the provisions of section 69(d) of the Act; and whether the fees and disbursements have been incurred or increased through overcaution, negligence or mistake on the part of the member.

80.3 At the assessment of any member’s fees and reasonable disbursements, the council or the committee, as the case may be, may call for the production of such books, documents, papers, accounts or other information as in its opinion are necessary to enable it properly to determine any matter arising upon such assessment.

80.4.1 The council or the committee, as the case may be, shall not proceed to the assessment of the fees or reasonable disbursements unless the secretary has duly given notice by prepaid registered post to both the member concerned and the person liable to pay the fees and reasonable expenses, stating the time and place of such assessment and recording that he or she is entitled to be present and represented thereat: provided that such notice shall not be necessary if both the member and such person have consented in writing to assessment in their absence.

80.4.2 At the assessment the council or the committee, as the case may be, shall permit the member and such person to submit their representations and arguments either orally or in writing.

80.4.3 After receiving such representations and arguments, the council or the committee, as the case may be, shall be entitled to reserve its decision.

80.4.4 As soon as the council or the committee, as the case may be, has arrived at its decision, it shall deliver to both the member and such person either by hand or prepaid registered post, a copy of the fee list submitted for assessment, duly endorsed with the allocater of the council or the committee, as the case may be, under the hand of the secretary.

80.4.5 Subject to the provisions of section 74(5) of the Act, the fees and disbursements determined in terms of the allocater shall be deemed to be reasonable fees and disbursements payable to the member for the services rendered.

80.5 The council or the committee, as the case may be, shall be entitled in its discretion at any time to depart from any of the provisions of rule in extraordinary or exceptional cases, where strict adherence to such provisions would be inequitable.

80.6 This rule shall not apply to any work done pursuant to a mandate accepted by a member prior to the 18 November 1977, whether or not the work is actually done before or after the said date.

80.7 A tariff of fees as determined by the Council from time to time shall be payable by the party requesting such an assessment, to the Council in respect of the attendance of the assessment.

1. 81. ATTORNEY AND CLIENT CHARGES

81.1.1 Subject to the provisions of rule 81.5 a member to whom any claim of whatever nature is handed for collection may in addition to any professional fees (e.g. the charges for any proceedings in a court of law) charge reasonable attorney and client charges: For the guidance of members the following attorney and client charges have been prescribed by the council as being reasonable attorney and client charges for purposes of this rule, but this shall not be construed as prohibiting a member from departing from the prescribed charges, either upwards or downwards, in appropriate circumstances.

81.1.1.1 (a) In the case of the member originally instructed before the granting of a judgment, and also in the case of every member who receives instructions thereafter but before the granting of a judgment, instruction charges of-

(i) R20 for claims of R1 to R1500;

(ii) R40 for claims over R1500 to R5000;

(iii) R75 for claims over R5000 to R10000;

(iv) R120 for claims over R10000.

1. In the case of every successive member who receives instructions after granting of a judgment, instruction charges of-

(i) R20 for claims of R1 to R1500;

(ii) R40 for claim over R1500.

(c) R12 for every necessary letter or telegram written or received and for each necessary attendance.

(d) R20 for every 10 minutes or part thereof of every necessary consultation with a debtor.

81.1.1.2 collection commission at the rate of 10 per cent on the amount collected, subject to a recommended maximum amount of R1000 for each payment of instalment, provided that where the member recovers commission from the debtor, either in terms of any law or in terms of a contractual obligation, he/she shall credit his/her client therewith to the extent of, but not exceeding the collection commission debited to his/her client. Collection commission covers all attendances and work done in connection with the receipt of a payment and accounting to a client in respect of a payment.
[R. 81.1.1.2 amended by GG 32905 of 27 January 2010.] 

81.1.2 The charges set out in rule 81.1.1.1 and 81.1.1.2 shall be made only in respect of professional services rendered in cases where no tariff is prescribed by any other law.

81.2.1 In the case of final recovery or repossession of movables in terms of a hire purchase agreement, a suspensive sale agreement, a lease or any other contract of a like nature, a member shall, subject to the provisions other contract of a like nature, a member shall, subject to the provisions of rule 81.2.3 in addition to any professional fees, charge collection commission, calculated in accordance with the provisions of rule 81.1.1.2 on the value of the movables so recovered or repossessed.

81.2.2 The value referred to in rule 81.2.1 shall be the value fixed on the movables by a court of law at a final judgment or the value fixed on the movables by an appraiser.

81.2.3 Where the total unpaid amounts owing under the agreement are less than the value of the movables recovered or repossessed or no value has been fixed on such movables by the court or by an appraiser the collection commission shall be calculated on the total unpaid amounts and not on the value of the movables.

81.3 The council may make general rulings regarding the application of this rule and the circumstances under which and the extent to which members may deviate from the provisions of this rule.

81.4 Rules 81.1 to 81.3 are applicable to claims in respect of which a magistrate’s court has jurisdiction.

Allowances

82. No member shall make over, share or divide with any person other than a practising practitioner in the Republic, or a legal practitioner outside the Republic, either by way of partnership, commission or allowance or in any other manner any portion whatsoever of his or her professional fees.

83. Save where otherwise provided by law or in relation to any tariff of fees or by ruling of the council, the allowance on his or her fees which a member shall be entitled to make to a practising practitioner in the Republic with whom he or she may do business, or to a legal practitioner outside the Republic with whom he or she may do business, shall not either directly or indirectly exceed one-third of the fees charged on the particular business transacted by the member making the allowance.

84. Any deed, document, or writing signed or attested by a practitioner, in his or her capacity as such, shall be considered to have been prepared and drawn by him or her, and all fees charged in connection with, or relating to, the preparation, drawing execution of any such deed, document or writing, shall be considered fees earned by him or her within the meaning of rules 82 and 83.

Certain arrangements to fix tariffs or exclude or limit work prohibited

85. Save where they are all members of the same firm no two or more members may agree to be bound by any tariff or minimum rates of fees determined by them nor to exclude or place any limitation upon the performance by them of any class of professional work.

Council not bound to recognise agreed fee and may order refund of certain overpayments

86.1 The council shall not be precluded from determining the reasonableness of a fee agreed or purportedly agreed by a member and any other person liable or purportedly liable for its payment.

86.2 The council may order a member to refund to the person concerned any excess paid to or on account of the member over and above the amount found to be due on taxation or assessment in terms of rule 80 of any fee charged by the member and the member shall comply with such an order.

Secret and unauthorised commissions prohibited

87. Subject to section 83(6) of the Act to the provisions of rules 82 and 83, a member shall not, in connection with any mandate which he or she has accepted, agree or arrange to receive from or share with any agent or other third party any commission, fee or other reward, without having disclosed such agreement, arrangement, receipt or sharing to his or her client in writing and without having received his or her client’s written consent thereto and to the retention by him or her for his or her own account of such reward.

Legal aid matters

88. A firm shall not receive or attempt to recover, directly or indirectly, from any source, whether for itself or any other person, in a matter referred to it by the Legal Aid Board, established under the Legal Aid Act, 1969, any disbursements, fee or reward in excess of the disbursements, fees or rewards approved by the said Board in such matter.

PART XII

CONDUCT

1. Unprofessional or dishonourable or unworthy conduct on the part of a practitioner shall include, inter alia, the following acts and omissions:

89.1 touting for work of a professional nature;

89.2 the sharing of offices with or the occupation of offices having direct communication with any office occupied by any person who is not a practising member or in the employ of a practising member in the course of his or her practice: save that the council may, in the case of a person who formerly was a practising member, permit such sharing or occupation subject to such conditions as it may impose;

89.3 in any way directly or indirectly assisting, allowing or enabling an unqualified person to charge, recover or receive any fee or derive any remuneration for or in respect of or in connection with the preparation or execution of any document or the performance of any professional work which only a practitioner is qualified by law to prepare, sign, execute, attest or perform, or in any way conniving at any arrangement, agreement or understanding whatsoever whereby any such fee or remuneration is or shall be charged, recovered or received by any such unqualified person;

89.4 the giving of or receiving an allowance in excess of the maximum allowance which a member is permitted to make in terms of rule 83;

89.5 the failure to keep books of account and records in rules or otherwise in accordance with law, in respect of all the financial transactions relating to the practice of the firm of which he or she is the proprietor or a member;

89.6 the failure at all times to retain and preserve such books of account and records as required by rule 68.1.3;

89.7 without lawful excuse delaying the payment of trust money after due demand;

89.8 non-payment after demand of any subscription or any fee, levy or other charge payable to the society;

89.9 accepting from any person directly or indirectly any sum of money which it is agreed or intended should be used as payment or part payment for services to be rendered or for disbursements to be made in the future in the event of any future act or omission forming the basis of any criminal charge against the person by or for whose benefit such payment was made;

89.10 failure to issue and on request, to hand over or otherwise deliver to the person making payment, a receipt for any money received;

89.11 any contravention of the provisions of the Act or of these rules-

89.12.1 advertising or canvassing in relation to any business in which he or she has an interest, including estate agency and auctioneering in any way which is in the opinion of the council unbecoming a practitioner or calculated to lower the dignity or standing of the profession, or calculated to attract professional work;

89.12.2 advertising by any business in which a practitioner has an interest shall be deemed to be advertising by him or her unless he or she proves that he or she did not authorise such advertisement and that he or she could not have prevented it;

89.12.3 nothing in rule 89.12 shall be construed as prohibiting a practitioner, in relation to any business in which he or she has an interest, from advertising or canvassing in any manner which would be permissible if he or she were doing so in relation to his or her practice;

89.13 practising under any style or name other than one which consists solely of the name of names of any of the past or present members of the firm of which he or she is the proprietor or a member, or of persons who conducted, for their own account or in partnership or as a professional company, any practice which may reasonably be regarded as a predecessor of the firm; provided that-

89.13.1 subject to section 23(1)(c) of the Act and rule 78, the words “and company”, “and associates” and “and partners”, or any contraction thereof, may be included in the name of the firm only during such time as there shall be two or more members of the firm;

89.13.2 the name of any former member who has been struck off the roll shall in no circumstances while he or she remains struck off form the name or part of the name under which a practice is conducted;

89.13.3 any member who practises otherwise than in accordance with this rule 89.13 immediately before the date of promulgation of these rules shall be deemed not to have contravened this rule 89.13 should he or she continue so to practise for a period not exceeding six months after that date;

89.14 making use of any stationery or printed material of any description which in the opinion of the council does not befit the dignity, prestige and status of the profession;

89.15 neglecting to give proper attention to the affairs of his or her clients;

89.16 failing adequately to supervise his or her staff;

89.17 abandoning his practice without previous notice to his clients and without arranging with them for the dispatch of their business or the care of their property in his/her possession or under his control;

89.18 departing from an apportionment of fees laid down by law or by ruling of the Council;

89.19 failing to disclose his/her name and the names of all his/her partners or, where he/she is a member of a professional company, the names of all its directors on the letterheads of his/her practice;

89.20 disclosing in the letterheads of his/her practice-

89.20.1 the name of any practitioner employed by him/her without clearly indicating thereon by means of the words, “associate” or “professional assistant” or “assisted by” that such practitioner is not a partner of his/her nor a co-member of a professional company of which he/she is a member;

89.20.2.1 the name of-

89.20.2.2 any practitioner, who practises anywhere within the Republic;

with whom he/she practises in association other that as a partner or employee or co-member of a professional company, without clearly indicating thereon by means of the use of the words “ in association with” that such is the case;

89.20.3 the name of any person other that a person referred to in rules 89;19, 89.20.1 or 89.20.2 or a person who is employed by him in his/her practice as an office manager, internal accountant or bookkeeper; provided that the name of a person so employed is accompanied by the description of the capacity in which he/she is employed and is not placed in close conjunction with the name of any person referred to in rules 89.19, 89.20.1 0r 89.20.2

89.21 failure, without sufficient reason, to be in attendance during a consultation with counsel or a court during the hearing of a matter in which he/she is the attorney of record in person or through a partner or employee, being a member or candidate attorney or a clerk as defined for the purposes of rule 79;

89.22 failure, in the opinion of the council, to perform his/her obligations in terms of articles of Clerkship or a Contract of Service to which he/she is a party;

89.23 failure to answer or appropriately to deal with within a reasonable time any correspondence or other communication which reasonably requires a reply any correspondence or other communication which reasonably requires a reply or other response;

89.24 overreaching a client or overreaching the debtor of a client; or charging of a fee which in the view of the Council is unreasonably high, having regard to the circumstances of the matter.

89.24A if his client requires him or her to do so, failing to prepare and submit an account for taxation or assessment, as the case may be, within a reasonable time or within a time fixed by the council, unless there is sufficient reason for the account not being taxed or assessed;

89.25 failure to comply with an order, requirement or request of the council or a request of the secretary

89.26 referring work, the performance of which is reserved by law to an attorney, notary or conveyancer, to any person prohibited by law from performing such work, or assisting or co-operating with any such person in relation to the performance of such work by that person;

89.27 acting for or in association with any organisation or person, not being a practising practitioner or an assessor acting on the instructions of a registered insurance company, whose business or part of whose business it is to make, support or prosecute claims resulting from death or personal injury and who solicits instructions to make, support or prosecute any such claim or receives any payment, gift or benefit in respect thereof;

89.28 with regard to a claim referred to in rule 89.27 knowingly acting for any person introduced or referred to him or her by any such organisation or person;

89.29 failing to make reasonable enquiry before accepting instructions in respect of a claim referred to in rule 89.27 for the purpose of ascertaining whether the acceptance of such instructions will involve a contravention of rules 89.27 or

89.28

89.30 without reasonable cause on excuse, failing to perform professional work or work of a kind commonly performed by a practitioner, with such a degree of skill care or attention, or of such a quality or standard, as in the opinion of the council may reasonably be expected.

90. A practitioner who has acted for a person referred to in rule 89.28 while in the opinion of the council he or she should have known that the organisation or person who introduced or referred such person to him or her is an organisation or person referred to in rule 89.27 shall be deemed not to have complied with the provisions of rule 89.28.

91.1 For purposes of rule 89 the expression “touting for work of a professional nature” includes:

91.1.1.1 accepting or agreeing to accept or offering to accept remuneration for professional work at less than the tariffs of fees fixed by statute or regulation or rule; or

91.1.1.2 by his or her conduct directly or indirectly holding himself or herself out or allowing himself or herself to be held out as being prepared to do professional work at less than such tariff, unless he or she proves that he or she did not do so with the object of attracting work or business;

91.1.2 advertising, save as permitted under these rules or by the council, in any manner in which the public is invited to entrust professional work to him or her or in which he or she hold himself or herself or his or her firm out as being prepared or qualified to do such work;

91.1.3 procuring or allowing the appearance of his or her name or that of any firm in which he or she has an interest in any client’s advertisement (other than a prospectus or any statement, circular or notification issued in accordance with the laws or regulations relating to companies or the regulations or requirements of a stock exchange, or any report or notice to shareholders of a company or the members of an institution for which a practitioner acts in such capacity, or such other document as the council may approve), indicating that he or she or his or her firm holds the appointment of attorney, notary or conveyancer to such client or any other person or company;

91.1.4.1 inserting his or her name or allowing his or her name to be inserted in any directory or law list unless-

91.1.4.1.1 such directory or law list is open to all practitioners practising in the Province;

91.1.4.1.2 the charge per insertion in such directory or law list, if published in the Republic, does not exceed the sum of R75 or if published outside the Republic, does not exceed the sum of R150 or other respective sums as may from time to time hereafter be determined by the council;

91.1.4.2 inserting or allowing his or her name to be inserted in any directory or law list in type other than ordinary type or inserting it or allowing it to be inserted in such manner as to give it prominence; provided that such an insertion in a telephone directory may be placed in bold type which is not significantly larger than ordinary type, and not elsewhere than within the ordinary alphabetical listings;

91.1.5 inserting or allowing to be inserted in any directory or law list, or on his or her letterheads, professional cards or other stationery of any description, any qualifications he or she may hold other than-

91.1.5.1.1 a university degree;

91.1.5.1.2 a university diploma in a legal subject.

91.1.5.2 the words “Attorney”, “Notary”, “Conveyancer”, “Patent Attorney”, “Patent Agent”, “Trade Mark Agent” or “Administrator of Estates”;

91.1.5.3 that that a practitioner has been admitted to practise in any country other than the Republic of South Africa;

91.1.5.4 that he or she or his or her firm specialises in any branch of the law (but subject always to such conditions as may be designated from time to time by the council);

91.1.6 inserting or allowing to be inserted on his or her letterheads, professional cards, or other stationery of any description the names of any of his or her clients or any appointments he or she may hold other than that of justice of the peace, appraiser or deputy-sheriff;

91.1.7 publishing under or over his or her name in the lay press any articles on legal subjects, addressing any audience on a legal subject or, whether directly or in any filmed, taped, duplicated, or other transmitted form, broadcasting on radio or television or otherwise communicating with the public or a section thereof on a legal subject, without the previous permission of the council;

91.1.8 making a donation in any form, whether by way of a formal presentation or otherwise, to a public official or public office otherwise than at the request or through the medium or under the authority of a circle of which he or she is a member or under the authority of the council.

91.2 Notwithstanding anything in rule 91.1 a practitioner shall not be deemed to be guilty of touting if he or she-

91.2.1 affixes to or paints on doors or walls of his or her office premises, or otherwise displays in the proximity of is or her office premises, nameplates or office signs of reasonable size and of such form or design as are not, and in such manner as is not, in the opinion of the council, unbecoming a practitioner;

91.2.2 when acting for any client, insert in the Government Gazette or other necessary newspaper any advertisement required by law and indicates that he or she is acting on behalf of that client.

91.2.2 when acting for any client, insert in the Government Gazette or other necessary newspaper any advertisement required by law and indicates that he or she is acting on behalf of that client.

91A A practitioner whose estate has been finally sequestrated shall-

91A.1 notify the Council thereof immediately and in writing and furnish the Council with a copy of the application for his or her sequestration or voluntary surrender as well as a copy of the relevant court order;

91A.2 notify those persons with whom he or she incurs debt in the course of his or her practice (for example a correspondent or advocate) beforehand and in writing of his or her insolvency;

91A.3 be guilty of unprofessional or dishonourable or unworthy conduct if he or she fails to comply with the provisions of rules 91A.1 and 91A.2.

92. Unprofessional or dishonourable or unworthy conduct on the part of a candidate attorney shall include any conduct which would be unprofessional, dishonourable or unworthy had it been perpetrated by a practitioner.

DISCIPLINARY PROCEEDINGS

93. The council shall have disciplinary jurisdiction over all practitioners no matter where the conduct which is, or allegedly is, unprofessional or dishonourable or unworthy is perpetrated.

94.1 The council shall consider any complaint made by or on behalf of any person feeling aggrieved by reason of any alleged unprofessional or dishonourable or unworthy conduct on the part of any practitioner, whether such conduct took place before or after the promulgation of these rules.

94.2 The council may, of its own motion, exercise its powers under these rules notwithstanding the absence of any complaint, in which event the provisions of rule 95 shall mutatis mutandis apply.

94.3 A complaint shall be in writing and in the form of an affidavit with sufficient particulars of the conduct complained about and shall be lodged with the secretary: provided that the head or acting head of the disciplinary division of the Council may accept a complaint in any other form.

94.4 The council may require a complainant to provide on affidavit further particulars on any aspect of the complaint.

94.5 The council shall not be obliged to disclose the source of a complaint.

95. Upon receipt of a complaint, the council may-

95.1 where it is of the opinion that the complaint does not disclose a prima facie case of unprofessional or dishonourable or unworthy conduct or where a complainant has neglected or refused to comply with the requirements of the council under these rules, dismiss the complaint and inform the complainant accordingly;

95.2 where it is of the opinion that a prima facie case of unprofessional or dishonourable or unworthy conduct on the part of the practitioner concerned has been made out-

95.2.1 furnish the practitioner with particulars of the complaint and shall upon him or her to furnish the council in writing within such time as the council may direct, with his or her explanation in answer to the complaint, and may require such explanation to be verified by affidavit; or

95.2.2 at any time and whether or not it has also proceeded or also thereafter proceeds under rule 95.2.1, call upon him or her to appear at such time and place as it may determine to explain or elucidate or discuss the matter; Provided that the referral of the complaint to the practitioner shall be in writing with a copy thereof to the most senior person at the relevant firm in years of admission according to the records of the Law Society, who shall likewise respond to the complaint;

95.3 when, upon a consideration of the complaint and the practitioner’s explanation in answer thereto or elucidation of the matter, it is of the opinion that no prima facie case of unprofessional or dishonourable or unworthy conduct has been made out, dismiss the complaint and notify the complainant and the practitioner accordingly;

95.4 when, upon the consideration of the complaint and the practitioner’s explanation in answer thereto it is satisfied that the complaint is justified but of a trivial nature, inform the complainant and the practitioner in writing of its decision and may issue a written warning to the practitioner;

95.5 when, upon a consideration of the complaint and the practitioner’s explanation in answer thereto or in the absence of or failing such explanation, it is of the opinion that a prima facie case of unprofessional or dishonourable or unworthy conduct has been made out call upon the practitioner concerned on not less than 10 days notice to appear at such time and place as the council may determine in order that further enquiry under section 71 of the Act may be conducted, in which event it may appoint a member, whether or not he or she is also a member of the council, or the secretary to conduct the examination.

95A.1 The enquiry in terms of rule 95.5 is conducted by the Council or by a committee appointed by the Council in terms of the provisions of section 67 of the Act.

95A.2 Where the committee consists of three or more members, two members will form a quorum: provided that where the Committee consists of three or more members, any decision made or order granted must in such event be made or granted by way of a majority decision.

96. During the course of proceedings conducted under rule 95.5 the council shall afford the practitioner concerned an opportunity of adducing evidence relevant to the subject matter of the enquiry and of making such other relevant representations as he or she may wish.

1. At any stage during the course of an enquiry when it appears to the council that there is prima facie evidence justifying a charge or charges of unprofessional or dishonourable or unworthy conduct and the practitioner concerned is then present before the council, it may inform the practitioner thereof and ask him or her whether he or she wishes to be charged forthwith and have the matter summarily disposed of and, if he or she assents, the council may thereupon dispose summarily of the matter, but if he or she does not asset, the enquiry shall be adjourned to such time and place as the council may determine when it shall be continued and concluded as in these rules provided.

97A.1 The Council or the committee conducting the enquiry, may at any stage prior to or during the course of the enquiry summon any person as a witness and interrogate or re-interrogate him: provided that

97A.1.1 such witness may be cross-examined by the practitioner concerned or his or her legal representative;

97A1.2 the relevant practitioner concerned may only be examined if he or she has already testified in the enquiry or if a statement deposed to by him or her has been accepted as evidence in the enquiry.

97A.2 If a practitioner or his or her legal representative is not present during the enquiry and the Council or the committee, as the case may be is satisfied that the practitioner is aware of the enquiry, the enquiry shall be proceeded with in his or her absence and a plea of not guilty shall be entered, unless the practitioner has in writing pleaded guilty to the charge against him or her, in which event that will be noted in his or her plea.

97A.3 If a practitioner desires a postponement of the enquiry, he or she shall apply for such postponement to the Council or the committee conducting the enquiry: provided that the head of the disciplinary division of the Council may in extraordinary or compelling circumstances grant such postponement either telephonically, or by way of telefax or by way of a letter. At the hearing of the matter, the Council or the committee shall decide whether the wasted costs occasioned by such postponement should be paid by the practitioner or not.

97A.4 Evidence by way of affidavit or other document is admissible, but the Council or the committee is entitled to adjudicate the evidential value thereof by taking into consideration the fact that the evidence contained therein has not been tested in cross-examination.

97A.5 The record, or any part thereof, of a legally appointed court, an inquest court or a statutory body, is accepted as prima facie evidence if the document has been certified as a true copy.

97A.6 If the practitioner pleads guilty to a complaint and the Council or committee conducting the enquiry is satisfied that the act or omission amounts to misconduct on the part of the practitioner, the Council or the committee may find the practitioner guilty and after consideration of the practitioner’s reply or explanation impose an appropriate sentence.

97A.7 After a letter with particulars of the complaint has been served on the practitioner, and before the enquiry commences, the practitioner may in writing notify the Council or the committee which will conduct the enquiry that he or she pleads guilty to the complaint set forth in the letter. If the Council or the committee is convinced that the complaint can be disposed of without further enquiry, it notifies the practitioner and the complainant (if there is one) in writing that the enquiry will not be proceeded with, and it finalises the matter in accordance with the provisions of rule 97A.6.

98.1 If as the conclusion of an enquiry the practitioner is found guilty in terms of section 72(1) of the Act and an order is made that practitioner is to pay the costs incurred by the council in connection with such an enquiry in terms of section 72(1) (a) (iii) costs shall be calculated in accordance with the Supreme Court tariff applicable to civil litigation.

98.2 Without derogating from the generality of any such order for the payment of costs, such costs shall include-

98.2.1 the costs of recording, transcribing and preparing copies of any records;

98.2.2 the costs incurred by the council in respect of the person appointed to conduct the examination and the accountant or accountants or other person appointed to investigate and report on the practitioner’s books of account and of any person appointed by the council to investigate and report on any other documents or records or things relating to the practitioner’s practice or former practice;

98.2.3 the cots of procuring the attendance of witnesses and their witness fees, including those of the complainant.

98.3 With the consent of the president the practitioner concerned may be furnished by the secretary with copies of the record of the enquiry or extracts therefrom against payment by him of the cost of the making thereof calculated according to the said tariff.

98.4 Where a fine is imposed and/or an order made that a practitioner shall pay a certain amount of money and he or she is granted permission to make payment by instalments, the total outstanding amount of the fine and/or the amount of money becomes payable if the practitioner should fail to pay any one instalment on the due date. The amount owing from time to time bears interest at the mora interest rate determined by the Minister of Justice from time to time in terms of the Prescribed Rate of Interest Act, 55 of 1975.

99.1 At the conclusion of the enquiry, the Council or the committee which conducted the enquiry shall consider the evidence and the argument of both parties in order to rule on the practitioner’s guilty or innocence and the appropriate punishment (if any) and the costs of the proceedings. The Council or the committee may adjourn the proceedings for the purpose of considering its findings.

99.2 As soon as possible after the conclusion of an enquiry the practitioner and the complainant (if there is one) shall be informed verbally or by registered post of the Council’s or the committee’s judgment and the sentence imposed, (if any).

99.3A A certificate signed by a person in control of the Society’s records, containing reasonable particulars of a practitioner’s previous convictions and sentences shall be deemed conclusive evidence of such convictions and sentences, on presentation thereof to the Council or the committee.

100. Subject to the provisions of these rules, the person presiding at the enquiry shall determine the procedure according to which the enquiry shall be conducted.

101.1 Should an enquiry be held before a committee appointed by the council in terms of section 67 of the Act and at the conclusion of the enquiry the practitioner be found guilty of unprofessional or dishonourable or unworthy conduct in terms of section 72 of the Act, the committee may impose any punishment in respect thereof which is permitted in terms of section 72 of the Act; provided that if at any stage during the enquiry the committee is of the opinion that the conduct of the practitioner is such as to warrant an application by the society in terms of the act for suspension from practice or the striking from the roll of the practitioner it shall-as soon as possible submit a written report on its findings to the council together with its recommendations regarding the suspension from practice or the striking the roll of the practitioner;

101.1.1 at the same time deliver a copy of its report and recommendations to the practitioner and call upon the practitioner to furnish the council with representations in writing, within such period as the committee considers reasonable but in any event within not less than 7 days, why application should not be made for suspension from practice or, as the case may be, for the striking from the roll of the practitioner.

101.2 On receipt of the report and written recommendations of the committee in terms of rule 101.1.1 and the written representations of the practitioner in terms of rule 101.1.2 the council shall consider the matter and shall-

101.2.1 if it shall decide to proceed with an application for suspension from practice or for striking from the roll, advise the practitioner accordingly and take such further steps as may be necessary in that regard; or

101.2.2 if it shall decide not to proceed with an application for suspension from practice or from striking from the roll, refer the matter back to the committee, together with a copy of the written representations of the practitioner, for the committee to dispose of as it deems fit; or

101.2.3 if it considers it appropriate, call upon the practitioner on not less than 7 days notice to appear before the council at such time and place as the council may determine to show cause why application should not be made for suspension from practice or for striking from the roll of the practitioner; provided that if the practitioner does not furnish written representations to the council as requested, or fails to appear before the council, as the case may be, the council shall be entitled to consider the report and recommendations of the committee in the absence of such representations or in the absence of the practitioner; or

101.2.3 deal with the matter in any other manner that it thinks fit.

102. Subject to the provisions of the Act, the provisions of this Part XIII shall apply mutandis in respect of a candidate attorney whose alleged conduct is being enquired into; provided that-

102.1 the council may require the member with whom the candidate attorney is serving articles or under a contract of service to report in writing to the council on any aspect of the matter or to attend during any stage of the enquiry and, there, inter alia, to make such verbal report or give such explanation relating to the matter as the council may deem fit;

102.2 if the enquiry is held by a committee appointed by the council under section 67 of the Act and it appears to the committee at any stage during the course of its enquiry that the evidence then before it is likely to warrant the suspension or cancellation of the articles of clerkship or contract of service, the committee shall refer the matter to the council and inform the candidate attorney and the member with whom he or she is serving articles or under contract of service accordingly and the council may then itself continue and conclude the service accordingly and the council may then itself continue and conclude the enquiry or may refer it or any aspect thereof back to the committee.

103.1 The council may, for the general information of members or of the public or of both, in such manner and to such extent as it may deem fit, public or allow or arrange for the publication of information relating to an enquiry under section 71 of the Act, provided that if the enquiry was conducted by a committee appointed by the Council in terms of the provisions of section 67 of the Act, the powers granted by this rule may be exercised by that committee.

103.2 No individual and no group of individuals, and no body corporate or other association, not having, in the opinion of the council, an interest in the subject matter of an enquiry, shall be entitled to information relating to it.

PART XIV

SUBSCRIPTIONS, FEES, LEVIES AND OTHER CHARGES PAYABLE

TO THE SOCIETY

Annual subscription and other charges payable to the society

104.1 Each member shall pay to the society an annual subscription and such fees, levies or other charges at such time and at such amounts as may from time to time be fixed by the council with the approval of the society given at a general or special meeting in terms of section 60(2) of the Act.

104.2 Until otherwise determined, the annual subscription and such fee, levy or other charge, if any, shall be the amount which was payable, and it shall be payable at the time as determined, immediately before promulgation of these rules, and the amount and the time for payment thereof shall be deemed to have been so fixed.

Arrear subscriptions

105. If any member fails to pay a subscription or any fee, levy or other charge within one month after it has become due, the secretary shall, by letter, draw his or her attention to the fact, and if the subscription or fee, levy or other charge in arrear is not paid within seven days from the date of such letter or within such further time as the council may allow, proceedings for the recover thereof may be taken against him or her.

106. No member whose annual subscription is in arrear for more than three months shall be entitled to be present at any general or special meeting of members or to vote thereat by proxy.

PART XV

BENEVOLENT FUND

107. The council may maintain and control a separate fund to be known as the Benevolent Fund of the Law Society of the Transvaal, in this Part referred to as “the Fund”. The Benevolent Fund maintained by the society immediately for so long as the council maintains it.

108. The council shall credit to the Fund-

108.1 the balance which at the date of promulgation of these rules stands to the credit in the books of the society of the Benevolent Fund maintained by the society immediately before the promulgation of these rules;

108.2 all subscriptions, fees, levies and other charges and all donations and other payment to the Fund received from any person.

109. Subject to any law, the council may from time to time solicit donations to the Fund from members or other persons by way of annual contributions, lump sum payments or in any other manner.

110. The council may, with the approval of the society given at a general or a special meeting in terms of section 60 (2) of the Act, fix subscriptions, fees, levies or other charges to be allocated to the Fund received.

111. The council shall in its discretion assist from the assets of the Fund by way of donation, grant, annuity or otherwise, necessitous members and former members and candidate attorneys and former candidate attorneys and their wives and other dependants, and necessitous surviving spouses and dependants of members or former members or candidate attorneys or former candidate attorneys who have died.

1. The council may determine-

11.2.1 the form and manner of application for assistance from the Fund;

11.2.2 the conditions upon which any such assistance is given.

PART XVI

MISCELLANEOUS

113. SECRETARIAT

The administrative headquarters of the society shall be known as its secretariat and shall be housed in such premises as the council may from time to time determine.

114. BANKING AND BUILDING SOCIETY ACCOUNTS

114.1 The secretary shall cause all money paid to the society to be placed as soon as practicable after their receipt in such accounts as the council may from time to time determine with a banking institution or banking institutions referred to in section 68 (e) of the Act.

114.2 From time to time and in accordance with the directions of the council or of any committee appointed by it for the purpose, the secretary shall withdraw money from any account referred to in rule 114.1 and shall deposit such money in specified accounts with a specified building society or specified building societies referred to in section 68 (e) of the Act.

114.3 All cheques drawn on any banking account kept in terms of the rule 114.1 shall be signed by, and all money withdrawn from any savings, deposit or other investment account with any banking institution or from any building society account kept in terms of rule 114.2 shall be so withdrawn upon the signatures of, the secretary and one member of the council or, at times when there are vacancies in the offices of secretary and assistant secretary or neither the secretary nor an assistant secretary is readily available, by or upon the signatures of any two members of the council.

Suspension or modification of operation of certain rules

1. The council may, in such manner as it may determine and subject to such conditions and directions as it may deem fit, suspend in whole or in part or modify the operation of any of the rules in Parts IX, X or XII in respect of-

115.1 declared members;

115.2 any practitioners while employed by or acting to promote or assist in the functioning of any body recognised by the council as a students legal clinic, legal aid body or other similar organisation of a public nature which renders legal services in the public interest.

115A Any law clinic which seeks recognition as a law clinic for purposes of the satisfaction of the Council, either as part of the faculty of law at a university in the Republic or as a law centre controlled by a non-profit making organisation;

115A.1 The clinic shall be properly constituted, organised and controlled to the satisfaction of the Council, either as part of the faculty of law at a university in the Republic or as a law centre controlled by a non-profit making organisation;

115A.2 the clinic must provide legal services to the public;

115A.3 the legal services provided by the clinic must be rendered free of charge, direct or indirect, to the recipient of those services; provided that-

115A.3.1 the clinic may recover form the recipient of its services any amounts actually disbursed by it on behalf of the recipient;

115A.3.2 where the clinic acts for the successful litigant in litigation it will be entitled to take cession from such litigant of any order for costs awarded in favour of the litigant and to recover those costs for its own account;

115A.4 the services may be rendered only to persons who, in the opinion of the Council, would not otherwise be able to afford them; and the Council may from time to time issue guidelines for the assistance of clinics in determining to whom services may be rendered;

115A.5 the clinic may not undertake word in connection with the drawing up of a will or other testamentary writing, the administration or liquidation or distribution of the estate of any deceased or insolvent person, mentally ill person or any person under any other legal disability, or the judicial management or the liquidation of a company, nor in relation to the transfer or mortgaging of immovable property, nor in relation to the lodging or processing of claims under the Motor Vehicle accidents Act, 1986, or any amendment thereof or such other work as the Council may from time to time determine;

115A.6 the name under which the clinic is to carry on its activities, and the letterheads and other stationer of the clinic, shall require the prior approval of the Council;

115A.7 attorneys in the employ of the clinic may be remunerated only by way of salary payable by the clinic or by the organisation to which it is attached.

115B If an attorney in the full time employment of a law clinic wishes to engage a candidate attorney under articles of clerkship or contract of service he or she may do so only if-

115B.1 the candidate attorney is to be under his or her direct personal supervision or under the direct personal supervision of another attorney who is a member of the professional staff of the clinic;

115B.2 the clinic is open for business during normal business hours for not less than 11 months in any year;

115B.3 the clinic has proper office systems with telephones, typing facilities, files and filing procedures, a diary system and at least elementary library facilities;

115B.4 the clinic has a proper bookkeeping system and accounting procedures;

115B.5 the clinic handles a reasonable wide range of work to give the candidate attorney exposure to the kind of problems that a newly qualified attorney would expect to encounter and be able to handle competently during his or her first year of practice. The Council shall have the right to direct the clinic to require the candidate attorney to attend a training course approved by the Council in areas of practice which, in the opinion of the Council are not adequately dealt with by the clinic.

1. 116. RULES RESCINDED

The following rules are rescinded:

116.1 The rules promulgated under Notice of the Law Society of the Transvaal, No. 2 of 1976, in Government Gazette 5242, dated 6 August 1976.

116.2 The rule promulgated under Notice of the Law Society of the Transvaal, No. 1 of 1977, in Government Notice R115, dated 28 January 1977.

116.3 The rule promulgated under Government Notice R2366, dated the 18 November 1977.

116.4 All the provisions of the Constitution of the Incorporated Law Society of the Transvaal Ordinance, 1905, which are deemed, under section 86(3) of the Act read with section 24(2)(a) of the Law Societies’ Act, 1975 (repealed by section 86(1) of the Act) to be rules made in terms of the Act.

116.5 All provisions not previously rescinded of the Bylaws and Regulations of the Incorporated Law Society of the Transvaal framed in terms of the Constitution of the Incorporated Law Society of the Transvaal Ordinance, 1905.

Date of commencement

1. These rules shall come into operation on the 10th day after the date of their promulgation.