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THE LAW SOCIETY OF THE NORTHERN PROVINCES
PROVIDED WITH NO GUARANTEES AS TO COMPLETENESS, ACCURACY OR OTHERWISE
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ATTORNEYS ACT 53 OF 1979 CHAPTER III LAW SOCIETIES |
| 56. | Continued existence of law societies. |
| The law societies known as (a) in the case of the law society of the province of the Cape of Good Hope, The Law Society of the Cape of Good Hope; (b) in the case of the law society of the province of the Orange Free State, The Law Society of the Orange Free State; (c) in the case of the law society of the province of the Transvaal, The Law Society of the Transvaal [Law Society of the Northern Provinces]; (d) in the case of the law society of the province of Natal, The Natal Law Society; (e) ... . (Para. (e) deleted by s.15 of Act No. 115 of 1993) shall, notwithstanding the provisions of section 86, continue to exist as juristic persons. |
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| 57. | Membership of society. |
| (1). | Every practitioner who practises in any province, whether for his or her own account or otherwise, shall be a member of the society of the province. |
| (2). | A society may give notice in writing addressed to any person who has been admitted and enrolled as an attorney or a notary or conveyancer in any court in the province of its society, or whose name has been placed on the roll of such court, but who does not practise in that province, declare such person to be member of such society with effect from a date fixed in that notice. |
| (3). | The person who holds office as State Attorney in terms of section 2 (1) (a) of the State Attorney Act, 1957 (Act No. 56 of 1957), shall be a member of every society. |
| (4). | If a member of any society is suspended from practice he or she shall during the period of such suspension not be entitled to the rights or privileges of membership of any society, and if a member of any society is struck off the roll of any court, such member shall cease to be a member of every society of which he or she is a member. |
| (5). | The provisions of this section shall not apply in respect of any person who is in terms of the Natal Conveyancers Act, 1926 (Act No. 24 of 1926), entitled to practise as a conveyancer, but who is not an attorney. |
| 58. | Objects of society. |
| The objects of a society shall be (a) to maintain and enhance the prestige, status and dignity of the profession; (b) to regulate the exercise of the profession; (c) to encourage and promote efficiency in and responsibility in relation to the profession; (d) to deal with all matters relating to the interests of the profession and to protect those interests; (e) to uphold the integrity of practitioners; (f) to uphold and improve the standards of professional conduct and qualifications of practitioners; (g) to provide for the effective control of the professional conduct of practitioners; (h) to promote uniform practice and discipline among practitioners; (i) to encourage the study of the law; (j) to initiate and promote reforms and improvements in any branch of the law, the administration of justice, the practice of the law and in draft legislation; (k) to represent generally the views of the profession; (l) in the interests of the profession in the Republic, to co-operate with such other societies or bodies of persons as it may deem fit. |
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| 59. | Powers of society. |
| A society may for the purpose of achieving its objects (a) acquire or hire movable or immovable property; (b) develop, hypothecate, let, sell or otherwise dispose of movable or immovable property of the society; (c) make donations of property (including money) of the society; (d) accept, draw, endorse, issue, make, pay or perform any other act in respect of negotiable instruments; (e) with or without security, invest or lend money of the society; (f) with or without security, borrow or raise money required by the society in connection with the carrying out of its duties, the performance of its functions or the exercise of its powers; (g)(i) employ, fix the remuneration and other conditions of service of and discharge a secretary, one or more assistant secretaries and other officials and employees of the society; (ii)conclude any agreement with any person for the performance of any particular act or particular work or the rendering of particular services; (h) establish or promote or assist in the establishment or promotion or administration of (i) insurance schemes; (ii) medical aid schemes or medical benefit schemes; (iii) pension funds or provident funds or pension schemes or benevolent schemes; for members and ex-members of the society, for employees of such members, for officials and employees of the society and for dependants of such members, ex-members, officials and employees; (i) enter into contracts in connection with the carrying out of its duties, the performance of its functions or the exercise of its powers; (j) appear in support of or in opposition to, or to abide the decision of any court in, any proceedings brought in terms of the provisions of this Act, and if permitted by any other law, such law; (k) generally, do anything that is necessary for or conducive to the attainment of the objects of the society, and the generally of this provision shall not be limited by the preceding paragraph of this section. |
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| 60. | Council to manage and control affairs of society. |
| (1). | The affairs of a society shall be managed and controlled by a council, which may, subject to the provisions of subsection (2), exercise the powers of the society. |
| (2). | The alienation or mortgaging of any immovable property of a society, the appointment of the auditors of a society and the fixing of any subscription, fees, levies or other charges payable to a society by its members, shall be subject to the approval of such majority of the members of that society who are present or represented at a general meeting or at a meeting specially convened for that purpose, as may be prescribed. |
| 61. | Constitution of council and election and period of office of members. |
| (1). | A council shall consist of such number of members of the society concerned as may be prescribed. |
| (2). | The members of a council shall be elected in the prescribed manner by the members of the society concerned. |
| (3). | A member of a council shall hold office for the prescribed period. |
| 62. | Vacation of office, suspension from office and filling of vacancies. |
| (1). | A member of a council shall vacate his or her office (a) in the prescribed circumstances; (b) if he or she is removed from office by the council in the prescribed circumstances and manner. |
| (2). | (a) When a member of a council vacates his or her office before the expiration of the prescribed period of office, the council may appoint a member of the society to fill the vacancy for the unexpired portion of such period of office. (b) Any vacancy occurring in any council as a result of the increase in the number of members of such a council, may be filled by a person appointed by that council from the members of the society concerned and such a person shall hold office until the completion of the next election of members of the council held subsequent to the appointment of the person concerned. (Para. (b) added by s.4 of Act No. 115 of 1998) |
| (3). | A council may in the prescribed circumstances and manner suspend from office any member of that council and may in such case appoint any member of its society to act during the period of suspension in the place of the member so suspended. |
| 63. | President and vice-president or vice-presidents. |
| (1). | A council shall from among its members elect a president and one or more vice-presidents, who shall respectively also be the president and vice-presidents of the society concerned and who shall hold office for the prescribed periods. |
| (2). | If the office of the president becomes vacant before the expiration of his or her period of office, the vice-president or, if there is more than one vice-president, that vice-president determined by the council, shall be the president for the unexpired portion of such period of notice. |
| (3). | If the office of a vice-president becomes vacant before the expiration of his or her period of office, the council shall elect one of its number to fill such vacancy, and the member so elected shall be vice-president for the unexpired portion of such period of office. |
| (4). | If for any reason the president is absent or unable to perform his or her functions as president, the vice-president or, if there is more than one vice-president, such vice-president as the council may determine, shall act as president, and such vice-president shall while so acting have all the powers and perform all the functions of the president. |
| 64. | Meetings of council. |
| (1). | A meeting of a council shall be convened in the manner prescribed and shall be held at a time and place prescribed or determined in the manner prescribed. |
| (2). | If the president and the vice-president or, if there is more than one vice-president, all vice-presidents, are absent from or unable to preside at any meeting of a council, the members of the council present at that meeting shall elect one of their number to preside at such meeting during such absence or inability, and the person so elected shall while so presiding have all the powers and perform all the functions of the president. |
| (3). | (a) The decision of the majority of the members of a council present at a meeting of the council shall be the decision of the council: Provided that in the event of an equality of votes on any matter before such meeting, the person presiding at such meeting shall have a casting vote in addition to his or her deliberative vote. (b) The method and procedure of voting at meetings of a council shall be determined by that council. |
| (4). | (a) The quorum for any meeting of a council shall be as prescribed. (c) If the number of members of a council is reduced to a number less than that required to constitute the prescribed quorum, the remaining members of that council shall from among the members of the society concerned appoint such number of members as is required to constitute the prescribed quorum. |
| 65. | Alternate members. |
| A council may appoint any member of its society as an alternate to attend on behalf of any member any meeting of the council which such member is unable to attend, with the power to vote at any such meeting. |
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| 66. | Validity of decisions taken by, or acts performed under authority of, council. |
| No decision taken by a council or act performed under authority of a council shall be invalid by reason only of the existence of a vacancy on that council or of the fact that a person who was not entitled to sit as a member of the council, sat as a member of the council, if the decision was taken or the act was authorised by the requisite majority of the members of the council who were present at the time and entitled to sit as members. |
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| 67. | Committees of council. |
| (1). | (a) A council may appoint one or more committees to assist it in the carrying out of its duties, the performance of its functions and the exercise of its powers, may at any time increase or reduce the membership of its powers, may at any time increase or reduce the membership of any such committee and may fill any vacancy on any such committee. (b) Any committee referred to in paragraph (a) shall consist of members of the council concerned or of members of the society concerned or of members of such council as well as of members of such society. (c) A council may designate one of the members of a committee appointed by it in terms of paragraph (a) as chairman of that committee and, if no such designation is made, the members of that committee may from among their number elect a chairman. |
| (2). | A council may assign to a committee appointed by it in terms of subsection (1), such of its powers as it may deem fit, but shall not be divested of any power which it may have assigned to a committee, and may amend or withdraw any decision of any such committee: Provided that if a council has assigned to a committee the power to enquire into any case of alleged unprofessional or dishonourable or unworthy conduct and to impose any punishment in respect thereof in accordance with section 72, the council shall not amend or withdraw any decision arrived at or anything done by such committee in terms of the power so assigned. |
| (3). | A council may require any committee appointed in terms of subsection (1) either generally or specially to enquire into and to advise the council on any matter in connection with the duties, functions or powers of the society or the council. |
| 68. | Duties of council. |
| A council shall (a) convene annually a general meeting of the members of its society; (b) convene in the prescribed circumstances a special meeting of the members of its society; (c) determine the date and place of meetings of it society and the business to be transacted at such meetings; (d) make rules providing for the calling of and the quorum and procedure at meetings of its society, and the manner in which motions shall be submitted to such meetings; (e) deposit all money received by it with a banking institution or with a building society; (f) keep proper accounts of the revenue and expenditure and of the assets and liabilities of it society. |
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| 69. | Powers of council. |
| A council may (a) prescribed the books, records, certificates or other documents to be kept, maintained or issued for the purposes of this Act, the form thereof, the inspection thereof by persons authorised to do so by the council, and the circumstances and manner in which alterations may be effected thereto; (b) fix the subscriptions, fees, levies or other charges payable to its society by the members of its society, and, in fixing such subscriptions, fees, levies or other charges, differentiate among members belonging to different categories determine by it for the purpose; (c) fix the fees payable to its society in respect of certificates issued by the secretary of its society, and determine the persons who shall be obliged to pay such fees; (d) prescribe the tariff of fees payable to any practitioner in respect of professional services rendered by him or her in cases where no tariff is prescribed by any other law; (dA) authorise any practitioner, after the submission of reasons which are acceptable to the council, to deviate in a particular case from any prescribed tariff for conveyancing services; (Para. (dA) inserted by s.54 (a) of Act 129 of 1993) (e) prescribe the information to be furnished to the secretary of its society by any person who (i) commences or discontinues to practise in the province of its society; (ii) takes up employment in that province or ceases to be employed therein as a practitioner; (iii) enters into or withdraws from a partnership with any person practising in that province; (iv) practises in that province and who changes his or her business or residential address; (f) prescribe the minimum remuneration payable to candidate attorneys: (Para. (f) substituted by s.23 (a) of Act 87 of 1989) (g) prescribe the form and contents of articles of clerkship; (h) prescribe the manner of assessment of the fees payable by any person to a practitioner in respect of the performance of any work other than litigious work and in respect of expenses reasonably incurred by such practitioner in connection with the performance of that work and, mero motu or at the request of such person or practitioner, assess such fees in the prescribed manner; (para. (h) substituted by s.23 (b) of Act 87 of 1989, by s.5 (a) of Act 102 of 1991 and by s.54 (b) of Act 129 of 1993) (i) pay any person allowances to cover expenses reasonably incurred by such person in connection with the performance of any act at the request or under the directions of the council, on behalf of or for the benefit of its society; (j) subject to such conditions as it may deem fit to impose, permit members of its society to form associations of such members, to be known as circles, in respect of such areas of the province be known as circles, in respect of such areas of the province concerned as the council may determine from time to time; determine the duties, functions and powers of such circles; designate places as the headquarters of such circles; and determine the constitution of bodies responsible for the management of the affairs of such circles; (k) prescribe the conditions on which any practitioner may practise at any branch office or in association with any other practitioner or any other person who carries on the practice of a lawyer outside the Republic; (l) prescribe the allowance on the fees charged by a practitioner for professional services which such practitioner shall be entitled to make to another practitioner or to any other person who carries on the practice of a lawyer outside the Republic with whom he or she is not in partnership, in respect of any matter on which they were both engaged; (m) prescribe the procedure to be followed in connection with any enquiry referred to in section 71; (n) determine the manner in which the council shall conduct its business; (o) prescribe the requirements to be complied with by a law clinic referred to in section 3(1)(f); (Para (o) inserted by s.5 (b) of Act 102 of 1991) (p) do anything which is required for the proper and effective carrying out of its duties, the performance of its functions or the exercise of its powers. |
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| 70. | Council's power of inspection. |
| (1). | A council may for the purposes of an enquiry under section 71 or in order to enable it to decide whether or not such an enquiry should be held, direct any practitioner to produce for inspection, either by the council itself or by any person authorised thereto by the council, any book, document, record or thing which is in the possession or custody or under the control of such practitioner and which relates to his or her practice or former practice. |
| (2). | The refusal or failure by a practitioner to comply with a direction in terms of subsection (1) shall constitute unprofessional conduct. |
| 71. | Enquiry by council into alleged cases of unprofessional or dishonourable or unworthy conduct. |
| (1). | A council may in the prescribed manner inquire into cases of alleged unprofessional or dishonourable or unworthy conduct on the part of any attorney, notary or conveyancer whose name has been placed on the roll of any court within the province of its society, whether or not he or she is a member of such society, or of any person serving articles of clerkship or a contract of service with a member of its society, or of any former candidate attorney referred to in section 8 (4). (Sub-s. (1) substituted by s.24 of Act 87 of 1989 and by s.16 of Act 115 of 1993) |
| (2). | (a) For the purposes of any enquiry under subsection (1), a council may (i) under the hand of the president or the secretary of its society, summon any person who in the opinion of the council may be able to give material information concerning the subject matter of the enquiry or who is believed by the council to have in his or her possession or custody or under his or her control any book, document, record or thing which has any bearing on the subject matter of the enquiry, to appear before it at a time and place specified in the summons, to be interrogated or to produce that book, document, record or thing, and may retain for inspection any book, document, record or thing so produced; (ii) through the person presiding at the enquiry administer an oath to, or accept an affirmation from, any person present at the enquiry and who was summoned under subparagraph (i) and interrogate him and require him or her to produce any book, document, record or thing in his or her possession or custody or under his or her control. (b) A summons referred to in paragraph (a) shall be served in the same manner as a summons for the attendance of a witness at a civil trial in a magistrate's court. (c) In connection with the interrogation of any person who has been summoned under this section or the production by such person of any book, document, record or thing, the law relating to privilege as applicable to a witness summoned to give evidence or to produce a book, document, record or thing in a civil trial before a court of law shall apply. (d)(i) Any person who has been summoned in terms of this subsection or who has given evidence before a council shall be entitled to the same witness fees as if he or she had been summoned to attend or had given evidence at a civil trial in a magistrate's court held at the place where the enquiry is held. (ii) Any fees which may become payable in terms of subparagraph (i) shall be paid from the funds of the society concerned. |
| (3). | The person presiding at the enquiry shall keep or cause to be kept a record of the proceedings at the enquiry and of the evidence given thereat. |
| (4). | A council conducting an enquiry in terms of this section may, if the conduct enquired into forms or is likely to form the subject of criminal or civil proceedings in a court of law, postpone the enquiry until such proceedings have been determined. |
| 72. | Council's disciplinary powers. |
| (1). | A council conducting an enquiry in terms of section 71 may find the person concerned guilty of unprofessional or dishonourable or unworthy conduct and may (a) in the case of a practitioner (i) impose upon him a fine not exceeding R10 000; or (ii) reprimand him or her; or (iii) for a specified period or until otherwise decided by the council, debar him or she from engaging or continuing to engage a candidate attorney; and (iv) recover from him or she the costs incurred by the council in connection with such enquiry; (b) in the case of a candidate attorney (i) cancel or suspend his or her articles of clerkship or contract of service; or (ii) impose upon him or her a fine not exceeding R2 000; or (iii) reprimand him or her. (c) in the case of a former candidate attorney referred to in section 8(4) (i) debar him or her from remaining in the employ of the attorney referred to in section 8(4) or 8(5), as the case may be; or (ii) impose upon him or her a fine not exceeding R2 000; or (iii) reprimand him or her. (Sub-s. (1) amended by s.5 (b) of Act 80 of 1985 and substituted by s.25 of Act 87 of 1989, amended by s.17 of Act 115 of 1993 and by s.13 of Act 204 of 1993) |
| (2). | Where a council finds a person referred to in subsection (1) guilty of the conduct referred to therein, it may (a) on the conditions determined by it postpone the taking of any steps in respect of him or her or the imposition of any punishment upon him or her; (b) impose a fine referred to in subsection (1), but suspend the payment of such fine, or any part thereof. |
| (3). | (a) If the taking of any steps or the imposition of any punishment has been postponed for a particular period in terms of subsection (2), and if at the end of that period the council concerned is satisfied that the person concerned has substantially observed all the relevant conditions, that council shall inform that person that no steps will be taken in respect of him or her or that no punishment will be imposed upon him or her. (b) If the payment of a fine or any part thereof has been suspended by a council for a particular period in terms of subsection (2), and if at the end of such period the council concerned is satisfied that the person concerned has substantially observed all the relevant conditions, that council shall inform such person that the payment of that fine or that part thereof will not be enforced. |
| (4). | A fine imposed at an enquiry in terms of this section and the costs incurred by a council in connection with such enquiry may be recovered by legal process in the magistrate's court of the district in which the office of the society concerned is situate. |
| (5). | A council may to such extent and in such manner as may be prescribed publish information relating to an enquiry held by it in terms of section 71. |
| (6). | The provisions of this section shall not affect the power of (a) a society to apply in terms of the provisions of this Act for the suspension from practice or the striking from the roll of any practitioner against whom an enquiry is being or has been conducted in terms of this Act in respect of the conduct which forms or formed the subject matter of such enquiry; (b) a competent court, at the instance of the society concerned, to suspend any practitioner from practice or to strike him or her from the roll. |
| 73. | Appeal against finding of council. |
| (1). | A person who has been found guilty in terms of section 72 may within a period of thirty days of the date of the council's decision appeal to a competent court against that finding by lodging with the registrar of that court a notice of appeal setting out in full his or her grounds of appeal. |
| (2). | A person who appeals in terms of subsection (1) shall when lodging such notice of appeal deposit with the registrar concerned an amount of R200 as security for the costs of the appeal and shall on the same day deliver or send to the secretary of the society concerned a copy of the notice of appeal. |
| (3). | The secretary of the society concerned shall within a period of thirty days of the date upon which he or she received the notice of appeal referred to in the enquiry concerned (a) three copies of the record referred to in section 71(3); (b) the documentary evidence admitted at the enquiry; (c) a statement of the finding of the council which held the enquiry and the reasons for such finding; (d) any observations which such council may wish to make. |
| (4). | An appeal in terms of subsection (1) shall be prosecuted as if it were an appeal from a judgment of a magistrate's court in a civil matter, and all rules applicable to such last-mentioned appeal in respect of the hearing thereof shall mutates mutandis apply to an appeal under this section. |
| (5). | The court hearing an appeal under this section shall (a) confirm the finding appealed against; or (b) set that finding, and the punishment imposed in respect thereof, aside; or (c) confirm that finding, but set that punishment aside, and impose in its place such punishment as could have been imposed by the council concerned. |
| (6). | If a person succeeds in his or her appeal in terms of this section, the costs of the enquiry shall not be recoverable by the council concerned, and if such costs have already been recovered by that council, such costs shall be refunded. |
| 74. | Council may make rules. |
| (1). | A council may subject to the provisions of subsection (2) and (3) make rules, which shall be binding within the province of its society, as to (a) conduct which on the part of any practitioner or candidate attorney, or former candidate attorney referred to in section 8 (4), shall constitute unprofessional or dishonourable or unworthy conduct; (Para. (a) substituted by s.26 of Act 87 of 1989) (b) service under articles of clerkship or a contract of service and the circumstances under and the conditions on which articles of clerkship or a contract of service may be cancelled by the council; (Para. (b) substituted by s.18 (a) of Act 115 of 1993) (c) the conditions relating to conduct and activities on which persons other than practitioners may be employed by practitioners to assist them in their practices; (d) the appointment by the council of persons as honorary members of its society, the rights and privileges of such honorary members and the termination of their membership; (e) any matter not provided for in this section which by this Chapter is required or permitted to be prescribed; and (f) generally, all matters which the council considers it necessary or expedient to prescribe in order that the purposes of this Chapter may be achieved. |
| (2). | Any rule referred to in subsection (1) shall be made with the approval of the Chief Justice of South Africa and, if the Chief Justice is of the opinion that the interests of the public would be adversely affected by the provisions of any such rule, with the approval of the State president. |
| (3). | A council shall not submit any draft rule to the Chief Justice unless (a) if the draft rule is submitted by the council of (i) the Law Society of the Cape of Good Hope; (ii) the Law Society of the Orange Free State; (iii) the Natal Law Society; or (iv) ... (deleted), such draft rule has been approved by the majority of the members of the society concerned present or represented at a general meeting of that society; and (Para. 9a) amended by s.18 (b) of Act 115 of 1993) (b) the council has consulted with the judge president of every provincial division in the province of its society and with the chief justice of every high court in such province. |
| (4). | Rules made under subsection (1) shall come into operation on the date of publication of such rules in the Gazette or on a subsequent date fixed in the notice of publication. |
| (5). | Any assessment of fees in terms of a rule contemplated in section 69 (h) shall be subject to review in all respects as if it were a determination by such officer of a provincial division or high court as is charged with the taxation of fees and charges. |
| (6). | In this section "High Court" means any high court constituted in terms of section 34 (1) of the Self-governing Territories Constitution Act, 1971 (Act 21 of 1971). (Sub-s (6) substituted by s.18 (c) of Act 115 of 1993) |
| 75. | Limitation of liability. - |
| No action for damages shall lie against any society, council, member of a council, official or employee of any society of any person with whom a council has concluded any agreement referred to in section 59(g)(ii), in respect of anything done in good faith in terms of this Act. |
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| 76. | Society may institute private prosecution. |
| Any society may, by any person authorised thereto in writing by his or her president, institute a prosecution for any offence in terms of this Act or of any regulation made thereunder, and the provisions of the laws relating to private prosecutions shall apply to such prosecution as if a society is a public body. |
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| 77. | Particular provisions relating to persons exercising legal profession in Transkei or Ciskei. |
| (1). | Any person who exercises in Transkei or Ciskei a legal profession equivalent so that of a practitioner, shall be a member of the society known as the law Society of the Cape of Good Hope, if such person is in terms of a law of Transkei or Ciskei, as the case may be, permitted to be a member of that society. |
| (2). | The society referred to in subsection (1), may perform in respect of any person who exercises in Transkei or Ciskei a legal profession referred to in that subsection, or who undergoes training in Transkei or Ciskei in order to qualify himself for such profession, such functions as are assigned in terms of this Chapter to the society in respect of practitioners or candidate attorneys, or former candidate attorneys referred to in section 8 (4), if a law of Transkei or Ciskei as the case may be, authorises it to do so. (S.77 substituted by s.2 of Act 116 of 1981. Sub-s (2) substituted by s.27 of Act 87 of 1989) |