Rules and Regulations: The Profession

Question 1

why is a fidelity fund important for clients?

Answer 1

So that they can entrust attorneys with a deposit or any trust money

Question 2

Liability of the fidelity fund

Answer 2

The Fund is liable to reimburse persons who suffer pecuniary loss,
- as a result of theft of any money or other property given in trust to a trust account practice
- in the course of the practice of the attorney or an advocate

Question 3

When shall the Fidelity fund not be liable?
Give the limitations of the fund

Answer 3

• if the attorney is employed by a non-practioner/private company
• If stolen by the wife/husband of practitioner
• If stolen by partner
• If stolen from person who has received warning from the Legal Practice Council that a law firm or attorney is being investigated
• If stolen by person who instructed attorney to invest

Question 4

Steps for making a claim against the fund?

Answer 4

Must notify Fund within 3 months after you became aware of the theft

Must then prove claim within 6 months

If repudiated, summons must be issued within 1 year

Question 5

What does Section 6(1) say on the Practical Vocational Training Requirements for CA’s (Attorney)

Answer 5

An individual seeking admission and enrollment as an attorney must meet all the degree requirements specified in sections 26(1)(a) or (b) of the Act.

Subsequently, they must complete a practical vocational training contract with another person.
The training contract must be for an uninterrupted period of 24 months, during which the candidate attorney must also complete a structured course work program.

If the candidate fails to complete the course work within 36 months from the registration date of the practical vocational training contract, they will be required to repeat the program.

Alternatively, if the candidate has already completed a structured course work program lasting no longer than six months before registering the training contract, they may serve an uninterrupted 12-month period instead.

Question 6

Section 6(6)

Answer 6

➢ An attorney engaging a candidate attorney must have practised as an attorney for a period of not less than three years.

Question 7

Section 6 (2) on the on the Practical Vocational Training Requirements for the admission of a CA (attorney)

Answer 7

A person who has entered into a practical vocational training contract for a period of 24 months may,
after having served a period of 12 months under that contract, apply for admission and enrolment as an attorney if he or she has, during the course of that period of 12 months but outside of his or her normal working
hours in terms of that contract, completed a programme of structured course work.

Question 8

Section 6 (5) on the on the Practical Vocational Training Requirements for the admission of a CA (attorney)

(Type of attorney to retain someone doing that vocational training)

Answer 8

A candidate attorney may be engaged or retained under a practical vocational training contract by an attorney:
(a) practising for his or her own account;
(b) practising as a partner in a firm of attorneys;
(c) practising as a member of a juristic entity;
(d) practising as state attorney;
(e) who has practised as a professional assistant in afirm of attorneys for a period of five years within the preceding six years
(f) in the full-time employ of, or who is a member of:
* (i) Legal Aid South Africa; or
* (ii) a legal aid institution which has been approved by the Council for the purpose of engaging candidate attorneys and who is responsible for supervising the training of candidate attorneys so engaged.

Question 9

Section 6 (7) on the on the Practical Vocational Training Requirements for the admission of a CA (attorney)

Answer 9

Service by a candidate attorney to any attorney while that attorney is not practising is not deemed to be service under a practical vocational training contract for
purposes of these regulations.

Question 10

Section 6 (8) on the on the Practical Vocational Training Requirements for the admission of a CA (attorney)

Restrictions of the number of CAs one may have

Answer 10

An Attorney may, at no time, have more than three candidate attorneys

a Legal Aid attorney may, at
no time, have more than six candidate attorneys.

Question 11

Section 6 (9) on the on the Practical Vocational Training Requirements for the admission of a CA (attorney)

What happens to the CAs if their attorney dies or retires?

Answer 11

When an attorney dies or retires from practice or has been struck off the Roll, any of his or her surviving or remaining partners, may take cession of the practical vocational training contract of the candidate attorney,
despite the fact that the cessionary may then have more than three or six, as the case may be, candidate attorneys,under contract.

Question 12

What does s7(1) say on Practical Vocational Training Requirements for Pupils
(Advocate)

Answer 12

A person intending to be admitted and enrolled as an advocate must—
(a) serve under a practical vocational training
contract with a person for an uninterrupted period of 12 months after that person has satisfied all the requirements for a degree referred to in sections 26(1)(a) or (b) of the Act; and
(b) prior to or during service under a practical
vocational training contract complete a programme of structured course work.

Question 13

What does s7(4) say on Practical Vocational Training Requirements for Pupils
(Advocate)?
what the type of advocate who may engage pupils in Vocational Training?

Answer 13

A pupil may be engaged or retained under a practical vocational training contract by an advocate who have practised as an advocate for a period of not less than three years.

Question 14

What does s 7(7) say about the number of pupils an advocate may have?

Answer 14

An advocate may, at no time, have more than one pupil.

Question 15

Industrial and Commercial Factors (Pty) Ltd v Attorneys Fidelity Fund Board of Control

Answer 15

Facts: Person claimed for money that was stolen by the practicing attorney.

Held: That it was theft.

Question 16

King v Attorneys Fidelity Fund Board of Control

Answer 16

Facts:
Attorneys Fidelity Fund
– claims against Fund under s 26(a) of Attorneys Act 53 of 1979 –
money was paid into the firm of attorneys’ trust account and subsequently stolen
– assumed money had been entrusted to the practitioner in the course of practice as such – the money destined to be invested in a factoring scheme operated by a third party –

claims excluded by s 47(1)(g) of the Attorneys Act since, when the money deposited in the practitioner’s trust account,
instruction was to invest in a factoring scheme on the claimants’ behalf.

Held: Defendant proved that the plaintiff’s claims are excluded.

Question 17

Attorneys Fidelity Fund Board of Control v Mettle Property Finance (Pty) Ltd

Answer 17

Facts: Claim against Fidelity Fund in terms of s 26(a) of the Attorneys Act 53 of 1979

– pecuniary loss suffered
allegedly as a result of attorney’s theft of money
entrusted to him – entrustment not proved.

Held: There was no entrustment but that doesn’t mean there wasn’t theft.

Question 18

List the three cases involving the fidelity fund

Answer 18

Industrial and Commercial Factors (Pty) Ltd v Attorneys Fidelity Fund Board of Control

King v Attorneys Fidelity Fund Board of Control

Attorneys Fidelity Fund Board of Control v Mettle Property Finance (Pty) Ltd

Question 19

Jasat v Natal Law Society 2000 3 SA 44 (SCA)

Answer 19

➢ The case dealt with the suspension of an attorney by the Natal Law Society due to dishonesty. The attorney
challenged the decision, but the court upheld the suspension.

Question 20

Jasat establishment of a 3 stage test

Answer 20

▪ Whether alleged offending conduct established on a balance of probabilities (1)
▪ Whether a person is fit and proper to continue to practice.
▪ Removal from the Roll or Suspension (depending on dishonesty, if dishonest then Removal.)

Question 21

Malan v Law Society of the Norther Provinces (SCA)

Answer 21

➢ In this case, the court considered whether an attorney’s suspension was justified due to misconduct. The court affirmed the suspension, emphasizing the seriousness of
the attorney’s actions.