Unit 4A – Capita Selecta Flashcards
The House that Legal Practice Built (1994)
A new democratic dispensation brought about the need to revisit access to justice as well as the structure of the legal profession to serve our “rainbow” nation.
The House that Legal Practice Built (1997)
The Department of Justice publishes Justice Vision 2020 to highlight numerous shortcomings in the legal profession, gender inequality and access to justice.
The House that Legal Practice Built (2004)
Introduction of a new epoch of social media legal commentary legal commentary with the launch of Facebook
and various other platforms.
The House that Legal Practice Built (2015)
➢ As at 2015, it is noted that the total number of 23’712 practicing attorneys. Figures relating to advocates were not readily available.
What do the 2015 figures demonstrate?
▪ 23712 Practicing Attorneys broken down as:
* Gender
15004 males
8708 females
* Race
14694 White Attorneys
5336 Black Attorneys
* Candidates
3060
What question did the 2015 figures raise?
➢ The question was whether this was representative of our constitutional dispensation.
▪ Pay attention to the Male vs Female and White vs Black ratios.
Give an overview of A New Era of
Legal Practice “Builders”
Various factors in South African society influence how legal practice is structured and the overall access to justice as envisaged by the Constitution of the Republic of South Africa,
1996.
The result of A New Era of
Legal Practice “Builders”
❖ The Legal Practice Act 28 of 2014
➢ Promulgation
➢ Purpose
➢ Staggered Approach to Implementation
➢ Highlighting of pertinent provisions
➢ Amendments
➢ Bodies created by the LPA
➢ Pertinent Cases
➢ The Role of Artificial Intelligence in Legal Practice
➢ Critique of the LPA
When Cracks Start to Show and Remain:
Access to Justice
❖ While the framework created by the LPA has paved the way for access to justice, the lived experiences of South Africans depict a different reality as echoed by Greenbaum, Heywood, Dugard and others.
➢ Does this mean that the LPA has failed?
➢ Maintenance or complete overhaul? What is the solution?
What does the concept of Privacy and
Access to Information consist of?
❖ Legal Privilege
❖ Protection of Personal Information
❖ Access to Information
❖ Constitutional Considerations
Privilege
➢ The right to have one’s confidential communications with a
lawyer protected is an indispensable part of legal systems
throughout the world.
➢ Clients confide in lawyers in order to take appropriate advice
on the basis of full disclosure of the facts.
➢ Legal professional privilege is a specific right that clients can
assert to prevent disclosure, covering communications made
for legal advice or in the context of litigation.
➢ Privilege extends only to lawyers acting in their capacity as
legal professionals, and clients have the authority to wave
privilege. However, privileged information that enters the public domain cannot be suppressed, emphasizing the
importance of protecting confidential communications,
particularly in electronic formats.
➢ There is a difference between confidentiality and legal professional privilege. Confidentiality relies on the person to
whom the communication is made who is required to keep it confidential. Privilege is asserted by a client in relation to
information shared with a legal professional.
The Two Types of Privilege
➢ (1) Communications made by clients to attorneys for the purposes of obtaining legal advice are privileged.
➢ (2) Anything exchanged between attorneys and clients in the context of litigation are covered by what is called litigation.
Further Considerations for Legal Professional Privilege
➢ Legal professional privilege is much narrower that confidentiality. A document may be confidential but not subject to legal professional privilege.
➢ Legal professional privilege will never protect the disclosure or commissioning of unlawful conduct.
➢ This includes lawyers who are not in private practice by who, for example, work for the state or a corporate body.
The privilege does, however, not extend to non-lawyers, even if they have expertise in a particular legal field.
General Rule for Legal Professional Privilege to Activate
Only when the information is given to lawyers does privilege apply
The Importance of Public Interest
➢ In certain situations, public interest may override legal professional privilege. For example, section 46 of the Promotion of Access to Information Act 2 of 2000 obliges
public bodies to grant access to a record, even if it is subject to legal privilege, if the disclosure would reveal “evidence of substantial contravention or a failure to comply with the law” or “an imminent and serious threat to safety or environmental risk… where public interest in the disclosure clearly outweighs the harm of breaching privilege.”
