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Legislation: Legal fees investigation begins

Publish date: 10 May 2019
Issue Number: 4694
Diary: Legalbrief Today

An issue paper announcing the beginning of the South African Law Reform Commission’s investigation into legal fees and tariffs was released on Tuesday for comment by 30 August, reports Pam Saxby for Legalbrief Policy Watch. According to an accompanying media statement, its purpose is to ‘initiate and stimulate debate, seek proposals for reform and … serve as a basis for further deliberation by the commission. This is noting that sub-sections 35(4) and (5) of the 2014 Legal Practice Act mandate the commission to ‘investigate and … report back to the Minister with recommendations on the circumstances giving rise to legal fees that are unattainable for most people’; legislative and other interventions that would ‘improve access to justice by members of the public’; and ‘the desirability of establishing a mechanism … responsible for determining fees and tariffs payable to legal practitioners’.

The statement confirms that the commission is also required ‘to consider the desirability of giving (the) users of legal services the option to pay less or in excess of any amount that may be set by ... (such a) mechanism' – as well as an obligation on the part of a legal practitioner to conclude a mandatory fee arrangement with a client when services are secured. In doing so, the commission ‘must be guided by best international practices; the public interest; the interests of the legal profession; and the use of contingency fee agreements’ as provided for in the 1997 Contingency Fees Act. Against that backdrop, in addition to fees and costs and associated socio-economic factors, the issue paper unpacks the legal system, the litigation process, court processes and procedures and the legal profession – posing in-depth questions as each issue is explored. Should the commission consider a mechanism for establishing fees and tariffs to be ‘necessary and desirable’, its composition and the process to be followed in making the required determinations will then be considered. At this stage, however, no recommendations are made.

Follow Pam Saxby on Twitter (@SaxbyPam)