History of the National Bar Council of South Africa

Formation of IAASA (1994)

In 1994, a group of 50 advocates from all over South Africa gathered in Pretoria to discuss the shortcomings in the structure of the advocate's profession as well as the broader legal profession. Advocates were feeling constrained by the rigours of the existing single Bar.

The main issues discussed were:

The accessibility of the legal profession to the public
The provision of support to advocates who were not members of any Bar
The provision of a flexible yet structured environment for those advocates who did not want to become members of an existing Bar

Enhanced Professional Access

Allowing advocates to accept briefs directly from the public, increasing accessibility to legal services.

Healthy Competition

Promoting competition between lawyers including advocates and attorneys for better and more cost-effective service to the public.

Inclusive Profession

Assisting previously disadvantaged individuals to enter the profession without undue barriers.

"I was still in the Department of Justice in 1994 when I came across a Sunday paper advertising the formation of a new legal body called the Independent Association of Advocates of South Africa. This caught my attention. I travelled to Pretoria in September 1994 and was pleasantly surprised to find a large lecture/boardroom packed to capacity with lawyers of all colour. There was genuine excitement in the room. There was the promise/hope of change."

- Adv De Freitas, Founding Member

It is no coincidence that IAASA was formed in 1994, the year of our new democracy, as IAASA strongly supports the principles espoused first in the interim constitution and then in the 1996 constitution, and continues to fight for an accessible legal profession to serve the public and the freedom of members to choose the form of their practice.

Legal Challenges & Court Cases

The newly formed IAASA members did not go unchallenged in their boldness. M Klein was threatened to be struck from the role of advocates and Adv J de Freitas faced a court challenge. In the profession, any advocate or advocates choosing to practice independent of the traditional Bar Council were quickly referred to as the rebels, despite IAASA implementing its own rules of ethics and conduct.

Society of Advocates of Natal v De Freitas and Another

1997 (4) SA 1134 (N)

The full Court of the Natal Provincial Division of the High Court found Mr De Freitas guilty of unprofessional conduct and suspended him from practice for a period of six months.

General Council of the Bar of South Africa v Van der Spuy

1999 (1) SA 577 (T)

Key case challenging the traditional referral rule and advocating for direct access to advocates.

De Freitas and Another v Society of Advocates and Another

2001 (3) SA 750 (SCA)

Supreme Court of Appeal made crucial remarks about referral practices and comparisons with international jurisdictions.

"The information supplied to us from the United Kingdom and Australia indicates that in most areas where the division within the legal profession is maintained, the referral rule has been substantially adapted, so that, subject to strict safeguards, specialist litigation practitioners are indeed now entitled to take work directly from the public or sections of it."

- Cameron JA, Supreme Court of Appeal

Cameron JA also held that: "I do, however, consider that the Bar should be encouraged to investigate with urgent speed whether accommodations of the referral rule along the lines already practised in comparable jurisdictions should not be introduced were as a means of possible enhancing public access to legal services and reducing the cost of at least some of those services."

Transition to National Bar Council of South Africa

On 9 June 2013, the Annual General Meeting of IAASA accepted a name change to be known as the National Bar Council of South Africa or NBCSA.

The Legal Practice Act, 2014 was passed in 2014. The NEC of National Bar Council of South Africa participated during the proceedings of the Portfolio Committee on Justice and Constitutional Development when the Bill was processed in Parliament prior to it being passed as an Act of Parliament.

Legal Practice Act, 2014 - Key Provisions

Section 34(2) - Direct Access to Advocates

"(2) (a) An advocate may render legal services in expectation of a fee, commission, gain or reward as contemplated in this Act or any applicable law - upon receipt of a brief from an attorney; or upon receipt of a request directly from a member of the public or from a justice centre for that service"

Section 34(3) - Rules for Briefing Advocates

"(3). The Council must make rules relating to the briefing of advocates - by attorneys; and directly by members of the public."

A proper construction of section 34 is that an advocate may take instructions directly from the public must be in possession of a Fidelity Fund certificate (section 84 (1) and such advocate must apply to the Council for such certificate as determined in the rules (Section 85 (1)).

The Legal Practice Council (LPC) has made the rules referred to in section 34(3)(b). Rule 33 makes provision for 'legal services which may be rendered by an advocate in possession of a Fidelity Fund certificate' and provides that such advocates may render all those legal services which advocates were entitled to render before the commencement of the Act.

Historical Timeline

1994

Formation of IAASA

50 advocates gathered in Pretoria to discuss shortcomings in the advocate's profession structure. Formed Independent Association of Advocates of South Africa (IAASA).

1997-2004