Parliament wants to set up a mechanism to regulate legal fees in the interests of promoting access to justice and wants legal professionals to play as small a role as possible in the system.
Instead, interest groups and the public could have a say on how much a consumer pays to get access to justice.
The oversight committee on justice has asked the department of justice and constitutional development to research legal costs in South Africa.
ANC MP John Jeffery said the issue of legal costs was fundamental to access to justice and the reason no one had raised it before showed where the interests of the professional bodies lay.
Jeffery admitted that although MPs would probably not be able to reduce legal fees, they planned to establish a “framework and procedures” to tackle the issue.
He said the ANC did not want the legal profession to regulate fees because the Bar and attorneys “were more interested in themselves than in the public”.
Solely determined
Clause 35 of the proposed Legal Practice Bill, which is before the committee, deals with the fees structure of legal practitioners.
The clause proposes that a legal practitioner, a legal entity or Legal Aid South Africa may charge fees only in accordance with the fee structure in terms of the proposed Act.
The Competition Commission, in its submission, said the fee structure should not be solely determined by legal practitioners, but must make use of other experts.
The Bill provides for the minister to make regulations relating to fees.
Jeffery said the problem was that, in drawing up the regulations, the department’s officials would consult the legal fraternity, such as the Law Society and the Bar Council, which could delay the matter for years.
Democratic Alliance MP Dene Smuts, who first raised the issue of high legal costs, said she was concerned that the proposed Bill, now more than a decade in the making, had never addressed the “essential question” that the legal profession was “characterised by restrictive practices and was uncompetitive”.
Respect of tariffs
“But somehow in South Africa it’s only under the present justice minister that the question of fees has entered the picture at all, and fees are only half the question.”
Smuts said the objective should be to look after citizens, not only legal professionals.
She said that although MPs were going to set up a mechanism, they were not going to take decisions on what was done in respect of tariffs.
Smuts also raised concern about ministerial regulations, citing comments by the late former chief justice Arthur Chaskalson, in his last speech to the Cape Bar, in which he raised a constitutional objection against the minister setting fees.
Once the Bill is passed, a transitional council will be appointed that will advise the justice minister on, among other things, establishing a national permanent council and regional councils that will replace bar councils and legal structures.
Raj Daya, the acting deputy director general for legislative development in the department, suggested that committees set up at the transitional council stage not only be populated by members of the legal profession, but also include a majority of non-legal members of the public.
Daya said there were fixed tariffs for litigation set down in the Magistrate’s Court Act and the High Court Act.