On 30 October 2018, the Legal Practice Council (“the Council”) came into effect. In terms of the powers bestowed on it by the Legal Practice Act No. 28 of 2014 (“the Act”), the Council is empowered, amongst others, to develop norms and standards to guide the conduct of legal practitioners, candidate legal practitioners and juristic entities.
In terms of section 18 of the Act, the Council may, when and where appropriate, establish committees and determine such powers and functions. The Council is further empowered to establish investigation committees to investigate all complaints of misconduct against legal practitioners, candidate legal practitioners or juristic entities. Hitherto, the Council has been the only body operational with such powers regarding the conduct of legal practitioners.
On 2 June 2022, the Office of the Legal Services Ombud (“the Ombud”) was launched as bestowed by section 45 of the Act. As a result, there is potentially bound to be confusion as to which body to approach when a member of the public has a complaint either as against a practitioner, candidate practitioner or juristic entity. As such, this article will explore the function of the Ombud and when one can approach the Ombud.
The Ombud was established in terms of the Act, , and amongst the primary functions of the Ombud is to investigate complaints, alleged maladministration in the legal profession within the scope of the Act and such actions that may affect the integrity of the legal profession. It is thus, and unlike the Council, an over-arching independent regulatory body for the profession and is not only tasked with regulating the conduct of the profession’s members, but also of the conduct or such maladministration of the Legal Practice Council.
The Ombud has thus been given the mandate, within the scope of the Act, to advance and protect the integrity of the legal profession and take such actions which will maintain the repute and integrity of the legal profession. The Ombud is empowered to investigate complaints from the public and consumers of legal services where complaints are raised and directed against legal practitioners, candidate legal practitioners and juristic entities, which is similar to the functions and powers of the Council.
Section 36 of the Act requires the Council, to develop a code of conduct that applies to all legal practitioners and candidate legal practitioners, which may be reviewed and amended by the Council, the Counsel may further establish investigating committees to investigate all complaints of misconduct against legal and candidate legal practitioners. Thus, as a fundamental point of departure, it appears, that complaints against legal practitioners, candidate legal practitioners and juristic entities will almost always be initiated at the level of the Council.
At the launch of the Ombud, the retired Justice Siraj Desai, who will head the Ombud, stated that the Ombud will seek to select strategic cases for maximum impact and if properly utilised, the Ombud will seek to examine systemic and structural problems in the dispute resolution mechanisms available to consumers of legal services and within the legal profession.
In addition to complaints raised by legal practitioners, candidate legal practitioners and consumers of legal services, the Ombud is further empowered in terms of section 48(1) of the Act to investigate, at its own discretion and initiative, any alleged maladministration in the application of the Act; abuse or unjustifiable exercise of power or unfair, or other improper conduct or undue delay in performing a function in terms of the Act; or any act or omission which results in unlawful or improper prejudice to any person which the Ombud considers may adversely effect the integrity and independence of the legal profession.
The introduction of the Ombud is imposed by the Act and will serve as a complementary addition to the proper running and administration of the legal profession. It is a body that is intended to be independent from the Council and promotes transparency in the profession and will ensure that there is stricter accountability for the conduct of legal professionals and such bodies created by virtue of the Act. More importantly, it allows for the public to have confidence in the administration of justice.