Are non-attorneys such as estate agents allowed to infringe on work done by qualified attorneys and conveyancers?
This was a topic that came up for discussion during a recent case between a company that claimed to have a business model that would allow them to deal with the administrative aspects of property transfers.
In 2016, Proxi Smart Services (Pty) Ltd applied to the Gauteng High Court for consent to implement this business model. According to the company, there is day-to-day administrative work that does not require legal expertise, generally performed by secretaries in conveyancing firms, which they could handle.
Despite their argument, various legal bodies across the country including the Law Society of South Africa (now the Legal Practice Council) fought back, remaining adamant that Proxi Smart should leave all facets of conveyancing work to qualified conveyancers and their firms.
Contravening Business Model
Proxi Smart submitted that their model did not contravene the Attorneys Act (replaced by Legal Practice Act), Deed Registries Act or any other legislative provisions. However, the LSSA launched a counter application which claimed that the business model violated the Estate Agent Code of Conduct as well as the Consolidated Rules for the Attorneys Profession.
In the opinion of the LSSA, Gauteng Law Society and Attorneys Fidelity Fund, every aspect of conveyancing is professional work and for the sake of public interest and protection, should remain that way.
When a member of the public solicits the services of a conveyancer, they are protected by the Legal Practitioners Fidelity Fund (LPFF). In the event that funds are misappropriated, the LPFF can assist with reimbursements. If a non-legal practitioner performs the same tasks, there is little recourse that can be taken, as these parties don’t have to abide by the same set of standards set out by this governing body.
According to the LSSA’s Career Guide to the Legal Profession;
“No person may in expectation of any fee, commission, gain or reward, directly or indirectly, perform any act or render any service which in terms of any other law may only be done by an advocate, attorney, conveyancer or notary, unless that person is an advocate, attorney, conveyancer or notary, as the case may be.”
It was finally decided that Proxi Smart’s business model dealt with documents typically required for the transfer of immovable property, which made it a conveyancing function. On 16 May 2018, the Gauteng High Court dismissed the application made by Proxi Smart and delivered judgement in favour of the respondents.
Judge J Matojane stated that “The highest standard of professionalism and honesty are fundamental to conveyancing transactions which involve large sums of money represented by undertakings exchanged on trust. The public derives comfort from the fact that attorneys and conveyancers are regulated by statutory law societies, the Attorneys Fidelity Fund and a Code of Conduct that prescribes high ethical standards which they must adhere to ensure that the public is protected.” (paragraph 50 of Judgement)