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PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS STANDING COMMITTEE
24 August 2005
SCHMIDT'S ADMISSION OF ADVOCATES AMENDMENT BILL; COMMITTEE PROGRAMME
Acting Chairperson: Mr S Mshudulu (ANC)
Documents handed out:
Adv Schmidt's legislative proposal for Admission of Advocates Amendment Bill
Private Members’ Legislative Proposals and Special Petitions: status report
The Draft Advocates Amendment Bill would provide for the removal of the anomalous position where an advocate, having been admitted and having practised in a designated country (Zimbabwe, Nigeria), with a legal qualification from a foreign country (other than the designated country or South Africa), would be disqualified from practising in South Africa. The advocate would be disqualified if citizenship or permanent residency of that designated country was terminated and citizenship or permanent residence of South was granted. The reason for the disqualification was that the person had not received the qualification in South Africa nor the designated country. The disqualification applied even if the person was previously allowed to practise as an advocate in South Africa. It was noted that there were currently only two designated countries, Nigeria and Zimbabwe.
Members thought the submission had broader implications than had originally been thought. There was a need to go into the provisions of the Immigration Act. The Department of Labour had the power to decide which type of professionals could come into the country. There was a need for more information in relation to the proposal. A committee member felt that Parliament should be careful not to make legislation applicable to only one specific country or individual.
The Acting Chairperson explained that one of the purposes of the meeting was to check what progress had been made with the Committee’s programme and rectify any omissions. He noted that the Committee had adopted a budget at the beginning of the year.
At this point, Adv Schmidt (DA) explained that he was supposed to attend a Standing Committee on Public Accounts (SCOPA) meeting where PETRO SA was supposed to be discussed. He was appearing before the Committee for the second time and was still unsure that his matter would be heard. He asked that he be allowed to address the Committee before it considered other matters so that he could go to the other meeting. He felt that his time would be wasted if he was to sit and listen to the Committee discussing a budget in which he had no interest.
Mr Mshudulu replied that Adv Schmidt’s matter was on the agenda. The agenda was as follows: (1) status report on the Committee’s progress; (2) presentation by Adv Schmidt and (3) Committee Plan of Action. He did not think that one had to accept what Adv Schmidt had just said. The SCOPA meeting should not compromise the business of this Committee. Mr Schmidt should just ask for an amendment of the agenda of the meeting.
Adv Schmidt said that that was exactly what he was asking for even though he did not mention the words "amendment of the agenda". He said that he was at the meeting at the Committee’s request. He asked if the Committee could inform him as to what time would be suitable for him to come and address it. He could not sit and listen to the Committee discussing its budget and plan of action as he was not interested in them. He was appearing before the Committee for the second time after having spent an hour waiting for a quorum in the previous meeting.
Mr A Anslie (ANC) felt that Adv Schmidt was becoming "a little bit rude". He had been in the possession of the agenda for some time and he could have used such time to ask for an amendment of the agenda. All that he needed to do was be polite and ask for an amendment of the agenda.
Mr Mshudulu said that the agenda was not for Adv Schmidt but for the Committee. He said that he was aware of what had happened in the last meeting. It was rude for Adv Schmidt, as a Member of Parliament, to say that he had not interest in the budget and plan of action of the Committee. He asked if Members agreed with the request for the amendment of the agenda.
Adv Schmidt requested that his matter should be the first on the agenda. Alternatively, the Committee could indicate another time in which it would be ready to hear his matter. He reiterated that he had had to sit through the last meeting after waiting for an hour for Members to come to the meeting.
Mr Mshudulu said that Adv Schmidt was a learned person. The item was ‘proposal for an adoption or amendment of the agenda’ without any motivation. Adv Schmidt said that after waiting for an hour before the last meeting, he was moving for an amendment that would make his matter the first item for the day.
Mr Mshudulu said that Adv Schmidt’s arrogance was unacceptable to the Committee. He asked him to make a proposal without any anecdotes.
Adv Schmidt propose that the programme be amended to put his matter before all other business for the day.
Mr M Dikotsi (PAC) seconded the proposal. He felt that Adv Schmidt was making a genuine request. His matter should be the first item on the agenda so that he could leave soon after he had heard if it would be entertained or not.
The agenda was amended accordingly.
Advocate Schmidt’s briefing on Admission of Advocates Amendment Bill
Adv H Schmidt said that it was not his intention to be obstructive or impolite. He just saw a possibility that he might have to sit through out the meeting without being heard.
Mr Mshudulu said that the Committee had never had a situation wherein there were bad tempers and attitudes. The Committee was pleased that Adv Schmidt had been very reasonable when the Committee did not have enough Members to form a quorum in a previous meeting. There was no intention, political or otherwise, to frustrate the presentation.
Adv Schmidt said that the name of the Bill was the Admission of Advocates Amendment Bill. The basic issue at the heart of the Bill was an addition of circumstances under which a person could be admitted as an advocate of the High Court of South Africa. He proposed that the Admission of Advocates Act, No. 74 of 1964, be amended by the insertion of proposed section (3)(2)(a)(iii) which read as follows:
has been duly admitted, and remains duly admitted, to practise as an advocate or Member of an acknowledged referral association in any country designated by the Minister in terms of subparagraph (ii) and who satisfies the court that he has practised as such for a period of not less than fifteen years;"
The Bill would provide for the removal of the anomalous position where an advocate, having been admitted and having practised in a designated country, with a legal qualification from a foreign country other than the designated country or South Africa, was disqualified from practising in South Africa once that advocate had terminated his citizenship or permanent residency of that designated country and was granted citizenship or permanent residence of South Africa due to not being qualified in South Africa nor the designated country but was previously allowed to practise as an advocate in South Africa.
In short, the proposal was meant to assist someone who had been admitted as an advocate and had ascribed to the conditions of being a member of the national society of advocates. For instance such a person might have obtained a law degree in the United Kingdom and had then practised as an advocate for 15 years in Zimbabwe and now wanted to apply for South African permanent residency or citizenship and practise in South Africa. Such a person would not be allowed to practise in South Africa in terms of the current law merely because the qualification was not received in Zimbabwe but in the UK. The current position was anomalous and probably not envisaged when the Act was passed by Parliament.
Mr Dikotsi asked if the presenter was saying that the advocate in question, whilst a resident of Zimbabwe, was allowed to practise in South Africa. However the problem arose when that advocate applied for permanent residence in South Africa and merely because the qualification was not received in South Africa.
Adv Schmidt replied that the Member was nearly correct. The advocate did not qualify to practise in SA because the qualification was not received in South Africa or Zimbabwe but in the UK. Such a person, despite having practised as an advocate for a period of time, would have to write the bar examinations if he or she wanted to practise in South Africa. The proposal referred to a period of 15 years in order to show that one was not talking about someone who had just recently graduated or practised for a year and now wanted to practise in South Africa. This involved an experienced person who had been in practice for some time but could not practise in South Africa due to technicalities.
Mr Anslie felt that the whole problem rested on citizenship. A foreigner with a legal qualification might practise in South Africa but was disqualified once granted South African residence or citizenship. He wondered why citizenship was not mentioned in Bill itself. It was only mentioned in the objects and not as part of the Bill itself.
Adv Schmidt agreed that the problem had something to do with citizenship. A Zimbabwean who had obtained a law qualification in Zimbabwe and had then applied for South Africa citizenship would be allowed to practise in South Africa. The situation would be different if the person had obtained the qualification in the UK. The existing legislation referred to permanent residence and not citizenship. The person could not practise in South Africa despite fulfilling all the requirements for practising as an advocate.
Mr B Magwanishe (ANC) asked if the presenter would agree that attorneys might find themselves in a similar situation. He also asked if it would not be better to consider people who had been practising for less than 15 years. People who had been in continuous practice for three years qualified to practise in some countries.
Adv Schmidt replied that the 15-year period was used to show that one was dealing with an advocate of standing. There was no problem with reducing the period to three years. The amendment was merely over cautious. Reducing the period to three years would have no impact besides opening the door for many more people. He was not sure what the position was with regard to attorneys. Attorneys were regulated by a totally different Act. He might have a clear answer at the next meeting.
Mr Mshudulu noted that the process was aimed at clarifying issues and not debating on the merits or demerits of the Bill. Members should be provided with the Admission of Advocates Act between now and the next meeting. The Committee would have to check how the profession operated. There was a need for more information so as to enable Members to have a clear understanding of the practice.
Mr Anslie commented that many matters that had been considered by the Committee so far had initially looked very simple and straightforward. He had assumed that the matter under discussion was also simple but it turned out that it had some complications. The Committee should be furnished with the original Act and might also have to interact with other people and get their opinions before the next meeting. He said that Advocate Schmidt was trying to be helpful but was at the same time confusing by constantly referring to Zimbabwe and the UK. One would have hoped that he would have dealt with the matter in broad terms. One should be careful not to make legislation for one individual and one country. He asked if a UK barrister would be allowed to practise in South Africa if he or she had not applied for South Africa residency or citizenship.
Adv Schmidt replied that the UK barrister could not practise in South Africa. The right to practise rested on whether the person was from a designated country. There were currently only two designated countries: Nigeria and Zimbabwe. The Minister of Justice and Constitutional Development was the only person who could mark a country as a designated country. In essence a Nigerian who had obtained a law qualification in Nigeria could practise in South Africa but could not do so if the qualification had been received in the UK or other countries.
Mr Dikotsi asked what were the expected outcomes of the amendment balanced against the benefits to the country and not the individual concerned.
Adv Schmidt replied that there would be knowledge and experience coming to South Africa. All advocates had studied comparative law and this could enrich South African jurisprudence.
Mr Mshudulu said that the submission had greater implications than he had originally thought and there was a need for more information. One would have to look at the provisions of the Immigration Act. The Department of Labour had the power to decide which types of professionals could come into the country. One might have to consider the issue of international relations. The question arose why Nigeria and Zimbabwe were the only designated countries.
Adv Schmidt thanked the Committee for its indulgence and was allowed to be excused.
Mr Mshudulu said that it well known that all Committees had to adopt their programmes and have them sent to the relevant authority. He took the Committee through its minutes of the previous meeting of 22 June 2005. He noted that Adv Schmidt’s issue would be given priority at the next meeting. The Committee should try and deal with all Bills referred to it before Parliament rose at the end of the year.
Mr Anslie agreed that it would be wonderful if the Committee could deal with all Bills referred to it by the end of the year and he was optimistic that the Committee could achieve this.
Mr Mshudulu said that this would require the Committee to meet with the Chairperson of Chairpersons to request that the Committee be given more occasions on which to meet. He noted that the Committee’s budget had been reduced. The Committee was required to make oversight visits, hold hearings and workshops and had to be seen doing this. The Committee had never taken an oversight visit and one did not know the reason for this.
The meeting was adjourned.
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