Legal Practice Bill: public hearings Day 2

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Justice and Correctional Services

19 February 2013
Chairperson: Mr L Landers (ANC)
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Meeting Summary

A selection of comments made by the five organisations that gave oral submissions on the second day of hearings included:

  • The General Council of the Bar identified a distinction between regulation and governance and suggested that the profession was best suited to govern itself. The GBC proposed that with concurrence from other stakeholders, the process as laid out in the Bill be terminated so that the profession came sooner into the permanent structure. The structure proposed in the Bill was a costly structure. An alternative structure was proposed comprised of one general bar and two chambers, one for attorneys and the other for advocates. The GCB proposed that perhaps there was too much focus on fees being the bar to access to justice and the focus should instead be directed towards improving pro bono structures.
  • The Cape Bar Council suggested that the Committee in its review of the Bill, preserve what was good about the advocates profession, while seeking to advance public interest. With regard to transformation, the CBC appointed committees from members of the Cape Bar to assist it with the day-to-day functioning of the Cape Bar, including an advocacy training committee, a pupillage committee, a pro bono and legal aid committee, a transformation committee and a housing committee.
  • Advocate Izak Smuts submission looked at what the Bill proposed for the advocates’ profession and was aligned with the submission by the GCB. Adv Smuts proposed that an accrediting body be established for the purposes of regulating both professions, while the existing societies should be left in their current state. The accreditation method was in tandem with international principles. This model would ensure compliance with international principles and encourage regulation of the profession while guaranteeing the independence of the Bar.  He said that until the cost implications of the Bill were considered, the legislature would be irresponsible to adopt the Bill in its present state.
  • The review of the Bill by the South African Human Rights Commission was only with regard to issues it thought might be detrimental to SAHRC's objectives. It supported the Bill in its agenda for transformation and access to justice. However, the SAHRC was concerned that the Bill may not provide for its recognition under Section 34 of the Bill which provided for the forms of Legal Practice. A consequence of this was that the Commission would no longer be considered a law clinic and the SAHRC could no longer carry out its mandate.
  • The Association of University Legal Aid Institutions noted that the definition of Attorney in the Bill was restricted to a ‘legal practitioner practising with a Fidelity Fund certificate’. This automatically excluded practitioners practicing at law clinics or justice centres. The AULAI proposed that it be represented on the South African Legal Practice Council as well as on the Board of the Attorney’s Fidelity Fund. The AULAI proposed that the present status quo be maintained with regard to the rules enabling ten candidate practitioners to carry out practical vocational training at law clinics, under the supervision of one principal. 
  • The Law Society of South Africa Employees submission said that the Bill had far reaching consequences for many lives if the provisions of the Bill remained as they were. A point of concern for the LSSA employees was section 97(2) of the Bill which empowered the Transitional Council to negotiate the transfer of employees of the current regulatory structures of the profession to the Council or Regional Councils. This section did not, as of right, cover employees of the Law Society of South Africa. Furthermore, it seemed the Council did not have a corresponding duty to employ or second employees from the existing governance structures of the professions. Section 19 of the Bill which dealt with the appointment of employees of the South Africa Legal Practice Council did not place the duty which was placed on the Transitional Council as contemplated in section 98(2)(b) of the Bill. Therefore there existed the possibility that those employees (even those employed by the statutory law societies) that had not been absorbed during the transitional phase would be out of work, when their respective employers (the statutory societies), by operation of law, ceased to exist. It was submitted that the Bill should place a corresponding duty on the Council, that is, as similar to the Transitional Council.

Members questioned whether the General Council of the Bar was capable of governing the affairs of advocates in the interest of justice, access, transformation and the citizenry. Members asked why the General Council of the Bar insisted on its members having their chambers located within particular localities. Members commented, with regard to participation, that players within the profession must mirror the South African society and there was a need to be careful so institutional discrimination was not enshrined. Members remarked that the costing of the structures that emanated from the Bill was a very important issue that had to be considered. The Committee needed an indication of the cost implications from members of the profession as it currently was and also under the alternative models proposed. Members asked what the basis was for the recommendation that the Association of University Legal Aid Institutions be represented on the Board of the Attorney’s Fidelity Fund. Members remarked that clearly there had been an oversight in the drafting of the Bill on inclusion of provisions covering the South African Human Rights Commission and this needed to be addressed.

Meeting report

 General Council of the Bar (GCB) submission

The GCB Chairperson, Adv Ish Semenya introduced the GCB as the national body representing the advocates profession. He stated that GCB embraced the objects and elements of the Bill which recognised that the legal profession had embraced a single umbrella as opposed to the current structure. Within this context, the legal profession had to remain independent for a healthy democratic dispensation and for the rule of law to prevail. The GCB recognised and accepted the provisions of the Constitution which mandated the regulation of professions by law, one of which was the legal profession. The GCB however distinguished between regulation and governance. The profession, in its opinion, was best suited to govern itself. The GCB proposed that with concurrence from other stakeholders, the process as laid out in the Bill be terminated so that the profession came sooner into the permanent structure. The GCB recognised that the legal profession comprised of two distinct entities - the attorneys and the advocates.

Adv Rudi van Rooyen, SC, commenced the main submission by conceding that the GCB should have endeavoured to do more earlier to understand the needs and fears of other stakeholders within the profession. Unfortunately, the GCB had not been successful in managing a lot of the negative perceptions against it. It was clear that all stakeholders were in agreement about the rule of law and the need for access to justice. The structure proposed in the Bill was a costly structure. The GCB thus proposed a different structure comprised of one general bar and two chambers, one for attorneys and the other for advocates. Not all members of the GCB were in support of this alternative structure and the GCB respected their rights to differ on it. The GCB suggested that the current structures be used and improved upon, rather than starting from scratch. The GCB had in place appropriate mechanisms to ensure that members did not charge unreasonable fees and thus impinge on the citizenry’s access to justice. The GCB proposed that perhaps there was too much focus on fees being the bar to access to justice and the focus should instead be directed towards improving pro bono structures such as the Legal Resources Centre (LRC) and Legal Aid South Africa (LASA). Focus should also be directed towards taking pro bono services to rural areas. The GCB in its bid to ensure the transformation of the profession had dedicated bursaries for entry and practising advocates, dedicated bursaries for black African women as well as had put favourable maternity policies in place for female colleagues, addressed gender issues in general to ensure female representation. Briefing pattern incentives have been put in place to ensure skewed briefing patterns were addressed. Vocational training was in place. The GCB also had proper disciplinary procedures in place. In conclusion, the GCB invited the Committee to consider the alternative structure proposed in its written submission.

Cape Bar Council submission
Mr Ismail Jamie SC, Chairperson: Cape Bar Council, briefly described the Cape Bar Council (CBC) as a voluntary association of independent advocates based in Cape Town. Members of the Cape Bar were independent because, unlike prosecutors or government or private sector legal advisers who were advocates, they were self -employed and competed with one another for work.  Cape Bar was a constituent bar of the General Council of the Bar of South Africa, which was the most significant national body representing the advocates profession. 

The CBC supported the proposal that the bar in its present form remained as it was whether recognised or not. The CBC suggested that the Committee in its review of the Bill, preserved what was good about the advocates profession, while seeking to advance public interest.

With regard to transformation, the CBC appointed committees from members of the Cape Bar to assist it with the day-to-day functioning of the Cape Bar, including an advocacy training committee, a pupillage committee, a pro bono and legal aid committee, a transformation committee and a housing committee – currently there were about 20 standing committees which together involved about 30% of the 452 members of the CBC. One of the most important functions of the CBC was its annual pupillage training programme, if there were more applicants than places (usually 25 to 30 places per year), the successful applicants were chosen using general guidelines drawn by the GCB.  The guidelines included applicants’ university results, relevant previous experience, race and gender.  The latter two requirements underpinned a preferential points scoring system which was aimed at increasing the numbers of Black and female members of the Cape Bar.  The Cape Bar’s experience has been that candidates who enjoyed the greatest success in pupillage and establishing their practices were those with some prior professional experience. The pupillage committee allocated each successful applicant for pupillage to a member of the CBC who acted as the pupil’s mentor during the coming year’s pupillage and exposed them to as wide a range of work as possible.  The committee arranged for other members of the CBC to provide lectures and tutorials covering the topics in the syllabus for the National Bar Examination.  In addition, the pupils must complete assignments, participate with their mentors and other practising advocates in a prescribed set of matters covering most of the types of cases newly qualified advocates would be expected to undertake and, practical advocacy training courses co-ordinated by the advocacy training committee. The aim was to prepare pupils for appearances in court, including cross-examining witnesses and presenting argument. The GCB organised an annual training course for advocacy trainers. In July of each year the pupil members wrote a series of ‘mock’ examinations (marked by members of the CBC), and in August they completed the demanding national Bar admission examinations set by the GCB.  The Cape Bar was proud of its pupillage programme.  For several years it had enjoyed a 100% pass rate of the 25 to 30 pupil members who sat the National Bar Examination. The CBC had an extensive bursary programme that paid between R7,500 and R8,000 monthly to each of about eight pupils in its pupillage programme.

With regard to fees, until stopped by the Competition Commission, the CBC and the other established Bars provided fee parameters to guide members in determining their rates.  The parameters were based on an analysis of the fees actually charged by members, based on their seniority.  Members were now responsible for determining their own hourly rates, based on their own assessment of the legal market.  The fact that most members of the Cape Bar had sufficient work at the rates they determined, suggested that their fees were marke -related. The CBC employed an extremely rigours process to consider the reasonableness of fees. Where disputes about fees arose between members of the Cape Bar and their instructing attorneys or clients, the CBC referred the matter for mediation before a member of its Fee Ombudsman committee.  If mediation was unsuccessful, the CBC was empowered to determine a reasonable fee. Where any member of the CBC was indicted for charging unreasonable fees, disciplinary action was instituted. However, the CBC was of the opinion that direct briefing was not in the interest of the advocates’ profession.

Advocate Izak Smuts SC submission
Adv Izak Smuts said his proposal aimed was aligned with the submission by the GCB. Paragraph 16 of the GCB’s proposal outlining the statement of Justice Chaskalson (former Chief Justice) was an internationally recognised norm and principle. From the submission of the GCB, it was evident that the GCB was aware of the threat the Bill posed to the profession.

With regard to the alternative structure proposed by the GCB in Paragraph 52.4 of its written submission, it was not a voluntary or self -governing association and thus departed from Justice Chaskalson’s statement which was a UN principle. If entitlement to independence of the Bar was truly recognised, then neither the Bill in its present form or the alternative structure proposed by the GCB met this requirement.

The Bill sought to eliminate the existing voluntary association of Advocates and take over their assets. It has been argued that new associations could be formed but why form new associations where there are existing ones on the ground? The Bill’s proposals obliterate the current governing structure and gave rise to a host of problems. The Bill failed to distinguish between regulation and governance and this was a major flop. There was a regulatory role to be played and in the advocates’ profession the judiciary played that role. It was thus imperative the proponents of the Bill considered allocating greater regulatory role to the Judiciary, which in turn would eliminate the criticism of interference by the Executive through the office of the Minister. It was unclear why the Bill required a one size fits all approach - the professions of advocate and attorney were clearly distinct.

Adv Smuts proposed that an accrediting body be established for the purposes of regulating both professions, while the existing societies should be left in their current state. The accreditation method was in tandem with international principles. This model would ensure compliance with international principles and encourage regulation of the profession while guaranteeing the independence of the Bar.

There has been no evidence that the Department had attempted to cost any of the models proposed so far. The Bill suggests that Legal Practitioner’s Fees and the Attorney’s Fidelity Fund would fund the current model proposed in the Bill. If an increasing cost was placed on professionals as a result of the structures envisaged in the Bill, it may lead to higher cost of practice and the outcome of this would be practitioners passing on the cost of practice to clients or leaving the profession entirely; with either option, access to justice and access to the profession, respectively, were impinged on. Until the cost implications were considered, the legislature would be irresponsible to adopt the Bill in its present state.

It may be useful to encourage further engagement between the governing bodies of both professions. If regulation of the bar was separated from governance, then the appointment of a ‘superior regulator’ may be considered and this superior regulator may meet yearly or twice a year to discuss issues that affect the regulation of the profession.

South African Human Rights Commission (SAHRC) submission
The SAHRC Chairperson Adv Mabedle Mushwana, said the Commission’s review of the Bill looked only at matters which it thought might be detrimental to the existence of the Commission or its objectives. He handed over to his colleague to continue.

The Commission supported the Bill in terms of its agenda for transformation and access to justice. By virtue of Sections 184(2)(b) of the Constitution and 7(1)(e) of the Human Rights Bill, the Commission was enabled to litigate on human rights issues. The Commission acquired the status of a law clinic in conjunction with the Law Societies. The Commission was concerned that the Bill may not provide for its recognition under Section 34 of the Bill which provided for the forms of Legal Practice. A consequence of this was that the Commission would no longer be considered a law clinic. The major consequence of this was that the Commission could no longer carry out its mandate. The Commission would also not benefit from the Council’s powers to access financial support. The Commission would be unable to provide opportunities for practical vocational training for its interns. The Commission would also be unable to take advantage of being recipients of community services of legal practitioners.

Section 84 of the Bill set out the obligations of attorneys in the handling of trust monies and made reference to state attorneys. The Commission required clarity on whether it was included in the definition of the State as this would impact on whether the Commission had to obtain a Fidelity Fund Certificate. Clause 84(10) also needed to be amended to reflect that the Commission was bound by its provisions.

Adv Mushwana added that with regard to the equality courts, Commission staff approached equality courts on issues it felt strongly about and for which there was a justifiable case and the appeals of the Commission to the courts were made orders of the court. Exclusion of the Commission from the Bill would be costly especially in terms of access to justice.

Association of University Legal Aid Institutions (AULAI) submission
Mr Shamiel Jassiem, AULAI Treasurer, gave a brief historical background about AULAI (see document). With regard to the concerns of the AULAI, the definition of Attorney in the Bill was restricted to a ‘legal practitioner practising with a Fidelity Fund certificate’. This automatically excluded practitioners practicing at law clinics or justice centres – currently, about 55 Attorneys practised at law clinics and would be excluded.  Then again in Section 14(3)(a) of the Bill, a distinction was drawn between practicing and non-practicing Attorneys, without these terms being defined. Attorneys in law clinics should not be regarded as purely academics and AULAI proposed that it be represented on the South African Legal Practice Council as well as on the Board of the Attorney’s Fidelity Fund. Section 34(8)(d) provided for the recovery of amounts disbursed on behalf of clients. However the Bill made no mention of instances when a law clinic acted for the successful litigant and an order for costs was awarded in favour of such a litigant. The law clinic be entitled to recover those costs for its own account - the Bill needed to be amended in this regard. Section 34(8)(e) of the Bill regulates the restrictions on the work performed by law clinics.  These restrictions mirror those presently contained in the Free State, Kwazulu Natal and Northern Province Law Societies.  In the Cape most restrictions, except for the lodging and processing of claims under the Road Accident Fund, were lifted, but still require confirmation.  There may be a case for law clinics to assist indigent clients in the liquidation and distribution of minor estates, with the proviso that law clinics do not administer the funds.  A case could also be made for clinics, provided the necessary skills and office infrastructure existed in those clinics, to eventually render assistance in the transfer of properties in minor estates and RDP housing. It was thus recommended that the provision be amended to reflect that law clinics may apply to the Council for special dispensation in terms of the restrictions. AULAI also proposed that the present status quo be maintained with regard to the rules enabling ten candidate practitioners to carry out practical vocational training at law clinics, under the supervision of one principal.

Employees of the Law Society of South Africa submission
Mr Sicelo Mnogomezulu, representative of the employees of the Law Society of South Africa (LSSA), spoke about the effect the Bill would have on the Management and Staff of the LSSA and the implications of the Bill on LSSA’s employees, as well as an attempt to explore the safeguarding of their interests, where possible.

LSSA had a staff complement of over 200 full time staff and over 100 freelancers in its employ. The Bill thus had far reaching consequences for many livelihoods if the provisions of the Bill affecting LSSA employees remained as they were. A point of concern for the employees of the LSSA was section 97(2) which empowered the Transitional Council to negotiate the transfer of employees of the current regulatory structures of the profession to the Council or Regional Councils. This section did not, as of right, cover employees of LSSA. It was therefore submitted that LSSA employees be expressly covered under the provision in the Bill.


Also in section 98(2)(b), the Transitional Council was empowered to employ or second from existing governance structures of the legal profession as many staff members as may be necessary to enable it to carry out its functions. The term ‘governance structures' was not defined in the Bill. It was the view of employees of LSSA the term be defined to include the LSSA. Further the use of the phrase ‘as may be necessary’, left room for the Council to retrench some of the workers on the ground that were not deemed necessary. Further, it seemed the Council did not have a corresponding duty to employ or second employees from the existing governance structures of the professions. Section 19 of the Bill which dealt with the appointment of employees of the Council did not place the duty which was placed on the Transitional Council in section 98(2)(b). There existed the possibility that those employees (even those employed by statutory law societies) that had not been absorbed during the transitional phase would be out of work, when their respective employers (the statutory societies), by operation of law, ceased to exist. It was submitted that the Bill should place a corresponding duty on the Council that is, as similar to the Transitional Council.

Another LSSA employee added that it was a source of concern to LSSA employees the manner in which the Bill affected their job security - as there were currently no assurances. LSSA employees appealed that the Committee review the relevant sections of the Bill to accommodate them. LSSA employees have added value to legal education over the years - in 2012, legal education was provided to over 11,000 persons including attorneys, candidate attorneys, and small firms without capacity for in-house training. Over 1386 graduates have been beneficiaries of LSSA’s legal school - 51% of which were female. LSSA employees were concerned about what their future held.

Discussion on GBC submission
Mr J Jeffery (ANC) expressed displeasure at the tone of the GCBs proposals to the Committee. It was inappropriate language with regard to the parliamentary process to ‘offer’ proposed amendments - it implied the GCB was independent. Even if this was the position, there remained a sense that the GCB ran its affairs in the interest of justice of the whole country, rather than in the interest of the GCB only. Could the GCB assert this?

Adv Semenya responded that the GCB recognised that the oversight of matters of public interest lay with elected officials of Parliament. With regard to the governance of the profession - wherein the government had no interest - such were best left to the Bar.

Adv Van Rooyen apologised and explained that the purport of the GCB’s submission was to offer the chamber as a tool to accommodate services. The GCB offered several pro bono opportunities. This was an indication that the GCB had the interest of the public at heart.

Mr Jeffery referred to the practice amongst practitioners where pupils were hardly paid any remuneration and this in turn impacted on transformation and access to the profession. Was the GCB capable of governing the affairs of advocates in the interest of justice, access, transformation and the citizenry?

Adv Semenya responded that the cost implications for running offices were huge and thus impacted on the remuneration of pupils - the GCB was considering a far better option of technology-based pupillage.

Adv Van Rooyen replied that, there were checks and balances in place such as the Ombud and the Judiciary.

Mr Jeffery asked if the GCB wanted to appoint the Ombud.

Adv Van Rooyen replied that the GCB indeed wanted to appoint the Ombud, however through an independent process. With regard to pupillage, the GCB had invested a lot of time and money to turn around things - time spent training pupils and the cost of running firms were all part of the considerations, however, the GCB was looking to correct this situation.

Mr S Swart (ACDP) requested that GCB discuss in detail its proposed alternative structure and the accompanying processes in an attempt to find common ground between the professions.

Adv Semanya responded that there was an intrinsic difference in the practice of advocates and attorneys as upheld by the Constitution. In the proposed structure, the GCB hoped advocates would have a right of veto on matters strictly within their specialisation, such as on the Cab-Rank Rule, while attorneys would have the veto on matters within their practice such as the Fidelity Fund. In other words, there should be a deadlock breaking mechanism in matters within the particular province of each profession.

Adv Van Rooyen added that the new structure envisaged the monitoring role of a council and two chambers.

Mr Swart asked that the GCB discuss in detail the South African Legal Council (the Council) and the concerns highlighted in Paragraph 70 of the GCB’s written submission.

Adv Van Rooyen responded that there had been improvement from the earlier version of the Bill with regard to ministerial appointees; however, the perception of independence was as important as actual independence. There was the provision in the Bill for an Ombud who could deal with complaints about the Council while the courts served as the final arbiter.

Mr Swart remarked that he shared the concerns of the GCB with regard to the Minister’s far reaching powers to dissolve the Council.

Mr Swart noted that it was a cause for concern that in the Bill only six advocates were represented on the South African Legal Practice Council (the Council). He asked if the GCB thought this was fair and equitable.

Adv Van Rooyen agreed with Mr Swarts observation and stated that there should be equal representation on the Council.

Ms D Schӓfer (DA) questioned why it took the GCB 15 years to come to the realisation that it had left undone certain things which it had to do earlier. It would have been more helpful if the GCB had conceded in engaging in discussions with other stakeholders much earlier.

Adv Van Rooyen replied that there was no excuse; however, the process had been a complicated one.

Ms Schӓfer asked for the statistics on the number of female advocates, their level of experience and how many females were represented in the governing body of the GCB and how many were Senior Counsel.

Ms Schӓfer asked what the GCB’s criteria were for selecting pupils and how many pupils it took on average yearly. She asked how it proposed to address the issue of double charging.

Adv Semenya replied that this issue was a barrier to justice and under consideration.

Ms Schӓfer asked what proposals the GCB had to address the duplication of fees issue. She asked why the GCB insisted on its members having their chambers located within particular localities.

Adv Semenya responded that this issue was related to the challenge of access to justice. The upside to this practice was an oversight on ensuring disciplined practice. The proximity gave the opportunity to access skills and experience resources that would otherwise have been out of the reach of some, particularly junior members.

Ms Schӓfer asked if the GCB had any objections to direct briefing. If so, why? If not, should all advocates than have Fidelity Fund Certificates?

Adv Van Rooyen replied that the distance between advocates and clients that gave rise to referrals was desirable. It was incontestable however that a person without a fidelity fund should not be allowed to take money from the public.

Ms Schӓfer asked that the GCB forwarded to the Committee details on the disciplinary hearings of its members.

Ms Schӓfer asked for statistics on the pro bono cases members of the GCB handled - how many applications for pro bono cases had been sent to the GCB and how any were granted. She also requested details about the experience of its members who held brief for the pro bono cases and how many Senior Counsels were involved in pro bono cases and what kind of cases.

Ms Schӓfer asked what the cost of running the GCB was. She asked what effect capping of fees and insisting on community service would have on the bar in general.

Ms M Smuts (DA) asked if the GCB wished to remain the regulator of the bar’s fees. On the structure proposed by the GCB, she asked if perhaps there was a case for an overall council acting in the interest of the public and monitoring professionalism, rule of law and access to justice in the profession. This council would be made up of both chambers under the proposed GCB structure, with the specific brief to monitor more broadly issues of public interest.

Ms Smuts suggested that with the "changing position" of the GCB after several years, it would be helpful if the GCB met with other parties and reached a consensus on many of the hitherto contentious issues. She suggested to the Chairperson that the Committee took further submissions at a future date after all parties had met. Mr Jeffery added that the buy-in by the GCB was encouraging, although suspect. It was possible that the buy-in was as a result of pressure. Further deliberations were encouraged between stakeholders but regardless, the Bill would be finalised - hopefully with support.

The Chairperson responded that the hearings should not mark an end to public engagement on the Bill. The GCB and other interest parties were free to make further submissions on the Bill and sit in on meetings of the Parliament and make additional suggestions.

Ms C Pilane-Majake (ANC) remarked that in the process of engagement, the interest of South Africans should be prioritised and a system that provides South Africans affordable legal representation should be essential.

Mr S Holomisa (ANC) asked how the right of admission to appear before the High Court had influenced the separation of the two professions. Had it improved access to justice? What lessons had been learnt?

Mr McCaps Motomile SC, GCB Vice Chairperson, stated that the GCB recognised the problem of access to the profession. The Bill solved the problem of inadequate structures by providing for bar seats at the High Courts. The Bill also had the potential to solve the problem of exclusion from the profession.

Mr Holomisa asked what the GCB felt about the perception that in South Africa money equalled justice.

Mr Holomisa asked how the notion of equality before the law was reconciled when one party was represented by a far more experienced and skilled practitioner.

Mr Holomisa suggested that making justice available to the citizenry was a responsibility of the State and asked why citizens had to pay to access justice.

Mr Motomile responded that it was generally agreed that the notion of access to justice must be given effect. However, every service must be paid for; the question was who paid for the services and at what costs. The proposals put forward by the GCB balanced these interplay of interests.

Discussion on Cape Bar Council submission
Mr Jeffery stated that the submission by the CBC had been impressive.

Mr Jeffery requested that statistics on race and gender of the CBC be forwarded to the Committee, including an indication of junior member’s perception of the CBC.

Mr Jeffery referred to Paragraphs 76(2) and (3) of the CBC’s written submission and asked why the emphasis on access to justice was with regard to citizens only - what happened to non-citizens who required legal services?

Mr Jamie apologised for the drafting error and stated that the intention was that it covered all in South Africa - citizens and non-citizens alike.

Ms Schӓfer asked whether in the CBC’s opinion, referrals contributed to running an independent practice.

Mr Jamie replied that referral was fundamental to what advocates did. If an advocate was available to take up a case and the referral fell within their area of expertise, he was obligated by the Cab -Rank Rule to represent the litigant. This was fundamentally different from the practice of attorneys who had to carry out conflict checks before representing clients on any matter. In this regard, referral was integral to the practice of advocates. Advocates were not beholden to clients but to the courts.

Ms Philane-Majake noted with concern that the profession was still very fragmented.

Ms Philane-Majake asked what was regarded as reasonable fees by the CBC.

Mr Jamie replied the position of the CBC was that where advocates billed clients for work not done, they faced disciplinary action as it was an offence. The CBC considered work that was not done and yet billed for as unreasonable. Up till six years ago, the CBC like many other Bar Councils, released annual guidelines to members to guide in billing practices. However, the Competition Commission queried this, stating it was anti-competitive practice and against the law.  The existing rules of the Magistrate and High Courts regulated certain aspects of fees such as taxation.

Ms Philane-Majake stated that with regard to participation, players within the profession must mirror the South African society and there was a need to be careful so institutional discrimination was not enshrined.

Mr Jamie replied that the attrition rate of black females was a concern for the CBC. It was more advisable for young lawyers to complete their articles first to ensure their survival in the profession. The flip side was that black women who were academically and professionally outstanding were briefed very well by clients; black students who graduated with low grades unfortunately hardly ever did well. The CBC was in the process of engaging firms on changing their briefing patterns.

Discussion on Advocate Izak Smuts SC submission
Ms Schӓfer asked Advocate Smuts if under his proposed structure it would be acceptable for a super regulator such as the Council to accredit the different professions and handle matters of discipline of practitioners as the current perception on discipline of advocates was negative.

Adv Smuts replied that with regard to the perception of inadequacy of discipline amongst practitioners, the proposed model would contain provisions on compliance with regulations and codes of conduct which should be contained in the Bill. Where codes of conduct were not complied with, accreditation should be withdrawn.

Ms Schӓfer asked if the retention of referral role was a prerequisite for accreditation of an attorney under the structure proposed by Adv Smuts and if yes, how was this to be incorporated into the regulations?

Adv Smuts responded that the referral role definitely ensured access to justice.

Mr S Swart (ACDP) noted that the costing of the Bill was a very important issue to be considered. The Committee needed an indication of the cost implications from members of the profession as it currently was and also under the alternative models proposed.

Adv Smuts responded that he shared Mr Swart’s view that the costing of the Bill was imperative. He suggested that the Committee’s request for costing from the Societies should take into account the voluntary hours put in by members of the profession.

Mr Jeffery stated that the advocates generally gave the impression that the Bill was unwanted and they were satisfied with the staus quo.

Adv Smuts replied that the recognition of diversity did not represent division. Why force all practitioners into one bar when the nature of their practice was inherently different. In various places bar members charged different fees; in terms of the diversity of their practice.

Ms Smuts noted that the Committee would consider the creation of a Judicial Council in the Bill.

Ms Smuts remarked that the structures envisaged  in the Bill remained problematic. It was unacceptable that assets of voluntary associations were taken away. She asked how Adv Smuts proposed the problem of legal practice in South Africa be addressed.

Adv Smuts replied that persons practicing improperly continued to do so because of the lacuna in the system and this needed to be addressed. The regulator needed to provide that all practitioners not affiliated with any of the voluntary bodies still needed to be accredited. Further, there were no order of hierarchy in both professions - attorneys were also specialists in their fields. The existence of two separate professions within the legal profession created access to justice and the elimination of the separation would impinge on the access to justice. The use of pro bono services such as Legal Aid would also improve legal services in the country.

Ms Smuts asked how Adv Smuts proposed the political problem of exclusion in the Legal Practice in South Africa was addressed.

Adv Smuts responded that the reduction in standards had created expectations than anyone should be admitted to practice - this was a guarantee for failure. The proposed regulator must regulate minimum codes for entry into the profession.

The Chairperson noted that nothing in Adv Smuts submission addressed exclusion, fragmentation of the profession etc. Was it fair to assume that he was satisfied with the status quo?

Adv Smuts responded that the Bill did not address these issues either. If the Bill was enacted as is, access to justice, access to the profession was not properly covered. No legal aid was referred in the Bill - why was the Council not promoting the advancement of legal aid. Adv Smuts added that he was not satisfied with the staus quo and it was definitely necessary to have an independent bar. There were several levels on which the question of access to justice must be addressed and not only within the profession.

Ms S Sithole (ANC) asked what proposals Adv Smuts had to ensure women were properly represented in the profession.

Adv Smuts responded that the under representation of women in the profession was not peculiar to South Africa. Generally, there had been an improvement but there were no quick fixes - there was a need to develop capacity to cover for women on maternity or child rearing leave and also for their successful reintegration back into practice.

Ms Sithole stated that while the fact that this was an international problem was acknowledged, there remained a need to address all blockages within the South African legal practice.

Adv Smuts replied that one helpful mechanism was to direct state attorneys to ensure that a prescribed percentage of briefs were given to female practitioners.

Ms Pilane-Majake stated that it was important to reflect on what the purpose of the Bill was and issues of access to justice and affordability must be addressed.

Adv Smuts referred to Section 3(b)(i) of the Bill on the objects of the Bill and warned that it was pertinent not to trivialize this issue and set unreachable goals. A fee structure within the reach of the entire citizenry was unattainable.  It was more important to devise more innovative pro bono mechanisms.

Discussion on South African Human Rights Commission submission
Ms Pilane-Majake noted that the issues raised by the SAHRC needed to be seriously considered.

Ms Pilane-Majake questioned if SAHRC worked on any issues in conjunction with Legal Aid South Africa.

The Chairperson remarked that clearly there had been an oversight in the drafting of the Bill with regard to the inclusion of provisions which covered the Commission. This needed to be addressed.

Discussion on Association of University Legal Aid Institutions submission
Prof L Ndabandaba (ANC) asked if the AULAI were in any way affiliated to the Street Law Clinic at the University of Kwa-Zulu Natal.

Mr Jassiem responded in the affirmative. All law clinics in South Africa operated under the same body - AULAI.

Ms Schӓfer asked what the basis was for the recommendation that AULAI be represented on the Board of the Attorney’s Fidelity Fund.

Mr Jassiem responded that the Attorney’s Fidelity Fund was one of the major funders of law clinics. AULAI conducted site visits on behalf of the Fund about two years ago and was best positioned to help the Fund obtain information on the basis of funding the clinics.

Ms Schӓfer remarked that that was a clear conflict of interest.

Ms Schӓfer referred to Recommendation 9 of the AULAI’s written submission and asked how the law clinics intended to administer the estate without administering funds that came with the estate.

Mr Jassiem responded that it was proposed that the funds did not go through the books of the clinic but instead an agent be appointed as a representative to hold the funds.

Ms Schӓfer clarified if the role of the law clinics would be mainly advisory.

Mr Jassiem responded in the affirmative.

Discussion on Employees of the Law Society of South Africa submission
Ms Schӓfer remarked that the employees of the LSSA had brought to the fore very important issues which had to be viewed, namely the labour laws as they affected the Bill.

Mr Holomisa asked if the employees of the LSSA had engaged the Law Society and its components on the areas of concerns and what their responses had been.

Mr Mngomezulu responded in the affirmative. The appearance of the employees of the LSSA before the Committee was the result of deliberations and sourcing of legal opinion on the implication of the Bill for the employees - the opinion was availed to the Law Society’s council. However, the employees’ submission was prompted by the need to plead its case separate from the LSSA’s submission which made little or no mention of its employees.

Prof Ndabandaba asked if the employees of the LSSA were affiliated to any union.

Mr Mngomezulu responded that the employees of the LSSA were not affiliated to any trade unions. They had their own forum nominated by staff members.

The Chairperson thanked all for their attendance at the hearing over the last two days and stated that outstanding submissions and future deliberations on the Bill were welcomed by the Committee before its finalization. The meeting was adjourned.

 

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