The Committee received the responses from the Department of Justice and Constitutional Development (the Department) to the written and oral submissions on the Legal Practice Bill [B 20- 2012]. Rather than going through every issue raised on each clause, the Committee and Department adopted a more generic approach and considered broad themes addressed in the public hearings.
The first item raised and discussed briefly by the Committee (on which the Department did not comment) related to the tagging of the Bill. It was currently tagged as a section 76 Bill, but the Parliamentary Legal Advisors and the majority of the Committee believed that it should have been tagged as a section 75 Bill, although the IFPMember thought that since it dealt with consumer issues, the section 76 tagging was correct. The Committee would raise its concerns on this with the House.
The Department firstly addressed the question of ministerial appointees to the Legal Practice Council, and noted that since only three of the 21 members would be appointed by the Minister, it would not affect the independence. In any event, government had a duty to promote the public interest, and a safety mechanism was built into clause 12. It was suggested that provisions similar to those in the Independent Communications Authority of South Africa Act could be incorporated, to ensure that the appointees were not public servants. A DA Member suggested that a Judicial Council (who would also appoint the Ombudsman) deal with this, but the ANC Members said that they felt it appropriate that the Minister, who was accountable to the electorate, ensure accessibility, and said that it was not advisable to rely on the profession, which was by nature conservative and slow to transform. Members briefly discussed their views on the fusion of the profession and its effect on fees, with Members expressing views for and against the split bar. However, it was decided not to deal with the issue in any depth as no case for fusion had been made out. It was generally agreed that the hugely increasing legal fees were of general concern and were one of the primary motivators for the Bill. An IFP Member remarked that submissions on the Bill had come only from the profession, and not the general public who were users of the services, and his major concerns were the multiplicity of lawyers and the slow finalisation of cases, which pushed up the bills. Members noted that the Junior and Senior Counsel labelling were raised in discussions, but were not contained in the Bill, but agreed that lack of experience by one representative could give rise to disparity. In relation to the representation on the Council, the Department considered that, given the proportions of attorneys and advocates in the country, the current representivity was fair.
The Department heard concerns about the Minister having the power to dissolve the Council, but noted that it was necessary to include such a clause to address the possibility of dysfunctionality of the Council, and it was suggested that checks and balances could be introduced, either by requiring the Ombudsman’s intervention, in terms of clause 47, although other Members thought that clause 14(3) was sufficient. In regard to the funding model, the Department was of the view that, consistent with the desire for independence, the Council should be funded by the profession, and the regional councils in a similar way, although one Member objected to government attempting to prescribe how the model should be structured, and another urged that the General Council of the Bar’s proposals should be followed, although the Department noted that previous accreditation models suggested had not found support from attorneys.
Legal Practice Bill
The Chairperson gave a brief update on the classification of the Legal Practice Bill (the Bill) as a Section 76 Bill. The Chairperson, on behalf of the Committee, had discussed the tagging with the Speaker of the House, and an informal agreement had been reached to seek external legal opinion. A quotation from a legal practitioner was forwarded to the Speaker, but the Speaker had turned down the request. The consensus was to leave the classification as it was, although the Committee should clearly articulate its position to the House that the Committee believed it should be tagged as a Section 75 Bill. A short discussion ensued.
Department’s response to public submissions
Mr Lawrence Bassett, Chief Director: Legislative Drafting, Department of Justice and Constitutional Development, requested direction from the Chairperson on the approach that the Committee wanted the Department to adopt in responding to the public submissions. The Department of Justice and Constitutional Development (DOJ or the Department) could either address the major issues only, or go through the Bill, clause by clause, setting out responses to every submission.
The Chairperson, having obtained the views of Members, requested that the major issues be isolated.
The Department then proceeded to set out the responses, under broad headings.
Ministerial Appointees to the Legal Practice Council
Mr Jacob Skosana, Chief Director: Policy Development, Department of Justice and Constitutional Development, briefly drew Members’ attention to the comments in the Preamble of the Bill, with regard to the independence of the profession.
Mr Bassett referred to clause 7 of the Bill and the ensuing comments with regard to ministerial appointees. The Department pointed out that only three of the 21 members on the Legal Practice Council (the Council) would be appointed by the Minister and the government had a duty to promote the public interest in certain respects. A safety mechanism against abuse of this power had been built into clause 12, which noted that the Council could remove any member of the Council if it was of the opinion that this member was undermining the integrity of the Council. Part of the mandate of the Council was to uphold the integrity of the legal profession and to enhance and maintain the integrity of the legal profession. Consideration could also be given to having a provision similar to the Independent Communications Authority of South Africa (ICASA) Act of 2000, for instance that the Ministerial appointees may not be public servants or the holders of any other remunerated position under the State.
Mr Skosana, referring to the comments by Mr I J Smuts and Mr J Lourens (see attached document) concluded that it was the view of the Department that the provision for ministerial appointees be maintained but the provision be balanced.
Ms M Smuts (DA), while acknowledging the interest of the State in certain matters, such as fees, and also recognising that only three out of 21 nominees to the Council were Ministerial appointees, nonetheless proposed that the reference to “Minister” be substituted with “the judiciary”. The professional regulation of the legal practitioners should fall under the judiciary, to ensure its independence. She suggested that this could be done either through the Office of the Chief Justice, or alternatively through a Judicial Council. Likewise, the Judicial Council should be charged with the appointment of the Ombudsman. This would, to her mind, ease some of the concerns over the independence of the profession.
Mr S Swart (ACDP) agreed with the proposal by Ms Smuts and stated that this was an issue requiring serious consideration. It could also be tied in with the ministerial powers of dissolution of the Council.
Mr J Jeffery (ANC) opined that the dilemma with charging the Chief Justice with the duty to appoint members to the Council was one of accountability. The Chief Justice was not accountable to the electorate, but the Minister was, and it was the latter who must ensure accessibility to the judicial legal system.
Mr Raj Daya, Deputy Director General: Legislative Development, Department of Justice and Constitutional Development, informed the Committee that there was a possibility that the Office of the Chief Justice could be compromised if the proposal by Ms Smuts was incorporated into the Bill, especially in situations where any of the issues for consideration before the Chief Justice led back to appointments.
Ms Smuts accepted that this was a possibility, and then amended her proposal to consider the establishment of a Judicial Council to take over the roles of the Minister in the Bill.
Ms C Pilane-Majake (ANC) stated that she supported the perspective of public interest and involvement of the Minister in the nomination of appointees to the Council. There should be increased focus on public interest to justify the participation of the Minister. On juxtaposition with similar provisions of the ICASA Act, public interest led to accountability and the Minister was accountable to the people.
Ms S Shope-Sithole (ANC), remarking on access to justice by the citizenry and the role of the Minister, stated that the only accessible figure to many rural persons was the Minister, as rural persons had no access to courts or the Chief Justice. It was therefore advisable that the role of the Minister be maintained as presently set out in the Bill.
Mr Swart, in response to Ms Sithole’s remarks, stated that the problem of access to justice was rather that rural people were unable to get access to an attorney and Magistrate, rather than their access to the Minister.
Mr S Holomisa (ANC) opined that the Minister was best suited to represent the interests of clients to the profession. The nature of the profession was very conservative and slow to accept change. For this reason, it was not advisable to rely on the profession, through the Chief Justice who was also a lawyer, to transform itself.
Ms Pilane-Majake repeated that the issue of accountability related to the Minister and his role as a representative of the people of South Africa. It was absurd to require that the legal profession regulated itself.
Mr Swart stated that arguments on the composition of the Council should also apply to the appointment to the Attorney’s Fidelity Fund Board in terms of clause 63 of the Bill.
Mr Swart referred to the provision requiring that consideration be given to broad representivity on the Council, and questioned if this was not necessarily compulsory, but just an issue to be taken into consideration when appointing persons to the Council.
Ms D Schäfer (DA) expressed the view that the process of termination of membership of the Board should be amplified in the Bill.
Deliberations on Fusion of the Profession and Fees
Dr M Oriani-Ambrosini (IFP) expressed his view that it was necessary, in the interest of the citizenry, and to promote access to justice, to get rid of the antiquity of a split bar and divisions between senior and junior counsel.
Mr Jeffery expressed sympathy for Dr Oriani-Ambrosini’s argument on the split bar and stated that it would be necessary to consider the trends in other jurisdictions.
Ms Smuts said that the fusion of the profession was not yet an issue for consideration, as a case for merger of the profession had not been made. An evolutionary approach to the fusion of the profession was the best option. The need for a separate advocate’s profession had been well articulated and advocated in the presentations of Advocate Bizos and by Judge Mahmood, as quoted in the presentation by the General Council of the Bar (GCB).
Dr Oriani-Ambrosini remarked, in response to Ms Smuts, that the Bill was “a last shot” at reforming the legal profession in South Africa. Parliament must have the courage to do what was right for the people, and not serve only the interests of the profession.
Ms Schäfer told Dr Oriani-Ambrosini that it did not necessarily follow that high legal fees were the direct result of a split bar. The cab rank rule and the referral rules were enshrined rules that served as safeguards for both professions.
Mr Swart was in agreement with the need for the separation of professions, as he said that advocates were specialists in eruditely arguing cases in court, and it was necessary that this role remained with specialists.
The Chairperson wanted to put a question to the Committee in relation to the split bar. He pointed out that, prior to the advent of the Constitutional Courts, only advocates, up to a certain point, were allowed to become judges. However, both attorneys and academic lawyers were appointed to the Constitutional Court, against popular opinion and warnings that there would be dire consequences in appointing them. He asked if any of those predictions of dire consequences had indeed come to pass.
Ms Smuts responded to him that at the time of the appointment of judges to the Constitutional Court, there was a need to create a court that was all inclusive, and there were insufficient judges who were ex-advocates then in the system from whom to draw. The general trend over time was that non-advocates were no longer appointed as judges. The appointment of non-advocates at that time was simply to achieve the aim of an all-inclusive highest court, considered by both race and gender.
Mr Holomisa suggested that the Committee should move on with considering the Department’s responses to the written submission. A case was yet to be made for the fusion of the profession.
Ms Smuts remarked that the concern on skyrocketing legal fees was generally shared and even the Constitutional Court had expressed its views on the issue. Legal fees and the affordability of pursuing legal action was indeed of concern, and was one of the primary motives for consideration of the Bill and transformation of the profession.
Access to Justice
Dr Oriani-Ambrosini remarked with concern that the representations on the Legal Practice Bill had been from within the profession only. The end users of legal services, the clients, had not made inputs into the way this Bill affected them, and that was an issue deserving serious consideration.
Dr Oriani-Ambrosini remarked that some of the indicators to being a good lawyer were affordability and the pace at which the work was completed. If the issue of access to justice was not properly addressed in the Bill, then the Committee would have failed in carrying out its duties. The current status sometimes necessitated that a client employed three legal practitioners to do the work that one legal practitioner should normally do. Furthermore, the pace at which law was practised in South Africa was extremely slow. This was of importance, because it was directly linked to the hourly billing system and slower conclusions meant an increase in clients’ bills. While the current system seemed to serve well, this assumption held only in the absence of better alternatives being considered.
Dr Oriani-Ambrosini also said that the Senior Counsel / Junior Counsel separation undermined the concept of equality before the law, and gave credence to a group of practitioners only on the basis of number of years rather than competence. A bad lawyer remained a bad lawyer, irrespective of the number of years in the profession. The hierarchical system of the legal profession in South Africa exclusively served the interest of the profession, and was not in the interest of the citizenry.
Mr Daya stated that there was no intention in the Bill to refer in any way to status, and these issues were probably highlighted only during the discussion.
Mr Holomisa remarked that it was a correct assertion that if one party was represented by a Senior Counsel, and another by an inexperienced Junior Counsel, this did not give room for equality.
Mr Swart remarked that it was important that the Committee applied its mind to the fact that the conferment of Silk was a Presidential prerogative awarded to deserving candidates.
Mr Swart also echoed the sentiments on inequality before the law and said that this was particularly true in criminal cases, for where an inexperienced prosecutor faced an experienced senior counsel for the defence, the outcome was hardly going to be justice.
Ms Pilane-Majake remarked that the Committee must always take into consideration the broader intention of the Bill, which was to remove the barriers and give access to justice. It was important that the legal profession was affordable to the citizenry. Representation in terms of race, age, gender and disability must also be taken into consideration.
Parity of Membership Representation between Attorneys and Advocates on the Council
Mr Skosana noted the views of the Department on the parity of representation, on the Council, between advocates and attorneys. The Department felt that this was a non-issue, as the number of attorneys in the country far outweighed advocates. For this reason, it was only democratic that they had greater representation on the Council. Furthermore, he pointed out that most attorneys also had the right of appearance in the high courts. Advocates should strive to appoint persons of high integrity whose opinions would be given weighty consideration, to address the supposed imbalance.
Ministerial Powers to Dissolve the Council
Mr Bassett noted that clause 14 of the Bill gave powers to the Minister to dissolve the Council. The Department had some sympathy for the concerns about this clause but pointed out that it was necessary to have a mechanism to address the reality that the statutory body may become dysfunctional. Checks and balances could be introduced into the Bill, to ensure that the power by the Minister was not abused. Recourse to the Ombudsman was possibly an option, in terms of clause 47 of the Bill.
Mr Swart responded that while he shared the Department’s concerns, the clause in fact threatened the independence of the profession, especially when read in conjunction with clause 5 of the Bill. The two, read together, meant that the Minister could dissolve the Council if s/he held the subjective view that the Council was not transformational enough. He suggested that it would be preferable to refer the issue to the Ombudsman, who must take into consideration the Ministers’ view.
Mr Holomisa disagreed with Mr Swart and said that, given clause 14(3) of the Bill, it was unlikely that the Minister would use the powers in an arbitrary fashion.
Ms Schäfer was of the opinion that it was necessary to rework the section to avoid abuse of this power by the Minister.
Ms Schäfer further referred to the comments by UNISA on clause 14(7) of the Bill and stated that it was unacceptable that a small minority of the Council should be able to dissolve the Council.
Funding Model of the Council
Mr Skosana referred to the comments made in relation to the funding model for the Council. The Department was of the view that, consistent with the desire for independence, the Council should be funded by the profession. In terms of costing of the structure, the current legislative framework of the various law societies had built up a firm model, and this model should be deployed also for this purpose. The Bill left it entirely to the profession to regulate itself, in terms of clause 22 of the Bill. The government was only committed to funding the Transitional Council, and a cost analysis had indicated that this cost added up to about R2 million. The Department’s suggestion with regard to the funding of the regional councils was that the same transformation model that informed the National level should cascade down to regional levels.
Ms Smuts urged the Department to consider the proposed model put forward by the GCB, during the public hearings on the Bill. This was for the establishment of two separate chambers for each arm of the profession, and an accreditation body to govern the chambers.
Ms Schäfer opined that there was no sense in the Department’s take. On the one hand, it wanted the profession to be responsible for funding the model, yet on the other insisted on prescribing how the model must be structured, including increasing the number of regional councils from four to nine.
Ms Schäfer asked if the Department had considered the proposal put forward by Adv Izak Smuts in the GCB’s presentation on the accreditation model. The model seemed to take the interests of everybody into consideration.
Ms Pilane-Majake remarked that she subscribed to the model proposed by the Department, for cascading down to the regional levels. All issues must be discussed holistically, and not separately, to get a proper picture of how the structures would work.
Mr Bassett remarked that the Task Team inaugurated by Former Minister Maduna had considered the accreditation model, in a previous version of the Bill. The attorneys’ profession was not in support of the model.
Ms Smuts asked if this was still the position held by the attorneys.
Mr Daya stated that, from his experience as former Chief Executive officer of the Law Society of South Africa, he could explain the objection of attorneys to the accreditation model. The attorneys’ objection to this model was that it simply maintained the model currently in place, with a unifying body. The current model was an entrenchment of the development of the profession, and there was no clear cut difference between both professions. They were of the view that there was indeed a need to maintain the difference. The Bill must seek to allow graduates the chance to enter either of the branches of the profession without obstacles, since this would promote access to justice and the profession. At the heart of the submissions made by the Attorneys’ Fidelity Fund was the question of the public interest. However, it must be remembered that the Fidelity Fund also served to fund the profession. This would be replicated in the funding of the nine regional councils, so concerns on how they would be funded were unnecessary. Furthermore, the increase in the number of regional councils aided in the governance of the profession and addressing disciplinary matters.
Mr Swart appreciated the input from Mr Daya but the Committee must bear in mind that there was a counterbalancing argument.
Ms Smuts thought that the opinion of the Parliamentary Legal Advisors should be requested on the issues, particularly in relation to the tagging.
The Chairperson responded that this had been done, and it was the Parliamentary Legal Advisors who in fact stated that it was a Section 75 Bill.
Dr Oriani-Ambrosini was of the opinion that the Bill contained aspects related to consumer protection, and this justified its classification as a Section 76 Bill.
The Chairperson responded that this tagging would mean that provincial legislatures would be able to legislate around the Bill.
Dr Oriani-Ambrosini responded that he thought it was a mixed Bill containing vital elements of consumer protection, and so there was no reason why provincial legislatures should not be able to legislate on it. When the Chairperson asked him to expand on this, he said that the Constitution allowed consumer protection issues to be regulated from province to province.
The meeting was adjourned.
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