Legal Practice Bill: NADCAO & National Task Team on Community Based Paralegals submission; Committee Report on Department of Justice and Constitutional Development Strategic Plan 2013

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Justice and Correctional Services

27 May 2013
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Committee was taken through the latest draft of the Committee Report on the Department of Justice and Constitutional Development (the Department) budget vote, and, after discussion on various points, agreed to adopt the Report, as amended. Some points were clarified, some stylistic changes were made, and some wording was changed for emphasis, such as the Committee questioning whether the budget was adequate, in light of the responsibilities given to the justice sector. The online features of the Master’s Office would be specifically acknowledged. Similar wording expressing the Committee’s concern at the non-filling of senior posts would be used for both the Special Investigating Unit and National Director of Public Prosecutions. The wording for the section of the Report dealing with the Public Protector was clarified, in relation to departments who were not cooperative, the requests for additional funding, the role of National Treasury in awarding further allocations, and the comparative amounts allocated to the Public Protector and the South African Human Rights Commission. The point was made in the Report (as well as later in the meeting) that legislation dealing with remuneration of representatives was urgently required. 

The National Alliance for Development of Community Advice Offices (NADCAO) and National Task Team on Community Based paralegals gave an oral and written submission to the Committee concerning their request that the Legal Practice Bill should include clauses giving recognition to, and regulating, paralegals, particularly those based at community-based advice offices. The outreach and importance of their work was emphasised, and some background was given on the bodies. Although previous versions of the Legal Practice Bill had incorporated clauses dealing with this branch of the profession, the latest version did not, and it was explained, firstly by the Department, that the current Bill was a compromise reached after extensive concerns that the attorneys’ and advocates’ position must firstly be sorted out, and by Members that the Bill was now at a fairly advanced stage and it would be impossible, for logistical reasons, even if the other branches of the profession agreed to insert new clauses, to deal with financial requests, craft suitable wording and get the Bill passed before the end of the Fourth Parliament. It was suggested that the Committee could include, in its Report, a recommendation that the matter be dealt with, and the Minister be asked to report on progress, and that the entities should follow up with the new Parliament, and the Department, the drafting of either an amendment to what would then be the Legal Practice Act, or a completely new Bill, after the elections. All Members expressed their appreciation of the sterling work being done by advice offices and agreed that there was definitely a place for, and a desire to regulate and recognise this profession.

Members noted their requests for more information from the Department on the Triennial Review of the Legal Services Act in the UK, numbers of attorneys who had exercised rights of appearance in the High Court, and discussed the process for prioritising and passing outstanding legislation, noting that the most important pieces of legislation were likely to be the Legal Practice Bill, the legislation dealing with the legal administration agency, DNA legislation (being handled largely by the Portfolio Committee on Police), the South African Human rights Commission Amendment Bill, the Judicial Matters Amendment Bill (with a possible removal of certain section 76 provisions), and amendments to the Protected Disclosures Act.

Meeting report

Draft Committee Report on budget vote: Department of Justice and Constitutional Development
The Chairperson tabled the draft Committee Report (the Report) on the budget vote of the Department of Justice and Constitutional Development (DOJ&CD or the Department). He asked that Members comment on the document tracking the changes.

Ms D Schäfer (DA) asked that paragraph 1.1 be corrected to read "comprises", not "comprises of".

Ms Christine Silkstone, Content Advisor to the Committee, asked for deletion of the word "method" in the heading of page 1.

Mr J Jeffery (ANC), raised a point on page 14, under the Committee's response under "General", that although the acronyms had been stated elsewhere, the names of Public Protector and Office of the Chief Justice should be written in full; the other acronyms were probably well-known and could remain.

Ms M Smuts (DA) referred to the calculation at the bottom of page 16, and asked what was meant by "Defence, Public Order and Safety", and whether this meant the Defence Force.

Ms Silkstone said that she had taken this from the budget document and had received confirmation from National Treasury.

Mr Jeffery noted the phrase reading "the Committee questions whether the share is fair". He was not sure that anybody knew exactly how the remainder of the R141 billion was spent. He was concerned that the justice budget was not sufficient, but was a little uncomfortable with making remarks on the share of the rest.

Ms Smuts noted that R60 billion was budgeted for police and R16 billion for justice. The Committee should be quite crisp about what was being said, and make that comparative point. However, she thought this phrase could be removed from its present place, and dealt with in another context.

Ms Schäfer thought it should be delinked from remarks on the rest of the cluster, to merely state that the Committee questioned whether the budget was adequate, in view of the responsibilities cast on the justice entities.

Mr Jeffery raised a query on paragraph 8.7.1, in relation to court infrastructure and maintenance. This stated that the Ntuzuma Magistrates' Court was being opened “at the end of the month”, but he noted that it was in fact to be opened today, so the exact date should be inserted. He corrected a spelling error in paragraph 8.7.2.

Mr Jeffery suggested that the use of the name "Public Service Commission" and acronym should be corrected, for consistency.

Mr Jeffery raised a query on the transfer of funding to the courts, and asked that the facts on this be checked, as his understanding was that amounts were not to be transferred.

Ms Smuts suggested that, in paragraph 8.11.3, the online features of the Master's Office should be acknowledged. More than 200 000 people were accessing the website and more than 600 000 pages had been read. Without necessarily bringing in the figures, she thought it would be appropriate to note that the services were being widely accessed.

Mr Jeffery agreed, and suggested that Ms Smuts work on the wording that she thought would be appropriate.

Mr Jeffery noted that the Committee had expressed support for amendment of the sexual offences legislation, to address the problem of magistrates being unwilling to staff the courts. He suggested that since there was not an amendment yet, the principle of amendment should be supported. He asked also for the correct name of the Act.

Ms Schäfer said that the Committee had suggested that the Criminal Law (Sexual Offences and Related Matters) Amendment Act be amended, so she agreed that wording such as “the Committee would support a proposal to amend.." would be appropriate.

Mr Lawrence Bassett, Deputy Chief State Law Advisor, Department of Justice and Constitutional Development, agreed.

Ms Schäfer noted that words were missing from paragraph 8.11.8, and Members agreed that "psychological damage" should be used.

Ms L Adams (COPE) referred to page 36, where the Committee was expressing concern that the National Director of Public Prosecutions position was not yet filled. She said that similar concerns had been raised in relation to the Special Investigating Unit (SIU) also. She suggested that similar wording be used for both paragraph 12.9.9 and this paragraph, stating that it was undesirable that the position remain unfilled.

Ms Schäfer agreed with the principle but thought that stronger wording was needed. She had been intending to suggest that the word “unacceptable” be used instead of “undesirable”.

Mr Jeffery and Ms Smuts thought this was too strong. The Committee agreed to retain the word "undesirable" and to insert this comment in relation both to the NPA and SIU.

Ms Schäfer wanted to add a comment to page 33, noting that the position had been unfilled for 17 months.

Mr Jeffery noted that there was reference to two commissions on page 35, and so the reference to "the Commission" in the middle of the page should be revised to note that this was the "SAHRC". The acronym had been explained earlier.

Mr Jeffery noted that the South African Human Rights Commission (SAHRC) had requested more money and he suggested that wording be inserted to reflect the Committee’s support for this request.

Ms Silkstone said that there was a reference to this in paragraph 13.9.2.

Mr Jeffery agreed that this was then acceptable.

Mr Lawrence Bassett corrected the title of the Act as the South African Human Rights Commission Bill.

Mr Jeffery noted that there seemed to be some confusion in paragraph 14.10.1. The Office of the Public Protector was accountable to the NA. There was a general reference to overseeing Chapter 9 institutions, but this Committee actually only oversaw two, so he suggested that the words “The Committee” be changed to “This Committee (is mandated)”.

Ms Schäfer, in paragraph 14.10.2, pointed out that a word was missing word; it should read "jurisdiction such as complaints”.

Mr Jeffery remarked that the Committee had been concerned that the Public Protector was dealing with cases falling outside her jurisdiction, as well as taking on matters that she had the power to investigate, but that could probably better be resolved elsewhere. The Committee’s main concern was that because of the shortage of the resources, she should be more circumspect about what was taken on, and not deal with matters that would be more appropriately resolved elsewhere.

Ms Smuts suggested making a reference to the section of the Act that allowed her to decline the cases.

Ms C Pilane-Majake (ANC) suggested that paragraphs 14.10.2 should be collapsed with 14.10.5.

Other Members did not agree, since 14.10.5 dealt with process rather than mandate.

The Chairperson reminded Members that the Director General of Department of Justice had complained that a person was reinstated by the Public Protector, without informing the Director General.

Mr Jeffery noted that in paragraph 14.10.7 the concerns about whistleblowers and the current legislation were noted. However, he was not entirely happy with how it was phrased. The amendments were due to come to the Committee in July, and the South African Law Reform Commission was thus not seized with the process any longer. He thought that the Report should simply note that the Department or Minister should be urged to effect the amendments as soon as possible

Mr Jeffery also raised an issue on paragraph 14.10.8. He was not sure what the "hard powers" were of the Public Protector, but presumed they were the powers of search and seizure, and subpoena. However, there were no powers on the enforcement of recommendations. This needed to be rephrased. He had understood that the Committee wanted firstly, to know of those departments or bodies who were not responding to the recommendations. It was not correct to call them "culprits" because they may have a justifiable reason not to respond. He would prefer a report indicating which departments were not cooperative either in assisting with the investigations or in responding to the recommendations. Perhaps “holding the relevant bodies to account" was better, and the reference to “hard powers” should be removed. Finally, instead of "willing to assist" he thought that "it is eager to assist.." would be better.

Ms Schäfer added that there were some problems with disputes of jurisdiction, and perhaps "enable the Committee to investigate" would be better than "holding to account".

Mr Jeffery and the Chairperson noted that the Committee performed oversight and monitoring.

Mr Jeffery made another suggestion on the point; that "to examine and hold accountable where relevant" should be used. Members agreed with this.

Mr Jeffery noted that the Office of the Public Protector had requested more money, but he thought that the increases should not be supported until the Committee had a better idea of how the money was being spent. He thought that the Committee should not simply remain silent on that issue.

Ms Schäfer did not agree. She pointed out that one of the requests related to extra money for the case management system and that was quite legitimate, so she would not support saying that the Committee would not support any requests.

Ms Smuts noted that paragraph 14.9 set out the precise amounts that had been requested. She suggested that the Committee express support for the specific items requested, but also state that before considering amounts beyond that, it wanted to be satisfied on the proposed spending. The Committee would like to avoid the situation where National Treasury unilaterally gave more money.

Mr Jeffery noted that the funding for the Office of the Public Protector had increased substantially.

The Chairperson agreed that this point must be noted in the Report.

Mr Jeffery noted that a City Press article had quoted percentages, taken from a speech by the Minister of Justice. The Office of the Public Protector wanted more money to fill posts, yet he had some difficulty with that, because he believed that the Office should not be taking on some of the cases. The Committee had not managed to get details on what exactly this Office was investigating, and whether more cases should be taken on. Secondly, he had a problem with the over-concentration of offices around the Greater Karoo. In addition, a huge delegation from this Office had attended the meeting, which must have been costly. He thought that the Report should note the increases already received, and also refer to the request for further funds, but state that the Committee still needed further information to validate the requests.

Ms Smuts thought that was acceptable, but asked if there should be something added in about the National Treasury position.

Ms Schäfer would not support any wording that might link funding to what was being investigated.

Mr Jeffery said that he was not pursuing that point.

Ms Schäfer agreed with noting the increase in the budget, and agreed that the Committee should acknowledge that the Office of the Public Protector needed certain money for certain projects (which could be named) but also needed more information on how the existing resources would be used.

Mr Jeffery agreed, particularly stressing the last point, but said there would be no questions noted as to what and how much the Office of the Public Protector was taking on.

Mr S Swart (ACDP) agreed broadly with the wording for the Report, but was a little uncomfortable with discussions about the size of delegations, as he pointed out that other entities also brought a number of people.

The Chairperson thought that Mr Jeffery had made a comment in passing, and that would not be in the report.

Ms Silkstone suggested new wording, to which the Committee agreed.

Ms Pilane-Majake said that reference was also made to what had been allocated to the SAHRC. She wondered if the concerns that National Treasury had released money without consulting the Committee should be brought in here. The main problem was that there was a big gap between allocations to the SAHRC and Office of the Public Protector, despite the fact that both were Chapter 9 institutions.

The Chairperson agreed, and said it was indeed a sore point.

Mr Jeffery raised an additional point which he would like inserted into the Report. It related to both the SAHRC and Office of the Public Protector, and was the amendment to the legislation determining remuneration of public representatives. The amendment had not yet been brought to the Committee, although it was important to achieve harmonization, and he wanted the Report to note that the Committee was still waiting for it.

Mr Bassett offered to share with Members the challenges that the Department had with this, but Members thought this was not necessary at the moment. However, he said the matter was in hand.

Mr Jeffery said that, although this was not a point that needed to be noted in the Report, any legislation affecting the Public Protector would be a section 76 Bill and it was desirable to get it through before Parliament rose.

Mr Jeffery also noted that in principle, the reports were needed after the winter recess, and he was not sure why the date of 19 July was chosen He would prefer them to be distributed before the weekend, to allow Members enough time to study them. He assumed that all the reports were due on 19 July.

Ms Silkstone confirmed that this was so, and the 19 July was a Friday.

Mr Jeffery asked if appreciation was usually expressed to the Deputy Minister. He asked - and was told that it appeared later - that the Secretary-General be named. He also noted that although thanks were expressed to the Chairperson of Legal Aid South Africa, it was in fact the Chief Executive Officer who did most of the work, but perhaps this was the same for all the entities.

Ms Schäfer asked if there was anything in the Report about the Integrated Case Management system.

Ms Smuts noted that it was mentioned. The mistake had been to give the first phase over to the South African Police Service (SAPS).

Members agreed to adopt the Report, with the latest amendments.

Legal Practice Bill: Oral Submissions from National Alliance for the Development of Community Advice Offices (NADCAO) and National Task Team on Community Based Paralegals
Ms Nomboniso Maqubela, Interim Director, National Alliance for Development of Community Advice Offices (NADCAO), noted that there were about 320 community-based advice offices in the country, mostly run by around 500 community based paralegals, who were providing legal advice, information and services to communities. There was a referral network - particularly with Legal Aid South Africa - who had processed about 1 500 cases last year. These advice offices were therefore an integral part of the justice system.

Mr Seth Mnguni, Spokesperson for the Task Team on Community Based Paralegals, gave a board overview of who the paralegals were, and how they were associated with alternative dispute resolution (ADR). This system originated in traditional communities, but, over time, became less used by urban communities, until a time when people had lost trust in the state machinery and reverted back to community structures. These structures had been particularly important in the apartheid years, taking up matters such as forced removals, detention without trial, family and neighborhood disputes and other social issues. They also served as information centres. However, since it was recognised that community structures may be used as a springboard for self-interest if not regulated, an Advice Centre Association was formed in 1983 to coordinate the advice offices. In the run up to the democratic elections, this had  mediated disputes between political organisations, such as the conflicts between IFP and ANC, to try to help the structures to help each other.

After 1994, paralegals across the country met to discuss their future role in the new dispensation and decided that the role of the Community Advice Offices (CAOs) was even more relevant to build a democratic society, complement government's work and ensure that the democracy was vibrant and participatory and to give life to the Constitution. In 1996 the national structure – National Community-Based Paralegal Association (NCBPA) was formed to take it forward. Numerous positive discussions with government resulted in recognition by government that the role of these offices was indeed important. The Legal Services Charter was drawn. The Association however was forced to close after 2005 because its sole funder, the ICJ, had changed focus. However, in 2012, after numerous consultative meetings, provincial leadership met and a decision was taken to form the Association of Community Advice Offices of South Africa (ACAOSA) to self-regulate. This would be officially launched in December 2013.

The request today was the same as that made to Dr Dullah Omar, then Minister of Justice, when the Legal Practice Bill was first drafted. The Association was asking for recognition and regulation of community-based paralegals. It was happy to hear of government wanting to "partner" with civil society and asked for the formalisation of the partnership. Secondly, it wanted government and its partners to invest in the scale-up of community based advice offices, to ensure that all citizens deserved access to primary justice services. Thirdly, state recognition should not entail state control, and the role of paralegals should not be hindered.

Adv Anil Naidoo, Technical Adviser to the two organisations, emphasised that the submission was made on behalf of community-based paralegals who were working in advice offices. In the Western Cape alone, more than 8 000 cases were reported in 2008 by the advice offices. Black Sash had a similar number of cases in 2011, and one paralegal organisation, Community Law and Rural Development Centre in KwaZulu Natal (KZN) had managed to obtain, for its rural clients in the most remote areas, R4.5 million due to them, which clearly demonstrated the value that paralegals brought to the formal justice sector.

When the organisations engaged with the DOJ&CD on this latest draft of the Bill, it was told that a decision had been taken to settle the regulation of legal practitioners first, before addressing a framework for paralegals. There had been an earlier commitment by the Department, as mentioned, to establish a separate legislative framework for paralegals, but it had not emerged. This was a significant set-back, and it had required the groups to rethink their strategy, which was part of the reason for now approaching Parliament.

He noted that there was growing recognition of the role of community based paralegals in the justice system across the world. Sierra Leone specifically provided for them to complement legal-based services and Malawi recognised them also. In Zimbabwe, the Labour Court had agreed that a right of appearance be afforded to paralegals and the Council for Education had agreed to set up a formal course for them. Overseas, several countries were encouraging the development of curricula, accreditation and recognition. He emphasised again that community-based paralegals and advice offices had a prime role to play in enhancing access to justice for the poor. Far from being in competition with attorneys, they worked carefully with them, referring carefully screened and assessed matters for litigation to the firms. Nine out of ten matters that were referred in this way, on a contingency basis, were successfully pursued, with party and party costs being awarded and many rural practices in South Africa relied heavily on these kinds of arrangements.

In conclusion, Adv Naidoo noted that creating a completely separate framework for paralegals would set them apart from the mainstream sector, but this would be against the spirit of the Bill, which aimed to bring the professions together. The present Minister had described the Bill as a landmark in improving access to justice for the poor, but it was difficult to see how this could happen without community based offices, staffed by recognised paralegals. By giving recognition, responsibility and duties to community based paralegals, in line with policy intentions, access to justice and unification of the legal profession would be promoted.

Ms L Adams (COPE) asked if there were any set qualifications for the paralegals at present.

Ms Schäfer believed that community-based paralegals did perform a valuable service but did not understand why it was felt that it was so essential to include them now in the Bill. They had been functioning without being legislated for in the past, and she also enquired whether there would be an objection to having separate legislation for paralegals alone. They could not consider themselves in the same category as attorneys and advocates. She also wanted to know if there was any body monitoring and controlling standards and ethics, whether there was any disciplinary function, and shared Ms Adams’ concerns about qualifications.

Ms Smuts also wanted to know more about the qualifications. She pointed out that a Deputy Judge President, Mr Mojapelo, had expressed concern that even graduates with LLB degrees were not properly trained to represent the interests of clients and it was entirely relevant to know what qualifications were contemplated.

Ms Smuts understood that one of the main factors behind calling for recognition related to funding.

Ms Schäfer also noted the comment that the body wished to be sustainable and she asked how exactly it envisaged that funding would be given. That would have huge implications for the Bill, and this was one reason why it would be very difficult to incorporate the paralegals into the Bill now. The other professions could not be expected to fund.

Ms Smuts, like her colleagues, recognised that community-based offices played an invaluable role. She was interested in the comment about many rural firms depending on relationships and referrals from paralegals, and wondered if any numbers could be given in support of this statement, and where such firms might be based. NADCAO seemed to represent only about 230 organisations with about 500 paralegals, and she would be interested to know how many firms of attorneys were also involved, because it was very important to consider their role when discussing the Bill.

Mr Jeffery also stressed that he was fully supportive of the concept of community based advice offices and paralegals, and he thought that regulation was needed. However, he pointed out that, from a practical standpoint, it would be very difficult to add anything into the current Bill, at this stage. He recognised that all branches of the profession had waited almost twenty years for this Bill, and it was true that initially, it was intended that the paralegals be included. The public hearings on the Bill had been held back in the hope that the attorneys and advocates’ professions would find common ground. He explained the technicality of this Bill needing to be brought before both Houses, and stressed that there was a firm intention to pass it this year. He suggested that the Committee could consider adopting a Report that emphasised the need to address paralegal recognition, and perhaps that required the Minister of Justice to report to Parliament, by a certain date, about progress, to keep up the pressure.

Mr Jeffery also made the point that the effect of legislation would be the same, no matter where the clauses appeared. He fully understood the desire for recognition for paralegals to be included in the Legal Practice Bill, but pointed out that it was still possible to pass that Bill in its present form, and then amend it by passing a later amendment Bill that would insert a chapter dealing with paralegals. The fact that the current Bill was at a certain stage would not preclude paralegals for all time from being recognised under the final Act.

Mr Jeffery noted Ms Schäfer’s question on discipline and ethics, and said that a community paralegal might be a person with substantial legal knowledge, or simply an activist, and he noted that regulation was needed because people could purport to be attorneys or advocates, and charge money to the poor. He asked how far the organisation had gone with discussion around this point, and presumed that considerable engagement would be needed with paralegal bodies and advice offices to see how this would work.

Ms Pilane-Majake also acknowledged the good work done by advice offices, particularly in mediation which was often better understood by communities, and that was perhaps where paralegals would find their niche. She agreed that regulation and formalisation were important points. However, she also noted that this required certain broad principles to be settled, which should be done by the organisations themselves. In the submission, paragraphs 4.3 and 4.9 really dealt with the work necessary on structures, skills, accreditation and other issues and she suggested that the organisation should craft preferred wording and submit it to the Department for refining and incorporating into legislation. At the moment, there was no set definition of who would be a paralegal. 

The Chairperson added his voice to recognition of the outstanding work of advice offices. He wanted to comment, in particular, upon the funding. The submission had clearly stated that the paralegals wanted to remain independent. However, it was suggested that the State be asked to wholly subsidise the costs. He assured NADCAO that if it were to accept state funding, its independence would be severely constrained, and urged it to think the request through very carefully. The state would not simply give money and not expect the organisation to come and account to Parliament - and that would extend to this Committee questioning the organisation about the cases that its members were taking on. He would hate to see community-based organisations’ excellent work come to a halt through linking them to state bodies. He noted the argument that these offices in fact attended to work that should be done by the state, but this was “the hard truth”.

Ms Maqubela first responded to questions on qualifications, noting that a diploma course was offered by the Universities of KZN, and of Free State. It was correct that NADCAO was asking for formal recognition and regulation, and she pointed out again that it had not departed from its original requests made some ten years ago, when it was accepted by the DOJ&CD that there was indeed space for the paralegal recognition, but the question was why the clauses dealing with this did not appear in the current Bill. NADCAO was asking for them to be reinstated.

Ms Maqubela heard the comments on funding, and confirmed that indeed this was one of the considerations. There were other countries where the type of model suggested in the submission had worked, and it was stressed that funding should not buy dependence, but should be regarded as a way to enable the provision of services. There was a need to find collaborative ways of working and funding that would in fact not impinge on independence. Communities were affected by advice offices and EU was putting money into them, but the real question was why this money should come from overseas instead of from the South African government, who well knew how hard-fought democracy had been. There was a need to think collaboratively about the impact of the work of advice offices, how they augmented the state’s ability to deliver services, and how funding could be better shared.

Ms Maqubela similarly noted the points about a separate bill for paralegals, and said that she had discussed this already with Mr Bassett, but NADCAO was not yet fully convinced on the matter, and wanted to know exactly what it would have to do if there was further clarification required on any point. She stressed that in fact communities were at the heart of government, and would welcome any suggestions that could advance the work of community advice offices.

Ms Maqubela also agreed fully on the need for regulation and confirmed that there were some unscrupulous people sitting around the courts, taking money illegally from the poor, and this trend would continue if the sector was not regulated. NADCAO was essentially appealing to the Committee to help with this.

Adv Naidoo said it was difficult to answer the questions on the numbers of attorneys’ firms, because a national baseline survey had not ever been done on the characteristics of advice offices and community-based paralegals, but NADCAO had been in discussion with National Treasury to try to bring more empirical evidence to the fore. In KZN, especially in the Midlands, he knew that there were a number of attorneys’ firms that were dependent on arrangement with paralegals.

Adv Naidoo said that the submission was only partly to do with funding, because even if the paralegals were completely funded and sustainable, they would still like to be formally recognised and regulated. Sustainability went beyond finances, and covered training and accreditation. He reminded Members of his earlier comments on the value of the community-based offices to rural communities and said that if they were not in existence, he doubted that the DOJ&CD or the state could absorb the cases, and the lack of access to justice would have a negative impact on the justice sector. He argued again that if the clauses about the recognition of paralegals had been accepted for previous drafts, it should not be difficult to create them again.

Ms Maqubela said that when the previous entity had had to close, for lack of funding, NADCAO was formed and it had essentially picked up on the same services, including driving the regulation and ethics of the sector. Provincial offices had been taken to task and some offices had been asked to close down, or their members were expelled, if they failed to honour the correct standards. Self-regulation was working at the advice offices.

Mr Mnguni agreed with Mr Jeffery’s point that “unofficial paralegals” were operating, and the request for regulation was intended to control that. The advice offices gave a free service, picking up on the constitutional obligations of government to give access to justice to the indigent. However, there were other unscrupulous people who were charging money and the advice offices could do nothing to stop that because they were not recognised formally. Although not every aspect of regulation may not be settled now, the principle was clearly that regulation was needed. 

The Chairperson assured the entities that their pleas had been heard, but because of practical considerations, given the stage that the Bill had already reached, it would be best to look at crafting another piece of legislation to deal with the community advice offices.

Ms Pilane-Majake asked if the offices were engaging with the Department of Justice.

Ms Maqubela replied that they had had conversations.

Mr Bassett confirmed this, and also confirmed that there had been requests to include paralegals in the Bill now. He also agreed that they had been included in a previous version of the Bill, but there had also been discussions on having a separate chapter, or perhaps separate legislation. He reminded Members that the DOJ&CD had always said that the Legal Practice Bill was “a compromise”. The profession had engaged on the issues, but it had been agreed to try to settle the position of attorneys and advocates first, and then return to dealing with paralegals. With all due respect, this delicate equilibrium that had been achieved could be upset by revising the Bill at this stage to include paralegals. He fully respected and appreciated their patience and ongoing engagement.

Mr Mnguni wondered if it might be possible to include something that would, at the least, give recognition to the fact that paralegals were an essential part of the sector, similar to the recognition given to primary healthcare workers in the health system.

The Chairperson said that the Portfolio Committee could adopt a report in which it could set out these concerns, which would be tabled to, and then adopted by the National Assembly, to be passed on to the Ministry and Department of Justice and Constitutional Development.

Mr Jeffery answered Mr Mnguni by noting that it was difficult to express “wishes” in an Act; the only time this had ever been done was when issues of capacity were raised in relation to the Child Justice Act, but this was an unusual and unique piece of legislation. He reiterated that it would be effective for the Committee to draft its Report quite specifically, and it was possible even to require the Minister to report back to Parliament by a certain date, such as “before the end of the term” on the steps being taken. There would be complex discussions needed on the regulations, between the role players. However, given the timing, he also suggested that the entity must return to the new Parliament, after the elections, and lobby for the new portfolio committee to consider it again. This Bill had been submitted late in the term, and the Committee was held up by disagreement between the branches of the profession.

Ms Schäfer suggested that more specific suggestions were needed on possible funding mechanisms.

Ms Maqubela noted that NADCAO had been considering the model of the UK Citizens Advice Bureau, which was partially funded by government, and was able to draw on resources for specific services rendered in certain areas.

Ms Pilane-Majake said that this differed from the total funding requested in this submission.

The delegation was thanked and released at this point.

Other Committee business
Ms Smuts asked for permission to raise a few points. Firstly, she questioned whether Mr Raj Daya, Deputy Director, DOJ&CD, had knowledge of the process of the Triennial Review of the Legal Services Act (UK), and, if so, asked that he formally brief the Committee. She was interested in how the process had evolved, particularly the recommendation by the English judges that the Bar and Side-Bar become "the regulator".

Secondly, Ms Smuts reminded the DOJ&CD that she had asked if it had any statistics on how many attorneys had ever exercised the rights of appearance in the High Court. If not, this was a point that the Committee must take into account when deciding what to do about the two professions, particularly for such clauses as those defining a “legal practitioner”. She supported the view that both had a place. She would like to see an evolution in the kind of practice allowed, and for a regulator to ensure that alternative business practice models were developed and allowed. She believed that this was where innovation was required, rather than in the difference between advocates and attorneys.

The Chairperson thought that there should be no objection to either request, and would find a slot.

Mr Bassett noted that the numbers of attorneys with rights of appearance were already outlined in a document that he had distributed on the previous day.

Mr Jeffery added that there was material also from the researchers. Zimbabwe, Namibia and Nigeria had all opted for fusion of the profession at independence, and there was information also on the reform processes in Ireland and India. It would be useful to hear about the position in England, Wales and New Zealand.

Ms Smuts added that America had opted for a fused profession, but it was vast, and the bar councils still existed.

Mr Jeffery agreed that it would be useful to see how many attorneys were exercising right of appearance in the High Court. Many were probably instructed but simply did not wish to appear there, although they might be entitled to, and although this would be cheaper for the client.

Mr J Sibanyoni (ANC) suggested that the Law Society of South Africa could be asked for information as it was dealing with rights of appearance. He also suggested that National Democratic Lawyers (NADEL) and Black Lawyers Association (BLA) be asked if their members were utilising that opportunity. He had the sense that the attorneys in places far flung from the courts would not choose to do so.

Ms Pilane-Majake agreed that it was important to deal with how the right of appearance was used. Every process had its own teething problems, and training, and confidence to appear, were also important.

Mr Jeffery said that the Committee needed to work out a programme for processing the Legal Practice Bill.

Ms Smuts agreed, noting that there were only twelve weeks left to pass legislation. There were a number of important outstanding Bills, including the Legal Practice Bill, the Bill dealing with the independent legal administration agency, and the DNA legislation, on which the Portfolio Committee on Police would be sitting from 11 to 14 June. The SAHRC amendments should be quite quick to pass, but the Judicial Matters Amendment Bill was very long. Several bills posed some very difficult questions of economic aspects.

The Chairperson agreed that not everything could be handled by this Committee, but agreed that the Legal Practice Bill must be prioritised, even if permission were sought for the Committee to miss plenary sessions.

Mr Jeffery noted that the deadline was already set, for Bills that had to be passed before the Committee rose, although it was possible that Bills might be sent through after that date, with full motivation for prioritisation. Nobody wanted a half-processed Bill left over. He further requested that the DOJ&CD provide a clear indication of what Bills were likely to be brought, so that the Committee could prioritise those that would save money or improve systems. He hoped the Protected Disclosure Amendment Bill was included.

He pointed out also that it would be more difficult to deal with section 76 bills. The Legal Practice Bill was a section 76 bill and it would have to be completed by this Committee in enough time to go to the NCOP, which probably meant that it must be passed by the time of the first plenary in the next term. With other previous legislation, smaller groups from the Committee had sat, sometimes long into the night, and this could be done here.

Mr Jeffery noted that the Judicial Matters Amendment Bill probably required public consultation, but if there were controversial clauses, or clauses that were section 76 matters, they could be excised and included in a later bill. He agreed that the SAHRC bill was unlikely to be controversial. The judicial administration legislation was yet to come to Parliament. The bill he had mentioned earlier, dealing with remuneration of independent bodies, was urgent. The Portfolio Committee on Police was dealing with the DNA Bill, because it mostly was concerned with amendments to the SAPS Act, with only a couple of clauses amending the Criminal Procedure Act, and departmental support would be needed for these.

The Chairperson noted that some clauses of the DNA Bill were also concerned with human rights matters.

Mr Jeffery agreed, but said that these probably went over the whole bill, and he believed it could be left to the other committee.

Ms Smuts asked about progress on the National Prosecuting Authority (NPA) Amendment Bill.

Mr Bassett responded that the comments of the NPA were still awaited on that one. In relation to the Judicial Matters Amendment Bill, he had previously raised his concerns as to why some of the provisions were regarded as section 76 matters, and had pointed out that previous amendments of a similar nature had been tagged as section 75. The Parliamentary Legal Advisers had pointed to the amendment to the Child Justice Act, which authorised the Minister of Social Development to delegate powers to MECs. However, similar provisions in the Prevention and Combatting of Trafficking in Persons Bill had not affected that bill being tagged as a section 75 bill.

Mr Jeffery pointed out that the problem was that this Committee did not deal with tagging. The Legal Practice Bill was originally tagged as section 75 but nobody had the chance to make submissions when that changed. The Speaker tended to err on the side of caution and tag as section 76, because there would be no damage to the process if a section 75 bill were to be wrongly tagged as section 76, although the reverse did not apply. This Committee could not do anything about the tagging, although the DOJ&CD could perhaps engage with Counsel. He urged that the DOJ&CD, the State Law Advisors and Parliamentary Advisers should all negotiate around tagging of bills yet to be presented. He said the test for tagging was legislative competence, not power. The fact that the Minister delegated to MECs did not give the province the power to pass legislation.

Ms Smuts said that the Constitutional Court had not been totally clear on that.

Mr Jeffery replied that only Parliament could delegate, and it would delegate the power to pass regulations to the Minister, who could delegate in turn to the MECs. However, that was not a delegation of power to pass bills.

Mr Bassett said that he had prepared a document, for the Legal Practice Bill, setting out the various questions raised, with answers, which may assist in the planning process.

Mr Jeffery noted that not everyone had received that yet, and requested a formal briefing, once all Members had had a chance to read it, with further discussions on process outside the meeting.

The Chairperson agreed and adjourned the meeting.


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