Legal Practice Bill: Comparative Perspectives; General Agreement on Trade in Services (GATS)

Meeting report

The Acting Deputy Director General: Legislative Development, Mr Raj Daya, presented on pupillage and the remuneration during pupilage in the United Kingdom.

Mr Daya said what was quite interesting was that pupils got paid an amount of 1000 pounds per month which was approximately R10 000 per month. There were various ways of applying for pupillage and there was a 12 months period of non-practicing work. In England there were many service providers who provided advocacy training, practice training, training in forensic accountancy and project management. This was done during the first six months of pupillage. During the second six months, the pupil was granted audience to appear in court and could then earn a fee.

Mr Daya said that in England, unlike in South Africa, there was an option for advocates to accept instructions directly from the public.

Mr J Jeffery (ANC) thanked Mr Daya for the input but said that he was not interested in the training aspect. He was worried about the fact that in the UK advocates were being paid but in SA they were not paid. In SA where there was the need for transformation, there was an actual need for the consideration of payment of advocates so that practitioners from poor backgrounds could be attracted to the profession. If the legal profession, especially advocates, had to be transformed, it had to be made attractive to previously disadvantaged individuals who had the huge responsibilities of looking after themselves, their families and communities.

The Chairperson asked from where the money which was used to pay the pupils in the UK came.

Mr Daya replied that the money came from the Bar Council.

Mr Jeffery asked from where the Bar Council got the money.

Mr Daya replied that the money was received from levies paid by members of the Bar Council.

Mr N Holomisa (ANC) asked if the study of accounting was a compulsory requirement for the training of advocates.

Mr Daya replied that in England, the LLB curriculum did not include accountancy studies so it was only at the level of law school where students were now given the opportunity to study accountancy. He said that there was a recent summit on the revision of the SA LLB programme held by the SA Law Deans Associations. Delegates at the LLB Summit included representatives of the attorneys’ and advocates’ professions, the South African Law Deans Association (SALDA), law students, the Department of Justice and Constitutional Development and other stakeholders.

Mr S Swart (ACDP) said that he was happy about the new considerations around the LLB. There was a great need to improve legal studies as that was the core and foundation of the legal profession. The quality and integrity of the profession greatly depended on the quality of the studies which young professionals were given. It was in the interest of justice that the Committee be briefed on the discussions of the summit and the decisions taken. He asked if the Committee could be briefed on the Summit.

The Chairperson said that he had watched the news about the Summit on television and was quite happy about the recent measures taken to improve the quality of the South African LLB. The Committee was going to arrange for a briefing on the Summit but in the meantime, the Department could briefly indicate to the Committee what the Summit was all about. He asked if Mr Daya had any information on the Summit.

Mr Daya said that he had a brief document which he was going to circulate to the Committee. Mr Daya read out an excerpt from the document. The participants at the Summit resolved to request the Council for Higher Education (CHE) to conduct a standard-setting process for the LLB degree to be concluded by 30 June 2014. The process should take into account the required attributes for graduates identified at the LLB Summit, such as: knowledge of substantive law; generic skills, language, literacy, numeracy, research, analytical, IT; ethics; a commitment to social justice; the requirements of the workplace; and resources. In the meantime, a national task team was to be set up to monitor the process and facilitate ongoing liaison between university law faculties and the profession. Members of the task team were going to include representatives of SALDA, the Law Society of South Africa (LSSA), the General Council of the Bar, the Department of Justice and Constitutional Development, the Department of Higher Education and Training and the Society of Law Teachers of Southern Africa.

The Chairperson said that it was time for the government to really consider the standards of education in the country. He was concerned that the standards of studies in schools were dropping and it was even very sad that students could not write a simple business or friendly letter.

Mr Swart asked if there were any level of standards or tests done before students were accepted into universities.

Mr Daya replied that there were general and faculty tests and standards but during the Law Deans Summit, it was discovered that law faculties had the lowest standards for acceptance into universities and law faculties.

Ms C Pilane-Majake (ANC) said that tests and standards for entry into the university and law faculties were very controversial issues as they could easily be considered by some as elements of exclusion and discrimination. The Portfolio Committee on Justice was not the appropriate platform to discuss university entrance standards. The Matric exam was the standard and getting a Matric exemption was a further standard.

Mr Jeffery said that he was of the opinion that the Committee was spending a lot of time on the issue of education when the Bill was not even going to focus particularly on educational qualifications.

The Chairperson said that he understood what Mr Jeffery was saying but if language and education standards were going to hinder the entrance into the profession then it was important for the Committee to start considering it.

Comparative Perspectives: Australia, Ireland, India, Namibia, Nigeria, Zimbabwe, USA
The presentation was done by the Committee’s Content Adviser, Ms Christine Silkstone and a Committee Researcher, Ms Gillian Nesbitt. The countries covered in the presentation had been chosen at request of Committee. The approach used was to broadly describe the regulatory bodies and disciplinary structures, as well as to note developments. Ms Nesbitt said that the Department had already presented an overview of the position in England and Wales and had also dealt with the regime in the USA in the document dated 20 March 2013. The proposal of the research team was to outline India, Zimbabwe, Namibia and Nigeria but to focus on Ireland and Australia as these were in the process of undergoing and considering regulatory reform.

India
Ms Nesbitt presented the Committee with the situation in India. On the regulatory regime in India, the Advocates Act of 1961 governs the legal profession. It promoted self-regulation and fused the roles of solicitors and barristers. It recognised only advocates. There could either be senior or junior advocates. Seniority was based on ability which included standing at the Bar and special knowledge or experience in law. There were two structures: Bar Council of India and State Bar Councils.

The Bar Council of India was the apex statutory body. It set standards of professional conduct and etiquette, as well as procedures for disciplinary committees, safeguarded the rights, privileges and interests of advocates’, promoted law reform; dealt with referred matters from State Bar Councils and provided legal aid for poor.

The Bar Council of India also regulated legal education (content, syllabi, and duration of law degree) although universities have some role. The Profession determined matters such as admission, practice, ethics, privileges, regulations, discipline and improvements to the profession. Notably, the Profession was largely responsible for law reform too. On composition, the Bar Council of India was made up of members elected from each State Bar Council. The Attorney General and Solicitor-General were ex officio members. With regards to legal education, the Bar Council was assisted by Legal Education Committee with 5 members of Bar Council and 5 co-opted (academics) and had an established a Directorate.

Zimbabwe
In Zimbabwe, the legal profession was fused and governed by the Legal Practitioners Act of 1981. On transformation of the profession, 99% of advocates were white and only advocates could appear in superior courts. Registered Legal Practitioners could appear in courts and conveyancers and notaries had to be registered to practice.

On regulatory bodies, the Law Society was the statutory body. It was independent and self-regulating to which every legal practitioner could belong. The Bar Council managed the Law Society and was composed of no less than 11 members – 9 elected by Society, 2 were ministerial appointees and 2 more co-opted by Council.

Ms Nesbitt presented the powers and functions of the Bar Council and briefed the Committee on the disciplinary and legal education aspects of the Zimbabwe legal regime.

Nigeria
In Nigeria, the Legal Practitioners Act of 2004 fused the legal profession but seemed to retain both solicitors and advocates. On Regulatory bodies, there was the Bar Council and the Body of Benchers.

The Bar Council comprised of the Attorney-General, President of the Council, the Attorneys-General of the States; and twenty members of the Nigerian Bar Association.

The Body of Benchers comprised of the Chief Justice of Nigeria and all the Justices of the Supreme Court, the President of the Court of Appeal; the Attorney-General of the Federation and Minister of Justice; the Presiding Justices of Court of Appeal Divisions; the Chief Judge of the Federal High Court; the Chief Judge of the Federal Capital Territory, Abuja; the Chief Judges of the States of the Federation; the Attorneys-General of the States of the Federation; the Chairman of the Council of Legal Education; the President of the Nigerian Bar Association; and thirty legal practitioners nominated by the Nigerian Bar Association; and persons, not exceeding ten, who appeared to the Body of Benchers to be eminent members of the legal profession in Nigeria of not less than 15 years post-call standing.) The Nigerian Bar Association, although non-statutory, was recognised in legislation and appointed members to supervisory bodies.

Ms Nesbitt then briefed the Committee on the discipline, legal education and regime reforms in Nigeria.

Namibia
On the regulatory regime in Namibia, the Legal Practitioners Act 15 of 1995 fused the profession but retained the referral rule. The Society of Advocates continued as de facto bar with pupillage and admittance programmes. The Law Society of Namibia was the statutory body and comprised of all legal practitioners.

The powers and functions of the Law Society of Namibia included; maintaining and enhancing the standards of conduct and integrity of all members of the legal profession; presenting the views of the legal profession; encouraging and promoting efficiency and responsibility in the legal profession; defining and enforcing correct and uniform practice; assisting implementation of any legal aid scheme; and discipline.

On legal education, the Law Faculty of the University of Namibia gave practical training for universities while the Board for Legal Education provided the curriculum and moderated qualifying examinations.

Ireland
In Ireland, the regulatory reform was driven by increasing pressure on the legal profession to remove restrictive and uncompetitive practices from the 1980’s onwards. The economic meltdown in the European Union (EU) and the subsequent collapse of the Irish economy in 2010 also contributed to the reforms. The country had retained a split profession keeping the Law Society and Bar Council. It had also retained the referral rule although solicitors can appear in all Irish Courts. The system was self –regulatory though the profession was criticised for overcharging, unfair restrictions and anti-competitive practices.

On regulation, the Legal Services Regulation Authority (LSRA) regulated the provision of legal services by legal practitioners and ensured the maintenance and improvement of standards in the provision of such services. The functions of this regulatory body included; protecting and promoting the public interest; supporting the proper and effective administration of justice; protecting and promoting the interests of consumers relating to the provision of legal services; promoting competition in the provision of legal services in the state; encouraging an independent, strong and effective legal profession; and promoting and maintaining adherence to the professional principles.

Australia
The Australian system had nine systems; one federal and eight state and territory systems. The distinction was unclear as the Bars in Australia never held monopoly of right of appearance. Since 1960, independent Bars had also emerged in Western Australia, South Australia, Tasmania and the Northern Territory, where the profession was formally fused.

The regulatory reforms which had been unfolding for more than a decade in Australia ended self-regulation by the legal profession, replacing it with a co-regulatory system that separated regulatory from representative functions and created a series of more independent disciplinary agencies operating closer to government than to the profession.

Mr Jeffery suggested that the Committee Members should be given time to do their own personal research and actually study the presentation given by the research team. It would be good for Members to individually consider the situation in other countries and come up with proposals for the South African context.

The Chairperson said that the Committee will proceed with the other briefing on the General Agreements on Trade in Services.

General Agreement on Trade in Services (GATS): briefing
One of the Committee’s Researchers, Mr Mziwoxolo Dano presented a document titled “The General Agreement on Trade in Services and South African Trade in Legal Services: Implications for the Legal Practice Bill’s admission requirements provisions”. Mr Dano read the eight-page document out to the Committee [see document].

Discussion
Ms Smuts said that the presentation was well done. She asked if the ratifications by South Africa to the GAT negotiations were done without any reservations or exceptions.

Mr Dano replied that he was answering under correction and that to the best of his understanding the agreements were ratified under the reservations of market access and commercial presence.

Mr Daya said that the issues for him were the obligations signed by South Africa and putting on hold the agreements until the finalisation of the Bill. There were agreements with the SADC countries and other countries such as Nigeria. In finalising the Bill, his concerns were that was it mandatory to automatically recognise the GAT agreements and what implication was that going to have. This could not be definitively done without extensive consultation with the Attorney Fidelity Fund. The Department of Trade and Industry also had to be consulted on the issue of foreign nationals operating and practicing law in South Africa. He was not being xenophobic but it was just not an easy thing to allow colleagues from other countries to come in and set up shop in South Africa.

Ms Smuts said that it had to be about protecting South Africa and considerations of competition.

Mr Jeffery said that he knew that according to the Bill, it was the Minister who made the final decision with regards to the practice of foreign nationals. It could not be dealt with on a case by case basis. He also was of the opinion that the Legal Council should not have a veto on these issues but Parliament should have a veto so that they can conveniently deal with any other diplomatic pressures. He did not trust the objectiveness of the Legal Council as it was in their favour to be restrictive since restrictiveness was going to reduce competition.

The Chairperson said that he knew that in New Zealand, medical practitioners had to drive a taxi for four years before they could practice.

Mr Jeffery said that he thought that the Committee had reached a point where they could start finalising the issues which were being deliberated upon. If the Bill had to be passed in the next term, then it had to be dealt with speedily. A half-completed Bill could not be presented to the next Parliament.

Ms Smuts said that she had seen that the deadline for National Assembly Bills going to the NCOP was the 22 August. The date of 22 August was good and gave the Committee enough time to work on the Bill.

The Chairperson said that it was important to note that on Section 76 Bills, the NCOP committees needed time to consult with the provinces. He had received a letter from the House Chairperson: Committees, Oversight and ICT, Mr Cedrick Frolick saying that if the Committee wanted more time to work on the Bill, they could apply for it.

Ms Smuts said that she thought that the Committee had already agreed to do that.

The Chairperson said that the fact that a letter was sent by Mr Frolick did not mean that the Committee was not going to continue with what it had planned to do.

Mr Jeffery said that there were other matters coming up which required the attention of the Committee. Examples were the matter with Magistrate Hole and the Issue with the Public Protector. He had just received a text message that the Public Protector was going to be apologising to Parliament for her disagreement with the Portfolio Committee on Justice and Constitutional Development. Besides the Committee’s programme of meetings, there were many other issues which required their attention.

The Chairperson said that the Committee also had to consider its participation with the “DNA” Bill. He told that the Committee had received a letter from the Embassy of Nepal which was saying that the Acting Chief Justice of the Nepal Court of Appeal accompanied by senior officials of the Appeal Court would like to visit South Africa from 22 to 26 July and that they would like to visit the Committee.

The meeting was adjourned.