Legal Practice Bill: Departmental Responses to public submissions, clauses 1 to 6; Committee draft Report on lifting of suspension on Magistrate Hole

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Justice and Correctional Services

10 June 2013
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Committee briefly discussed a concern of one of the Members in regard to the Committee’s draft Report on the request to lift the suspension of Magistrate P Hole. The reasons were outlined, and the comments of the Magistrate’s Commission were summarised, including the fact that it was not opposed to the lifting of the suspension for the purposes of Magistrate Hole finalising his part-heard matters. However, during earlier discussions the Deputy Chief State Law Adviser had said that the Commission was limited to dealing with the part-heard matters, and it was felt that the specific concerns of this Committee that if the suspension was lifted, the Magistrate should be required not to make any further remarks about his colleagues or the court, should be specifically reflected in the Committee Report. This was noted by the Department, and by the Chairperson, who said that this point would be clarified when the Committee dealt with the adoption of the Report.

A DA Member noted that, in the United Kingdom, prior to each meeting, Members of the Committees would declare their interests in the matter under consideration and thought this was a useful concept.

The Department of Justice and Constitutional Development (the Department) took the Committee through its responses to the public submissions on the Legal Practice Bill, from clause 1 to clause 6. It had been proposed that “independence” and “diversity” be included in the Long Title and it was confirmed that “diversity” did not refer to the diversity of the branches of the profession, but to demographic representation, and was generally supported by Members and the Department. Similar changes had been suggested for the Preamble and the Department had no objections. Members discussed whether the word “strong” had a place, and decided to flag this point for future debate. In relation to Clause 1, the Department outlined a number of proposals on definitions. One Member put his viewpoint that advocates should be allowed to obtain Fidelity Fund certificates if they wanted to take instructions directly from the public, and the definition suggested by the Law Society of South Africa (LSSA) was read out. It was noted that the definition of “law teacher” was not needed, and that “commercial entity” was already covered in clause 34(6) of the Bill. There was no need to include a definition for legal advisers working for companies, as the Bill covered practitioners in private practice, with right of appearance in court, only. The Department agreed with the proposals of the LSSA on the definitions of conveyancer, advocate and attorney, and the fact that they should be covered in this Bill only, with amendments to the Deeds Registry Act. A DA Member noted that in principle her party believed in de-regulation, but other Members pointed out that conveyancing was a highly specialist field but there was no need for this Bill to get into the regulatory aspects. It was clarified to members that conveyancers had to be admitted attorneys. The definition of “advocate” was considered, but the General Council of the Bar (GCB) proposals did not make any reference to Fidelity Fund certificates. Other proposals made on a number of other words were not supported by the Department. In relation to clause 3, Members discussed whether community service was desirable. The DA was opposed to it, but several Members also expressed caution that it must be clear whom community service was intended to benefit, and suggested that if community service was accepted in principle, it should be run similar to the medical profession, where only qualified practitioners did community service, and even then worked under the supervision of more experienced practitioners. The purpose and work done during articles of clerkship was outlined. The Department noted that, although not greatly changed in this Bill, it would have to look into articles and pupilage. It was noted, in respect of fees, that Webber Wentzel was supportive of a regime to ensure that legal fees were “affordable”.  The Department read through, but there was little discussion on clauses 4 to 6, other than to clarify the difference between “unification” and “fusion” of the legal profession. 

Meeting report

Appointment of Acting Chairperson
The Committee Secretary, Mr Vhonani Ramaano, informed the Committee that the Chairperson was running late and had requested that an Acting Chairperson be appointed until he arrived, so that the meeting could commence.

Mr J Sibanyoni (ANC) was appointed as Acting Chairperson

Request for lifting of suspension on Magistrate Hole
Mr J Jeffery (ANC) asked that the Committee first discuss the request to lift the suspension of Magistrate Phumelele Hole, which had been put to the Committee some time ago, and said he had some issues from the Committee Report. In the Report, it was noted that the Magistrate’s Commission was not entirely opposed to the lifting of the suspension against Magistrate Hole for the purposes of allowing him to complete the partly-heard matters, after an application by an interested community organisation that the suspension was resulting in prejudice to the victims in the criminal cases that he had been trying. The Commission had further agreed that it was within the mandate for Parliament and the Minister to agree on conditions for the lifting of the suspension. The Deputy Chief State Law Adviser, Mr Jacob Skosana, had said that the suspension could be lifted to allow Mr Hole only to deal with the part-heard matters and that it should be made clear that he should  not take any advantage to comment on or insult the court or any other magistrates during the hearing of these cases. He felt that this condition should be specifically set out in the Committee’s Report.

Mr Jacob Skosana confirmed the conversation and said that he was intending to take up the final working with the Chairperson to clarify the Report.

Legal Practice Bill: Department of Justice and Constitutional Development responses to public submissions
The Acting Chairperson noted that hard copies of the responses by the Department of Justice and Constitutional Development (the Department) to the public submissions on the Legal Practice Bill had been provided to Members. He asked that the Committee go through the responses page by page.

Mr Jeffery noted that the Committee had reached a certain point already with the discussions and proposed that the Committee start from where it had stopped, instead of going over the same points.

The Acting Chairperson sought clarity from the Department as to what had been dealt with.

Mr Lawrence Bassett, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development, noted that during March 2013 the Committee had considered the matter for two days, and, although it had not gone through the current document in detail it had considered some of the issues in a general manner. The Committee had not reached any particular point in this document.

The Acting Chairperson said that he felt it appropriate in that case for the Committee to start from the very first page.

The Chairperson, Mr L Landers (ANC) arrived at this point, apologised for his late arrival and took over from the Acting Chairperson.

Clause-by-Clause briefing
Ms Wilna Louw, State Law Adviser, Department of Justice and Constitutional Development, took the Committee through the Department’s responses to the submissions, clause by clause.

Long Title
Ms Louw read out the submission on the long title, from Legal Aid South Africa, and stated that the Department had no objection to the principle.

Ms D Smuts (DA) said that the use of the word “independent” in describing the legal profession was appropriate.

Mr Bassett said that the Department supported the principle but it was ready to look at the wording.

Mr Jeffery said that he liked the use of the words “independent” and “diverse”, used in the Long Title. He said that the words brought in several positive elements. He said that these words were also used in the United Kingdom (UK). At the least, South Africa had to include the word “diverse”.

Ms Smuts wanted to bring something interesting to the attention of the Committee, which she had picked up from a transcript of proceedings in the UK. At the beginning of the sitting, and presumably at every sitting, Members would go around the table and receive notification of any conflict of interests. She said that the Committee could consider such an option, so that the lawyers who were part of the Committee could declare their conflicts of interest in the deliberations. All the English Committee also declared whether they were lawyers or not. She said that the situation was truly comparable, as there were only four members in the Committee who could legislate on the Bill.

Mr Raj Daya, Acting Deputy Director General: Legislation, Department of Justice and Constitutional Development, replied that in relation t the wording of the Long Title, “independence” and “diversity” had in fact kept the profession from not being unified. Part of the aim of the Bill was to talk to the perceived difference between attorneys and advocates. He said that he was not convinced that “diversity” was something which had to be entrenched. 

Ms Smuts said that diversity was more related to demographic diversity, and not diversity within the profession.

Preamble
Ms Louw read out the submissions on the Preamble, and the responses from the Department. She said that there were proposals for similar wording as would be used in the Long Title, and the Department did not have any objections to the principle. 

Mr S Holomisa (ANC) asked which provision or what objective was desired to be achieved when the word “strong” was used in the Preamble. The Preamble was stating what was intended to be achieved by the Bill, and he did not believe the reference to “strong” was necessary.

Mr Jeffery said that in his mind, the word related to the independence of the judiciary. This, however raised conceptual issues, and could  - and perhaps did need to be - debated. He did not know if it was necessary to put the word in the Bill. He said that it was true that there was a need to create an independent legal profession, but he said that linking and entrenching it in the Preamble of the Bill was not necessary.

Ms Smuts said that the “strong” word related to one of the key arguments for an independent bar, which was that the judiciary could not function without the profession, be this advocates or attorneys (solicitors). She said that the independence issue was a traditional and fundamental argument, and there was definitely a place for it in the Preamble of the Bill. However, she believed it was important to mark this point for future discussions and arguments.

Ms S Swart (ACDP) said that this argument had been going on for a long time and the last speech of Chief Justice Arthur Chaskalson had emphasized the aspect of the independence of the Bar and the legal profession. He too proposed that the Committee should note the issue for further discussion.

Ms Louw further read the submissions from R Naidoo, UNISA and the Law Society of South Africa relating to the Preamble. 

Clause 1 - Definitions
Ms Smuts suggested that the definitions of an “attorney” in all the submissions should be considered.

Mr Jeffery said that his proposal was that advocates should be allowed to get Fidelity Fund certificates if they wanted to, so that they could get instructions directly from the public. He said that it was clear that the definition had to be looked at, and there seemed to be some leanings in favour of allowing advocates to get Fidelity Fund certificates so that they could take briefs directly from the public.

Mr Basset said that, in this regard, the Committee could look at the definition from the Law Society of South Africa (LSSA).

Ms Louw read out the definition of an attorney provided by the LSSA (see attached document) and then also read the definitions from UNISA and the Legal Resources Centre (LRC).

Mr Jeffery raised a point in relation to the insertion of the definitions of “law teacher” and “commercial entity”. He made the point that the definition of law teachers was not necessary, as this phrase did not appear in the Bill. He agreed with the Department that the definition of “commercial entity” was dealt with in clause 34(6) of the Bill, as a form of legal practice.

Ms D Schäfer (DA) asked if there was any necessity to include a definition for legal advisers working for companies.

Ms Louw said that the Bill pertained to practising attorneys and advocates.

Ms Schäfer asked if there was any provision where corporate lawyers were allowed or permitted to appear.

Mr Bassett said that such a provision was certainly not in the Bill.  

Ms Louw said that the Department had agreed to the submission of the LSSA on the inclusion of the definition of conveyancer, advocate and attorney, and that there should not be a cross reference to the Deeds Registry Act. The Deeds Registry Act must also be amended.

Ms Smuts asked what the Department was considering in terms of the liberalisation and regulation of conveyancing.

Mr Swart said that conveyancing was something which could be looked into, but it was a highly specialised, very vast and complex area, and it linked to the whole property rights issue. He said that he was hesitant to have the Committee get into the issue of regulation of conveyancing.

Ms Schäfer said that it was true that there were some misperceptions of what conveyancing was all about, and much was required to regulate it. She said that she agreed with Mr Swart that it was not necessary for the Committee to get into the issue of conveyancing.

Mr Daya said that the point had been made that if separate specialised regulators were created for the various sectors of the law, it could create a problem of too much regulation, which was the problem being faced by the UK currently.

Ms Smuts said that as a liberal and a member of the DA, she believed in the liberalisation of any sector, market or profession. She said that she would like to see the Bill not precluding the possibility that conveyancing could also be given in due course to financial institutions. Liberalisation had to come with great levels of regulation.

Mr Holomisa asked if it was possible for someone to be a conveyancer without being an attorney. He said that the reason why he asked the question was that he was pondering the necessity for this Bill to look at all at a definition of “conveyancer”. He asked if the Bill directly dealt with the work of a conveyancer at any point.

Ms Smuts said that it was supposed to be the duty of the regulator created by the Bill to liberalise and regulate the conveyancing sector.

Ms Schäfer said that a conveyancer had to have been admitted as an attorney.

Mr Jeffery said that apart from the point that Ms Schäfer had made, he tended to be more in agreement with Mr Holomisa. He said that the Committee could now deal with conveyancers and notaries, as the two went together.

Mr Swart said that the submission by the LSSA stated that conveyancing should be regulated by the Bill and not by any other Act, and that was why the LSSA was suggesting that that the definition of conveyancers should be included in the Bill.

Ms Smuts said that what she was looking for was a liberalising and regulatory provision in the Bill which was going to speak to the entire profession. Such a provision was supposed to cover attorneys, advocates and conveyancers.

The Chairperson asked Ms Louw to continue with the reading of the responses.

Ms Louw read out the submission from the General Council of the Bar (GCB), on the definition of “advocate”. She said that the GCB wanted the definition to read that an advocate must be a legal practitioner, practicing as a sole practitioner, on a referral basis and without a Fidelity Fund certificate. The position of the Department was that advocates may not always work on a referral basis. Reference was made to clause 34(2)(b).

Mr Jeffery apologised to the Chairperson that he had to leave the meeting to attend to some other urgent engagement.

Ms Louw continued to read the proposals from R Naidoo and Legal Aid South Africa on the definition of “day” in the Bill.  She further read through the proposed definitions of judiciary, legal practitioner, Master, juristic entities, non-profit juristic entities, public interest legal entities, community-based organisations, non-governmental organisations and practices (see attached document).

She said that the Department did not agree with the proposals, as these terms had meanings which were clear.

Clause 3
Ms Louw read through the submissions and related responses from the Department.

In relation to clause 3(b)(ii), the GCB had submitted that it was unrealistic and not in the public interest, that candidate legal practitioners render community service, saying that they lacked competence.

Ms Smuts said that she would not at all support of the idea of sending out young and incompetent candidate attorneys, to go out into communities to provide legal services. She said that it was a wrong ideological issue and had to be corrected. She maintained that it was not good to “unleash” the unqualified young professionals on the public, and questioned what the idea was, behind having community service. She believed that the Committee must just dispel that idea.

The Chairperson said that it depended on what the Committee wanted to do.

Ms Schäfer said that the young professionals and candidate attorneys were not working on their own, when they were with a firm, as they had to be under the supervision of a principal. This was done under signed contracts for Articles of Clerkship.

Mr Swart said that the concept of community service was applied in the medical profession. However, this was done when an individual qualified as a doctor, after which s/he would be sent by the Minister to a hospital for a two-year period. Even as qualified doctors, however, those people worked under senior practitioners. If the concept was to be applied to the legal profession, the same safeguards had to be applied to the legal profession and candidate attorneys. He said that, if accepted, a discussion had to be held as to how these programmes were going to be done, and under whose supervision.

Mr Skosana said that the Department was of the opinion that any reforms had to take into account the fact that there was a need to re-look at the dispensation of articles and pupilage, although they were not greatly changed in terms of the current Bill. The Council had to advise and set new policy processes. In terms of the current law, a candidate attorney (also called an articled clerk) did not come straight from university into a court. There must be a period of training, which was usually one year, and also had to get a right of appearance certificate.

Mr Holomisa said that it was important to establish who was to be empowered by the proposed Community Service programmes. He asked if it was the intention to assist the candidate attorneys in their professions or if it was to assist the communities who needed access to justice. He said that if it was about improving the candidate attorneys, the Department could consider getting law graduates who benefited from government bursaries, to give back to their communities. On the other hand, if it was about access to justice in communities, then the Bill had to state clearly what community service in legal services was all about.

Mr Swart said that community services in the legal profession could be compared against community services in the medical profession.

Ms Schäfer said that, in preparation for further discussions on the matter, it would be useful if the Department could prepare a document shedding more light on the issue of community service.

Ms C Pilane-Majake (ANC) said that she was in support of the idea of community services for candidate attorneys. She said that the purpose was to put candidate attorneys in touch with the communities of South Africa. Her opinion was that the communities had to be put through a means test, and that poor communities who could not afford basic legal services were to be prioritised. She also proposed that it was important to also wait until the candidate attorneys were admitted as fully-qualified attorneys, before they were sent out for community services.

The Chairperson said that there was clearly going to be a lot more debate on the matter.

He then asked Ms Louw to proceed with the reading of the responses.

Ms Louw continued the reading of the responses. She said that the Department had noted the proposal by Webber Wentzel that this firm was generally supportive of a regime to ensure that legal fees were affordable.

The Chairperson said that it was interesting to note that Webber Wentzel did not use the word “reasonable” but had used “affordable”.

Clause 4
Ms Louw read the submissions from C Erasmus, NADEL and IJ Smuts and the related responses from the Department.

Clause 5
Ms Louw read the submission from the Competition Commission and the response of the Department.

The Chairperson noted, in relation to clause 5(a), that the issue of unity was flagged, and had to be discussed at a later stage.

Mr Holomisa said that he understood that the issue of unity was being flagged but he wanted to know if the Department could outline the difference between a “unified” and “fused” legal profession.

Ms Louw replied that “unified” meant that there was one regulatory body over the profession, while “fused” meant that all the branches of the legal profession were joined into one profession.

The Chairperson said that the issues of the unification or fusion of the legal profession were going to be discussed further by the Committee, with inputs from the Department and the Committee’s research team.

Mr Swart excused himself from the meeting at this point.

Ms Louw read the further submissions and responses on Clause 5 (see attached presentation).

Clause 6
Ms Louw read the submissions and responses on clauses 6(1)(b); (m); and (n).

The meeting was adjourned.
 

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