The Department of Justice and Constitutional Development continued with its response to the public submissions on the Legal Practice Bill, covering Clauses 6 to 14.
During the discussions, it was agreed that the form of the Council was going to flow from its functions and powers. Members discussed at great length the provisions of the Bill on legal education, the LLB curriculum and the role of the profession in this regard. Visits by the Council to educational institutions providing legal education were also discussed. The Committee discussed remuneration for a legal practitioner and a candidate attorney and entry into the profession. This was within the context of the effect of high levels of remuneration would have on entry into the profession since law firms would hire fewer candidate attorneys if they had to pay them large amounts. On the composition of the Council, the Committee agreed with the principle of ministerial appointment for 3 of the 21 members of the Council although an ANC member held that 3 appointees were too small. The criteria and expertise to be considered for the appointment was also discussed.
The Committee also discussed lifting the suspension of Magistrate P Hole so that he could complete hearing part-heard sexual offence cases. Normally, cases would be transferred to another magistrate but these were sensitive cases in that one did not want to re-victimise the victim by repeating the trial. Members were of the opinion that if the Portfolio Committee had the power to lift the suspension, then it should also have the power to set the conditions for the lifting of the suspension. The Committee discussed the nature and extent of the conditions for the lifting of the suspension. Some Members were of the opinion that lifting a suspension had to be decided upon by the Chief Justice. The Committee discussed what was going to happen after the cases were completed: was he going to be re-instated or would the suspension resume. The position of the Department was that regular reports were going to be given to the Portfolio Committee by the Magistrates Commission and from those reports, the way forward would be determined.
An ANC Member raised the concern about the message which was being sent out and the precedent which was being set in re-instating of an official. The Chairperson replied that this was not precedent-setting. The matter was unique and was to avoid the sexual offence victims going through further victimization because of a re-trial. The Committee agreed that its report on the matter was going to clearly outline the uniqueness of the matter and that a precedent was not being set.
Legal Practice Bill: Department response to submissions (continued)
Ms Wilma Louw, DoJ&CD State Law Adviser, read out the General Council of the Bar (GCB) comment on Clause 6(1)(t). She also read out the comments for Clause 6(2), (4) and (5) and the Department's response.
Ms D Smuts (DA) said that the powers and functions of the Council were going to flow from how it was composed and what its actual functions were. There was the need to have a quite thorough discussion on what the proper functions of regulators were and to what degree, for example, the function of discipline also got devolved to the professional bodies all over the country. With the composition of the Council, form had to follow function, even the matter of whether they were to be funded by the Fidelity Fund.
Ms Louw said she was of the opinion that the power be left with the Fidelity Fund as an institution of the Council. The other alternative was for the power to remain with the Council itself and not the Fidelity Fund. This was an issue which was open to debate.
Mr Jeffery said that he was sympathetic to the English model of pupils being paid and there was the need to look at the modalities for doing that. To some extent, it was not bursaries and loans but it had to be explored in some way. He proposed that the Department should look at the matter so it could come up in further discussions with demands for some form of stipend to be paid to pupils.
The Chairperson said that the Committee was in favour of the principle and when the Department placed the idea before the Committee it was widely accepted.
Mr Jeffery said that there was also the need to look at the relationship between the Council and the Fidelity Fund in terms of who gets what powers.
The Chairperson said that Mr Jeffery had raised a very important issue and he was still to report to the Committee about his meeting with the Chief Executive Officer of the Fidelity Fund and he had not been impressed.
Ms Louw continued with the Department's response to reading of the submissions. In Clause 6(1)(t) the GCB proposed the insertion of the phrase “in so far as the provisions thereof are consistent with the provisions of the Act”. The Department had no objection to the proposal.
Ms Smuts said that she had an objection because the GCB was trying to make it safe but she was of the opinion that the Charter had no place in the Bill. It was not going to be given the status of law.
The Chairperson said that this aspect would be flagged.
Ms Louw read through the other provisions of Clause 6(1), (2) and (4).
On Clause 6(4)(c), UNISA submitted that it was not clear if non-practicing lawyers had to pay an annual fee. Ms Louw said that the response of the Department was that the Clause specified that the annual fee was only for practicing practitioners.
In Clause 6(5), Ms Smuts asked if the legal profession was not supposed to take a stronger role in determining the curriculum of legal studies.
Mr Swart replied that it was important to bear in mind that there was an academic on the Council whose role was clearly to monitor the level that was referred to.
Mr Holomisa referred to Clause 6(5)(a) which stated that the Council may conduct visits to any educational institution which has a department, school or faculty of law. It was not clear what the purpose of such a visit was. He was not comfortable with the way the clause was drafted as it looked incomplete.
Ms Louw replied that there was a submission by the LSSA which was agreed to by the Department which stated that the visits were meant to evaluate the curriculum. Although the Department did not want to be too prescriptive, it could expand this clause. Mr Holomisa’s concern had been noted.
Mr Raj Daya, Acting Deputy Director General: Legislative Development, said that although it was a good thing that the law deans and the Law Society was considering the revision of the LLB, the Department had argued that the majority of the graduates from the law schools and faculties go into the legal profession. However, about 40% do not enter the legal profession. They embark on a whole range of other activities. So to assume that all law graduates became attorneys and advocates was incorrect. The Council could make its recommendations but it had to bear in mind that legal studies were not only for attorneys and advocates.
Ms Smuts said that some of the other areas filled by law graduates were the legal services sector in commercial institutions which had to be opened up. However, the point by Mr Daya was very valid. In the case of medicine, professors and lecturers in academic hospitals were also doctoring and presumable there was the interface where they taught the new doctors yet while practicing medicine. She was wondering who set the medical curriculum. This was within the context of the setting of the legal curriculum.
The Chairperson said that the issue of the curriculum could be flagged and discussed again later.
Ms Louw continued the reading of the submissions and responses by the Department. In Clause 6(5)(a) the GCB had submitted that the visits had to be clarified and should only be to local educational institutions.
The Chairperson asked what the GCB meant by' local'.
Ms Louw said that it referred to South African institutions and the Department agreed that the word “South African” could be inserted although legislation was obviously not going to apply extra-territorially.
Mr Jeffery said that this was pathetic. What was critical was the accountability of the Council to its members. There was no need to insist that visits should be local. There was the need to stop trying to limit efforts and research. He was of the opinion that insisting on local was going too far.
Ms Louw read the submission from the GCB which requested the deletion of a paragraph in Clause 6(5)(d). The Department was of the opinion that the power should vest in the Council, which could be delegated to examination committees.
On Clause 6(5)(e), Eskom submitted that it was unclear whether the training was to be applicable to non-practicing legal practitioners. The Department held the position that although the wording could be clarified, the Council’s role was focused on practicing legal practitioners.
Ms Louw continued the reading of the submissions and responses. In Clause 6(5)(h)(iii), the requirement of the clause was that the Council had to report annually to the Minister on measures adopted to enhance entry into the profession including the remuneration of legal practitioners. The submission by NADEL was that a single practitioner must not be burdened by remuneration requirements. The Department was of the opinion that the detail must be dealt with by the Council.
Ms Schafer said that the issue related to what she had been saying all along about the relation between entry into the profession and the remuneration for candidate attorneys. If it was too high, single practitioners were just not going to accept candidate attorneys.
The Chairperson said that he agreed with Ms Schafer.
In Clause 6(5)(i), Ms Louw said that Webber Wentzel submitted that the wording of Clause 6(5)(i) was too speculative. They wanted a time period to be set for this issue to be considered. They requested a relaxation of restrictions in this regard. The Department’s response was that the matter was to be dealt with by the Council.
Mr Jeffery said that it was not a function of the Council as they only dealt with it on the request of the Minister. It was important to have a new clause elsewhere in the Bill dealing with the issue.
The Deputy Chief State Law Adviser, Mr Lawrence Bassett, said that the issue was dealt with quite extensively under Clause 34. It was necessary to include into that clause a provision dealing with paralegals and alternative forms of practice. He referred Members to the comments of the Competition Commission on Clause 34.
Ms Louw said that following from what Mr Bassett had just said, the Competition Commission recommended that in Clause 6(5)(i) (which provides that the Council must advise the Minister on multi-disciplinary legal practices with the view to promoting legislative and other interventions on multi-disciplinary legal practices), should be expanded to expressly provide for limited forms of ownership with the majority ownership by legal practitioners to safeguard the public from fraudulent conduct by non-legal practitioners. The DoJ&CD noted this and responded that the detail should be determined by the Council and not be prescribed by the Bill. The South African Law Reform Commission (SALRC) was currently investigating the issue of multi-disciplinary practices and this was a very complex issue.
Mr Jeffery said that the point was that the ultimate responsibility was a political one and it rested with the Minister. For example, the Minister was responsible for the Draft Legal Practice Bill and it could not be anybody else. It had to end up being done by way of legislation probably by statute rather than regulations and that again would have to be introduced by the Minister. There was however the need for wide consultation. The SALRC reported to the Minister and the Council was going to be asked for their input, the Competition Commission had to be consulted and other bodies. He was not sure if Ms Smuts was in disagreement with him.
Ms Smuts said that as things stood where it was actually required that the forms of legal practice should be legislated, what Mr Jeffery said was logical. She was not sure if it was the ideal option but one would then have to come up with an alternative. She was going to think about it. She was aware that the whole process was about legislating the various forms of legal practice but care had to be taken to allow markets and service providers to find each other. The Committee did not have to stand in the way of the profession. If it was only the Minister who could establish how new forms of legal practice could come into being, then there was a problem. She however did not have a final answer.
The Chairperson asked Ms Louw to continue reading the responses.
Ms Louw said that regarding Clause 6 in general, the Cape Bar submitted that the norms and standards approved by the Council must differentiate between the roles and functions of advocates and attorneys, as well as the vocational training requirements. The Department responded that the aspect was to be dealt with by the Council and was not prescribed by the Bill.
Ms Smuts said that if the regulator was composed in such a way that it comprised of both professions, the clause was definitely going to be different. The question in such a case was going to be differently addressed.
Ms Louw said that this clause dealt with the composition of the Council and numerous comments had been received in that respect.
The comments from J Lourens and IJ Smuts were that the Council was going to be state controlled and this would be unconstitutional and was going to weaken the independence of the profession. The Department responded that only three of the 21 members of the Council were going to be appointed by the Minister.
Legalwise submitted that two people, appointed by the legal expenses insurance sector, had to be included as Council members. The Department was of the position that the Council should not be too large.
The Legal Resource Centre submitted that law clinics should have a representative on the Council. The Department responded that Clinics were manned by practitioners who were already represented on the Council.
Ms Schafer said that if there were going to be any Ministerial appointments, the criteria should be clearly specified. If it was based on knowledge and experience, the field of the knowledge and experience had to be spelled out.
Mr Jeffery said that the representation of persons from outside the profession was essential as he did not believe in the ability of any professional body to regulate itself. There was always a tendency for self-interest. Three out of 21 people was too small. He would rather not have a specification as to what skills they may bring in as it would vary some stage to stage. He had no problems with the proposals on the restrictions.
Ms Louw read the submissions and responses for Clauses 8, 10, 11, 12 and 14.
The Chairperson said that the Committee would continue from Clause 14 the following week.
Lifting suspension of Magistrate P Hole
Mr J Jeffery (ANC) proposed that the Committee should deal with the matter relating to the suspension of Magistrate Phumelele Hole.
The Chairperson agreed that that the Committee could discuss the Hole matter.
Mr Jeffery said that he had asked for the conditions set by the Magistrates Commission. There were now two documents which both dealt with the conditions. He read through the condition relating to the empowering of the Portfolio Committee to uplift the suspension. He said that the Committee wanted to lift the suspension according to conditions. He asked if the Committee had to set the conditions or it was the duty of the Magistrates Commission. He was of the opinion that since the Committee was the body lifting the suspension, it had the right to set the relevant conditions.
Mr Jeffery said that the condition that Magistrate Hole should desist from using the court as an avenue to insult Mr Nqadala or conduct himself in any form or manner that compromised the integrity of the Kimberley Regional Court President, Mr Nqadala, was appropriate. He however had a problem with the condition which stated that the Commission could impose any other conditions which it deemed necessary under the circumstances. If the Portfolio Committee was setting the conditions, it could not delegate such a delicate power to any other body. His main concern was who was setting the conditions.
Mr S Holomisa (ANC) said that he might have missed the explanation to the query but had the Committee not referred the matter to the Chief Justice.
The Chairperson said that the matter had never been referred to the Chief Justice.
Mr Holomisa said that the matters raised were judicial matters and should be ideally dealt with by the Chief Justice or someone delegated by him. Rather than speculating what the response of the Chief Justice would be on these matters, it would not cause any harm to consult with him.
The Deputy Chief State Law Adviser: Policy Development, Mr Jacob Skosana, said that in terms of background, the Department had engaged with the Magistrates Commission and there was the acknowledgment that Parliament could set the conditions and these conditions were binding on the Commission and not necessarily on the entire judiciary. There were thus going to be two sets of conditions, one set by the Committee which was binding on the Commission and the second from the Commission itself. The matter had been discussed with the Minister of Justice and his view was that the Chief Justice had not been involved with the suspension.
Mr S Swart (ACDP) said that he did not understand the difference between the powers of the Committee and the Commission in setting the conditions. He was of the understanding that it was the Committee which had the high level say on the conditions.
Ms D Schaffer (DA) said that she agreed with Mr Jeffery that if the Committee had the power to lift the suspension, it should have the power to set the required conditions. She also was of the opinion that conditions should not be set which interfere with the judicial process. The Committee should agree to lift the suspension only because of its concern related to the sexual offences matters which had to be completed by Magistrate Hole.
Mr Jeffery said that he agreed with the conditions that Magistrate Hole could only resume the part-heard matters. Nothing was being said about re-suspending Magistrate Hole after the part-heard matters were finished. A condition also had to be set to deal with a situation where Magistrate Hole refused to abide by the conditions.
The Chairperson asked if the proposed condition could state that besides the current conditions, if he did not comply with the conditions, his suspension was going to be re-instated.
Mr Skosana said he supported the idea that the Commission had the power to set such conditions. Such conditions were going to deal with what was going to happen when the part-heard matters were finalised. The Commission was also supposed to provide regular reports to Parliament on the matter both on the matters being heard and the implementation of the conditions. That was going to give the Committee an opportunity to get feedback from the Commission on progress with the issue.
Mr Holomisa was of the opinion that the condition which stated that Magistrate Hole should not use the court as an avenue to insult Mr Nqadala should be revised. In the first place, a magistrate was not supposed to insult anyone, much less another magistrate. He proposed that the condition should not be personalised with particular reference to Mr Nqadala. The condition should read that Magistrate Hole should not conduct himself in any form or manner that compromises the integrity of any member of the judiciary. This was going to cover any event of Magistrate Hole insulting another member of the judiciary.
The Chairperson said that the Committee had agreed with Mr Holomisa’s proposal. It was the Portfolio Committee which was setting the conditions.
Ms Schafer said that the Committee also had to decide on whether Magistrate Hole’s suspension was re-instated once he finished the part-heard matters.
The Chairperson said that that had to be included in the report and conditions of the Committee.
Mr Skosana said that the regular reports from the Commission were going to carry recommendations as and when the matters were completed. Based on the reports, the Committee would take a decision at the time.
Mr Jeffery said that if he was repentant, there was going to be the possibility of his getting new matters.
The Chairperson said that he was not going to ask Mr Jeffery what he meant by repentant.
Ms C Pilane-Majake (ANC) said that she did not know if the Committee should not also express concern about the finalisation of the matter because in the first place, if the matter was finalised, it would have been easier to deal with it. When someone was suspended there was a questioning of one's fitness to be in the office and she was worried about their interference in the system. Calling back a suspended person was sending a wrong message. It could lead to a situation where the suspension was viewed as unfair and he should not have been suspended in the first place. Questions could be asked as to why he was suspended if all of a sudden he was now considered fit and proper to handle the office again.
The Chairperson said that all that had been taken into consideration and what persuaded the Committee was the fact that Magistrate Hole had dealt with several matters dealing with sexual offences. If they were other kinds of cases, then there would not have been the consideration of re-instating him. Sexual offences however could not be heard anew as there was a victim who was continually being victimised by the trial.
Ms Pilane-Majake said that she was aware of the gravity of the matters being handled but there was another dimension concerning the message being sent out.
The Chairperson said that he did not want to engage with Ms Pilane-Majake on this issue.
Mr Skosana said that it was right for Parliament to express its concern about the delay in the matter as that was going to help hasten the matter. The suspension was not on the basis that he was unfit to hold office but on the basis that there was a pending enquiry on his fitness to hold office. The re-instating did not interfere with the investigation which was going on.
The Chairperson said that the re-instatement was temporary, pending the finalisation of the investigation.
Ms Pilane-Majake said that the investigation could have been done while he was on duty. A suspension was only done when there were reasons. One of the reasons was that he was wanted out of the office during the investigation. Re-instating him meant that the reasons did not exist anymore.
The Chairperson said the reasons still existed but there was an overriding concern which was the interest of the victims of the sexual offences matters.
Ms Schafer said that she shared the concerns of Ms Pilane-Majake and it was indeed a valid concern. The pain caused to the victims was heavy and had to be seriously considered while the matter was pending. This was why she was not comfortable with his getting new cases. It had to be clearly stated that it was only for the purposes of the part-heard matters.
Mr Jeffery said that the reason why Magistrate Hole was suspended was because he "lost it" with the Regional President of the Court and called him to court for questioning. Every magistrate was going to have part-heard matters and this was supposed to be considered by the Magistrates Commission when suspending a magistrate.
Mr Swart said that Ms Pilane-Majake’s point was that there was the risk of creating a precedent with the re-instating of suspended officials. It was a valid concern but this case was however distinguishable from other cases. It was unique and had to do with direct attacks by magistrates in court. The principle had to however be considered by the Magistrates Commission. It had to be clearly stated that this was not a precedent which was being set.
Mr Jeffery said that the Committee should put in its report that the re-instating was being considered because the original matter that led to suspension was an authority issue and not a crime. This was not similar to any other cases.
Mr Jeffery proposed that the report by the Committee should be properly drafted to clearly outline the uniqueness of the situation. He proposed that the Committee should adopt the report on 20 May 2013.
The Chairperson said that the Committee was very mindful of the concerns of Ms Pilane-Majake and it was quite a serious matter. Moving forward, the Commission would consider the impact of part-heard matters.
The meeting was adjourned.
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