Legal Practice Bill: Department response to submissions; High Court jurisdiction change; Magistrate suspension

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Justice and Correctional Services

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

The Committee approved the notice from the Ministry of Justice dealing with the interim rationalisation of the Jurisdiction of High Courts Act and the alteration of areas for the Northern Cape and North West High Courts respectively.

The Committee considered its report on the suspension of Magistrate Phumelele Hole and proposed some amendments. The final report would be adopted at the Committee’s next meeting.

The Chairperson proposed to the Committee that they could meet for two days during the recess period to continue their deliberations on the Legal Practice Bill. The DA did not want to rush deliberations on the Bill and its view was that the Bill should be done properly and therefore should be carried over to the Fifth Parliament. The ANC held that it was important for the Committee to hasten its pace with the deliberations so that the Bill could be finalised by the Committee and not carried over to the Fifth Parliament. They were of the position that if the Bill was not finalised, the next Parliament would have to redo the entire process thereby discarding all that had already been done including the public hearings. The Chairperson ruled that the Committee would meet for two whole days during the recess period to continue with deliberations on the Legal Practice Bill.

In proceeding with the deliberations on the Bill, the Committee covered Clauses 14 to 25 of the Bill. The Committee discussed the form and composition of the Executive Committee of the General Council of the Bar in conjunction with its performance. The establishment and delegation of functions to Regional Councils was also discussed. The Committee questioned why the Law Society of South Africa was not audited by the Auditor General. In response, the Department said that the Law Society and the General Council of the Bar were not audited by the Auditor General because they did not receive their funding from the national fiscus. This was similar to the SA Board for Sheriffs. They generated their own funds and income.

Amongst many others, the Committee received the Departments response to a proposal by Eskom that a non-practicing attorney who was a full-time legal advisor should have the right of appearance on behalf of the employer. This related to Clause 25 on the right of appearance.
 

Meeting report

Notice in terms of section 2(2) of Interim Rationalisation of Jurisdiction of High Court Act, 2001
The Chairperson drew attention to the Notice from the Ministry of Justice dealing with the interim rationalisation of the Jurisdiction of High Courts Act and the alteration of areas of the Northern Cape and North West High courts respectively. The notice had to be approved by the Committee and then the National Assembly. The notice concerned a district which currently resided under the North West High Court in Mafikeng called Kudumane and the intention was for that district to be included under the Northern Cape High Court.

Mr S Swart (ACDP) said that the provincial boundary had already been altered since 2005. Since it was already in effect as a provincial boundary, it was not going to be an issue so he was in support of the decision.

Prof L Ndabandaba (ANC) agreed with Mr Swart, saying that the decision was a reasonable one and he supported it.

The Chairperson asked if there were any objections.

There were no objections and the Committee ruled in favour of the notice.

Committee Report: Lifting suspension of Magistrate Hole
The Chairperson said that the Committee Report on Magistrate Hole had been emailed to all Members.

Ms D Schafer (DA) said that the Committee had to clearly state in the report that Magistrate Hole should only be assigned to his part-heard matters. It was implied in the report but such an important issue had to be clearly stated. She said that the Committee should request not only progress reports on the cases before him but also status reports on the progress of the investigation into the magistrate.

Mr Jeffery said that the decision of the Committee - that the Magistrates Commission should consider the impact on a magistrate's part-heard matters before suspending the magistrate, should be included in the report.

The Chairperson asked if there were any other additions.

Ms C Pilane-Majake (ANC) said that the Committee had discussed the concern of the lifting of the suspension creating a precedent. This had to be clearly stated in the report. The opinion of the Committee that the investigation into the magistrate should be fast-tracked also had to be included in the report.

The Chairperson said that perhaps the Committee should just stay silent about the setting of a precedent because if they now spoke about it, it would cause the other magistrates who had been suspended to also demand the lifting of their suspensions as they also had part-heard matters.

Ms Schafer said that the reason the Committee was willing to lift the suspension was because of the prejudice caused to the victims [of sexual offence cases]. If there was another case with such prejudice, it would only be fair to reconsider the suspension. However, by putting such a qualification in the report, the chances of setting precedent will be greatly reduced.

Mr Jeffery said that, either way, magistrates were going to know about it. He was of the opinion that the report just had to be carefully worded. The Magistrates Commission should  note the section of the report which required that part-heard matters be considered before a magistrate was suspended. The circumstances in Mr Hole’s case were unique and the Committee had decided to make an exception. It was basically the large number of the part-heard matters involving women and children and the nature of the charges. Secondly, the matters of which he was accused, were not criminal.

The Chairperson said that the Committee would wait for the corrections to be inserted into the report and adopt it the next day.

Legal Practice Bill: way forward
The Chairperson said the Committee was under pressure with the Legal Practice Bill and there was mention of the Committee meeting during plenary session or at night. He wanted to confirm if the Committee could meet during the recess period on the coming Tuesday and Wednesday for the whole day.

Ms D Smuts (DA) said that she did not like the sound of that at all and she was not going to be available on Wednesday. It remained her view that the Bill should be done properly and therefore should be carried over to the Fifth Parliament. 

Mr Jeffery replied to Ms Smuts about carrying the Bill over to the next Parliament, saying the Committee had done quite a lot of work and the Bill was so old and the Committee had the appropriate level of expertise on the issue and it would be good for the Committee to try and finish the Bill. The discussions during the recess period were not going to include the finalisation of the Bill but would constitute only deliberations on the clauses. It was regrettable that Ms Smuts was not going to be available on Wednesday but she could catch up with the rest of the Committee. If the Bill was carried forward to the Fifth Parliament, all the time spent on the Bill and the public hearings will be a waste as the new Committee will have to do it over again.

Mr J Sibanyoni (ANC) said that he supported the meeting of the Committee during the recess period. The Legal Practice Bill was an old Bill which was now almost 12 years in the drafting. It was the duty of the Committee to complete the process. It was important for the Committee to move forward on the Bill even if it meant meeting during the recess period.

Mr S Swart (ACDP) said that he did not mind meeting during the recess period but he pleaded that the Committee should consider the fact that Ms Smuts was not going to be available on Wednesday and her inputs were very valued. This was a far reaching Bill and whilst it was an old Bill, it had only been before the Committee from the beginning of 2013. The Committee had held onto other Bills for five or six years with its deliberations on their far reaching effects. This was a similar situation. He was prepared to meet on Tuesday but the Committee could accommodate Ms Smuts and not meet on Wednesday.

Mr Jeffery said that the Bill was older than 12 years as it was started by Dullah Omar when he was Minister of Justice.

Ms Smuts said that the problem was that the Bill was never properly conceived.

Mr Jeffery said that if the Committee was not going to finish the Bill this year, it should as well halt and not waste any more time doing work which would not be used by the next Parliament.  

Mr Swart said that it was not unheard-of for a Bill to be carried forward from one Parliament to the next and the suggestion that the Committee stop its work was shortsighted. However, it was not necessary for the Committee to put undue pressure on itself.

Adv L Adams (COPE) said that she was not going to be available during the recess deliberations. Her proposal was that the Committee should establish whether it had the time to finalise the Bill and whether it could actually be done.

Ms S Sithole (ANC) asked if the Committee had ruled out the possibility of working in the evenings.

Ms Smuts said that if the Committee had to work in the evenings, it was going to mean sitting all night.

Mr Jeffery said that if the Bill was not finished, the new Parliament will have to consider everything from scratch. This was going to make the people who were opposing the Bill very happy.

Mr Sibanyoni said that with Members not wanting to meet during recess and not willing to meet in the evenings, it looked like the Committee was going to be moving very slowly.

Ms Sithole suggested that if the Bill was not finished, the work which had already been done should be considered as fruitless and wasteful expenditure. Parliament had to lead by example and make sure that the Bill was finished. 

Mr Swart said that there was no way that the work done by the Committee could be considered as fruitless and wasteful expenditure. It was not abnormal for a Bill to be carried forward from one Parliament to another.

Mr Jeffery said that the Committee must finish the Bill. He again pointed out that not any final decisions on the Bill would be taken at the two meetings held during the parliamentary recess.

The Chairperson noted that the Tuesday and Wednesday meetings during the recess would be held.

Legal Practice Bill: Department response to submissions
The State Law Adviser from the Department of Justice and Constitutional Development, Ms Wilma Louw, continued reading the clause-by-clause submissions on the Bill and responses from the Department.

Ms Smuts referred to the last meeting and said the matter of the dissolution of the Council disturbed her a lot as she had lived through the saga with the SABC Board. The argument was that the risk of statutory bodies becoming dysfunctional could not be ignored and the Department had mentioned the Health Professions Council and the PostBank. Were these instances of boards that had become dysfunctional?

Ms Louw replied that those were not examples of dysfunctional bodies. The Acts governing those bodies provide for dissolution of the Boards. Section 6 of the Health Professionals Act provides that the Minister may dissolve the Council if the Council fails to comply with any specific provisions of the Act. Section 25 of the South African PostBank Limited Act provides that the Minister may dissolve the board if the Minister loses confidence in the Board.

Ms Smuts said that the PostBank Act referred to the Minister of Communications and that was very suspicious.  She said that she was going to share with the Committee some clippings from the days of the SABC purge and board closure. The dissolution clause was always an excuse for political purging. She was of the opinion that it was an unhealthy thing to write into an Act.

The Deputy Chief State Law Adviser, Mr Lawrence Bassett, reminded Members to look at the possibility of the Minister being able to approach the courts on the issue.

The Chairperson asked if the Committee had anything to say about the aspect of the Minister approaching the courts. There was no reaction from the Members.

Ms Louw continued reading of the submissions and responses by clause.

Clauses 15 to 23
On the submission by the Legal Resources Centre that these clauses should be in the regulations instead, the Department responded that due to the importance of the matters in these clauses, they should be dealt with in the primary legislation and therefore should remain in the Bill.

Mr Basset said that the operation of statutory bodies had to be spelt out in full in the primary legislation.

The Chairperson said that it was rather unusual for the LRC to want to put such issues in regulations.

Clause 17
The General Council of the Bar (GCB) submitted that advocates should have a veto right in respect of matters peculiar to advocates. The position of the Department was that this presupposed that two separate chambers will exist for attorneys and advocates. This was not the intention. The intention was to have a single regulatory regime for both arms of the profession, regulated jointly and not separately.

Ms Smuts asked if the Council was going to be determining practice rules, conduct rules and was the Council composed of a majority of attorneys writing the Bar rules.

Mr Raj Daya, Acting Deputy Director General: Legislative Development, said that the Department proposed two options: the first was to look at the current composition of the rules board and to further amend it or, secondly, to have specialist committees which were not filled with legal practitioners. These were two models which could be looked at.

Ms Schafer said that advocates could not have a veto on an issue which affected them as that could end up defeating the whole purpose of the Bill.

Clause 18
Ms Louw noted this clause dealt with Committees of the Council. The Department agreed to the submission of the Law Society of South Africa (LSSA) which proposed that the word "other" should be deleted, as it suggested that a committee may consist only of members, or only of non-members. In reality committees were likely to consist of both members and non-members.

Clause 19
This clause dealt with the Executive Officer and employees of the Council. The employees of the LSSA submitted that the clause should expressly provide for the employees of the Law Society of South Africa too. The Department was of the opinion that LSSA was a voluntary association.  The Bill could not make provision for the personnel of voluntary associations beyond the Labour Relations Act.

Clause 20
Clause 20 dealt with the Executive Committee of the Council and Clause 20(2) provided for the composition of the Executive Council. Ms Louw read out the LSSA submission which submitted that the Council should have the authority to determine the size and composition of the Executive Committee. The Department said that question which was raised was what if the Council appoints an unrealistically large executive? This concern was founded on the idea that small structures work better than larger ones.

Mr Swart asked if the Council could not have the discretion to get its own members. Was there precedent from other bodies which spoke on this matter?

Mr Jeffery asked what the current size of the Law Society executive was. He did not like the idea of giving an entire discretion which was what the Law Society wanted. There was need to specify a maximum number.

Mr Daya replied that the Department could revert at a later stage with the number and size of the current law Society executive. He also asked if the department could do a very quick analysis of other councils and see how their executives were formulated in terms of numbers.

The Chairperson said that he liked the thinking of the Department that such a major issue could not be left to the Council as they could end up appointing a very large executive. It was true and well known that smaller structures at executive level worked much better. He agreed that the Department should revert with the details at a later stage.

Mr Jeffery asked if there was a difference in the executives of the Law Society and that of the Council.

Mr Basset replied that the laws said almost the same thing but the Department would like to think about it. He did not see a difference and there was however the need for consistency.

Ms Louw read out the submission on Clause 20(7) from LSSA that the Chairperson of the Council should be the Chairperson of the Executive Committee. The Department had no objection to this submission. 

Clause 21
The Department agreed to the LSSA submission that the clause should provide specifically that the Council may permit a person or committee to whom or to which a power had been delegated to sub-delegate that power in appropriate circumstances. The Department also had no objection to the LSSA submission that the Council must be empowered to delegate appropriate powers to the executive officer or Council employees.

Mr Jeffery said that the Council was supposed to take a decision and the Chairperson would on behalf of the Council delegate. The decisions of the Council were usually minuted from its proceedings.

Ms Louw said that the delegation will be in the proceedings of the meetings of the Council.

Mr Jeffery said that he was not expecting the Department to make a final decision to be taken immediately. The Department could just consider working with the wording of the Clause.

Clause 22
Mr Jeffery said that with regards to the phrase “audited by a registered accountant and auditor appointed by the Council”, was the Council an organ of state?

Ms Smuts said that anything that functioned under law had to be audited.

Mr Jeffery asked if the Auditor General was not supposed to audit all organs of state.

Ms Smuts said that the AG was supposed to audit everything as mentioned in the Public Finance Management Act (PFMA).

Mr Jeffery said that Law Societies were not organs of state as they were voluntary organisations.

The Deputy Chief State Law Adviser: Policy Development, Mr Jacob Skosana, replied that the Law Society and the Council were not audited by the AG because they did not receive their funding from the national fiscus. This was similar to the board for sheriffs. They generated their own funds and income.

Clause 23
Ms Louw read through the submissions and responses. The GCB proposed that Regional Councils for attorneys had to be created in accordance with the needs of the attorneys’ profession. These councils had to be funded by the attorneys therein. The Regional Councils for advocates must be created in each area of the jurisdiction of a High Court.  Existing Regional Bar Councils would become statutory Regional Councils.

In response, the Department held that the model proposed by the GCB constituted the Regional Councils being subdivided into two separate chambers, each doing what they currently did. This model in reality, boiled down to the retention of the current arrangements. The Department was of the view that this would perpetuate those matters that the Bill sought to transform.  Clause 23(3) currently allowed Regional Councils to carry out their powers and functions as may be determined by the Council.  It was accepted that the Council, when so determining, would have to accommodate the differences between attorneys and advocates. 

Ms Louw further read through Clauses 23 (2) and (4).

Clause 24
Ms Louw read the submissions on Clause 24 dealing with admissions and enrolment. This was in Chapter 3 of the Bill dealing with the regulation of legal practitioners.

The GCB submitted that the service of documents must be at the Regional Councils. The Department held that the function could be delegated by the Council in terms of Clause 23(1).

Ms Schafer asked what was going to be done if there was no regional council in a province.

Ms Louw replied that it could be expected that each practitioner would fall under a regional council.

Mr Jeffery said that he agreed with the Department's position that such a function could be delegated. He disagreed with the GCB.

Ms Schafer said that because documents were served on the regional council, it did not mean they had the authority. The delegation clause had to be specific.

LSSA proposed that provision should be made for a panel of experts to determine, in conjunction with the Council, the quality of foreign qualifications, training and experience. It also submitted that any action taken by the Minister in terms of section 24(3) should, in the public interest, be taken only in consultation with the Council.

The Department’s position was that the Council could establish an expert committee for this purpose. Consideration could be given to the Minister making any subordinate legislation envisaged in the Bill “in consultation with the Council” rather than “after consultation”. This was to address the concerns/criticism that the current wording impacted negatively on the independence of the legal profession.  However, there must be some form of deadlock-breaking mechanism in the event of consensus not being reached on these crucial aspects of the legislation.  A precedent for this was to be found in sections 12 and 13 of the Judicial Service Commission Act, 1994, which dealt with the code of judicial conduct and regulations relating to the disclosure of registrable interests of judges.  Where necessary, the requirement of “after consultation” could be retained.

On Clause 24(3)(a) and (b), NADEL held that the Minister’s role was objectionable and the Department of Trade and Industry had an interest. UNISA submitted that it appeared as though admission as a South African citizen (via court) was a more onerous and expensive process than for foreign legal practitioners.

Mr Jeffery said that the process could be less onerous and that was why the matter had to be dealt with in joint consultation with the Minister and the Council and if they did not agree, Parliament could make changes. 

Ms Schafer said that perhaps the process should be more onerous as it was important to have foreign nationals comply with South African standards.

Ms C Pilane-Majake (ANC) said that all that had to be done was to set standards and everyone had to comply with the standards.

Clause 25
On this clause which dealt with the right of appearance, ESKOM submitted that a non-practicing attorney who was a full-time legal advisor must have the right of appearance on behalf of the employer. Conditions in this regard could be set. The Department responded that this could be considered for the regulations in terms of Clause 24(3).

Ms Louw said that the overall position of the Department was that an individual had to comply with the provisions of the Bill before they could appear in Court.

Ms Adams said that Clause 94(1)(8) made reference to the right of appearance of candidate legal practitioners. Reference could be made to this provision in Clause 25. The intention was also to cover the appearance of candidate attorneys.

The Chairperson said that the proposal by Ms Adams was a good one.

Ms Pilane-Majake said that the submission by Eskom could be considered under general rules.

Ms Louw replied that every legal practitioner had to comply with the requirements of the Bill.

Mr Jeffery said that it was quite a complicated issue to get an employee to act as counsel with right of appearance for his employer. This could lead to situations where the practitioner could be forced to conduct certain unprofessional practices due to pressure from his or her employer.

Mr Swart said that the difficulty was relating to the Fidelity Fund certificate as the right of appearance gave practitioners the right to appear on behalf of any person in the Republic. It was not going to be fair to limit such a right to one specific employer. Attorneys and advocates were officers of the court and were part of the judicial family so they could not be brought into the legal system yet limited to one employer. This was going to compromise their independence.

Ms Louw read the submission from Mr J M Maseko which stated that attorneys enjoyed the right to appear in the superior courts, while advocates were not allowed to take briefs directly from the public in all areas. This was unfair and marginalised the advocate band of practitioners. The position of the Department was that for the protection of the public, only practitioners with Fidelity Fund certificates (attorneys) should receive money directly from the public.

Mr J M Maseko further submitted that advocates must be able to take direct briefs from the public in specialist areas like consumer courts and tribunals, labour courts (even trade unions are allowed to represent their members here), and conveyance work as this would save costs. He submitted that advocates did not have the fidelity insurance policies to safeguard the members of the public but it could be corrected by simply including them in such or instituting an equivalent safeguard for them.

The Department held that it did not support the proposal that a Fidelity Fund for advocates be instituted. The Bill did not have as its objective the de facto fusion of the two professions.  The Bill, in clause 34(2), did, however, create the possibility for regulations to be made by the Minister in consultation with the Council, in terms of which advocates may take briefs directly from the public.

The Chairperson said that the next meeting was going to be on 19 June 2013.

The meeting was adjourned.

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