Legal Practice Bill: Department response to submissions

Meeting report

The Chairperson welcomed the Committee and the officials from the Department of Justice and Constitutional Development. The Committee would continue with the Legal Practice Bill.

Clause 25 Right of Appearance
Mr J Jeffery (ANC) asked if the Committee should not debate whether the current rule relating to the appearance of attorneys in the High Court, was unfair.

The Chairperson asked Mr Jeffery what his position was on the rule.

Mr Jeffery said that the rationale basically was that the High Court was “big stuff” and there was the need for some level of experience. Such experience could be obtained after an individual was a candidate attorney but he did not know since the current requirements for candidate attorneys had more emphasis on the getting of articles and the practical training element.

Ms D Smuts (DA) said that she was surprised that this matter was raised a few weeks after a judgment had been passed on this. She asked what difficulty had arisen which required the reverse of the rule.

Mr Jeffery said that he was not advocating for the reversing of the rule. What was in the rule allowed attorneys to appear in the High Court but they had to be registered for a certain number of years, they had to apply and there were many other requirements. The Bill made the appearance in the High Court more or less automatic. The Department was of the position that the existing rule was unfair to attorneys and he was questioning that because the High Court was a superior court. He was arguing for the status quo and not the change. Advocates’ training was specifically related to court appearance and attorneys’ training was not directly oriented to court appearance. One could be an attorney and never appear in court.

The Chairperson asked if articles of clerkship which was the training for attorneys did not include training for court appearance.

Mr Jeffery said that it was for appearance in the district and regional courts as attorneys and the appearance in the High Court was only after certain requirements had been met. There were firms that did not do any litigation and they trained candidate attorneys. After candidate attorneys were admitted as attorneys, their clients would have to deal with their inexperience in High Court appearance and litigation.

The Deputy Chief State Law Adviser, Mr Lawrence Bassett, said that one of the arguments was that in terms of the current legislative framework, attorneys could only be admitted after they had done articles and business management courses. The advocates also got very good training in court appearance but there were advocates who came out of university with their degrees with absolutely no training but who could go into any court. They could even go right up to the Constitutional Court. That was the current situation and there was definitely a need for it to be reconsidered.

Mr Raj Daya, Acting Deputy Director General: Legislative Development, said that the training for attorneys included trial advocacy as part of the course training. There was however the need for greater in-house training while the candidates served pupillage at the Bar. That could be more extensive. However, the point was that there was training of candidate attorneys in trial advocacy. Apart from what had been said by Mr Bassett, the principle had to look at the two ways in which one legal profession with two branches could operate. There should not be any perceived superiority of any the two sections in any way and the presumption that the attorneys had to do something beyond getting admitted. In the context of the discussion, he did not agree in having any restriction to the appearance of attorneys in the High Court.

The State Law Adviser, Ms Wilma Louw, said Clause 25(2) of the Bill did not only open up the rules for appearance in the High Court but also the Constitutional and Appeal Courts.

Ms D Shafer (DA) said that if advocates could enter any court without necessarily having done pupillage, then it was right to say that there should not be discrimination with regards to appearance. She was of the opinion that advocates as well should comply with some form of similar training before they could appear in court. This was especially directed to the ones who did not do any sort of pupillage. It was discriminatory if attorneys were restricted from appearing in the High Court yet there were advocates who got admitted without any pupillage or training appearance in a court.

Mr Jeffery asked what the distinction was between advocates who had not done pupillage and those who had.

Mr Daya replied that, currently, what was referred to as an independent advocate (as opposed to those that were part of the General Council of the Bar) was an advocate who had not done pupillage and could practice from anywhere. The Bill sought to abolish this situation and to ensure that every practitioner had to register with the National Legal Practice Council and the current situation where some advocates appeared in court without doing pupillage would be cancelled.

Mr Jeffery asked if this meant that with the Bill, every advocate would have to do pupillage.

Mr Daya agreed.

Mr Jeffery said that where he disagreed with Mr Daya on the training of attorneys was that there could be a course called trial advocacy, but that was highly theoretical. Did the students get taken to court and did they ever have to appear before a magistrate? That was the big difference. The people who were going to suffer from this were the clients. Advocates were court specialists but attorneys who had just done trial advocacy were not going to do any justice to their clients. This was not only going to negatively affect the clients but it was also going to reduce the court standards. His point was that he did not think that the current attorneys’ training was good enough to prepare them for High Court appearance. It was not fair on both the clients and the court.

Mr Daya replied that he would like to know the fundamental objection of Mr Jeffery to the extent that if all of what he was saying was true, what prevented the appearance of admitted attorneys who were admitted as attorneys of the High Court of South Africa. Attorneys were admitted to the High Court and not the regional court. What prevented an attorney who got admitted from going the next day to the Registrar and obtaining the certificate was just a paper application with no additional documentation or requirements. If there were any other requirements, he would understand the argument from Mr Jeffery but since that was not the case, every attorney could go to the Registrar and apply for right of appearance.

Mr Bassett said that Clause 26 of the Bill dealt with the issue of practical training for legal practitioners.

Mr Jeffery said that his bottom line position was that attorneys’ training was not sufficient to prepare them for appearance in the High Court and other superior courts.

Ms Schafer said that she did not agree that the current three year practice and training for attorneys was insufficient. The issue was relevant experience. If an attorney was admitted in one high court of the country, then they could appear before any other superior court because if an attorney could read and understand the rules of one high court, then they could read and understand the rules of any other high or superior court. However, there was need for more court oriented training for attorneys.

Mr Jeffery said that the Department had been given enough to brainstorm and draft on.

Mr Daya asked that if an attorney wishes to appear in the High Court, would Mr Jeffery consider that there should be a provision that provided that the attorney had attended a training course similar to pupillage.

Mr Jeffery said that his point was that access to the system should be less onerous and judging by the equality principle, it was not fair that attorneys had to wait for three years before they could appear before a high court while an advocate just had to do one year. There should be equity in terms of the requirements for training. What the Department had to bear in mind was the interests of the client and the standards of the Courts. What was required was some sort of quality control.

The Chairperson asked where the roll for attorneys resided and who kept the roll.

Ms Louw replied that currently and in terms of the Law Society’s Act, the Law Society kept the role for attorneys and the advocates' roll was kept by the Department of Justice since they did not have a body. The advocates were registered in the High Court and the Registrar sent their names and files to the Department of Justice.

The Chairperson asked if the General Council of the Bar was happy with such an arrangement. He said that he was asking this because advocates were like the “holy of the holies” yet their roll was with the Department of Justice.

Ms Louw said that this was one of the problems with the current Admission of Advocates Act. There was no body and of the over 6000 advocates, only approximately 2000 were members of the bar. The Act provided that the roll be kept by the Minister of Justice because if he did not keep it, who else would do so?

Ms C Pilane-Majake said that listening to the discussions and the arguments, one could get the feeling that a mathematical formula was required to set out the issue of court appearance as determined by experience and training.

Mr Jeffery asked that if someone was admitted and did not practice for many years and then suddenly decided to start practicing again, would it be appropriate to allow such a person to represent clients.

The Chairperson said that the issue was a complex one and reference could be drawn from the medical profession.

Mr Jeffery said that all practicing doctors had to keep abreast with developments in their field as they were dealing with matters of life and death.

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

Clause 26 Minimum legal qualifications and practical vocational training
Ms Louw said that Clause 26 dealt with minimum legal qualifications and practical vocational training. This unified the attorneys and advocates profession in the sense that there were no similar requirements for both sections.

UNISA had submitted that the four year LLB was a major concern. Few students achieved success within four years but apart from obtaining the degree they were not ready for practice. The Department of Justice was of the position that the curricula of universities could not be prescribed by the Bill.

Mr S Swart (ACDP) asked if it was true that no universities were offering the B. Proc at the moment.

The Chairperson said that the B. Proc was not very effective so all that was currently being done was the LLB.

The Cape Bar commented that the Bill lacked details and that a national body should determine criteria regarding advocates. The Department held that these aspects would be addressed in the regulations. One of the reasons for the lack of detail was because these were issues which still required much more debate. The Bill did not prevent the Council from establishing an expert committee on these issues.

Ms Schafer said that she did not see why the Minister should be prescribing requirements for the training of legal practitioners. These requirements should, at the very least, be after consultation with the Council. How was the Minister going to know what was required.

Mr Bassett said that the Department had conducted an audit on this and there was a need for more work on all the provisions relating to the regulations.

The Chairperson said that the point had been noted by the Committee.

Mr Jeffery said that this was a situation where the Minister had to have the final say on training requirements. He did not trust giving the GCB the veto on this although they could make input on the matter. He said that the rest of the comments relating to the LL.M were not founded as an LL.M was just a very theoretical qualification.

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

Clause 27 Practical vocational training
Ms Louw said that this clause provided that Council must in the rules determine the minimum conditions and procedures for the registration and administration of training. UNISA submitted that pupillage must be compulsory and the Department held that it was clearly stated in the Bill that pupillage must be compulsory.

Mr Jeffery asked which clause stated that pupillage must be compulsory.

Ms Louw replied that it was in Clause 26.

Clause 28 Assessment of practical vocational training
Clause 28 provided for the assessment of practical and vocational training and provided that the Council must in the rules determine the procedures. This was one of the Councils oversight functions and UNISA had submitted that there appeared to be no differentiation between the assessment of advocates and attorneys. The Department responded that this matter would be dealt with in the rules. It was foreseen that there would be different assessments.

Clause 29 Prescription of community service
This clause provided for the prescription of community service which stated that the Minister must, after consultation with the Council, prescribe the requirements for community service. This would be by regulation and such requirements may include community service as a component of practical vocational training or a minimum period of recurring community service. This matter had previously been discussed and it was decided that Clause 29(1)(b) would be deleted.

Mr Swart said that the Committee had a discussion on the whole issue and there was the need to discuss the desirability of the concept. There were reservations about unleashing unqualified candidate attorneys on communities. He had reservations about the whole clause and this issue would be flagged. What model would be used? There were several components of what community service could be? What about pro-bono work which was done by law firms?

Ms Schafer said that this was one area where she did not think that the Minister should have the final say at all. There had to be extensive consultation on the matter and one person could not decide on the matter. She did not disagree with the aspect of attorneys doing community service but pro-bono work should be taken into consideration. It was not objectionable in principle.

Mr Jeffery said that Mr Swart may have missed some of the principles but there was a difference between service to the community and service to the state. He did not have a problem with the provision and it seemed like attorneys were already providing this community service. He did not think that this was a matter which had to be done in consultation with the Council because from the submissions of the LSSA, they were clearly opposed to it. The Council would be dominated by legal practitioners who were not going to be very enthusiastic about community service.

Ms Louw read the submission from the Constitutional Literacy and Service Initiative which suggested the changing of some words. They proposed changing “such requirements may include” to “shall include”. They also proposed to change the “or” linking sub-clauses (a) and (b) to “and” in order to ensure that community service was a requirement for both entry to the legal profession and for continued registration as a legal practitioner. The CLSI proposed changing the term “candidate legal practitioners” to “aspirant legal practitioners” to make room for the possibility of community service being performed as part of the LLB curriculum and changing the term “candidate legal practitioners” to “aspirant legal practitioners” throughout the Bill to provide for the possibility that community service - as a requirement for entry to the profession - may take place during the LLB, after graduation, or possibly, as a combination of both. Such a change would necessitate a clear definition of the term “aspirant legal practitioner”. The CLSI also submitted that Clause 29 should specify that candidate legal practitioners are remunerated for community service. A working group had to be established under the auspices of the Council that would be dedicated to community service and aspirant legal practitioners who engage in community service programmes during the course of their legal studies would not need to be compensated, although they would receive academic credit.

The Department responded that it was envisaged that the details about community service would be dealt with in the regulations to be made by the Minister in consultation with the Council. The Department was also of the view that the Bill should allow for flexibility and not be prescriptive as suggested by the CLSI. Nothing prohibited a university from including some form of community service in its curriculum. The Bill focused on legal practitioners and candidate legal practitioners, not law students. This was a matter to be dealt with at a later stage when the regulations were discussed and prepared and the Council could establish a committee for this purpose.

Ms Smuts said that the whole idea of community service was punitive in its nature and the driving idea was supposed to be based on 'the need in communities'. Was there a need out there for community service by lawyers? The only need she saw was the small claims court and pro-bono work.

The Chairperson said that on 'the need in communities', the Committee could hear from some of its members such as Ms Pilane-Majake, Mr J Sibanyoni (ANC) and Mr N Holomisa (ANC).

Ms Pilane-Majake said that in the South African system of democracy, there had to be ways of promoting access to rights. Community service in this context would promote this access to justice. When doctors did community service, it was basically to promote access to healthcare so indeed there was the need. The young lawyers were going to do something similar to street law where basic rights were respected and people were helped to access their rights. If people did not have a means to access their rights, the system would continue to have people’s rights being violated without redress.

Mr Sibanyoni said that in rural areas there was the need for something which was not purely legal in the sense of taking a matter to court or drafting a legal document, but for attorneys to act as legal advisers.

Mr Jeffery said that the issue had a training component and an access to justice component. In South Africa, access to justice was skewed and determined by financial capability.

The Chairperson said that it was a fact that access to justice in South Africa was influenced by access to economic and financial means.

Mr Jeffery said that part of the matter was trying to build responsible legal practitioners as the profession was very material-oriented and people often lost the focus of building a community. Community service would give the students an idea of the whole justice picture in the country.

Adv L Adams (COPE) said that the law clinic was a compulsory course for a year for the LL.B degree. It was made compulsory at the University of KwaZulu Natal and LL.B students had to do the law clinic course. According to the clause, it seemed like the advocates and the attorneys had an option to decide whether they wanted to do the community service or not. It had to be definite whether they should or should not do it.

Mr Daya said that street law was not a compulsory programme in some universities but was an elective programme.

Mr Jeffery said that the issue was that there needed to be clear provision for courses offered at a university such as work in the legal aid clinic. This could be covered under the definition of community service. On the punitive issue, the clause was a requirement and an enabling provision. It was a 'must' and a requirement for part of the education as a lawyer and to ensure that society as a whole had access to some of the expertise of very skilled lawyers.

Ms D Smuts said that her concern was that there was no demonstrable need for community service.

Ms Pilane-Majake said that community service was not only to benefit the communities. It was definitely going to benefit new entrants into the legal profession. Looking at gender issues, for example,  there were lawyers who were not comfortable engaging on gender issues. This kind of community service would acquaint lawyers with the problems of society. The communities were going to benefit tremendously from the process and it would go a long way to enhancing democracy.

Ms Smuts asked if the lawyers were going to use the Thuthuzela Centres.

Ms Pilane-Majake said that the Thuthuzela Centres could actually be used as that would directly assist with the problems of domestic violence.

The Chairperson said that it was not a bad idea to put a lawyer in every charge office. That would largely help with the respect of the rule of law and human rights.

Mr Daya said that if that would happen, the lawyers had to be cautioned that when they were stationed at police stations, they should not dish out their business cards.

Mr Swart said that he could understand the idea of pro-bono work and direct community work but what was envisaged was a year or two years of extensive work in communities. This would be a direct replication of medical community service. Litigation was the main dimension of community service and it had to be prioritised over the various forms of community work. This was a complex area and he was not happy to leave it in the hands of the Minister alone.

Adv Adams said that the way she saw the clause, it simply said that the Minister must prescribe the requirements for community service. It did not mean that attorneys and advocates were required to do community service. That was why she asked earlier that if the clause was not punitive, then why was it included. If an attorney or advocate refused to do the community service, what would happen? Who would monitor community service?

Mr Jeffery said that on the 'punitive' issue, his understanding of the use of the word punitive was that the intention of the clause was to punish legal practitioners by making them do community work. The purpose of the clause was to require them to do community service in order to improve access to justice. It was not a punishment clause. Ms Adams however raised a point about penalties for compliance or failing to comply with the community service requirements. That had to be provided for in the Bill. The underlying idea of the clause was not to punish lawyers as Ms Smuts was implying but to broaden access to justice.

Clause 30 Registration with Council
Ms Louw said that there were not any submissions on Clause 30.

Mr Jeffery said that in Clause 30(3) it stated: “…must keep a roll of legal practitioners”. The Committee had discussed this earlier and it was determined by the rules. However, could the Committee not make provision for this roll to be made available to the public, on request and on the website of the Council? This would enhance transparency.

Ms Schafer said that she had a concern about Clause 30(1)(b)(2). She did not see the purpose of this clause since there was now going to be advocates taking direct briefs from the public. This should be re-looked at.

Mr Jeffery said that as much as he would have loved it, the legal profession was not being fused. There was the need to indicate the difference between an attorney and an advocate.

Ms Louw said that, as pointed out by Mr Jeffery, the clause was for clarity purposes and it was just practical to keep the difference in the Bill.

Mr Sibanyoni said that he saw that the Bill required that a person admitted must apply to the Council. He was under the impression that once an individual was admitted as an attorney or an advocate, it was the registrar who did the administrative work of referring the individual to the Law Society for registration. Was the law now changing to require the burden to be on the individual to ensure their own registration?

The Chairperson replied that that was the new position of the law and that everyone would have to get used to all the new changes in the law.

Mr Skosana said that he wanted to get some views on the issue of the public having access to the roll. Should it appear in the Government Gazette or be kept with the Registrar?

Mr Daya said that he had heard the argument. If it were the Gazette, what would be done about additions and subtractions from the roll? It had to be anticipated that people were going to be struck off or leave the profession. Was it not easier for the Council to make it public on request or on its website?

Ms Schafer said that publishing the roll in the Gazette was not the right thing to do as people never read the Gazette. The internet was far more accessible and widely used.

The Chairperson asked if both could not be done.

Mr Jeffery said that his concern about the internet was that hackers could insert or remove names from online lists.

The Chairperson said that the Committee should sleep on the fact that the Council was not required to submit a report to Parliament. Members were not required to discuss it immediately but they should ponder over it.

Committee Report: Lifting suspension of Magistrate Hole
The Chairperson said that the Committee had to adopt its report on the lifting of the suspension of Magistrate Hole.

Ms Schafer pointed out a grammatical correction to the word “partly-heard” and she suggested that it should read “part-heard”. The Committee’s Content Adviser, Ms Christine Silkstone suggested a further grammatical correction.

The Deputy Chief State Law Adviser: Policy Development, Mr Jacob Skosana, said that the report by the Magistrates Commission had also been placed before the Select Committee on Security and Constitutional Development. He was just from the Committee and they had agreed to take the same approach as the Portfolio Committee. They had agreed to lift the suspension and were also going to set their own condition for the lifting of the suspension once they had seen the report of the Portfolio Committee.

The Chairperson said that the development as reported by Mr Skosana was a very good one. He presented the report to the Committee for adoption.

Mr Sibanyoni moved for the adoption of the report. This motion was seconded by Mr Jeffery.

The Chairperson asked if there was any Member opposed to the adoption. No Member was opposed to the adoption of the report.

The Chairperson said that the Committee was done with the outstanding matters.

The meeting was adjourned.