Members confirmed their acceptance of the NCOP amendments to the Protection of Personal Information Bill, which would now be taken to the House. The Chairperson noted a letter from the Deputy Speaker confirming that the Committee’s resolution on Magistrate Hole had been conveyed to the Minister. Committee Members tabled their parties’ suggestions on the names that they wished to submit to the shortlist of candidates who would be interviewed for the vacancy on the South African Human Rights Commission, and agreed to debate the suggestions in the following week, to agree on the final shortlist. The Committee also agreed to try to find an alternative to the suggested date of 2 August for a meeting with the Public Protector, as this date, being a Friday, clashed with other committee commitments.
The Department of Justice and Constitutional Development (the Department) presented the latest draft, dated 24 July, of the Legal Practice Bill, noting that although some corrections had been made, and some new options had been drafted, there were still other matters where the Department had not yet managed to get clarity or finalise its research. These would be detailed as the Department took members through the draft. The audit of regulations would be held over until later, to ensure that it was comprehensive. At this meeting, the Department took the Committee through the changes suggested, up to clause 25. It was noted during the meeting that despite the concerns expressed by some organisations that the Committee appeared to have reached agreement already on some issues, and that no further submissions had been invited, the truth was that the matter was very much still in the discussion and deliberation stage, although there was no obligation on the Committee to consult further or take suggestions back to the profession. An incorrect impression seemed to have been obtained from some media reports.
Certain matters remained flagged for further consideration by the Committee, and this included consideration of what “affordable” legal services were, and appropriate wording to highlight the difference between access to legal services and access to the profession. It was noted that although the idea of a unified profession had been abandoned, the idea of a unified regulatory body was still being considered. The question of the Charter would be debated further, as the DA was opposed to including any references to it. Clause 7 in its entirety remained flagged for further debate, although Members agreed that it was perhaps unnecessary to have the Transitional Council decide on procedures and then have the new (permanent) Council re-debate the same issues again. The DA expressed its view that no Transitional Council was necessary, but the background, and the fact that this Council would have to reach finality on questions of regional councils, their functions, vocational training, pupilage, and the funding process, were outlined. It was noted that the number of Ministerial representatives had been reduced to three. Members questioned whether equity, greater parity or proportional representation of the branches of the profession was desirable.
Some other matters of principle were raised and debated fully. A new definition for “ trust account practice” now took into consideration the possibility of advocates keeping trust accounts and holding fidelity fund certificates. This was linked to clause 34(2)(b), which allowed for advocates to accept briefs directly from the public. It was emphasised that nothing would prevent the current voluntary associations from continuing to exist. A DA Member proposed that the regulator should be specifically asked to conduct an enquiry into the economics of the sector in order to identify and remove whatever was distorting the supply and demand. Members agreed in principle that remuneration was desirable for pupils as well as candidate attorneys, and should be dealt with under clause 27, although care must be taken as to how this was worded, and nobody should be compelled to take on candidate practitioners, although incentives were desirable. Further discussions were needed with the advocates’ structures, but the Bill should not be delayed. The opposition parties had expressed strong opposition to the notion that the Minister could dissolve the Council, and the principles of separation of powers, independence, and alternatives were debated. One possible alternative was that the Ombud play a greater role. Alternatives for the composition and chairing of the Council were mooted. Clause 14 was flagged for further debate. The principles behind, and the possible cost of regional councils was debated further, and it was suggested that it would be desirable, if possible, to try to reach similarities with the existing statutory structures, to facilitate transfer of assets. Members started the debate on rights of appearance, and expressed concern that different rights applied to those entering pupilage (or even being admitted immediately after graduation, but not doing pupilage) and those entering articles of clerkship, and wanted to find a mechanism that was more fair.
Protection of Personal Information Bill: Formal consideration of NCOP amendments
The Chairperson noted that on the previous day, the Department of Justice and Constitutional Development (the Department) had outlined all the amendments proposed by the NCOP.
Members formally adopted those amendments.
Magistrate Hole: request for lifting of suspension
The Chairperson noted that the Deputy Speaker had addressed a letter to the Committee, confirming, for the information of the Committee, that a letter had been written to the Minister of Justice conveying the Committee’s views on the lifting of the suspension of Magistrate Hole.
South African Human Rights Commission vacancy: exchange of proposals for shortlist
Mr J Sibanyoni (ANC), on behalf of the ANC, noted that the ANC was proposing that five names be on the shortlist for the South African Human Rights Commission (SAHRC).
Mr S Swart (ACDP) had no major objection to the suggestion for five names, except that he suggested that the final decision on the number could perhaps be held over until all names had been debated, as the Committee may feel that it preferred to interview one more or less.
Adv L Adams (COPE) indicated her agreement.
Mr Sibanyoni confirmed that the ANC would not be opposed to having more flexibility. He noted that the ANC’s preferred candidates for the shortlist were candidates with the CVs (which had been circulated to Members) bearing the numbers CV40, 51, 18, 54 and 10.
Ms M Smuts (DA) indicated that her party had six sugg4estions. The first was Quanita Naidoo, whose CV was not numbered, as it had been accidentally stapled to CV no 46, of another candidate. The others were CV 15, 16, 17, 18 and 28.
Mr Swart said that the ACDP was nominating CV numbers 40, 18, 17, 28 and 63.
Adv Adams indicated the COPE preferences as CV numbers 28, 51, 54, 17 and 18.
Ms D Schäfer (DA) noted that her preferences were for candidates with CV numbers 1, 48, and 66.
Ms Smuts suggested that Members be given the opportunity to study the CVs of all those proposed in greater depth before compiling the final shortlist. For the record, she reminded Members of the requirements of the Constitution’s section 193, that the nominees had to be South African, fit and proper candidates, and have an understanding of the entire chapter of fundamental human rights.
Other Members agreed. The matter would be put on the agenda for the following Tuesday.
Public Protector matters
The Chairperson pointed out that although Members had, on the previous day, agreed to a hearing with the Public Protector on 2 August, he had now realised that this was a Friday, and two Members would be sitting on another committee.
Ms Schäfer noted that this was a date that the Public Protector had suggested and proposed that the Committee Secretary ask the Public Protector if she would be available on another date
Legal Practice Bill: Draft dated 24 July 2013
The Chairperson indicated that when the Committee last met, it had gone through all the written submissions, considered the responses from the Ministry and Department of Justice and Constitutional Development (the Department), and the drafters had worked on most of the instructions given during the recess. He suggested that Members hear a briefing from the Department, based on the new draft Legal Practice Bill (see attached document) dated 24 July.
Mr Lawrence Bassett, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development, noted that there were a few further changes to that document still, which he would outline as the meeting proceeded. None of the renumbering or cross-referencing had been effected as yet. The audit of provisions requiring regulations still had to be finalised, and the Committee had asked the Department to assist with suggestions as to what should be done “in consultation” or “after consultation”. During the re-drafting, the Department was identifying new areas where regulations might be needed and he suggested that the audit stand over, so that all issues would have been identified.
He also indicated that the issues underlined or in bold reflected deliberations or suggestions from the Committee.
Mr Bassett suggested that the document needed to be read with the summary of comments. The phrase was now included reflecting that the Bill was to facilitate and enhance an independent legal profession that reflects the diversity and demographics of the Republic. The Committee had asked the drafters to give effect to the proposal from the Law Society of South Africa (LSSA) but not to use the word “strong”.
He also noted that the original Bill spoke to admission, enrolment and registration. The Admission of Advocates Act, in section 3, used the words “admit and authorise to be enrolled” and the Attorneys Act had similar wording. He noted that in future, the Legal Practitioners Council (the Council) would be doing registration and enrolment, unlike the current situation where the Registrar did the enrolment for attorneys in the different High Courts, and the roll of advocates was presently kept by the Director General of the Department of Justice. In future, the Council would keep all records, so that “registration” was not the ideal word, and he felt that “admission and enrolment” might be more suitable. There were several provisions where consequential amendments would be needed.
Ms Smuts said that she thought this was quite correct.
The change of name from “Attorneys Fidelity Fund” to “Legal Practitioners Fidelity Fund” was effected.
Members questioned whether there should not be an apostrophe after the “s”; grammatically it was probably correct but it had not been included in the previous Attorneys Act.
Mr Bassett noted that comments had been raised as to what were “affordable” legal services, and this would have to be considered by the Committee.
He noted, in relation to the last bullet point, that access to legal services was dealt with in the second bullet point, and perhaps access to the profession was what was required.
Ms Smuts said that there were difficulties in getting access to the profession, but she did not think that “limited” was the correct word, and perhaps “restricted” might be more appropriate. She asked that this be flagged for further consideration.
In relation to the purpose of the Bill, Mr Bassett said that Adv S Holomisa (ANC) had asked for wording reflecting the nuance about a representative profession.
Ms Smuts agreed that the idea of a unified profession had been abandoned, but said that a unified regulatory body was important. The Committee would still need to consider the idea of demographics; in some cases using the word “broad” would address the issues, but not in all. Here, the concept of doing away with hurdles based on discrimination and history was being considered, and further discussion was needed on that point.
Mr Bassett noted the use of the word “accessible” instead of “affordable and within reach of the citizenry”’.
He also noted the insertion of the words “unnecessary or artificial barriers” and said that either one or both words could used.
Ms Schäfer did not like the word “unnecessary”, pointing out that imposing some barriers could be necessary for a profession. Other Members agreed that “necessary” would refer to what was contained in the Act.
Mr Bassett noted that the Law Society of South Africa (LSSA) had proposed a definition for “advocate” but this suggestion had been adapted and shortened.
Ms Smuts suggested that it may be necessary to come back to that definition, but she was happy with it for now.
Mr Bassett noted that the question of the Charter would still need to be revisited, as indicated in the footnote.
Ms Smuts had already expressed her opposition to having a reference to the Charter. At most, it was a contract between the Department, profession and others and had no basis in law. To some extent, some principles were reflected in the Bill, but to the extent that BEE proposals were included in the Charter, they had no place in this Bill,.
No other Members raised comments on this point.
Mr Bassett noted that the words “admitted and enrolled” were included under “conveyancer” and there had been some concerns about references to the Deeds Registry Act. That latter Act’s definition had attempted to combine references to attorneys admitted in South Africa and those admitted in the former Transkei. Consequential amendments were made so that the two definitions would be compliant.
The definition of “High Court” was a proposal from the Department, and Mr Bassett pointed out that the Bill was drafted prior to the tabling of the Superior Courts Bill. This Bill, however, should take into account the Superior Courts and Constitution 17th Amendment Acts. The Bill sometimes referred to the old concept of “a high court”, but the proposal here was that High Court” should mean the High Court or the division.
Ms Smuts thought this sounded fine.
Mr Bassett said that a proposal was now included from the Department in relation to the LLB degree. There had been concerns that the Bill only seemed to talk to the four-year LLB but did not make provision to an undergraduate degree followed by an LLB (total of five years). This matter was flagged for further discussion under clause 26.
The definition of “Master” was in line with the LSSA definition.
The wording for notary also now used the wording of “admitted and enrolled”.
The definition of a “trust account practice” had been changed, to take into account the concept that some advocates may accept direct instructions, and there was now a new subclause “relating to “an advocate referred to in section 34(2)(b)”.
Clause 34 (2)(b)
Mr Bassett then turned to clause 34 and explained what it set out, in relation to advocates accepting instructions directly from the public. The Committee had asked the Department to prepare optional wording. Clause 34(2) now provided that direct instructions could be accepted in certain circumstances, but that an advocate may only render those legal services rendered by advocates before the commencement of the Act if he or she was in possession of a Fidelity Fund certificate and conducted practice under the relevant provisions of Chapter 7. That person must have complied with regulations, and have notified the Council in terms of section 30(1)(b)(ii) (which related to the role of legal practitioners). Mr Bassett suggested that if a Fidelity Fund certificate was obtained by an advocate, this should be reflected on the Roll.
Legal Aid South Africa (LASA) had indicated that it had had a practical problem because in criminal matters an attorney briefing the advocate was supposed to be in Court to support the briefed advocate. Clause 34(b)(2) should cover its concerns, because an advocate would be able to render legal services at a direct request of the justice centre. However, there was also alternative wording, referring to instructions from a justice centre, in which case other provisions would not apply. LASA may want to brief an advocate who kept a referral practice. He thought that (c) would be needed so that LASA would not be confined to briefing only those advocates who had Fidelity Fund certificates.
Ms Smuts said that the requirement that attorneys must be present to support the advocates briefed needed to be discussed further, but this was one of the Bar rules that possibly needed to be sorted out. It did not seem to make sense.
Mr Bassett said that in relation to the Fidelity Fund provisions, there had also been reference to “services rendered prior to the commencement of this Act”. He questioned whether advocates were really likely to undertake work which, although not reserved in the same sense as conveyancing, was traditionally rendered by attorneys, such as estates or acting as liquidator of an insolvent company. He had the sense that advocates would tend to remain with advocacy and court work, and not necessary take on this kind of work.
Ms Smuts said that she had been arguing consistently for a relaxation of the referral rule. However, her argument was in relation to litigation, and not all work. Judge Cameron had made the point that adjustments were needed. The mere fact that the profession was divided into two did not necessarily require a referral rule. She had in mind what had been done elsewhere, where specialist practitioners voluntarily organised themselves into bars. Some specialists may not want to take referrals, and she thought that a way should be found to narrow this down.
Mr Raj Daya, Acting Deputy Director General: Legislative Development, Department of Justice and Constitutional Development, said that the suggested formulation would cover the restriction. Various advocates’ groupings did exist at the moment, and there was nothing to preclude them from continuing.
Mr Bassett said that this point came up throughout the Bill.
Clause 2: Application of Act
Legal Aid South Africa (LASA) had raised the question whether the definition of “legal practitioners” should not also include candidate legal practitioners. The Department felt that, rather than making this a matter of general definition, there should be specific reference to candidate attorneys where applicable, and that was why the reference to candidate attorneys was included here (and elsewhere).
Clause 3: Purpose of Act
Mr Bassett noted that there was now an option for clause 3(a).
One of the purposes of the Act was to put in place structures for fees, and he noted that the last portion of the wording, in brackets, was related to what he had mentioned when discussing the Preamble. The mechanism would be discussed under clause 35, which related to the Rules Board.
Ms Smuts said she had already argued that the Bill should deal with legal costs. She had the feeling that perhaps the regulator should conduct an enquiry into the economics of the sector. Improving access might or might not be as simple as addressing fees. There was something wrong, as evidenced by the fact that most South Africans did not have access to legal services, whilst the profession was complaining that its work was shrinking. She wondered if something should be included to require the new regulator to look at the sector. The markets for legal services and legal services should be able to find each other, and whatever was distorting or obstructing had to be removed.
Mr Swart said that this may have implications for the Competition Commission.
Mr Bassett noted that clause 3(c) said that another purpose was to create a single, statutory unified body, and to deal with practitioners and candidate legal practitioners, in pursuit of the goal of an accountable, efficient and independent profession.
Ms Schäfer asked why the word “unified” still appeared in clause (c).
Mr Bassett said that the other amendments had already been discussed.
Clause 4: Establishment of Council
Mr Bassett noted that the reference to candidate legal practitioners was also included in relation to the South African Legal Practice Council (the Council).
Clause 5: Objects of Council
Mr Bassett outlined the formulations for this clause. Paragraph (l) was flagged, as it concerned the Charter.
Clause 6: Powers and functions of the Council
Mr Bassett noted that clause 6(1)(d) now dealt with the question raised by UNISA whether the reference to negotiable instruments or electronic transfer should be corrected. The Department had amended the wording, but the State Law Advisers had asked whether (d) was necessary, in light of paragraphs (r) and (t). He did not think there was any harm in retaining (d), because there were other financial-related provisions named elsewhere.
Ms Mongemezulu Kweta, State Law Advisor, Office of the State Law Adviser, agreed that there was no harm in having it included.
Mr Bassett noted that some grammar still needed to be corrected.
Ms Schäfer thought it far safer to have a general provision enabling the Council to do whatever was necessary.
Members agreed that clause (d) would remain.
Mr Bassett said that Mr J Jeffery, when still a Member of this Committee, had been insistent that pupils should be able to get some sort of remuneration during their pupillage. It had been included here, under subclause (n), but it could also be inserted into clause 27 or 94, where it was also flagged.
The Chairperson agreed that this should be provided for in the Bill, and it really did not matter where.
Ms Smuts thought that all provisions should be removed that referred to the Council being empowered to pay out money. She felt that a costing analysis was needed. It would be a problem to finance the Council, and she thought that this would have to be done by levying legal practitioners. The Law Society of the Northern Province cost around R60 million annually, for its operations, and all these provisions requiring the Legal Practitioners Fidelity Fund Board (LPB) to provide financial support should be removed, including (n), (o), (p) and the like. The stipends for pupils should move to the clauses dealing with practical vocational training.
Ms Smuts asked if having unpaid labour was not transgressing labour law. Her second point was whether it was right for this Bill to tell a self-regulating profession what to do. She was in favour of pupils being paid, but the question was how to do this. She was aware that these provisions were enabling provisions, but wondered if they should be included.
Mr Swart noted the suggestion that some Sector Education and Training Authorities (SETAs) could be asked to contribute funding, and said perhaps that should be included in the footnote. He agreed that guidance was needed as to where the funds would come from. Buy-in was needed from the profession, to make the Bill work, and the Department would have to ensure that there was ongoing engagement and feedback.
Mr Swart also wanted to emphasise that no final decisions had been taken at this Committee on anything. There had been discussions, proposals and options, but correspondence sent to the Committee recently indicated that some bodies were under the impression that the Committee had more or less finished its work.
Ms Smuts was interested to see that correspondence from Adv Simenya of the General Council of the Bar (GCB) indicated that Legal Brief was the source of the information.
The Chairperson said that he could suggest that closer reference be had to the PMG site, where accurate reports were posted, and which other practitioners seemed to be tracking.
Ms Schäfer said that she did not have a problem with the Bill enabling the Council to do certain things, but she would have a problem with compulsion. It was a fact that many small attorneys’ firms were, at the moment, battling to survive, let alone to equip themselves with the necessary resources and library material to conduct a proper practice. She had been asking for a costing for some time, and she agreed with concerns on this point. She did not feel that there should be specificity as to where funding should come from. She noted that perhaps minimum wages needed to be prescribed for candidate attorneys.
The Chairperson said that the suggestion for SETA involvement, which was a good one, had come from Mr Daya and this would enhance the buy-in, and ensure that not everything would come from the profession.
Mr Bassett noted that the Bill referred only to stipends for pupils at the moment, because Mr Jeffery had specifically raised the concern that the Bill should not disturb what had already been put in place for candidate attorneys, who were, in practice, being paid. The Attorneys Act currently said that the four statutory law society councils should, in terms of section 69(f) prescribe the minimum remuneration payable to candidate attorneys. The point about remuneration had been included in clause 27 for the moment.
Mr Swart asked why payment for “candidate practitioners” was included in (n) as applying to “deserving cases” only. He thought that this should be across the board.
Mr Bassett said that clause 27 only said that regulations had to be made regarding practical training. All the detailed provisions in the Attorneys Act were set out in reasonable detail, but it was not possible to do that as yet, in the Bill, because engagement was still needed with the profession on pupilage and how that would pan out. All the details probably would have to be spelt out in regulations. His colleague, Mr Skosana, had suggested that a mechanism to deal with these issues could also be included.
Ms Smuts asked why clause 27 should not then simply say that the Council must determine minimum remuneration for candidates and pupils, so that there was no doubt. The current wording of the Attorneys Act could be used.
Mr Bassett agreed, saying that the SASSETA could then also come in later.
Ms S Shope-Sithole (ANC) requested an explanation of the difference between articles of clerkship for candidate attorneys, and pupillage.
Mr Bassett explained that the focus on articles was broader than pupilage, which dealt with court work.
Ms Schäfer added that the articles were far more comprehensive that advocates’ training. She suggested that (n) was not the appropriate place to include this, and agreed that it could be clarified better in clause 27.
Ms Smuts noted that Mr Daya had brought to her attention that clauses (n) and (o) were peremptory.
The Chairperson said that the “may” appeared under clause 6(1).
Ms Smuts noted this point.
Mr Bassett asked if there were more suggestions on financial support.
Mr Daya said that although the provisions under 6(1) stated that the Council must do everything to achieve objects, it “may” do a number of suggested things. He wondered if it would be useful to add in wording to state that this would be subject to availability of financial resources. He also thought it might be easier to split the clause. Some of the matters were regulatory, and should be kept separate from other objects, which were dependent on financial resources, and which were not strictly regulatory.
Ms Schäfer said that since “may” was used, there was no compulsion. However, she thought that the Committee could usefully consider whether it wanted to ensure that the Council did attend to certain things, in which case perhaps they could be included, with the caveat about financial resources.
The Chairperson asked that Mr Daya give a presentation on costing on the following day.
Ms Shafer agreed with Mr Swart that the wording “in deserving cases” should be left out, and that the payment of stipends should be dealt with under clause 27. She agreed also that the matter of payment to pupils would have to be discussed with the General Council of the Bar. If the advocates had to pay the pupils themselves, there was a possibility that they would not be prepared to take on pupils.
Mr Bassett agreed that this was one of the matters where there was still uncertainty, and some issues, including this, had to be left for the Transitional Council (TC), to take forward, so as not to delay the Bill unduly. The issues of who might fund, including the SETAs, could also be discussed there.
Ms Schäfer said that a possible alternative could be to include wording around payment of stipends in the Bill, but then suspend the operation of those sections (once the Bill was passed) until the process had been decided upon, with a time limit imposed for dealing with the matter.
Mr Daya said that the situation with articles was well-structured and it was clear what the requirements were around weeks of study, the exams and so forth. However, pupillage was being done under the auspices of a voluntary association. He would have thought that certain aspects of pupllage should be regulated, and what pupillage encompassed should be defined. Once the Bill was passed, pupils would need to be trained, and they may not necessarily continue to be trained in the same way, but the training may be housed in the national Council.
Ms Smuts thought that as far as possible, the making of rules by the Regulator should be pursued.
Ms Wilma Louw, State Law Advisor, Department of Justice and Constitutional Development, drew attention of Members to clause 97, which dealt with practical training requirements, and said it was also possible to require specifically here that the Transitional Council should look at these issues, and regulation on those matters should continue once the permanent Council was in operation.
Mr Daya made the point that just as advocates were not obliged to take on pupils, there was similarly no legal requirement in the attorneys’ profession for any practitioner to take on candidate attorneys, and many graduates did struggle to find articles. There were various other routes, such as justice centres and law clinics taking on candidates. The Transitional Council should work out a course with credits to address the disparities. Trial advocacy lectures at the law schools were being given by advocates. The Committee should not be persuaded that it was not possible to deal with the apparent difficulty.
Ms Schäfer agreed, and said she would be uncomfortable with attempting to compel anyone to take on candidates for training. However, if they opted to do so, she was happy that regulation should then apply to the content and form of training.
Mr Swart agreed that similar provisions should apply to attorneys and advocates, if they chose to take on candidates. Regulation of pupils was not handled in the Bill at the moment, but it would be necessary, if it was to be included, for the Committee to engage very closely with the Bar Councils, and that would impact upon their buy-in. He would be cautious to enter into that area as it may delay the process of finalising the Bill.
Ms Christine Silkstone enquired about the current practice. Prospective pupils, as she understood it, would apply to the voluntary association, rather than approaching the advocates directly. It was necessary to get more clarity on that, on bursaries, and the criteria.
Adv Adams noted that different bars had different requirements; some required payment of a fee (which would be lost if the prospective pupil was not successful), or some required interviews. However, there was a process at the Bars for advocates to be trained to be mentors, and they would then be assigned to pupils.
Ms Schäfer said that generally, incentives would work better, and she enquired whether it was possible to build something in.
The Chairperson thought that the SETAs were being offered as an incentive.
Mr Bassett was also aware of complaints about selection criteria at the formal bars. However, he also repeated that these were some of the matters that the Department had not managed to finalise. It was possible to strengthen clause 97, perhaps by broadening the Transitional Council enabling provisions, to include selection criteria and stipends. Other avenues could be explored to do pupillage, perhaps even in state service. State Advocates, working in the National Prosecuting Authority (NPA) may also have to do pupilage, but he would revert on that point. The Transitional Council should be investigating how the scope could be broadened. The Bill was essentially stopping what currently applied; namely that any LLB graduate could apply, immediately on graduation, to the Court for admission as an advocate. It would be necessary to consider how the clause 97 regimes could be continued, once the Transitional Council was phased out.
Ms Schäfer asked if the Department was aware whether independent advocates took on pupils.
Ms Louw indicated that the independent bars did offer a training process, by correspondence, so that the pupils would make written submissions to mentors, but in meantime the trainees would be working and earning a salary. It was just a different form of training, and there was no prescription.
The Chairperson indicated that this lack of prescription was the problem.
Mr Bassett said that these were the kind of discussions that needed to take place, and the Transitional Council would have to see what could be done to standardise, come up with alternatives, and expand.
Ms Louw added that even the Bar Council pupillage was basically a study year, involving research and so forth, and this might differ from Bar to Bar. The main equalising factor, with the attorneys, was the Attorneys Admission Examination, although the standard of articles would differ. The writing of an examination by advocates would be a form of equaliser.
Mr Swart noted that there was a Bar exam.
Ms Louw agreed, insofar as the GCB was concerned, but said that the independent bars had a different system.
Mr Daya said, in relation to clause 97(1)(v), that the intention of the Bill was to deal with practical vocational training for pupils, and it was necessary to ensure that the concerns were captured.
Mr Bassett said that linked to the deletion of clause (p), a consequential amendment was made to clause 58, giving the Fidelity Fund the power to decide upon the bursaries.
In relation to clause 6(1)(t), the point about the Charter was flagged for further debate.
Mr Bassett noted that the Attorneys Fidelity Fund (AFF) had asked that clause 6(2)(f) be deleted, because it was duplicated in clause 73, and it was something that the Fund dealt with itself.
The remainder of the proposed amendments related to the register, roll and admission.
In relation to clause 6(4), Mr Bassett noted that the Council must make rules relating to fees and fidelity fund certificates (which could be given to advocates), and a proviso had been added, at the request of the Fidelity Fund, that both the Council and Fund must be involved in the determination.
Clause 6(4)(f) allowed the Council to determine any other fee or charge, and the words “as contemplated in this Act” had found favour with the Committee.
In relation to clause 6(5), the Council must create a mechanism to create transformation of legal education. It was suggested, tentatively, that some of the wording might be removed.
Clause 7: Composition of Council
Mr Bassett noted that the Committee had flagged clause 7 in its entirety, but had made some preliminary proposals on which it had requested that the drafters should work in the meantime.
He indicated that the Council would consist of 16 practitioners, comprising 10 practising attorneys and six practicing advocates. He explained that clause 97 set out the terms of reference of the Transitional Council (TC), in respect of which the Minister would eventually make regulations. One related to the election procedure for the first Council. However, he said that there seemed to be no logical reason why, after the TC had spent time and effort setting that procedure, it should not continue to apply for as long as everyone was happy with it, rather than insisting, as the Bill presently did, that new election procedures should again be set when the first permanent Council was formed. It made more sense to allow the situation to continue until changes were deemed necessary in terms of clause 7(1)(2). It would be a long and hard process to get something up and running and it was merely duplicating the effort to have to do it again.
Ms Schäfer asked why the Minister should prescribe the procedures.
Mr Bassett explained that the TC’s description was set out in clause 96. However, one of the mandates was to come up with an election procedure for the first Council, which would commence after the TC had ended. The first Council would be elected under a procedure agreed upon by the TC, and published by way of regulations. However, that new Council would then have to go back to the drawing board, to determine what procedure should apply for the next (second) Council. The Committee still had to discuss whether this should be “in” or “after” consultation.
Ms Smuts said that the Bill already prescribed how the final Council would be composed. The majority of components elected from their own Members, and she thought that none of this was needed. She wanted to address the Committee on the composition of the Council on the following day.
Mr Daya asked for clarity. He asked whether the TC would deal with the procedure, and whether that should follow through.
Ms Smuts said that she did not believe that a TC was necessary at all, and questioned therefore why it would need to deal with election procedures. She said that politically, it was necessary to look at why this was being created, and why it should decide on the powers and functions of the regional councils. In her view, the legislators had to decide what the regional councils would be doing. She regarded the whole clause as problematic. She also questioned why the TC should put in place the practical requirements. She agreed that whilst some aspects were clearly in need of correction, it should be up to this Committee to decide on a framework and include that in the Bill. She noted that the GCB would remain, and so would the voluntary associations, and the main achievement of this Bill was to separate regulatory and representative functions. A body could not look after its own interests, and regulate, because regulation occurred in the public interest. The voluntary associations would have a representative function. The Board would be the regulator, in the public interest.
Mr Daya explained, at the request of Ms Smuts, what would happen to the LSSA and the four statutory law societies. The provincial law societies were statutory bodies, in terms of the Attorneys Act, whilst the LSSA was voluntary. The Bill spoke to the provincial law societies, who would be part of the Council. The TC was a total compromise. If, during the last twenty years, the legal profession had been capable of resolving its differences, there would be no reason now for the state to fund the process of assisting the profession to come together. The “hard issues”, on which the profession had failed to agree to date, were now being delegated to the TC. He suggested that perhaps the name “Transitional Council” was misleading as it was really a committee, a convergence of interests, mandated to ensure that by the time the permanent and final structures came into operation, no issues were outstanding.
Ms Smuts asked what the “hard issues” were.
Mr Daya responded that these were the regional councils, their functions, vocational training, pupillage, and the funding process. Depending on how the regional councils were structured, there would be an impact on the funding model. The transitional phase was necessary to ensure that these matters would be dealt with. He noted that the number of Ministerial representatives had been dropped to three.
Ms Schäfer quipped that “TC” could also be an acronym for “total compromise”. She assumed that the election of advocates and attorneys was needed. However, she questioned other wording, and said perhaps “procedure” was not the best word, and “formula” might be more appropriate.
The Chairperson said that clause 97 did seem to be problematic. There was something already on what the Council would comprise.
Ms Schäfer said that there was no certainty on how many representatives would come from the GCB, or independent advocates.
Mr Bassett said that “election procedures” applied to the legal practitioners in general and it would be a sensitive and difficult issue. He would have another look at the wording. The current dispensation for attorneys was that rules published under the Attorneys Act prescribed an election procedure.
He agreed that the TC was essentially one of the results of the history behind the Bill, essentially the differences of opinion between the various structures in the profession. Former Minister of Justice Dullah Omar had initially asked the profession to come up with a consensus bill, but that had never happened. The approach taken by the Department and government, over many years, was not to interfere with the independence of the legal profession, but it had now reached the stage where the TC had to be set up, as a consultative forum, to address the core issues that remained outstanding despite discussion on them over years. He agreed that perhaps a name change was needed. The terms of reference were not that wide-ranging. The TC was essentially a consultative forum to prepare for what would happen later. The Bill did make provision for voluntary associations to continue, but they were also allowed to dissolve, and convey their assets to the new statutory structure, if they wished. The LSSA could remain, and so could the GCB. The intention of this Bill was to address sensitive issues. The Ministers over the years had agreed that imposing requirements on the profession would not be ideal.
The Chairperson noted that the LSSA had requested formally that its staff and personnel be transferred to the new Council and that was on record. He reminded the Committee that Adv George Bizos had pleaded with all branches of the profession to “get your act together, lest other people do it for you”. This was coming to fruition.
Ms Schäfer thought that Parliament could not pass the Bill without knowing the financial implications and funding model.
Mr Bassett noted that there was a suggested option to have two teachers of law, and there was a request to name the umbrella body “the South African Law Deans Association”, which had statutory recognition, as it was under the South African Judicial Education Institute Act. Mr Bassett also noted that he had recently however seen a proposal that the “Law Deans” name be changed, but he was not sure about the status of that. He further noted that the word “nominated” had been replaced with “designated”, and other proposals of the Committee were reflected in the subparagraphs.
Mr Swart asked why two teachers of law were needed. The Magistrates’ Commission included only one professor of law.
The Chairperson said that this was only an option.
Mr Swart asked if the Deans’ Association had been consulted. One teacher of law should be sufficient to represent this body’s views. Perhaps this could be looked at again when considering the final composition.
Ms Louw said that with the inclusion of one person designated by the Board, the numbers became even.
Ms Schäfer thought that there was some merit in having more representation, particularly because of the importance of discussions on curricula.
Mr Daya said that there was a South African Law Teachers Association, and there was also a Dean’s Association. It was possible to separate that out, with one representative from each.
Prof L Ndabandaba (ANC) agreed, clarifying that the Deans dealt with curricula and administration, whereas the law teachers dealt with the teaching of law.
Mr Swart also wanted to raise a point of equity of numbers between attorneys and advocates. He wanted to hear more arguments on those figures and wondered if greater buy-in from the advocates’ profession might be obtained by increasing their numbers. Both the TC and final Council would determine the future of both professions. He was not necessarily in favour of equity between advocates and attorneys. He agreed that the failure to reach consensus meant that Parliament had to take that decision.
The Chairperson said that the profession had not been open with the Committee as to what issues had been agreed, and which had not.
Mr Daya explained that there was currently proportional representation of advocates and attorneys; the majority of practitioners were attorneys so it was considered fair that they have more representation on the TC. There were currently about 25 000 attorneys and 6 000 advocates in South Africa.
Mr Bassett reiterated that there was no finality on the clause. However, the fear was that using “nominated” meant that there would still be another functionary to deal with the issues. The word “designation” meant that a final decision on this issue had been taken. In regard to numbers, he agreed that the odd number of 23 would make decision making easier.
Ms Schäfer was concerned about the word “representivity” in clause 7(2)(b). She thought that “diversity” was perhaps preferable.
Mr Bassett said that this cropped up several times in the Bill, and there was no consistency in the wording of the constituent bodies. The Department had been asked to try to achieve more consistency, and to indicate how it may be interpreted. An alternative option had been included, (see underlined portion), which used the wording of the Constitution. It referred to “reflect broadly”. Another new sub-clause set out the factors to be taken into account.
Mr Bassett noted that the wording on the Ministerial representatives followed the wording of the Independent Communications Authority of South Africa (ICASA) legislation, relating to office bearers or public servants.
Ms Schäfer liked the option.
Adv Adams questioned the composition of the Council. She asked who would decide who would be taking the disabled, women and other representative posts.
Ms Smuts agreed that there were difficulties here.
The Chairperson noted that the Bill did say “where practicable” and there was obviously more scope to consider a number of factors where more representatives were allowed.
Mr Swart said that other bodies were nominating at a lower level, and it was there where these decisions would have to be taken. It would be difficult to deal with this properly, without knowing who was likely to be nominated by other bodies. He agreed that not everything set out in the Bill might be practicable at this stage.
The Chairperson asked who would be determining whether the nominees fulfilled the requirements of subclauses (2) and (3), how they could be challenged, and what would then happen.
Mr Swart said that the Minister could hold an enquiry if s/he believed that the objects of the Act were not complied with, and dissolve the body.
Ms Smuts said that this was completely unacceptable.
Mr Daya said that, to prevent that concern, the Department might need to look at alternatives – for instance, specifying that a certain percentage of the Council must be women.
Ms Shope-Sithole questioned why this could not be done.
Mr Swart said that this would have to be made applicable to all designated people, including Ministerial appointments, and he questioned whether it was workable.
Prof Ndabandaba raised the point that clause 97(v) should not reflect “a” legal practitioner.
Members had asked what election procedures applied to the various professions. After the lunch break, it was reported that they varied from one provincial law society to another. Mr Bassett reported that the general trend was a maximum of two terms of three years.
Mr Daya noted that the term of office of the Chairperson of the GCB was two years, and executive members were elected annually, with no maximum term to serve on the Council.
Clause 8 : Membership of the Council
Mr Bassett said that the footnotes explained the question of who would decide that a person was engaging in activity undermining the integrity of the Council The drafters had made a proposal on clause 12, which had a bearing on this, but clause 12 related to vacation from office. The new draft reflected that the Council could remove a member on account of various matters, as set out, and court information was included. If the Committee approved what was now in clause 8(2)(d) it could cover clause 12.
Ms Shope-Sithole was not sure whether the formulation on absence for three days was sufficient, and questioned whether this should not include the words “without permission” or “without apology”. She made the point that a person who was severely ill might not be able to deal with making apologies.
Mr Swart thought that “for good cause shown” might cover Ms Shope-Sithole’s point.
Ms Schäfer agreed that “for good cause” was needed, to avoid permanent apologies.
Clause 9: Chairperson and Deputy Chairperson of Council
Mr Bassett noted that the words “of Council “had been added to the heading to this clause, as well as clause 10. The amendments to subclause (5) had been discussed, and those in subclause (6) were aligned with other provisions in the Bill.
Ms Smuts noted that if the present composition of Council was maintained, it was likely that the chairperson of that Council would always be an attorney. She thought that perhaps the Bill should contain an obligation that both professions be represented, perhaps swinging the appointments between Chair and Deputy, or to have a co-Chair. A further alternative might be to have a judge as the chairperson, irrespective of the two chambers. This configuration would draw the sting out of accusations of Ministerial interference, and make it clear that all members of the profession were officers of the court. Perhaps a retired judge, as proposed for the Ombud, could be used, although she was not convinced that having a retired judge rather than a serving one was necessary.
Mr Daya asked if Members were suggesting that the Chair and Deputy positions should be exchanged, year after year, between attorneys and advocates, and that if the chair was an attorney, then the Deputy must be an advocate, and vice versa.
Mr Swart suggested that an independent Chairperson may need to be considered for the TC, and agreed that it would be useful to have this chaired by a judge.
Ms Smuts said that she had originally thought of this for the TC, but she would be making proposals that there be no TC. Her suggestion now related to the final Council. She noted that whilst the practice and conduct rules had always been created by the profession, the courts still retained the inherent jurisdiction to sit in judgment on Bar rules. It would make sense to bring in the judiciary to the Council, but this must happen in the form of a Chair.
The Chairperson asked Members to give the proposals some further thought.
Mr Bassett agreed that the drafters would come up with some options.
Clause 10: Term of office
Mr Bassett noted that some technical changes had been suggested, as a result of some comments. The members could serve for one further term. The Committee had asked the Department to find out how long the law societies sat – the general trend was a maximum of two terms of three years. He noted the terms of office for the professions of the accountants, architects, health professions, and generally, they could renew their terms once.
Clause 11: Termination of Office
Mr Bassett outlined that there were consequential changes to the wording, following on the changes to clause 12. An additional subclause (d) was added,
Ms Schäfer asked what “convicted of an offence” meant, and whether the removal from office would apply only when all appeal routes had been followed. She was inclined to the view that it was fair after the time periods for appeal were exhausted, although she was aware of the problem of people continuing to sit on a Council with a “cloud”hanging over them. Perhaps there should be specific reference to a conviction “in a court of first instance”.
Mr Bassett said that this was quite standard.
The Chairperson also thought that there were problems with this.
Ms Silkstone made the point that if the term of office was only three years, the whole term could be caught up with appeal procedures.
Mr Swart made the point that there would still have to be a decision by the Council for removal (and the wording was “may”, in clause 12 (1)(a))
Ms Schäfer said that clause 8(2)(c) would disqualify the member.
The Chairperson said that there was therefore some discrepancy.
Mr Bassett agreed that there was some uncertainty and perhaps clause 12 should be more specific on whether it was contemplating misconduct, or a criminal offence. If the former, then the reference to a conviction should be removed. Misconduct would be dealt with in the Code of Conduct, which would specify all unprofessional and unworthy conduct.
Ms Louw said that the current discrepancy between clauses 8 and 12 arose from the changes to the wording, which originally referred to ‘” a member must vacate”, now changed so that it referred to the Council removing the member. She agreed that several other statutes had the requirement that a member must vacate. She wondered if it was not sufficient to leave it at this.
Members thought that there was a necessity to ensure that removal would happen.
Ms Schafer drew the distinction between removal for something such as failing to attend three meetings, and removal by a court, which implied something far more serious.
Ms Louw suggested that perhaps clauses 12(1)(a) and 8(2)(c) needed to be brought in line.
Ms Schafer suggested that perhaps the wording should refer to a finding that a person was guilty of misconduct by the Council, so that the discretion remained with the Council. However, the Committee could again revisit this when it had given more thought to the kinds f misconduct.
Ms Smuts said that the Code of Conduct related to legal practitioners and the Council would not be dealing with this.
Mr Bassett agreed that the disciplinary committee would deal with the issues. There had been a debate whether there was a role for the ombudsman, and the drafters would address the Committee on the research done, and he would later present the optional wording for the review powers of the Ombud.
Mr Daya agreed that this body would be well placed to deal with issues.
The Chairperson agreed, and said that he would have thought that disciplinary committees and regional committees may deal with these kinds of matters.
Ms Schafer asked that the Parliamentary Researchers’ document on the comparative studies in other jurisdictions also be forwarded to the Department’s officials.
Mr Daya said that when a body designated someone to serve, the provision to have that person removed by the court was highly unusual.
Ms Smuts agreed and said that it made sense for a body that had lost confidence in its representative to have the power to remove that representative. She also noted that in the TC provisions, there were other references to removal, which had been described as “bizarre” and she had thought that it was in this context that the court application had been raised.
Members debated briefly how the wording had come to be included in (d) and (e), and concluded that the concern was that bodies might arbitrarily withdraw their mandate. Ms Smuts reiterated that if the associations felt that their interests were not being properly represented, then they should be able to withdraw. She thought that the reference to undermining the Council was too vague.
Ms Schäfer questioned why sequestration was included and suggested that it be removed.
Mr Bassett moved on to sub-clause (4), noting that the Committee had requested that the process be spelt out, which was now done by making reference to the rules.
Mr Daya asked if “due process of law” was intended to mean administrative law.
The Chairperson confirmed that this was what was intended.
Clause 13: Vacancies in Council
Mr Bassett highlighted the changes to the heading and said that the changes here were consequential on the changes highlighted earlier.
Ms Schäfer questioned whether 11(1)(b) and 13(1)(d) were now consistent with each other.
Members noted that it might be necessary to keep the time periods under clause 13, for shorter periods might apply elsewhere. They agreed that the provisions must be consistent.
Clause 14: Dissolution of Council
Mr Bassett said that there had been a suggestion that the Minister could dissolve the Council on the authority of a court order.
Mr Swart quipped that another option was to delete this altogether.
Mr Bassett asked Ms Louw to comment on the separation of powers, as far as the Minister and court positions were concerned.
Ms Louw said that the Bill, as introduced, permitted the Minister to call upon the Council for reasons why it should not be dissolved, if the Minister was unhappy with the functioning of that Council. Following that, the Minister would appoint a non-serving judge to conduct an investigation and report to the Minister. Another option now drafted related to subclauses (1), (2) and (3). The Minister, if s/he lost confidence in the Council, may call upon the Council to give reasons why it should not be dissolved. If the Minister was not happy with those reasons, the Ombud could be required to do an investigation. If the Minister remained unsatisfied after that, s/he could approach the Court. A further possible option was to stop at the Ombud stage.
Mr Swart said that he had been strongly opposed to any provisions allowing for dissolution of the Council by the Minister. This went to the heart of the concerns on the possible abuse of executive power, without any reflection on the current ministry. This clause was inserted at a late stage. The present formulation still did not bind the Minister to any judicial or Ombud findings. The first formulation had been a sword of Damocles hanging over the Council and was indeed inconsistent with the independence of the profession, which, as Judge Chaskalson had suggested, went to the heart of the independence also of the judiciary. This kind of structure would open the door to important aspects of the profession being controlled by the executive. He reminded the Committee that the profession was independent and was thus very different from a parastatal. He urged caution on the point. The second formulation also had problems, as the Department itself had recognised. He urged the Committee to think carefully as to whether this clause was needed at all.
The Chairperson asked what would happen if the Council, which was supposed to meet fur times a year, simply failed to do so.
Mr Swart responded that the designating bodies would be able to take steps against the Council. The Ministerial appointees could also require that body to act. There was nothing preventing the members of the Council from approaching the court to get a declarator. This was a possible answer. In addition, if they had not met for three consecutive meetings, some members may be able to be removed.
Ms Schäfer added that the Minister would also be able to approach the Court, to require the body to comply with its obligations. She thought it was unacceptable that the Minister should be able to replace members. There was also nothing in the new formulation obliging the formation of a new Council if the former one was dissolved.
Ms Smuts repeated that she could not support the Bill at all if it retained a clause allowing the Minister to dissolve the Council. Imposed dissolution was incompatible with the idea of independence. She noted the past problems with the SABC, where one board was replaced with hand-picked candidates, for clearly ulterior purposes, and similar problems had arisen in the medical profession. She was not persuaded that there was anything to justify what had been suggested. She answered the Chairperson’s question by saying that it was highly unlikely that the Council would fail to meet. She urged the Committee not to proceed with this clause, saying that if it were retained, it would invite a challenge to the Constitutional Court, and, given the authority of the comments by Judge Chaskalson, she had no doubt that the challenge would succeed.
Mr Bassett said that another possible option was for the Ombud to play a stronger role and investigate on its own initiative, and approach the court without the Minister’s involvement.
Ms Smuts said that this was about as far as she would be prepared to consider going.
Members agreed that clause 14 must be flagged for further debate.
Ms Shope-Sithole asked who would comprise the Council. The notion of independence, to her mind, applied to the judiciary, and she questioned whether it would apply also to the practising profession.
Ms Smuts noted that the profession comprised potential judges.
Mr Kweta noted that one of the alternatives being proposed was that the Minister might be able to approach the High Court for an order empowering the Minister to dissolve the Council. However, his office foresaw a problem with that; it was contrary to the notion of a proper separation of powers for the executive to ask the judiciary to authorise executive action. It would be preferable to have the Minister require the Council to give reasons (which complied with the principle of audi alteram partem), then consider the submission, and have a judge appointed to investigate and make a recommendation to the Minister. He heard the concern that the Minister might ignore that recommendation but pointed out that anyone could take the Minister on review for failure to exercise his/her mind properly and ignored recommendations. He drew the corollary with the requirements which set out that the Minister would take a decision on certain other matters “after consultation” and said that clearly this implied that the Minster must apply his/her mind properly.
Ms Schäfer thought that there was equally a problem with separation of powers to interfere with the independence of the Council. If any statutory obligations were not being complied with, the Minister should take the matter to court.
Ms Shope-Sithole agreed with Mr Kweta. She wondered if the Committee was not being overly sensitive about the executive, and thought that the independence of one of the three arms of state was being over-emphasised, and too much concern about trying to curb the executive.
Clauses 15 and 16
Mr Bassett noted that there had been no changes to these clauses.
Clause 18: Committees of Council
Mr Bassett said that the wording had now been clarified, to make it clear that the Council could establish committees that consisted of members of the Council and other suitable persons.
Clause 19: Executive Officer and employees of Council
Mr Bassett noted that an alternative had been drafted.
Ms Smuts was not opposed to having this set out, but asked if other labour legislation would not require consideration of the issues set out here.
Clause 20: Executive Committee on Council
Mr Bassett said that the same considerations would apply to clause 20(3).
Ms Smuts thought that if this clause was needed, the alternative option was preferable.
Mr Bassett said that footnote 74 noted that the issues were flagged for further discussion. The LSSA had made some requests and the Department had looked at other provisions.
Ms Louw said that generally, six members was the standard size for a council.
Mr Daya said that there was desirability in having an odd number, unless the Chairperson was to be given a casting vote. He asked what numbers Members would prefer.
Ms Smuts suggested that five could be specified. However, she would be addressing the Committee, on the following day, about having two chambers, and if this was accepted, each would have its own executive. She made some suggestions as to what the overall Exco may be dealing with.
Ms Schäfer thought that five was acceptable.
Members agreed to flag this for further discussion.
Ms Louw noted that the Security Officers had four Board members, but their executive committee was ordered so that different interest groups had representatives.
Members noted that a number of interests could be represented on this Council also.
Adv Adams said that the quorum was still stated as the majority of members of the Council. If Exco was required to meet on a particular day, it was possible that four members could still proceed, because they constituted a quorum, but their views be split equally. She also asked if the Chairperson would at all times have to be present.
The Chairperson said that in this case, the chairperson for that meeting may need to have a casting vote.
Ms Louw said that clause 95(1)(f) provided that the Council could make rules on the procedure to conduct meetings, and the quorum could be addressed there.
Ms Schäfer was opposed to having a reference here to regulations to be made at some future date.
Adv Adams noted that clauses 16 and 17 dealt with these issues. She reiterated her concerns about the possibility of not being able to resolve the dispute.
Mr Bassett said that clauses 16 and 17 dealt with Council, but the Committee was at the moment dealing with Exco.
The Chairperson asked if Members were happy to have six members.
Ms Schäfer urged that five members be specified, and that decision-making provisions, similar to clause 17, be inserted here.
Mr Bassett noted the amendments to clause 20(7), saying that the chairperson of the Council should be, ex officio, a member of Exco.
Mr Daya asked about the position of the Deputy Chairperson .
Ms Smuts said that if there were two chambers, the composition would have to be reconsidered.
Clause 21: Delegation of powers
Mr Bassett noted that the original wording was that the Council “may delegate in writing” but this had been changed to “may resolve to delegate any of its powers”. Delegations to the executive officer were included in the new (e).
Mr Bassett noted that there were no changes.
Clause 23: Establishment of regional councils
Mr Bassett noted that the drafters had come up with some preliminary wording options for the establishment of regional councils. The Council must establish three or four regional councils, but those numbers may need to change. There should not be more than one regional council per province, the location of divisions must be taken into account, and other requirements, originally set out in the sub-paragraphs (iii) to (vii), were moved up.
Mr Daya said that this was a controversial provision, because if it was left in its original form, it was possible that several duplications could result. The Department had been concerned about funding, and questioned whether there was an intention to create huge regional structures, with concomitant financial burdens on the AFF. The current Law Society of the Northern Provinces (LSNP) seemed to work well, and it was possible to mirror this, perhaps for coastal or midland regions. The Bill said that the Minister was to designate councils, but this could have financial implications.
Ms Smuts said that presently, the Bill provided that the TC must work out the functions of the regional councils, which was unsatisfactory. The constituent bars had a Bar Council at nearly every seat of the High Court. She wondered if in fact a Council was needed in every province. All the disciplinary matters of the LSNP were held in Pretoria, but satellite offices at the other centres handled day-to-day administrative matters.
Mr Daya agreed that they would deal with local provincial matters, such as seminars, although the main office facilitated these. Most of the functions of the LSNP took place in Pretoria.
Ms Smuts said that the satellites seemed to attend more to voluntary work, whereas regulatory work was done in Pretoria. If the GCB model was used, and the regional councils were to have chambers for attorneys’ and advocates’ matters, there would effectively be a regional council in each province. The main Council would meet four times a year, operate through committees and therefore most of the practical matters would be dealt with regionally. However, more clarity was needed on the form. She thought that perhaps three or four regional councils might be too few. She agreed that there should be a close relationship between courts and boards.
The Chairperson noted that the Minister would act “in consultation with the Council”.
Ms Smuts said that if “in consultation” was used, the Council could simply go ahead and deal with this. At some point, she would like to hear what matters would require drafting of formal subordinate legislation, as opposed to rules.
Ms Schäfer said that her understanding was that regional councils would be funded by the profession. The Council would not create them without the funding being assured. She also noted that it was possible that cross-provincial councils might work better, wondered if this would be allowed, and said that the functions would have a bearing on how many structures were set up, and where. She doubted that the Council would want to establish a plethora of regional structures, but thought the clause must be flagged for further debate.
Mr Swart made the point that clause 97(2) required the TC to negotiate and reach agreement, including on the regional councils. The existing statutory law societies had buildings and assets. It made sense to try to try to capture a similar structure, to facilitate the transfer of assets and liabilities once they ceased to exist. In addition, there was a need to get buy-in from the profession. The advocates’ profession was another matter, as the Bar Councils would continue, and he asked what assets they would hold. It would make sense to try to keep existing structures as far as possible.
The Chairperson said that he had posed the question why one structure was needed in each province. He noted that the LSNP seemed to be working well.
Ms Smuts noted that even in the provinces where there were not, as yet, high courts, there were bar structures and they should not be told to downgrade.
Ms Schäfer asked why the Minister should prescribe the areas of jurisdiction, as contained in sub-clause (2).
Mr Bassett said that this was similar to the point he had raised in relation to clause 7. Clause 97 currently required new regulations when the TC gave way to final Councils and he questioned why it would be necessary or desirable for the final Council to reconsider the areas or requirements about regional councils, as presently set out in clause 97(1)(ii).
Mr Daya noted that the cost of operating the current four statutory law societies was about R200 million and questioned why the profession should feel that more were needed.
Ms Smuts asked what the office arrangements were for independent advocates’ associations.
Mr Daya said that some operated from offices around the country, using the existing Bar Council chambers, so that there was an overlap. The independent associations had a head office and provincial structures, but not to the same extent as the GCB operated. The Forum did not have a structured set up but would operate out of individuals’ offices.
Mr Swart asked if there would be transfer of voluntary associations’ assets.
Mr Daya confirmed that what the Bill contemplated was the asset transfer of the four (statutory) provincial law societies. The LSSA would move its assets voluntarily. It wanted consideration to be given to the position of its staff. In theory, the LSSA building belonged to every lawyer in South Africa.
Mr Swart asked what would happen to any advocates’ assets, if they chose to be included.
Ms Smuts did not think the Committee needed to deal with this.
Ms Schäfer asked that the Committee researchers look into dissolution mechanisms of councils in the UK.
The Chairperson noted that clause 23 would remain flagged
Clause 24: Admission and Enrolment
Mr Bassett noted that clause 24 would also apply to candidate practitioners. The new definition of High Court would be used.
Clause 25: Right of appearance
Mr Basset noted that there had been a suggestion to specify that this should relate to both legal practitioners and candidate practitioners. The Department had specified, in the Bill, that the right of appearance would be a right throughout the Republic, but subject to subsections (3) and (4) . The Committee had had a long debate about right of appearance, and whether attorneys should have the right to appear in the superior courts. The Right of Appearance in Courts Act was mirrored here. Attorneys would have to continue to apply for a certificate to appear in the High Court, Supreme Court of Appeal (SCA) or Constitutional Court. The requirements that were retained included that the attorney must be in possession of an LLB degree, not have been removed from the Roll, and have been practicing for at least three years. However, the drafters had been asked to prepare an option that could reduce the three years if a trial advocacy training period was done, and so (d) was now inserted, which referred to “has gained appropriate experience”.
Subclause (4) required the attorney to serve a copy of the application on the Council.
The Bill had been silent on the other issues, relating to the fact that a candidate attorney could not appear, during the candidacy, in the High Court, Supreme Court of Appeal or Constitutional Court, and that the candidate would only be able to appear in the Regional Court after having served one year of practical vocational training. This had considerably narrowed clause 25.
The Chairperson asked for elaboration on the Eskom comments and the research requested on this point. Eskom had argued that corporate lawyers should be allowed right of appearance. The Committee had asked that research be done into other jurisdictions, but was not enthusiastic on this point.
Mr Basset said that conflict of interest debates were raised and he had the sense that the Committee was not in favour of the Eskom suggestions.
Mr Swart asked if and when a pupil had right of appearance.
Ms Louw said that once a person was admitted under the Admission of Advocates Act s/he would have immediate right of appearance in the court. “Pupils” were advocates on a training programme with a voluntary association, but it must be remembered that they had already been admitted. They did do some appearances and draft documents.
Ms Schäfer was worried about the differentiation between the professions. Independent advocates maintained that they were entitled to appear immediately in the High Courts, yet candidate attorneys, who might hold exactly the same qualifications, obtained at the same time, would not be allowed to appear in the High Court at all during their candidacy and for three years after admission. This was discriminatory.
Ms Smuts agreed, and pointed out that out of the 6 000 advocates in the country, only 2 000 were aligned to the formal bar associations.
Ms Schäfer recognised that restricting currently admitted advocates from appearing could not be enforced, as it would be removing current rights. She urged that the same training must apply.
Mr Swart said that there were reasons for the distinction; it was not anticipated that the primary work of an attorney would be to appear in the High Court, but an advocate was specifically being trained to litigate and appear in the High Court, as a specific career option.
Ms Schäfer reiterated her view that those who held identical degrees should be allowed to appear at the same time, although perhaps a reduction or alteration of the time periods might be possible.
The Chairperson noted that Ms Adams had requested an option to be prepared, but noted that she was not present. He suggested that the Committee stop at this point.
The meeting was adjourned.
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