Legal Practice Bill: draft dated 24 July: from clause 36: SA Human Rights Commission shortlist

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Justice and Correctional Services

30 July 2013
Chairperson: Mr L Landers (ANC)
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Meeting Summary

Members noted with pleasure that the trafficking legislation had been signed into operation. Members agreed provisionally on a shortlist of names for interview to fill the vacancy on the South African Human Rights Commission, but were unable to adopt that formally until there was a quorum.

The Department of Justice and Constitutional Development continued to take the Committee through Chapters 4 and 5 of the Legal Practice Bill. As introduced, the Bill had given the Ombud the power of review on disciplinary matters, and the Committee had asked that new options be drafted, following research into the Ombud’s position in other countries. The Department reminded Members that the Bill envisaged an investigating committee, a disciplinary committee, and an appeal tribunal (AT) to hear appeals by legal practitioners. In the initial version of the Bill, the Ombud’s review powers were only in respect of the complainant, so two separate review mechanisms were created. An option was now drafted for the AT to deal with appeals from both practitioners and clients. A new draft was provided of clause 49, setting out alternative powers for the Ombud, more in line with watchdog functions, and comparisons were provided for ombuds in other sectors.

Disciplinary bodies, under clause 37, comprised investigating and disciplinary committees. Members questioned if the detail should not rather be in regulations, wanted it specified that minor offences could be delegated to officials, and thought that “review” should be more generally stated, not confined to review under the Promotion of Administrative Justice Act, and it would apply under common law, to all cases. This would mean that the Ombud would no longer do reviews. Members agreed that disciplinary proceedings must be open to the public, as happened in the medical profession, once they reached disciplinary committee stage. They agreed that at least one lay person (the wording to be changed from “member of the public” should be appointed to disciplinary committees), but not as chairperson. There was discussion around the practicality of having automatic review of complaints, which might address habitual complainants, or perhaps the public being entitled to question why matters had not been taken further. The Department had thought that committees would merely be populated by “legal practitioners” and although there had been debate on a two-chamber model, there was a comment that a mix of practitioners might be useful to avoid protectionism. There were expanded provisions around the constitution of the investigating and disciplinary committees, but Members asked for addition of the phrase “as far as practicable”. Members made the point that the debate about what should be in regulation, and what in rules, would need to be considered in relation to this, and later clauses. Clause 38 contained new wording relating to transparency, and provided that particulars be published on the website, but Members flagged for further debate whether it also needed to be published in the Government Gazette. As a default, the Committee wanted all proceedings to be open, but debated whether parties may request in camera hearings or that complainants’ names and details not be published, and wording to cover this would be inserted. There would also be more specific wording on the right of the complainant to be present.

Clause 40’s heading was changed to “sanctions”, and there was reference to evidence in aggravation of sentence. Members debated at length whether it was competent for the disciplinary body to order compensation, which would have to be subject to an order of court, as set out in subclause (3), and how this would relate to collection under subclause (6). Whilst some Members felt that separate civil actions should be instituted, others questioned whether complainants could afford the costs. Clause 40(9) was to be deleted. 

Clause 41 had been reviewed and several changes were noted. Members asked for specific provision that the disciplinary panel members should not serve on the AT. Some Members questioned whether the Ombud review process was needed, whilst others thought that it was vital to assist complainants. Questions of cost were raised, and it was suggested that another option was to boost transparency, or strengthen the appeal structure and make it more complainant-friendly. No final decision was taken on the point.  Clause 42 dealt with the appeal structure, and had been restructured so that clause 44(1)(a) dealt with an appeal by the legal practitioner, and (b) with the complainant. A lay person would be included. Powers were set out in the changed subclauses (3) and (4). Members thought that the media could not be excluded, although televised proceedings would only be allowed on application. An option had been included, but was not debated extensively, to allow the Ombud more decision-making powers under clause 46. Proposals on clause 47 would stand over pending further debate on the powers of the Ombud. Members discussed who would appoint the Ombud, and under what procedure, and debated wording to be inserted should the President fail to make the appointment. Members agreed that the independence be strongly protected with safeguards similar to the Chapter 9 institutions.

The new wording for clause 49 was presented, and there was debate on whether the Bill should define legal services, alternatively amending the references to services by legal practitioners. After quite extensive discussion, it was agreed that at the moment the Ombud should be restricted to considering legal practitioners, although this may change as the profession developed. Research was presented into what the Ombud did in other jurisdictions, and powers were given.  Clause 50’s provisions around remuneration and terms and conditions were extensively debated, and it was agreed that it would useful to specify that the remuneration (and allowances) would be that of a High Court judge. Members asked that security of tenure provisions be added to clause 51. Staff establishment structures in comparable bodies would be checked for the purposes of clause 52. Members debated, under clause 53, by whom the Annual Report must be tabled and considered the possibility of proposing amendments to the Joint Rules of Parliament to allow for electronic submission. 

Meeting report

Opening remarks
Mr S Swart (ACDP) noted the enactment of the Human Trafficking Bill and commended all from the Department of Justice and Constitutional Development.

The Chairperson noted that the weekend’s City Press had an article on legal fees written by Charl du Plessis, which he would distribute to the Committee.

Legal Practice Bill: Department of Justice and Constitutional Development briefing: Chapters 4 and 5
Mr Lawrence Bassett, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development, noted that he would continue to take the Committee through the Bill, resuming on Chapter 4. Chapters 4 and 5 were linked, with the latter dealing with the Ombud, and the Bill as introduced gave the Ombud powers of review on disciplinary matters. The drafters had been asked to prepare an option taking away that review power. The question still remained what the powers should be, and whether there should be decision making powers to review disciplinary matters, or whether it should be more of a watchdog, similar to the Public Protector, with recommendation rather than decision making powers. The Committee had asked for research on the powers in other jurisdictions, and other national laws. He said that it might be useful to look at Ombuds in other areas and countries.

He reminded the Committee that there would be an investigating committee, a disciplinary committee, followed by an appeal tribunal to hear appeals by legal practitioners. The Ombud’s review powers were only in respect of the complainant (client of legal practitioners) so there were two separate review mechanisms. The drafters were requested to formulate an option in terms of which the appeal tribunal could deal with both appeals from clients and attorneys, if the Ombud’s review powers were taken away. He would take Members through the provisions in greater detail.

Research on the powers of the Ombud had been done, in respect of Chapter 5, and a separate loose sheet was provided, setting out alternative powers for the Ombud, more in line with the watch-dog-type functions.

Ms M Smuts (DA) noted that she had not made up her mind. She had looked at other statutory provisions, but they related to the financial sector, which was quite different. She thought it would be more useful to look at comparative foreign Ombuds.

Mr Bassett noted that the Parliamentary researchers had also done some research.

Clause 36
Mr Bassett noted that the first amendment appeared in clause 36(1), to add in that the code would apply to all candidate legal practitioners, as requested by the Committee.

Clause 37: Establishment of disciplinary bodies
Mr Bassett noted that the disciplinary bodies consisted of investigating and disciplinary committees. The investigating committees were set out in clause 37(1) and would consist of at least three persons. After investigating a complaint, it must, if it was satisfied that the practitioner may be guilty of misconduct, refer the matter to Council which would then establish a disciplinary committee for adjudication. If it was not so satisfied, then it must inform the Council. He noted that anyone could take this on review in terms of the Promotion of Administrative Justice Act (PAJA) and that was not what the Committee requested. The Committee had requested that if the practitioner or complainant was unhappy s/he could go to an appeal tribunal, and that was set out in the alternative to clause 37(2)(b. If the investigating committee decided not to take the matters further, the practitioner would obviously not appeal.

Mr Swart said this raised several issues. He asked, firstly, whether the detail should not be in the regulations. Secondly, the Law Society had recommended, in respect of the investigating committees, that minor offences could be delegated to officials. Thirdly, he wanted to address judicial review. This could take place under common law or PAJA. He thought that using merely the word “review” was sufficient, because the common law was wider. The accused could to on appeal and review, and that probably did not have to be spelt out.

Mr Bassett said that the review question could be considered. If the Committee decided on an appeal tribunal for both complainant and practitioner, then nothing had to be said about the review. The Appeal Tribunal (AT) should be able to deal with the outcome of the investigating committee, when the complainant was unhappy, and the outcome of the disciplinary committee. His sense was that Members wanted an investigating committee, disciplinary committee, and appeal tribunal. The review did not have to be mentioned because it would apply automatically.

Ms Smuts asked for confirmation that this would mean that the Ombud no longer did the review.

Mr Bassett said that this was so, which was why it was linked with the next chapter.

Ms Smuts asked about the point that both the Bar Council and LSSA had made, that sometimes abbreviated processes were needed, for instance, with a guilty plea. There were many misconduct allegations – in the last year, in the Law Societies of the Northern Provinces, there had been 8 000, of which only 200 led to enquiries. The GCB quoted similar statistics. The wording said “that council would “where necessary” establish committees, and she asked for further follow up.

Mr Raj Daya, Acting Deputy Director General, Department of Justice and Constitutional Development, said that this was the reason why it was suggested that authority be given to officials, because many of the cases did not have to go beyond that preliminary stage. If the Chief Executive Officer (CEO) did not get delegated authority, there would be an unnecessary volume of matters being referred to committee level.

Ms Smuts asked where that appeared in the Bill.

Mr Bassett said that there was no specific provision at the moment, and perhaps the drafters still needed to do that, if requested.

Ms Smuts said that this must be looked at from the point of view of the public. If the delegation was allowed for, it must be sure that an aggrieved member of the public would not feel “fobbed off”, so at minimum the Ombud must have the power to review that.

Mr Bassett confirmed that there had been some debate – every person having a complaint must be seen to have it addressed, and it was possible to build in some sort of sifting mechanisms. That would possibly lie with the Ombud.

He noted that one of the concerns when dealing with this was that the Council established the investigating and disciplinary committees, and the AT. This model would have to be borne in mind, because it was possible for there to be allegations that the Council was still covering up. However, the counter-argument was that the transparency of the structures must be strongly captured, as to who was appointed, and how.

Ms Smuts suggested that the procedures must also be open; as happened in the medical profession.

Mr Swart referred to the formulation under clause (2)(a). Instead of “may be guilty” he felt that something like “sufficient prima facie evidence of misconduct” would be preferable. He was questioning whether the committee of three must investigate every complaint. He thought that the investigator should be one person, who could prosecute the case later, but the hearings must be transparent. This also lent itself to the two-chamber model that he had suggested earlier – where the Council could set it up, but the hearing would take place at regional level. The submissions made by LSSA and Cape Bar were that the panel may be frustrated by the numbers of cases to be dealt with. That would have to be borne in mind.

Ms D Schäfer (DA) thought, in relation to transparency, that this was important, but the Committee had not decided whether this would start at inception. Some people were habitual complainants and it would tarnish a person’s reputation unnecessarily. She agreed that complaints could be covered up when they came in, so she wondered if automatic review situation may be used, with the Ombud. She was not sure if that would be too much work. She wondered if every decision not to take the matter further be reviews.

The Chairperson asked when the public would be made aware.

Ms Schäfer responded that when there was a recommendation to have a hearing, then it should be made public. If there was a decision not to take it further, then the Ombud must ensure that if not reasonable, it would be carried further.

Mr Daya said that this was a good suggestion, because it had a good safety-net mechanism. Perhaps in relation to the delegated authority to an official, he said that he could be swayed by the power delegated to the Executive Officer under clause 19(2), which could possibly be very wide, but he did not think that this was the intention that a delegated official would be able to make a judgment call and it would stop there. It may be that there would be a committee of officials that dealt with the matters. That was, practically speaking, what happened. Usually the Head of Disciplinary Affairs, a qualified attorney, would go through all complaints, with assistants. There should be a level of confirmation or ratification by a disciplinary committee. However, in practice, the intention was not to have committees constituted of attorneys at that level.

Ms Smuts thought that it would be a good idea to have an automatic review, in the same sense as the High Court. If the Law Society of the Northern Province had 8 000 complaints, of which only 200 led to actual inquiries, she wondered how realistic it would be to send through the dismissed complaints to the Ombud, who would delegate that to an official to read through. In theory, it was good because the disciplinary head would perform better if s/he knew of the review, but the practicalities would have to be taken into account. Perhaps the member of the public should have some sort of power to enquire why there had been a dismissal of the compliant. The GCB also referred to thousands of complaints. In practice, the Legal Practice Council (the Council) would set up the disciplinary arm, the first point of receipt of complaints. Somebody would decide which of those would go through. They would have to refer to the regions (and this could be said). Because lawyers were likely to be protective of their own, it was worth giving thought to having a safety measure that the complaint should go to the national Council, not the practitioner’s own region, to make the primary decision whether this must go forward. This created checks and balances. She thought it unavoidable that the cases would be referred to regions, because of the numbers. She reiterated that this made it necessary to have two chambers, (even if they were called committees), split to deal with attorneys and advocates matters. In practice, it was likely to boil down to attorneys in a region, sitting in judgment on attorney transgressors, and the same for advocates.

Mr Daya said that the Department’s thinking on discipline was that committees set up would be populated by legal practitioners, no matter whether they were advocates or attorneys. However, the advocates said that they were not comfortable with not being in a majority when the advocate was affected, and the balance should be “balance plus one”. They had not objected to the mix. Legal ethics did not differ from one branch to another. Now that advocates could accept direct briefs, there was likely to be a closer correlation. Perhaps that number could be built in. The drafters had not thought of a separation at that level, because violation of a code of conduct related to officers of the court.

Ms Smuts said also that the impulse to protect one’s own was diluted by having a mix.

Ms Schäfer pointed out that advocates may still have an interest because they received instructions from attorneys.

Mr Bassett said that some of these questions would apply also to the later provisions that he would discuss. On Mr Swart’s point about the investigating committees, he noted that clause 37(1) referred to investigating committees consisting of three persons. Mr Swart had asked why three persons were needed, and he agreed that one or two could be designated, but there was an option.

Mr Swart said that in a situation like the Pretoria advocates involved in the RAF matters, a three-person committee might be needed. However, normally it would make sense to have one person. He was noting that probably only one person investigated in practice, and brought it to the Council and then a tribunal was appointed.

Mr Daya said that the provinces used different models, and he would ask the provincial law societies and revert to the Council.

Mr Swart said that his option was “appoint one or more” and that would take care of the concern.

Mr Bassett read out clause 37(3) (which also referred to three persons) and said that one of those must be designated as chairperson or presiding officer. The Committee had asked for something to be stated as to who designated the chair, and it would be the Council.

Sub-clause (4) dealt with the constitution of the investigating and disciplinary committees, and had been substantially changed (see attached document, page 46). The drafters had been asked to come up with a different model, and to consider what “due regard to the ease of access by members” meant, and the new subclause (4) set this out. He questioned whether this had to be applied to investigating committees, but they would certainly be needed for disciplinary committees. The disciplinary committee must reflect the racial and gender composition. Certain factors would be taken into account. Ease of access was more closely defined, referring to “in order to finalise the matters”. The inclusion of members of the public, as prescribed by the Minister, in (or after) consultation with the Council, and the needs of cost-effective systems that complied with administrative justice were also mentioned. The question of who would serve on the committees was raised. The Committee had emphasised the inclusion of members of the public.

Mr Swart said he had earlier indicated his discomfort with these provisions. The LSSA said that it would be difficulty to comply with the clause. The desired representivity would be impossible to achieve, in a two-person committee. However, he felt that it needed to be phrased to avoid review processes if the procedure of setting up the panel was contested. Often, disciplinary matters fell down on process, irrespective of the merits. He urged for caution, and to avoid, if possible, prescribing too much for the composition of the panel. He would not like it to be too easy to review the process (rather than the decision). He appreciated the sentiments but thought this could be too burdensome. For instance, there was currently debate in the Western Cape about national demographics and Western Cape demographics, in relation to the Department of Correctional Service. He questioned if there was any such requirement at present, and thought that there was not. Previously, common law provisions would apply.

Ms Smuts thought that representivity could not apply with small committees. However, having said that, for the same reason that it was desired to have all represented on the Bench, for broad legitimacy, it was not a bad idea to move away from the “Old Boys’ club” constituting the disciplinary committees. Perhaps “as far as practicable” could be added here.

Mr Swart agreed with that.

Ms Smuts thought that (b) was acceptable, but wanted more thought on sub-paragraph (iv). She repeated her thoughts that the regulator should be making the Rules, and Minister prescribing regulations. She had looked at the Independent Communications Authority of South Africa (ICASA) legislation and there, the word “regulations “ had been used for the ICASA Council. However, she questioned in principle why the Council should not prescribe this. If it was included in the Bill, the Council would have to include members of the public, and why regulations were needed.

Mr Bassett said that from a technical point of view, this was a repetition of what was originally in sub-clause (4) which referred to “inclusion of members of the public as may be prescribed”. The question of regulations versus rules, who made them, and whether it should be “in” or “after” consultation would need to be considered in more depth after the audit had been done.

Ms Schäfer said that certain factors must be taken into account in (b), and she thought that the broad representation could be added in there.

Mr Bassett said that at the moment (a) gave effect to the Constitution, but it could be included.

Ms Smuts asked what “inclusion of the public meant”.

The Chairperson said that it did not mean that the public be entitled to sit in, but that a layperson be included.

Mr Swart said that “members of the public” could imply that both members of the two-person public could be laypersons. The word “layperson” was preferable.

Mr Daya said that the Minister may make regulations entrenching the right of a member of the public to always be included on a disciplinary committee. “The Council may” could imply that the Council may never do this.

The Chairperson agreed that the Council was currently being given the option of appointing a layperson. He asked if the Committee was saying that at all times at least one member of the public must serve.

Ms Schäfer asked what would happen if members of the public did not want to sit. As a minimum, she felt that members of the public should not be in the majority.

Mr Swart and Ms Smuts quipped that they were suggesting a jury system.

The Chairperson confirmed that the Council “must” appoint a layperson, and at least one be appointed. If that was required, then “as far as practicable” must be used.

Mr Swart said that 200 out of 8 000 complaints was a small number. This was not insurmountable; assessors could be found for criminal cases.

The Chairperson asked where the committee would sit. The person making the complaint should be allowed to attend.

Mr Swart thought that it was similar to a witness fee being paid in criminal cases.

Ms Smuts thought that (i) covered this; referring to ease of access necessary for finalisation.

Mr Daya wondered if there might be a need for a mandatory course on ethics or rules before a member of the lay public should participate.

Members thought it was not possible to do this.

Mr Daya made the point that there was jury training; he thought that a basic knowledge of the Bill might be necessary.

Ms Smuts questioned what happened with assessors.

Mr Swart said that they were usually lawyers, although this was not always the case.

Mr Bassett thought that the regulations could set out criteria, which he thought applied to lay assessors in certain criminal matters. Committees sat, with the Chief Magistrate presiding, to draw assessors in from the community, although he was speaking under correction.

Ms Smuts said that the Judicial Service Commission Amendment Act had also referred to a list, and a list was pre-compiled. This depended on how strongly the Committee thought of including a non-practitioner, and it would then be necessary to decide who was to make that list.

Mr Bassett suggested that perhaps the provision could incorporate that idea.

Mr Bassett moved on to note that sub-clauses (5) to (8) had been removed, and moved to clause 42, as suggested by Mr Jeffery.

Clause 38: Procedure for dealing with complaints of misconduct and procedure to be followed in disciplinary hearing
Mr Bassett noted that the wording “procedure to be followed by disciplinary bodies established in terms of section 37”was included. Subclause (2) referred to the Council amending rules, following a suggestion by the Committee that any amendment must also be published.

Subclause (3) was new, and related to strong feelings on transparency. The drafters had included some matters but requested further guidance. The particulars, including the allegations, the members of the committee, the parties involved (which he questioned), the outcome and sanction should be published on the website of the Council, to give effect to transparency. Subclauses (4) and (5) were in similar vein. The proceedings of all disciplinary hearings would be open to the public, unless directed otherwise. There was alternative wording, saying that the Chairperson may, on good cause shown by the public, state that the hearing should be open.

The Chairperson asked if the Committee had asked for that option.

Ms Smuts thought that the default was to have them open always.

Mr Bassett, and other Members, confirmed that both options were requested.

Mr Swart asked for the difference between a deliberative and casting vote.

Mr Daya explained that the deliberative vote was that as a member of the Committee, whereas the casting vote was in addition.

Mr Swart said that the ideal was to have an uneven number of members.

Mr Bassett and the Chairperson said that people may be absent, so it was desirable to include this procedure.

Ms Schäfer said that perhaps the member of the public should not be the chairperson, unless trained in legal procedures, particularly if the chair had a casting vote.

The Chairperson said that the Minister would not choose the chair, but the Council would.

Ms Smuts said that she would not be opposed to having that.

Adv L Adams (COPE) proposed that if members of the public were involved, some kind of abbreviation (such as “Ms X”) could be used if a person did not want their details to be made public. An ordinary member of the public laying the complaint may not want his details to be out in the public; a child might be involved, and in these instances, the note about the parties involved could be questioned.

Mr Bassett said that he wanted guidance on this.

Mr Swart agreed that the complainant’s name had no relevance. The purpose of the publication was to name and shame and he did not think the complainant’s name should be publicised. He thought that this would mean too much being on the website.

Members made the point that because openness and transparency were needed, there was no reason to ban the media, for instance, from naming the parties. If a child was involved there could be a case made out.

Ms Smuts said that whilst she had sympathy for Ms Adams’ point, and noted that the media would publish. She thought that the majority of complainants would not object to this, and that meant that only the cases of special circumstances would not be made public.

Mr J Sibanyoni (ANC) said that the media would know that minors’ names would not be published.

Ms Smuts questioned if details were published in divorce matters.

Members agreed that these would be published on the website.

Mr Swart said that he was presently dealing with a complaint of sexual impropriety against the legal practitioner, and the complainant was under huge pressure to withdraw her action from the High Court. She would not be averse to having her details published, but there was some sensitivity and this would have to be borne in mind. In a criminal matter, however, the details would be published and there would be a credibility finding. The idea of sensitivity did not detract from the argument that details should be published. However, as correctly said, there was provision for an in camera hearing, but that could be reflected also in the initial statements. The details could not be published on the website, if the practitioner was found guilty.

Ms Smuts and the Chairperson said that the outcome could still be published.

Mr Swart said that the reason for having in camera proceedings was sensitivity, and he thought that “subject to” should be added in.

Ms Schäfer said that allegations like sexual misconduct could also be abused, and allegations could be made at will. She thought that application for an in camera hearing would have to be made.

Ms Smuts thought that “unless a complainant requests an in camera hearing” could be added in to (3)(c) or (4).

Mr Bassett said that he would draft this.

Ms Christine Silkstone, Content Advisor, noted that clause 38(4) referred to “members of the public” and she wondered if complainants were to be included in this, or should be specifically named.

Mr Swart said that the complainant was an integral part of the process. The member sitting on the committee was separate. The complainant would always have to be there; but may not be called as a witness.

Mr Sibanyoni reiterated this point.

Members agreed that “provided that the complainant shall at all times be permitted to be present” could be included. There was no harm in putting this in.

Ms Smuts and other Members agreed that the main (4) would be accepted; that as a default the proceedings would be open to the public, unless otherwise directed.

Clause 39: Disciplinary hearings
Mr Bassett noted that the amendment in 6(a) was as a result of the comments of the LSSA, who suggested that “legal practitioner” should be inserted in place of “another person”.

Mr Swart said that perhaps “another person or legal practitioner” should be used, to leave this to the person charged.

Mr Bassett said that no other amendments were provided to that clause.

Adv Adams referred to clause 39(3)(a)(ii), asking what would happen if the person did not want to attend.

The Chairperson said that this was covered under (7) and (8).

Clause 40:
Mr Bassett said that the point was raised whether the heading should not refer to “sanctions” rather than to “remedial action”.

There was now also inclusion of a reference to aggravation of sentence, in subclause (3). The question had also be raised whether (3)(a) was not interfering with the court’s jurisdiction, and so the phrase had been added that where compensation was awarded, this must be subject to confirmation by an order of any court having jurisdiction, in the prescribed manner. The same was included under (3)(b).

Under clause 40(3)(b)(iv) High Court was defined and so it was unnecessary to include the words “having jurisdiction”.

The next amendment was to (7), which noted, under a new subclause (b), the disciplinary committee, when finding the practitioner not guilty must inform the complainant of the right of the appeal. If there was a finding of guilty the sanction must be published in the Gazette, or the Council’s website. The question arose whether the reference to the Gazette (an expensive option) should remain – this would not be so many pages as the Roll of Legal Practitioners. The website was likely to be consulted more than the Gazette.

Mr Swart said that it was necessary to limit costs, and he would prefer not to have printing in the Gazette.

His query was the confirmation of the order for compensation, and the difference in wording between subclauses (3) and (6). In (3), there would be an order for compensation, and the application to court would be for the confirmation of the legality of the award. Subclause (6) seemed to refer to the failure to pay. He said that essentially the disciplinary committee was awarding damages, and must apply to court to confirm whether that was correct. Under (6), he questioned if this would also cover (3)(a)(i). He questioned if the current wording would cover the objection by the GCB that the disciplinary hearing did not have the capacity to confirm damages. He asked if the disciplinary committee would have a hearing on quantum, then apply to court. He thought that “on the application of the disciplinary committee” needed to be inserted.

Mr Bassett said that it would be the disciplinary committee or Council and that was why “in the prescribed manner” was inserted, contemplating that there would have to be regulations. If the Committee felt there was a need to be more specific, it could be inserted.

Mr Swart thought that the sub-clauses should correlate with each other: it made little sense to set out the subclause (3) provisions in regulations, yet (6) in the Bill. However, he later commented that “the amount” could be a fine, as well as damages. (6) seemed to be similar to provisions around failure to pay a criminal fine. He thought that automatic civil judgment would have to apply under (3)(a)(i), and said that the order of court would have the same effect as a civil judgment.

Having talked that through, he thought that the phrasing may be sufficient, but asked the drafters to check whether changes were needed on the wording. He wondered if this was similar to the Criminal Procedure Act (and the Trafficking legislation).

Mr Bassett commented that subclause (3)(a)(i) required damages to be confirmed by the Court. In respect of (6) the order would already have been made and would have the effect of a civil judgment.

Mr Swart said that normally only the non-collection of the fine would apply. However, now there was addition of damages. Sub-clause (6) would have to apply to both the fine and to (3)(a)(i), although it was not strictly speaking necessary; the effect of a civil judgment would have been confirmed.

Ms Schäfer said that (6) should specify that it applied to the fine only, not compensation. Perhaps more thought needed to be giving to expressing, under (3)(a)(i) that this would be executed as if it were a judgment of the court.

Mr Sibanyoni said that (6) was surely intended to confirm that if the debt was collected, it should be done under the rules of court. This was similar to executing Small Claims Court orders, via the Magistrate’s Court.

Mr Swart said that, having read (6) more carefully, what was set out in subclauses (3)(a)(i) to (vii) were all sanctions.

Mr Daya asked for clarity on the thinking of the Committee in regard to compensation. This was not what currently happened.

Ms Schäfer said that she thought this came from the Department, but the Committee agreed that something more was needed.

Ms Schäfer said that it contemplated the possibility where an attorney’s conduct caused damage to the client. She was not sure that there may be many cases where it would not be covered by insurance, but there was a need to be careful on how the quantum was settled.

Ms Wilna Louw, State Law Adviser, Department of Justice and Constitutional Development, asked whether (3)(a)(i) should not specify that the court should consider and decide on quantum. A decision was not the same as confirmation.

Ms Smuts said that a disciplinary committee could not attend to a civil judgment.

Ms Schäfer said that it would be different if the parties were to agree. If so, then perhaps this could be excluded. She thought that a disciplinary committee could recommend quantum.

Ms Louw said that many of the disciplinary hearings related to excessive fees and a disciplinary committee could determine quantum when a fee determination was signed. However, a quantum that was punitive might need external reports and that was difficult.

Mr Swart asked what the Trafficking Bill said, and received confirmation that this was along the lines of the Criminal Procedure Act and applied to evidence in the course of the trial.

The Chairperson asked how long this was likely to take.

Mr Daya said that when application was made to court, the audi alteram partem rule would apply; the practitioner would be entitled to oppose it, and go to appeal, and there could be delays.

Ms Schäfer wondered whether this should be included at all. It should perhaps rather be left to a civil action. It would be better to leave damages claims to the courts; any panel making a recommendation to the Court on quantum would have to explain the basis of the conclusion. If it was pure financial loss, it was easier, but alleging trauma and psychological damages would be far longer.

Ms Smuts said that the difficulty was that the complainant would have to go on to court to get the civil claim.

Mr Swart said that in his constituency work, a complainant laid a criminal action, which was withdrawn, but she had instituted an action in the High Court for damages, but had no finances to continue. The Council should then approach the High Court under this clause. However, when it came to more contentious claims, there were lawyers sitting on the committee who would deal with this.

Ms Schäfer asked what would happen if the Court did not agree.

Mr Swart said that they would refer it back to the Committee.

Ms Schäfer said that this would be a very lengthy process.

Mr Daya thought that the intention was not to saddle the complainant with litigation costs for confirmation of the recommendation of the disciplinary committee. This also suggested that the complainant could not go to court if those costs were not covered. He said that there were practical challenges; if the intention was that the complainant not be saddled with costs,

Ms Schäfer said that perhaps a distinction be made between financial loss and other loss.

Mr Bassett said that section 300 of the Criminal Procedure Act referred to this specifically.

Mr Bassett suggested that clause 38 and 40(7) and (8) were contradictory. Irrespective of the finding, this should be published.

Ms Schäfer thought that the Gazette had been rejected now; this had been done in respect of the Roll already.

Ms Smuts said that it was not thought necessary to publish the Roll, but this was far fewer and she would think it would do no harm to gazette this.

Ms Schäfer thought that the purpose was relevant. People did read the website but did not read the Gazette.

Adv Adams suggested that in that case, Facebook would be relevant.

The Chairperson said that instructions were needed for Mr Bassett.

Mr Bassett said that the cost was one of the considerations.

Ms Smuts still felt that the Gazette was a matter of public record.

The Committee agreed to flag this for a final decision.

Mr Bassett said that there was a query on clause 39(8), and the footnote said that this might be unnecessary if clause 40(8) was accepted.

The Chairperson confirmed that clause 40(9) could be deleted.

In respect of the option to refer to “sanctions” rather than to “remedial actions”, the Committee confirmed that it preferred “sanctions”. Mr Bassett confirmed that (4)(b) referred to “sanctions”.

Mr Swart said that he agreed with Ms Smuts, that there was not really a “remedial action” being taken. The disciplinary process might decide to impose a condition and that would be covered by (4).

Clause 41: Review by legal services ombud
Mr Bassett said that there had been a suggestion that this be reviewed. This provision had allowed the Ombud to review a complaint by the complainant, not the legal practitioner, and look at the manner, or the outcome. There was allowance to condone late filing, and the procedure and powers were set out, including substituting its own findings, or confirming the findings, or setting aside findings. If the review powers were to stay, they should perhaps be moved to Chapter 5. The complainant should rather be able to go the AT, as the legal practitioner could have done in terms of the Bill as introduced.

Mr Swart asked if it was implied that members of the AT should not be members of the disciplinary panel.

Mr Bassett said that clause 42 dealt with the AT and that would be covered there. He agreed that it would need to be inserted.

Mr Swart was trying to think about structure and time; the first step was the investigation, then the disciplinary hearing, then the appeal, then the review by the Ombud. Any of those steps could be taken on review to the High Court, provided that internal mechanisms were taken. An attorney could drag this out for years. He wondered if the Ombud review process was needed.

Ms Smuts thought it was a good clause.

Mr Swart was not opposed to it as it was a good process. There was provision for urgency, if trust money was involved. However, this was an internal mechanism of review in addition to the external review process to a High Court.

MS Smuts thought the Ombud helped the complainant.

Mr Swart said that the appeal also did.

Mr Bassett said that Mr Jeffery, when he was a Member of the Committee, had suggested that the process must stop and that the Ombud should not have these powers.

Ms Smuts thought it was a good and powerful provision for the lay-person.

Mr Bassett said that the financial implications for the Ombud to have decision making, review and appeal powers would require a lot of resources.

Ms Smuts maintained that something like this was needed.

Mr Swart thought that adding another internal mechanism for a review had huge cost implications. He thought that perhaps more should be done to strengthen the internal appeal mechanisms. This would relieve the Ombud of a lot of unnecessary work and costs.

Ms Smuts suggested that more details were needed on such an appeal process, and urged Members not to close the door for the moment.

Mr Bassett said that one of the options was to ensure that transparency was up to scratch, but there may be other ways to do this as well, to strengthen the appeal structure and make it more complainant-friendly.

Ms Schäfer thought that the appeal provisions must also make allowance for having at least one member of the public.

Clause 42: Appeal
Mr Bassett said that there were queries on the heading: this clause dealt with the appeal structure.

Subject to section 44, a legal practitioner may lodge an appeal as determined in the rules, and within 30 days. The words “subject to section 44” were inserted to cater for urgent matters.

Clause 44(1)(a) dealt with an appeal by the legal practitioner, and (1)(b) with the complainant. A complainant aggrieved by the conduct of an investigation, or the outcome, or the outcome of the disciplinary hearing, may appeal. The AT composition was set out in (2)(a) – and he noted the suggestion of including a lay person. The decision making provisions were set out in sub-paragraphs (c) and (d).

The AT powers were set out in the new subclause (3) and the renumbered subclause (4) said that decisions could not be enforced until any appeals had been dealt with.

Mr Bassett agreed that any person who had been part of the previous panel should not serve on the AT.

The Chairperson agreed that it was wise to ensure that this was specifically stated.

Ms Smuts requested who would help a dissatisfied complainant to take matters on appeal.

Mr Bassett said that there was no appeal process in terms of the Attorneys Act and people tended not to go to court because they could not afford it. The new measures now in the Bill were an attempt to assist the complainant.

Mr Daya asked if Members intended that the reference to open to the public included open to the media, even for television airing.

Mr Swart said that a disciplinary process was an internal process, such as the Jockey Club cases, and they were similar to labour hearings, where shop stewards, but not lawyers, were allowed to assist. He noted that any member of the public would be able to sit in on criminal cases and make notes, but the media were not allowed to broadcast without permission. He worried if, perhaps, in highly publicised cases, there should be application made to broadcast live.

Ms Schäfer felt that they could report in newspapers, unless in camera. In the Breytenbach matter, application had to be made to televise it in court. Disciplinary processes had been private up to now, but the Committee had taken an in-principle decision to have open processes. Open processes included being open to the media, and that should be the default provision, unless application was made. She thought that if reporters wanted to bring in cameras, they had to apply for permission to do so.

Mr Bassett said that there had been regulations made on broadcasting in the Magistrate’s Court. Now the reporter would have to apply to court for permission to broadcast, in advance.

The Chairperson expressed his surprise that the court allowed accused to appear in court with their faces covered.

Mr Bassett noted that the content dealt with the finding, and perhaps, in the heading, the word “decision” should be replaced with “finding”. He noted that the Committee had preferred the use of “finding” (of misconduct) in clause 12, and it would be consistent to repeat it here. The proposal was to use the words “conduct or finding” because the complainant could appeal against the manner or the outcome of the disciplinary committee.

Ms Schäfer thought that “or sanction” should be included.

Members agreed.

Mr Bassett explained that the term “investigating committee” was still noted in square brackets, pending the Committee discussing this.

Ms Schäfer thought that the Committee had not yet clarified this. She wondered if a decision not to prosecute would be appealed to the Ombud, that there should not necessarily be automatic review and whether that would be appealed here.

Mr Bassett suggested that the Committee revert to this later.

Clause 43
There were no suggestions, but this may depend on the outcome of the Committee’s decision on the Ombud, as noted in the footnote.

Clause 44: Urgent Legal Proceedings
A technical amendment was noted in the clause because the High Court had been clarified already in the definitions.

The same applied to clause 45

Clause 46: Legal Services Ombud
Mr Bassett noted that an option was included to allow the Ombud more decision-making powers.

The technical correction was whether the Ombud “may” or “must” determine the seat. He suggested, and the Committee agreed upon the word “must”.

Clause 47: Objects of the Ombud
Mr Bassett said that there were no proposals on clause 47, but this might change depending the Committee’s deliberations on what the Ombud should do.

Clause 48: Appointment and independence of the Ombud
The drafters had been asked to prepare an option where the NA might play a role in the appointment. As introduced, there were no proposals. However, the option was read out (see page 57 of attached document). The wording followed that of the ICASA legislation. Mr Bassett had looked at the joint rules of Parliament and he thought that this was a possibility. The question was whether “Parliament” or the “National Assembly” would have to be involved. He thought that because this was a section 76 Bill, the first option may be necessary.

Ms Smuts thought that the ad hoc committee would send no more than five names, and that the President would select one. She asked why the ad hoc committee should not make the choice. Everything revolved around the degree of independence. The Public Protector was appointed by a 60% decision of the National Assembly. The Ombud had to be independent, certainly, of the Legal Practice Council, rather than specifically of the Executive. However, she wondered still what the purpose was of giving the President a discretion. If the legal profession must be independent because of its relationship with the courts and judges, then the Ombud for an independent profession must also be independent, and this had nothing to do with executive powers. She believed that the ad hoc committee had to send up the name chosen. She noted that a reference to a judge discharged had been inserted here. She said that a retired judge was, by definition, normally completely independent, and asked who would normally appoint that person.

The Chairperson suggested that maybe the President, in consultation with the Chief Justice, could be appointed.

Ms Smuts agreed that this would work well. She agreed that the other two options be noted, and the third option of the President appointing a retired judge, should be appointed.

Ms Schäfer asked what would happen if the President failed to do that. She said perhaps a deeming provision was needed.

The Chairperson asked if Parliament could appoint a retired judge. He noted that no decision had been taken yet, on having a retired judge.

Ms Smuts cited an example where a committee of Parliament did sit in selection of a retired judge, for the Equality Committee under the Equality Act, when a retired judge had made himself available and submitted himself for interview. However, that was quite an unusual committee.

Ms Schäfer said that the problem may be where the deeming provision came in, and how it could be worded to enforce the President’s obligation if that person failed to act. She asked if the Chief Justice could appoint on his own.

The Chairperson was not sure that this would be appropriate.

Mr Bassett suggested that perhaps this could be handled by a third option, as discussed now.

The Chairperson asked that the possibility of the President failing to appoint be included, to avoid a protracted wait.

The Chairperson recalled that the Committee had dealt with other legislation where similar questions had arisen on failure to sign legislation into effect, and suggested that similar wording could be used.

Mr Bassett would check on this; he thought it may have applied to the Child Justice Act.

Ms Schäfer said that time periods could be provided in the Bill for the President to raise objections, or to appoint, with a deeming provision.

Mr Bassett suggested that this would be affected by the final powers and functions, and the removal from office provisions would also depend on that.

Ms Schäfer agreed that it was vital, in principle, that the independence be retained, and this office should be treated equally as strictly as Chapter 9 appointments.

Clause 49: Powers and functions of the Ombud
Mr Bassett noted that he had, since preparing the draft of 24 July, prepared a further document on clause 49, reflecting an option in which the Ombud played more of a watchdog role and had recommendatory powers and this was intended to give effect to that.

Clause 49 now contained an alternative to subclause (1), setting out the powers of the Ombud and the drafters had started by looking at the powers and functions of the Public Protector and South African Human Rights Commission (SAHRC), trying to limit them to more of a watchdog-type body.

The Ombud would be entitled to investigate any alleged maladministration in application or implementation, abuse or unjustifiable exercise of power, act or omission resulting in prejudice to any person which affected the integrity and independence of the profession. The Ombud may endeavour to resolve these by mediation, condition or negotiation, or advising any person on appropriate remedies, or any other means. The Ombud may, if s/he believed that the facts disclosed an offence, bring this to the prosecuting authorities, or to another appropriate body to make appropriate recommendations (which was a typical watchdog power), or do anything necessary to enable proceedings to the court for relief, or assist the complainant in getting to an appropriate forum (similar to the SAHRC Act).

He summarised that the drafters had tried to limit this to the kind of procedures already set out in other legislation and enforcement would be by the relevant power or authority.

There were no other suggestions on subclauses (2) to (6).

However, subclause (7) again borrowed from other legislative examples and noted that the Ombud may, in a manner deemed fit, make the finding know to any person or body, and have that publicised, unless it must be kept confidential. That was in addition to clause 53, where the reporting duties (on the Annual Report) were also set out.

He reiterated that these were watchdog-type powers. He asked if the Committee wanted to hear the research into legal Ombuds elsewhere.

Ms Smuts expressed her appreciation, thought it was very well –done and the “helping hand” to consumers was perfectly set out in (1)(c)(iii).

Mr Daya said that clause 47 set out the objects of the Ombud. The Bill did not define legal services. He asked if the Ombud could be approached on legal services rendered by paralegals or state bodies.

Ms Schäfer thought that the Committee should then look at whether the Bill should define “legal services” She was concerned that paralegals would purport to offer legal services, yet would not be regulated by the Act.

Mr Daya thought that another way was to restrict the Office of Legal Ombud to legal practitioners, and then the definition of “legal services” may need to be considered.

Ms Schäfer was concerned that this might exclude people such as paralegals. They were giving legal advice, holding themselves out as knowing what they were to deal with. It may be that they would escape the net.

Ms Louw said that previous versions of the Bill did have a definition of “legal services”. Other than notarial, conveyancing and court work, it was difficult because it would be undesirable to stop legal advice centres from doing some work. Perhaps clause 47 could be tweaked, by referring to “legal services by legal practitioners” or refer to “the legal profession”.

Mr Bassett, playing devil’s advocate, wondered if it would not be advisable to let the Ombud to go wider in pursuing the role of investigating the whole sector, and perhaps advising on any trends. However, the Bill was intended for legal practitioners.

Ms Smuts said that matters would begin to modernise and liberalise. The whole field in England and Wales would become unrecognisable. This Bill was quite mild, and things would change incrementally. Once that happened, there would be substantial change. There was merit in that the Ombud could begin to look into trends to suggest what other steps might follow. Perhaps it needed to be kept tighter, with this being regarded as the first and modest changes. It would be neater to say that the Ombud could only look at the legal profession and it could be amended as things moved on.

Ms Schäfer agreed, but did not see how to bring people in under the Ombud, who was really there to oversee the Regulator.

Research done into other jurisdictions
Ms Louw said that in South Africa the Financial and Advisory Intermediate Services Act set up an Ombud to dispose and consider complaints by clients against financial service providers, by reference to what was equitable in all circumstances.

The Tax Ombud was set up under the Tax Administration Act, in regard to service matters, or procedure or administrative matters.

The Military Ombud was to ensure expedition and resolution of complaints. The Banks Ombud was not statutory, and the service was free, and its members were bound.

In Scotland, the Ombud investigated complaints about the way a professional organisation dealt with a complaint about a solicitor’s or advocate’s conduct. It could not act as an appeal and investigate the complaint nor overturn or alter the decision.

In Canada, there was something similar to an Ombud, which was also basically a referral body, where a complaint was closed and the complainant was unsatisfied with results. The Commission would review the file to ensure that the results were reasonable. It could not investigate fees into complaints, and she confirmed that she would have to revert to the Committee on some aspects. It could provide alternative dispute resolution.

Ms Schäfer asked if this body would do the alternative dispute resolution and change the recommendation.

Ms Louw confirmed that it could.

Ms Smuts said that Scotland did not go into the substance of the complaint.

Ms Louw read out that it would merely whether the professional organisation had given it proper attention, had given it proper attention and appropriate action. It could not alter or overturn the decision.

England and Wales had a procedure where the complainant would have to give the lawyer eight weeks to respond, and then approach the Legal Ombud, who would go through another process, making binding determinations, including apologies, compensation of a specified amount.

Ms Schäfer asked if there were pre-determined amounts for certain offences or if they could determine that.

Ms Smuts suggested that there may be more in the Parliamentary Researchers’ document.

Clause 50L Remuneration and other terms of conditions of employment of the Ombud
Mr Bassett said that the Ombud would hold office for the period of time determined. The Committee had suggested a specific period, and the Department had suggested the same as the Public Protector (one period of seven years) but that could, as an option, be extended for another term of seven years.

The Chairperson questioned subclause (2). The salary of the Ombud was pegged at the salary of a High Court judge, but as this was worded, it could be more. It had been the intention of Parliament to have other individuals pegged at a High Court Judge salary, but it had turned out that this had been raised to the salary of an Appeal Court judge.

Ms Smuts said that recently, there had been problems about a candidate insisting on certain conditions at the South African Judicial Education Institute. She asked if Parliament would be able to offer more, if the appointee wanted.

Mr Bassett said that if the appointee was a judge, then this would have to be reconsidered. The Judges Remuneration and Conditions of Employment Act said that a judge discharged from active service, if asked to do other work, could receive remuneration over and above the provision for a salary for life, but permission had to be sought (he could not remember from whom precisely).

Ms Smuts felt that extra had to be paid, in order not to lose out on suitable candidates.

The Chairperson asked if the Committee really wanted a retired judge to earn more.

Ms Smuts said that the issue was really whether, over and above salary for life, the person would be paid more. If a retired High Court judge was appointed, she did not think it was necessarily double.

Ms Schäfer agreed that she had forgotten about the circumstances, but there had been an embarrassing situation in the past where a potential appointee had been lost. If other judges were not being called upon for that extent of service, she saw merit in allowing it, for a huge job for seven years.

Mr Bassett said that there had not been comments on this clause in the first round. He wondered if the benchmarking provision was something that the Committee wanted to consider. If the functionary was not to be a retired judge, the Committee would need to consider whether there was a need for this provision, or whether it should be determined by he President, or in consultation with the Minister of Finance, or something else.

Ms Schäfer thought this might be worthwhile. It was possible to get a retired person, getting a full pension, from another profession. The judge would have to get permission to take on this work – although it was unlikely that permission would not be granted if they were not in full-time service.

Mr Swart asked what the situation was with the Inspecting Judge of Correctional Services, as well as the judge appointed under the Regulation and Interception of Communications legislation (RICA). He thought they were not paid more. Retired judges sitting on mediations and arbitrations were paid for that. This was almost setting a benchmark, but he wondered if this amounted to a second salary.

Ms Schäfer said this was acceptable in principle – a person should not do extra work for seven years. She wondered if this should not fall under the Independent Remuneration Commission for the Chapter 9 institutions.

The Chairperson said that (1) said that the President would determine, but if the remuneration was then set out, that was contradictory.

Mr Bassett said that the words “subject to (2) and (3) were included, so some discretion might be contemplated.

The Chairperson confirmed that a retired judge could have a salary for life and then more.

Ms Schäfer thought more options were needed.

Mr Bassett noted, having looked further into the Judges Remuneration and Conditions of Employment Act, that there was a definition of “service as a judge”, which included service as a chairperson or member of a commission, or of a body or institution established under any law (which would cover this Bill). Later, there was a provision dealing with

Mr Daya suggested that the figure could be pegged simply as “the salary of a High Court judge”.

Mr Sibanyoni asked if the Bill made provision that a person other than a retired judge could be appointed.

Mr Daya confirmed that this could happen.

Mr Sibanyoni pointed out that he had been concerned that the Ombud may only be appointed at age 70, and a fourteen-year appointment after that may cause problems.

Ms Smuts noted that a younger retired judge – such as those retired from the Constitutional Court could be included.

Ms Schäfer said that she did not feel that judges should be prejudiced, as against those who were not judges.

The Chairperson asked if clause 50 would fall away.

Ms Smuts said that this – and other points – would depend on what the Committee decided on powers and functions.

The Chairperson said that he did not think there was a problem. He heard what Mr Daya said, and said that then the Committee should make reference to a salary the same as a High Court judge salary.

Ms Schäfer said other benefits might be of concern. She asked the drafters to check whether there was a limitation on what could be paid to judges.

Ms Louw said that (1) provided for allowances and other terms and conditions of service and benefits.

The Chairperson asked if “remuneration” should then come out of that subclause.

Mr Bassett said this was not necessary, as it still gave the President a range to work within.

Ms Schäfer asked that what was included in “remuneration” should be checked.

Mr Swart said that there was specific reference to section 2(1) of the Judges Remuneration legislation, and “as amended” would mean that increases would be taken into account. He asked the drafters to check whether section 2(1)(a) in that Act referred to salary and benefits.

Mr Bassett said that it did refer to salary and add-on benefits.

Mr Swart said that this was not unreasonable.

Mr Bassett said that the President was the determinator of whether a judge would do additional service after discharge from active service.

Ms Smuts said that this was probably with the concurrence of the Minister of Finance.

Clause 51: Removal from office
The Chairperson asked who decided on the removal and for what grounds.

Mr Swart said that security of tenure was very important and more would need to be added in.

Mr Bassett agreed. He pointed out that under section 51(3), the President may appoint an acting Ombud. The President had to determine the remuneration, in consultation with the President and Minister of Finance.

Ms Schäfer and Ms Smuts indicated their discomfort with the current provisions.

The Chairperson asked what would happen in the case of illness or accident, and Ms Smuts conceded that this would need to be taken into account.

Clause 52: Staff, Finances and Accountability of Office of Legal Services Ombud
Mr Bassett noted that he had looked at the provisions of the South African Judicial Education Institute (SAJEI) Act were taken into account. He read out the provisions of subclause (2).

Ms Schäfer asked why five years was considered here, and seven for the Ombud.

Ms Smuts said that desirability of continuity had been debated, and it was useful to have overlaps to provide for continuity.

Mr Bassett said that the Legal Aid Amendment Bill provided for appointment of a CEO for five years, so that although it was arbitrary it had been benchmarked and based on other drafting.

Ms Smuts asked why a circumscribed term was needed for the Director, who was an administrator, not an office bearer.

Mr Bassett responded that usually it was only Parliamentarians and those holding high office who would circulate.

Ms Louw said that CEOs usually did have fixed terms.

Ms Schäfer added that in municipalities there were usually fixed terms.

The Chairperson asked if the term of office of the CEO of the Public Protector was prescribed.

Mr Bassett was not sure if this appointment was mentioned in the Public Protector Act.

Ms Silkstone offered to check on that.

Mr Bassett noted that the Committee had asked for “the staff establishment structure” to be included.

The Chairperson asked if the staff would fall within the Public Service.

Mr Bassett confirmed that they would not be public servants. That was why the remuneration had to be determined by the Minister, in conjunction with the Minister of Finance.

The Chairperson asked about staff complaints and presumed that this would be dealt with as they arose.

Ms Smuts noted that basic rules must be followed, including public servants running independent institutions. There were some problems of some ministries attacking independence of institutions.

The Chairperson noted that the Director General of Justice would be the accounting officer.

Ms Silkstone raised a point about secondment of staff.

Ms Smuts said that that had been an old provision relating to start up institutions. There was no argument for transferring staff to independent bodies.

Clause 53: Annual Report
Mr Bassett noted again that the Ombud would have to submit an annual report to the Minister, which the latter must table in Parliament.

Ms Schäfer asked why that report did not come directly to Parliament.

The Chairperson said that at the moment the body tabling the report had to make the necessary copies before the tabling was allowed.

Mr Bassett confirmed, at the request of Ms Schäfer, that the Public Protector did not table directly.

The Chairperson said that this was because the Office of the Public Protector would have to determine how the reports were publicised, in terms of that Act.

Ms Schäfer suggested an option of “prepare and submit to the Minister, who shall immediately table..”.

Adv Adams asked what costs were contemplated.

The Chairperson noted that it would be the cost of making copies for at least the number of MPs, plus the media, and these were often glossy reports, so it could be costly. He was not unhappy with saying that the report must be tabled directly, as long as the implications were understood. The next step was perhaps to put it on Parliament’s website, and for Parliament to tell Members how to access it.

Ms Schäfer indicated that she would support that. She suggested that perhaps this should be included in the review of the Parliamentary Rules.

Mr Bassett said that he was asking the question because the Debt Collectors Council was asking for provision for electronic tabling, and he was not sure whether it would be covered.

The Chairperson said that perhaps the drafters should liaise with the Parliamentary Legal Office. Electronic tabling would certainly solve the problem. Perhaps Mr Bassett could look at the Joint Rules, and see if there was a definition of “tabling”. 

Ms Smuts also said that the Government Gazette existed electronically, so “gazetting” could include electronic gazetting.

Shortlisting of candidates for the South African Human Rights Commission
Mr Sibanyoni noted the ANC’s concession to have more than five candidates and reiterated that his party now wished to put forward six names: relating to the CVs listed as HRC 51, HRC 10, HRC 18, HRC 28, HRC 40 and HRC 66.

Ms Smuts said that there seemed to be merit in looking at candidates who were supported by multiple parties. Three political parties had suggested the same members, but she also felt that HRC 17 needed to be included. HRC 51 would be supported. HRC 10 had predominantly nursing qualifications, and she did not think that this was a suitable candidate. In respect of HRC 40, she had not been persuaded by the referees that this was a suitable person, but held no strong views on the other candidate.

Mr S Swart (ACDP) agreed with a number of proposals made by the DA and ANC. He would support HRC 40, HRC 18, HRC 17 and there was broad agreement on HRC 66. He was prepared to forego some of his earlier indications, to get broader consensus.

Ms Schäfer tended to agree that HRC 10 did not appear to have relevant experience, but was happy with the other suggestions, and the inclusion of HRC 17.

Adv Adams said that COPE agreed with HRC 17, HRC 28, and HRC 51, of which two were also supported by all parties.

Ms Smuts said that the simple way out would be to interview all seven, or to debate the merits of perhaps candidates 17 and 10.

Mr Sibanyoni said he was prepared to make the concession that HRC 10 should be replaced by HRC 17.

The shortlist was then narrowed down to broad agreement to interview the following candidates:
Adv Kutsoane (HRC 51)
Dr W Gumede (HRC 17)
Adv MS Ameeermia Miya (HRC 18)
Prof V Jaichand (HRC 28)
Prof M Ralefatane (HRC 40)
Ms NP Thejane (HRC 66)

The Chairperson pointed out that this was a full-time position. Prof Jaychand held a senior position at Wits and he wondered if he would be willing to be on the Commission.

Ms Schäfer agreed that this should be one of the questions asked during interview.

Ms Smuts confirmed that the advertisement had referred to a full-time post.

Adv Adams noted that HRC 66 contained no acceptance letter.

The Chairperson had assumed that acceptance letters had been received for all.

Adv Adams made the point that one rule should apply to all. There had been concerns raised by her already, and the principles were that only those sending in all the documents would be interviewed. She did not think that it was correct for the Committee Secretary still to be trying to follow up on documentation.

Ms Smuts said that there appeared to be an intention to accept the nomination, even if the wrong documents had been sent by mistake and she wondered if there would not be administrative problems if she were not included.

Ms Schäfer agreed that it was necessary to get clarity when the Committee Secretary had contacted this candidate, and if it was clear in the e-mail what should be sent. She was not sure whether she should be considered if she had sent through the wrong documentation.

The Chairperson noted that the advert had made it clear that an acceptance letter was required.

The point was later followed with Committee Secretary Mr Vhonani Ramaano, who said that this candidate had said that she had sent the acceptance letter a few moments ago. He had had problems in contacting her over the last two weeks, and had stated, last week, that the acceptance of nomination was still needed.

Ms Smuts said that as Mr Ramaano had spoken to her, rather than put this in writing, it was possible that she had misunderstood.

Mr Ramaano said that the letter of acceptance was dated in April.

Mr Swart said that in future, when the Committee received CVs, it must decide whether it would pursue any documents missing. In this case, since a further opportunity had been given, he thought it should be condoned. However, in future, either it should be made very clear that if the application was not complete, it would not be considered, or that if the candidates failed to supply any additional documentation within seven days after request, their application would not be considered.

Ms Smuts agreed that rules must be set and abided by. Here, however, she was not convinced that the administration had been perfect on the Committee’s side; some CVs had been mistakenly stapled to others. That was why she could not discount the fact that the April letter of acceptance had not been received earlier.

Ms Schäfer said that the Magistrates Commission was very strict.

Adv Adams questioned when this explanation would have been given, if she had not raised the issue. The Committee should have followed up on the acceptance letter immediately. She was uncomfortable about having accepted this application in good faith, saying that she had not considered the merits of other applicants who had not completed the requirements. She would not like to see this candidate interviewed.

Mr Sibanyoni said that the fact that this person had been asked to submit the acceptance letter had raised an expectation.

Mr Ramaano said that after the provisional list was suggested in the previous week, he had checked every CV to check that all papers were in order, and he outlined that he had contacted her nominee when he was unable to reach her.

Ms Schäfer asked if the phone was working or not.

Mr Ramaano said that he had not been able to contact her on that day; he was not sure if the phone was operative.

Ms Schäfer said that perhaps she should be asked, during the interview, to explain why she had not sent the acceptance letter through earlier.
The Chairperson said that he tended to share Ms Adams’ discomfort. He noted that there was no quorum to adopt the shortlist, and this would be done when there was a quorum.

Public Protector responses
Ms Schäfer asked if any new dates had been arranged.

Mr Ramaano noted that there was no new date, as yet.

The meeting was adjourned.


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