Legal Practice Bill: Version dated 1 August

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Justice and Correctional Services

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

The Department of Justice and Constitutional Development (the Department) continued to present the latest suggestions and options on the Legal Practice Bill, from the draft dates 24 July, from clauses 102 to the end. The drafters then tabled Draft 2 of the Bill, reflecting the instructions given by the Committee for possible options and changes of wording to date, up to clause 37. The Chairperson emphasised that there was no formal decision on these matters yet, and these were merely options for further deliberation by the Committee.

The provisions relating to the Transitional Council (TC), in clause 102, had been adjusted, and whilst it was not possible to bring the provisions, and provisions around removal of members, in line in all respects with membership and removal on the final Legal Practice Council (the Council) and the Legal Practitioners Fidelity Fund Board (the Board), there was a reference to “misconduct under any Act” (as the Attorneys Act 53 of 1979 would continue to apply whilst the TC was in operation). Similarly, there had been alignment of provisions in clauses 103 to 105. A new “catch-all” subclause (7) had been added to clause 108, dealing with rules and regulations. The transitional provisions for the Fidelity Fund still named a number of “old apartheid structures” but the Department noted that changes had deliberately not been made in some instances, pending rationalisation, and in view of the complexities, but that this Bill would result in aligned structures. The same applied to clause 112, which set out transitional provisions for existing practitioners. Members asked if the rank of “Senior Counsel” could continue, and if there would be something similar for attorneys, and the Department noted that the Bill made provision for the Minister to make regulations on a new process, which would be far more transparent, and which would relate to all practitioners. The Department and Office of the Chief State Law Adviser noted that they were checking the laws to be repealed or amended, which would include some former “homeland” legislation. It was noted, as an aside, that the South African Law Reform Commission was currently busy with a massive project to identify obsolete legislation and provisions that were in conflict with the Constitution.

A Member posed the question if this Bill would enhance civil or criminal procedure, and the view was expressed that it had the potential to do this, although it did not address this directly, by causing greater liaison on curricula, and defining practical training more specifically. 

The Department then proceeded to table the latest draft of 1 August, highlighting changes and new options. New options around community service (although no decision had been taken on this) being built into the curriculum for law students were included in clause 6, and the new options for community service by candidate and practicing practitioners were set out under clause 29. Members debated the composition of the Council again under clause 7, and might reconsider their suggestion to have two academics, leaving it to one nominated by the Law Deans Association. The words “as far as practicable” had been added in, wherever there was reference to trying to ensure certain demographic or gender balances and it was suggested that clauses 7(2) and (3) be collapsed. Similar to the Transitional Council provisions, there was to be clarity now on the wording of a nominee “who may not be a legal practitioner”, in clause 7(1)(f). It was noted that the wording now presented for clause 8 did not yet reflect all the deliberations on the previous day. Members discussed the options for chair and deputy chair, which presently implied that these positions would necessarily be held by the practising professions. Whilst they agreed that this was desirable, they did not want to exclude the possibility of an advocate or the Ministerial representative being chosen. Clause 12 contained provisions around vacation from office, and it was repeated that reference to conviction for any offences had been removed to clause 8. The difficulties around including a reference to “ the opinion of the Council” were debated. The Committee asked for an option that reflected that if a member of the Council was convicted in a court of first instance, s/he should be suspended, without benefits, until the time period for an appeal had lapsed (or the appeal had been concluded), and that the designating body would in the meantime be asked to nominate an alternate. It was also decided to reflect that the Council may decide to remove a Council member who was a practitioner, but must do so for a finding of serious misconduct, and options were included either to make this call against the disciplinary committee’s decision, or when confirmed by the Ombud (as soon as practicably possible). In relation to clause 14, a DA Member urged that there should be option specifically included that this clause be deleted altogether, as it was likely to be struck out, and the ACDP Member said that whilst his party did not support the Minister being able to dissolve the Council, it was prepared to look at limiting the clause to certain elements of ministerial power that may be needed.

Options were included for clause 18 to set up standing committees of the Council, which would answer the requests for “chambers” to deal with matters specific to attorneys and to advocates. The ACDP asked if something similar could be implemented for the regional councils, and the department noted that whilst there could be difficulties with this, since the regional councils would essentially implement, not regulate (if they had delegated powers), there was nothing to stop sub-committees being formed. The wording around the composition of regional councils, in clause 23, would be clarified, and Members had some discussion on how many regional councils there might be.  The position of Exco was clarified under clause 20. Clause 25 was still flagged to debate the appearance of candidate practitioners in the High Court. The new formulation of clause 27(2), requiring the rules to regulate the payment of remuneration, allowances or stipends to all candidate attorneys, including the minimum amount payable, found favour. Under clause 29 there was quite substantial discussion on community service, but the Chairperson cautioned against including too much detail in the Bill, preferring this to be left for the Rules. Clause 34 had been amplified by reference to Justice Centres, and clause 34(11) included more detail on practices to be debated. Clause 34(10) had been moved to the general offences clause. New options were included in respect of clause 35, reflecting, firstly, the determination of fees by the Rules Board, and secondly, requiring the Council to set up an inquiry into various aspects of fees, with a view to legislative and other interventions. Some changes were suggested around the references to the Competition Commission, and written agreements on fees between client and practitioner.
 

Meeting report

Legal Practice Bill: Continuation of presentation by Department of Justice and Constitutional Development, referring to Draft of 24 July: from clause 102
Clause 102: Transitional Council
Mr Bassett, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development,  said that he had had some difficulty in re-formulating the provisions precisely as discussed on the previous day, because this clause related to the Transitional Council (TC), so that “this Act” would not be in operation in its entirety, and would not apply in quite the same way as it would (at a later stage) apply to the final Legal Practice Council (the Council) and Legal Practitioners Fidelity Fund (the Fund). Therefore, instead of referring to a “ finding of misconduct under this Act” the provisions for the TC read “ finding of misconduct under any Act”, which would refer to the Attorneys Act No 53 of 1979 or any other statutory principles.

He similarly noted that the provisions relating to the TC could not refer to the Ombud as that body would not yet be in place, and would need guidance on what options the Committee preferred.

Clause 103
Mr Bassett noted that Clause 103 was aligned to similar provisions elsewhere in the Bill.

Clause 105: Quorum and procedures
Mr Bassett noted, in relation to the quorum and procedure for meetings of the TC, that the only amendment was in clause 105(2), to bring this in line with other provisions elsewhere.

Mr Raj Daya, Acting Deputy Director General, Department of Justice and Constitutional Development, noted that the majority would constitute a quorum, and he wondered if there should be a minimum stated.

The Chairperson questioned why.

Mr S Swart (ACDP) pointed out that this would surely refer not to the majority of those present, but the majority of the Council as constituted. Perhaps this could be made clearer.

Clauses 106 and 107
Mr Bassett said there were no substantial changes on clauses 106 to 107.

Clause 108: Rules and regulations
Mr Bassett said that the only change was the addition of a new subclause (7), as a catch-all phrase.

Clauses 109 and 110: Transitional provisions in relation to Fidelity Fund
The Chairperson commented that it was anachronistic that some of the bodies that were in existence prior to 1994 were still in existence.

Mr Bassett noted that in 1997 there had been a major amendment to the Attorneys Act, when the cover of the current Attorneys Fidelity Fund (AFF) was extended to cover the attorneys in the former homelands, and there was a type of dual control system still in place. The Department had been under huge pressure to try to address this on an urgent basis, particularly because of problems in the former Bophuthatswana. There had always been hesitation to change because of pending rationalization. However, this Bill would finally get rid of all the problems with the dual or old structures. He also noted that in 1996, the justice laws had been rationalised, with the exception of the courts, the legal profession and one other, because of the complexities, and that was why the rationalisation was only taking place now.

The Chairperson recalled that questions had been raised at the time, and the time it was stated that if all the matters were dealt with immediately it would delay the onset of democracy.

Mr Bassett added that there were some difficulties around the status of some of the legislation.

Clause 111: Transitional provisions in relation to qualifications
Mr Daya asked what it was intended that clause 111(1)(b) should refer to, since most of the training courses were certified, as offered by existing institutions. He wondered if it was the intention that this clause apply to the independent bar.

Mr Swart thought that clause 111(a)(ii) would cover everything, including independent advocates and any other alternative forum, as this clause would essentially be read with clause 119.

Clause 112: Transitional provisions: Existing practitioners
Mr Bassett said that there were problems with the roll of advocates and it had been suggested that this clause should be corrected to read “admitted,… and authorised to be enrolled..”. It was necessary still to refer to the former homeland legislation, because some of it was still in operation.

Clauses 113 to 117
Mr Bassett said that there was nothing specific changed in these clauses.

Mr Swart asked, in relation to clause 113, if there was provision for the conferral of Senior Counsel (SC) or Senior Attorney (SA) status. He thought that existing rankings would be retained, but there would not be provision for this to happen in the future.

Mr Bassett said that the Department had been asked to include something.

Mr Daya said that one of the considerations when assessing work was seniority, and this would be considered across the board for advocates and attorneys.

The Chairperson asked if it was correct that the title of “Senior Counsel “ (SC) would not be conferred in future.

Ms Wilma Louw, State Law Adviser, Department of Justice and Constitutional Development,  said that the conferral of honours such as SC was a constitutional power of the President at the moment. The Bill empowered the Minister to make regulations about the possible conferral of honours and it referred to “the procedure or criteria relating to the ranking of senior practitioners”. The idea was that, if this was to be done, there must be a fair and transparent process. Currently, it was the General Council of the Bar (GCB) who nominated SCs, with applications routed via the Department of Justice and Constitutional Development (the Department) to the President, although the Department played no role other than preparation of the necessary documents. In future, a different process would be followed.

Mr Bassett reminded Members that the Committee said it wanted the issue flagged, but had asked the Department to propose an option, which Ms Louw had just outlined.

Clause 118: Repeal of laws and savings
Mr Bassett noted the addition of the words “and amendment” because some legislation, such as the Deeds Registry Act, would be amended.

Clause 119: Short title and commencement
Mr Bassett noted the different dates.

General questions
Prof L Ndabandaba (ANC) asked if this Bill would enhance civil or criminal procedures.

Mr Bassett thought that it would have an impact. Clause 6 dealt with the Council’s powers and functions. It would have to liaise with law faculties and universities on the curriculum. It was envisaged that there would be more interaction between legal institutions and tertiary institutions. The Bill did not focus on the curriculum for legal education, and so its impact on this aspect would be limited to that extent, However, he thought that practical vocational training after university should improve, and there were provisions in clause 6 that promoted post-graduate education.

Mr Daya referred to clause 6(5), which covered interaction between higher education institutions and the profession.

The Chairperson noted that recently there had been a symposium, which was probably run in light of this Bill. Both the law teachers and deans would be incorporated on the Council and transitional body.

Schedule of laws to be repealed
Ms Louw said that she and Mr Kweta, State Law Adviser, were dealing with the schedule, and in addition to what was set out at the moment, there would be insertion of amendments to the Deeds Registry Act, and a referral to legislation of the former homeland (TBVC) states.

Mr Mongemeli Kweta, State Law Adviser, Office of the Chief State Law Adviser, said that certain legislation related to the former TBVC states had not yet been identified and included – such as some Amendment Acts, but he and Ms Louw were identifying all necessary legislation that needed to be included.

The Chairperson noted that this Committee had mentioned in the past the need to go through the statute book and extract all legislation that did not fit well within the democracy. At the moment, committees tended to “stumble across” it.

Mr Bassett confirmed that the South African Law Reform Commission was busy with the statutory law reform project, which was massive. It was focusing on obsolete legislation, and identifying legislation in conflict with section 9 of the Constitution.

The Chairperson was relieved to hear of this.

Draft 2 of Legal Practice Bill, 1 August 2013, headed “ Discussions of 24 and 25 July”
Mr Bassett tabled a new draft, up to clause 35, which incorporated the changes that the Committee had suggested when going through the draft of 24 July. That document would be referred to as Draft 1 and the document now tabled as Draft 2. He clarified that in this latest draft, proposed insertions were indicated by double underlining, and proposed deletions by strikethrough. The footnotes in this draft differed from the previous draft; all previous ones had been included.

The Chairperson emphasised, for the benefit of the media present and other parties, that there was no formal decision on these matters yet, and these were merely options for further deliberation by the Committee.

Long title
Mr Bassett noted a technical amendment of “Legal Practitioners’  “(position of apostrophe).

Preamble
Mr Bassett outlined the bullet points, in which Ms Smuts’ request and the comment about affordable services had been accommodated. The alternative option dealt with opportunities for entry into the legal profession.

Clause 1: Definitions: read with Footnote 19
Mr Bassett noted that the Committee still wanted to discuss matters around the Charter.

Clause 2: Application of the Act
There were no further changes.

Clause 3: Purpose of the Act
Mr Bassett pointed out an option, including the use of the word “broad” in clause 3(b)(iii). This was reflected again under clause 5(i).

Clause 6: Powers and functions of the Council
Mr Bassett noted the changes to clause 6(1)(d), and footnote 46, which noted that the Committee felt that the retention of this wording was still appropriate.

Clause 6(1)(n) provided for financial support to institutions, but the words “in deserving cases” had been removed. The reference to stipends to pupils had also been removed, as this had been moved to clause 27.

There was also an alternative to clause 6(1), pursuant to the suggestion that the Bill should more clearly distinguish between instances where the Council may or must do something. The “may” and “must” were detailed.

The Chairperson asked for the meaning of “hypothecate” and it was explained that it essentially meant to bond or pledge.

Mr Swart said that it had been suggested that the phrase “subject to available financial resources” was needed, if the “must” wording prevailed. However, if the clause now specified “may”, then this was probably sufficiently discretionary already, as it implied that if there were no resources, nothing would have to be done.

Mr Bassett noted that in clause 6(5)(b) there had been a discussion on community service, and the suggestion made that perhaps something could be built in to recognise the importance of community service in the law studies curriculum. He had included the words “including the desirability of including, in the LLB curriculum, a form of community service to be undertaken by law students”. However, he asked the Committee to consider whether it was appropriate to include this in this Bill, which did not deal with legal education.

Members agreed to consider the point.

Clause 7: Composition of Council
Mr Bassett said that clause 7(1)(b) set out the option of having two legal academic representatives, one designated by the law deans, and the from the ranks of the law teachers’ association.

Ms Louw clarified that the name of the latter body was “The Society of Law Teachers of Southern Africa”.

Ms Smuts said that it was undesirable to include, on the Council, someone who was teaching law in another country.

Ms Louw said that she would double-check whom this association comprised.

The Chairperson pointed out that membership of the Council was in any event limited to South African citizens.

Ms Smuts questioned how the academic was chosen who sat on the Judicial Service Commission.

Mr J Sibanyoni (ANC) noted that a teacher of law was mentioned in the Constitution, as designated by “the teachers of law at South African universities”.

Mr Bassett said that this was quite open; the Committee had wanted a specific body mentioned. In the South African Judicial Education Institution Act (SAJEI) it was worded as “two teachers of law designated by the South African Law Deans Association” (SALDA).

Ms Smuts asked why the Deans should not choose the two representatives. She said that the Committee did not really know what the other association comprised, whether all law teachers belonged to it, and whether they held it in high regard.

The Chairperson asked that the Department make more enquiries on this point.

Mr Swart said that if the other body was found not to have credence, then perhaps the Committee should consider reverting to one academic. He wondered if it was really necessary to have two representatives.

Mr Bassett said it was possible to require SALDA to designate one representative Deans, and one teacher of law.

Mr Swart would not be opposed to that, but suggested that SALDA still be asked to comment whether this would be workable.

Mr Daya said that names were normally submitted to SALDA internally, who would decide, in internal processes, on the representative. He would report back on the Law Teachers’ body later.

Ms D Schäfer (DA) thought that if only Law Deans were to nominate, there should be one representative, but shared concerns about a “Southern African” body.

The Chairperson recalled that there had been a concern that those actually teaching law could make a valuable input, particularly on curriculum and training.

After making enquiries, Mr Daya later reported that he had now found out that there was not a single South African (as opposed to Southern African) body representing all law teachers. In practice, when representatives of academics were needed, the notification would be sent to the SALDA, which would then circulate to all teachers of law.  The Committee may wish to decide that it could be left to one representative – a law teacher, not necessarily as a Dean – and that the rest of the sub-clause could come out.

Mr Bassett asked if this should be reflected as an option.

The Chairperson said that this was not necessary – the Committee would decide later if they would prefer one or two academic representatives.

Mr Bassett moved on to subclause (2). Clause 7(2) focused on race and gender, and did not yet set out the words “as far as practicable” were included and (3) went further to set out factors that must be taken into consideration.

Ms Smuts noted, for interest, that the General Council of the Bar (GCB) was made up of ten constituent bars and they each sent a number of delegates, based on size. She read out how the GCB dealt with representivity, which included the phrase “and, in the case of bars represented by two or more delegates, shall, wherever possible, seek to ensure that it is appropriately represented…”

Ms D Schäfer (DA) suggested that subclauses (2) and (3) could be collapsed together as the first criteria, and the other criteria could then follow, so that the clause would read along the lines of “When constituting the Council, the following factors must be taken into consideration:  (a) the need to reflect broadly the racial and gender composition of South Africa, as far as practicable”, followed by the other elements.

The Chairperson said that (2) was put in specifically to emphasise the racial and gender composition.

Mr Bassett said that it was possible to change this as suggested later in the Bill.

Mr Swart noted that clause 7(f) related to a person who “may not be a legal practitioner”, and thought this might constrain the Council under clause 8. He noted that this phrasing had been taken out of the provisions relating to the Transitional Council (TC) and thought it should be removed also from clause 7(1)(f).

Members agreed.

Clause 8: Membership of Council
Mr Bassett noted that the wording presented did not yet reflect the discussions from the previous day. He recapped that a further option was to be added, with new wording about suspension.

The Chairperson reminded Members that Adv L Adams (COPE) had made the point that MPs who had been convicted could still become MPs, after five years and serving of their sentence, when their conviction would be regarded as falling away. If MPs were allowed this constitutional right, members of the Council should be allowed the same.

Mr Bassett agreed that there was another option, to use the same wording as the Constitution.

Ms Schäfer clarified that the Committee had essentially wanted to see it reflected that if a person was convicted in a court of first instance, s/he should be suspended, without benefits, until the time period for an appeal had lapsed (or the appeal been concluded), and that the designating body would in the meantime be asked to nominate an alternate.

The Chairperson read out the wording from the Constitution; that no-one may be regarded as convicted until the time period for an appeal had expired, or the appeal concluded.

Ms Schäfer said that Adv Adams had been concerned about the first instance or appeal provisions.

The Chairperson referred to clause 12, which related to when Council may remove a person. He questioned what would happen if the designating body requested removal of a person, even if that person had gone on appeal. That was likely to happen, but the person may claim that the appeal was still pending.

Ms Schäfer said that this was the purpose of the suspension. If clause 12 was relying on “good cause” then it might not be possible to remove the individual.

The Chairperson wondered if what was in clause 8 would not be regarded, by the designating body, as too onerous. The body was not claiming that the person was guilty.

Ms Smuts thought that it would be useful if the suspension provision was mandatory.

Ms Schäfer and the Chairperson commented that they certainly believed that removal must apply in the case of serious offences.

Mr Daya asked whether the question of a Council member not being a member of the Fidelity Fund Board (the Board) was reflected.

Mr Bassett said that it was covered; under the disqualification provisions, subclause 8(1)(e).

Mr Bassett then explained the options for chairperson and deputy chairperson. If the chairperson was an attorney, the deputy chairperson must be an advocate, and vice versa. However, the implication of this wording was that other members of the Council would be excluded from being chair or deputy chair. If the chair had been an attorney in one term, then consideration should be given in the next term to electing the new chairperson from the ranks of advocate. The implications were, however, again, that the chair and deputy chair must come from the ranks of legal practitioners, whereas the original provision did not preclude these positions being held by the other members of the Council too. This point had been raised on the previous day, and so he had prepared a further alternative, which said “If the chairperson is appointed from the ranks of attorney…”. 

Ms Smuts said that the Committee was attempting not to infringe on the rights of self-regulation of the legal profession. It was logical, in her view, that the chair and deputy chair should be practicing lawyers. It was not realistic that an academic or one of the Ministerial appointees was likely to be made the chair. However, she would be prepared to accept the third option; an academic might be a compromise. The alternative was to have a judge in that position.

Ms Schäfer thought that the first option did not preclude the academic being appointed, because it also referred to “if”. She asked what would happen if an attorney was elected in one term, and then an academic in the next. She was now inclined to say either that a legal practitioner should be the chair, or that it must rotate.

The Chairperson pointed out that this was infringing on the rights of the Council to democratically elect its own chair and deputy. He asked if the other members of the Council would feel aggrieved. He did, however, point out that the legal profession had had over twenty years to get their house in order.

Ms Smuts said that surely the practitioners would want to have a chair and deputy from their own ranks; the battles were between the two arms of the profession. The branches were being forced into the regulator together and it was only responsible that Parliament try to avoid trouble, by having both represented in the two chair positions, and by rotating the chairperson. She was hoping that parity would apply to the numbers.

Mr Swart said that the use of “if” was important, because this left it open to the body to go whatever route it wanted.

The Chairperson pointed out that (a) stated “must”.

Mr Swart thought that this could be changed to “if”. The attorneys and advocates would have to sit as a bloc and this clause would force them to work together, failing which they may find that the chair and deputy chair positions moved to other representatives. He therefore suggested that there should not be an insistence, but only an option, that a legal practitioner must be chair and deputy chair.

Ms Schäfer pointed out that the Minister would be appointing the chair of the TC (in consultation) but she agreed that if there was a very good Dean or Ministerial representative, they should not be precluded.

The Chairperson said that the profession may be responsible, but it was also possible to have a deadlock, and the fall-back would be to have a neutral member.

Ms Smuts suggested that in (1)(a), this could be achieved by deleting the absolute requirement that the chair and deputy chair must be legal practitioners.

Mr Daya pointed out that the term was three years, not one, and the chair and deputy chair would follow that.

Mr Bassett said that the double-underlining would be removed from clause 9(6).

Mr Swart asked for confirmation that the chairperson could resign from the position, without also having to resign from the Council.

Mr Bassett confirmed it was covered in (7).

Clause 12: Vacation from Office
Mr Bassett summarised the new wording (see attached document, page 20). He noted that the words “or a conviction for any offence” should come out, as this was dealt with under clause 8.

Mr Swart thought that the words “which, in the opinion of the Council,” should be removed from (b).

Ms Louw said that it might actually assist with a misconduct finding.

The Chairperson pointed out that the Council could take a long time to consider the matter.

Ms Smuts said that the misconduct finding would surely have been made at regional level. The Council would play a role in the disciplinary criteria of whatever was to be done at regional level. It was intolerable that any lawyer subject to a finding of misconduct could continue to sit on the Council. She believed that, pending that appeal procedure also, there must be a suspension.

The Chairperson agreed, and wondered if building in a suspension provision might answer that.

Mr Bassett confirmed that transparency was provided for at regional councils.

The Chairperson said that perhaps it should be left to force of public opinion.

Mr Swart thought that as soon as the finding of misconduct was made (at regional level) the Council should be entitled to suspend. The designating body could also recall that member.

The Chairperson thought that the latter would happen in practice, but an appeal was still possible.

Mr Daya anticipated a problem if there was no stipulation on the seriousness of the offence; this created the obligation on the Council to make a decision without guidelines. A person not responding to a colleague could be found guilty of misconduct. There had to be a way to separate serious from minor offences.

Mr Swart thought that perhaps “on good cause shown” or “on reasonable grounds” had to be introduced. He was thinking of this from the perspective of a member of Council. A person removed, from the lower level, would be likely to be more focused on reinstating himself there. He agreed that “in the opinion of the Council” had introduced a subjective issue.

Ms Smuts said she had suggested its removal.

Ms Schäfer said that this was why she had suggested using “may”. She wondered what objective criteria were given.

Mr Swart said that there could be a member whom the Council would not remove.

Mr Daya said that in Chapter 4, under professional conduct provisions, it was noted that the Council would have to develop a code of conduct. He questioned if it would be listing a whole lot of trangressions into a schedule.

Mr Bassett said that perhaps “a finding of serious misconduct, as set out in the Code” might help.

Mr Daya suggested that “as confirmed by the Ombud” could also be inserted.

Ms Schäfer suggested that perhaps a separation was needed – that the Council may remove, but must do so in certain circumstances.

Ms Louw suggested that perhaps an enabling provision must be inserted, that the Council must make rules as to what was serious or not serious.

Mr Bassett added that it would be logical to set this out in the Code.

Mr Daya said that there was not unanimity in the statutory councils’ rules at the moment.

Ms Schäfer suggested wording stating that “the Council may remove the member on a finding of misconduct, but must remove the member in respect of offences specified in the Code of Conduct.”

Ms Smuts said that the drafters had touched on the requirement that the Council must write the Code of Conduct (clause 36). On the previous day, she had argued that either the body would have to have two chambers, because each profession was in charge of its own rules. Each bar also had its own rules. The advocates called these “Code of Ethics and Conduct” which were ethics and practice rules. The attorneys had different rules, and she believed that each should continue to be in charge of their own rules. If clause 36 said that “the Council” must write a Code of Conduct, she questioned if this meant something different from the practice rules.

Mr Daya said that over the last five years, the attorneys’ profession had been trying hard to come up with uniform rules, in anticipation of this Bill. A decision on finalising the submissions that would come from the GCB, Law Society of South Africa (LSSA) and other Codes would be made at the level set out in clause 36. He did not believe that the Council would start de novo on the process, but would, legally, have to settle the rules or code, and there should not be conflicting rules in a voluntary association.

Ms Smuts said that the assumption, from clause 36, might be that the Council would attempt to create a set of uniform rules that would apply to the two professions. She did not believe that this was possible. Council would have to break down between the two professions, and she reiterated that at regional level, at least, there should be two chambers / committees, although it had been mooted that it might be helpful for members of both professions to sit on disciplinary panels.

The Chairperson pointed out that suspension was provided for in (2) and (3).

During a short break, the drafters attended to re-writing these provisions. Mr Bassett recapped, after the break, that an option would be added that the Council must remove a member of the Council on a finding of serious misconduct by disciplinary committees (which would mean that there were no problems around the appeal). However, if the Members wanted to allow for the appeal, then Mr Daya had suggested that perhaps a time period must be set out for the appeal to be dealt with within a certain time.

Mr Swart agreed that this would be useful. This would not complicate matters; if the Council member wanted to prevent his or her removal, then that individual would have to bring an interdict against the implementation of the clause, pending the finalisation of the appeal.

Mr Kweta was not sure whether the Code of Conduct in clause 12 and clause 36 were the same. The code in clause 36 would apply only to legal practitioners.

Mr Bassett thought that then it could be specified that (a) would apply to legal practitioner members of the Council, whereas (b) to (d) would apply to all Council members.

Mr Bassett said that another alternative was to use “on good cause shown by the body or person, upon confirmation by the Ombud”.

Paragraph (e) had been removed, following discussions on the previous day.

Mr Swart said that there was a possibility that there might not be a good relationship between Council and Ombud, and he wondered if the Ombud’s decision should not also be specified as having to be done within a reasonable time.

Mr Bassett suggested “as soon as practicably possible”.

Mr Swart wondered if he was correct in his assumption that there might be strain in the Ombud’s relationship between the Council, if the former was dealing with complaints against the profession.

Ms Smuts thought this strengthened the argument to have a judge as Ombud, because judges were trained to rise above any favoritism.

Clause 14: Dissolution of Council
Ms Smuts urged that this clause be deleted altogether, and urged that this should be specifically noted as an option.

Mr Swart said that it was possible to look at elements of the Ministerial powers; for instance the ability to set up an interim Council, what criteria to use and so forth. Many of those issues had been canvassed.

Ms Smuts thought having the clause was a complete waste of time, for Judge Chaskalson had said that the power of dissolution was inconsistent with the Constitution. This was likely to be challenged in the Constitutional Court, and she had no doubt that it would be struck down.

Clause 15 to 17
No changes were noted.

Clause 18: Committees of Council
Mr Bassett read out some options that he had drafted. The first stated that the Council must establish standing committees to assist it in the exercise of its powers and performance of its functions, as set out in (and here the clauses may follow)  “or section 6(1)(k) and (l) ” – which obliged the Council to develop norms and standards.

The first standing committee would consist of any of the ten attorneys referred to in 7(1)(a) and another standing committee would consist of six advocates to deal with advocates’ matters. It was noted that no other committee may deal with matters contemplated in (a) or (b), other than these.

Paragraph (c) would read that the decisions of these committees must be implemented by the Council, except if a two-thirds vote decided otherwise, or if alternatives were approved by the Ombud, which would then supercede the committees’ decision.

Ms Smuts thanked the drafters. This did appear to deal with “own affairs” and “general affairs”. She was not so happy with the two-thirds majority vote.

The Chairperson pointed out that this was a protection mechanism for own affairs.

Mr Swart asked if something similar (or an alternative) could be implemented for the regional level.

Mr Bassett said that he had some difficulty with this. As he saw it, decisions at the national level would be implemented at the regional level. The regional standing committees would implement norms and standards relating to advocates and to attorneys. This was assuming that the regional councils would not have original but delegated powers.

Ms Smuts thought that original powers should be at the regional level.

Mr Swart said that the fall-back position of his party would be to have something similar at the regional level.

The Chairperson confirmed that there was no formal decision on these matters yet. All that the drafters were putting to the Committee were options for the Committee’s consideration. 

Clause 19
There were no changes, except that “where practicable” would be inserted into the option, and the same would apply to clause 20.

Clause 20: Executive committee of Council
Mr Bassett noted that the changes related to (7), that the chair and deputy would be ex officio holding these positions also in Exco.

The Chairperson noted that (b) was removed, and asked who chose the deputy chair.

Mr Bassett said that (b) had been re-worded. This related to the Exco. The deputy chair of the Council would be ex officio also deputy chair of the Exco.

He noted that (9) dealt with the making of decisions, the quorum (which referred to the majority present at a meeting) and the casting vote to the chair.

Clauses 21, 22, 23, 24
Mr Bassett noted no substantive changes to these clauses.

Mr Daya wanted to speak to clause 23(5)(a), which noted that the Regional Councils should be set up in such a manner so as to reflect the composition of the Council, as far as legal practitioners were concerned. He thought that this was open to interpretation, and could refer to either numbers, or composition. The present wording might result in the thinking that 16-person councils were to be established.

Ms Smuts said that she had argued for parity, but she was sure that it was the proportion of the council that the drafters had intended to use.

Mr Daya wondered if “proportional composition” would solve the problem.

Mr Swart said that the region might be unique, and there might be no advocates in that area. He thought that mention had to be made of the region, and the discretion had to be given to the regional councils.

The Chairperson asked how this would affect parity.

Ms Smuts recalled that at an earlier stage, it had been suggested that perhaps there might only be four regional councils, which she thought was too few. She suggested that each region should coincide with the divisions of the High Court, reflecting the fact that the professions were officers of the High Court.

The Chairperson noted that this was then possibly contemplating provincial councils.

Mr Swart noted that the divisions of the Court did not necessarily match provinces.

Ms Smuts added that more courts would be built, subject to funding.

The Chairperson thought the intention of the clause was to accommodate a situation where a regional council could be found to cross the borders of two provinces.

Mr Bassett agreed that this was a possibility, but added that having two regional councils in one province should be avoided.

Ms Smuts asked who postulated these regional councils first, and what the thinking behind this was.

The Chairperson added that much of what was in the Bill may have come from the professions.

Mr Bassett said he did not know, but he surmised that they were intended to implement day-to-day operational issues at a regional level.

Ms Smuts agreed, but thought it was illogical that the TC should come up with powers and functions.

Mr Swart said that the perceived difficulties with attorneys and advocates could be overcome by specifying that the regional councils may set up sub-committees to deal with issues germane to the attorneys and advocates’ professions, including training and other issues. They would be sub-structures.

Mr Bassett agreed. He questioned the suggestion that in some regions there may be no advocates.

Mr Swart said that he would withdraw that comment, because on a closer reading he had seen that at least four regional councils were needed, and where there was a seat of the High Court, and that would imply that advocates would be represented.

Mr Bassett confirmed that there was no final number stated. Even if there were nine regional councils, there were nine high courts, so there would always be advocates who would need to be represented on the regional council, unless very small ones were set up, which the Department did not envisage.

Ms Smuts read out where the ten constituent Bars were. She believed that the regional councils should be provincially-based, and at the seat of the High Court.

The Chairperson noted that the three or four was inserted as an option, but there had not been a final decision. He would like to see an option drafted, to reflect Mr Swart’s suggestion on the sub-committees.

Ms Smuts asked if the Committee should not decide that there should be nine provincial societies.

Clauses 25 and 26
No changes were noted. However, Mr Bassett reminded Members that clause 25, dealing with rights of appearance, was still flagged, to debate the appearance of candidate practitioners in the High Court.

Clause 27: Practical vocational training
Mr Bassett noted the insertion of a new subclause (2), stating that the rules must regulate the payment of remuneration, allowances or stipends to all candidate attorneys, including the minimum amount payable.

The Chairperson said that he liked this formulation.

Ms Smuts said that some people may take on candidates, and have to pay them stipends. She asked what would happen if others did not.

Mr Daya noted that the minimum amount payable was supposed to be in relation to remuneration, but he said that, as it read, it could also relate to stipends or allowances.

Mr Bassett said that whilst candidate attorneys would undoubtedly continue to be paid, there was no certainty what form pupillage would take, but hopefully it would be broadened. He thought that the minimum amount should refer strictly to “remuneration” although there was nothing wrong with setting minimum amounts for stipends or allowances.

The Chairperson thought that it could be left as it was.

Clause 29: Community Service
Mr Bassett went through the third option drafted. Members indicated that they preferred the use of “community service performed”.

The option now read that the Council must make rules relating to community service to be performed by candidate legal practitioners, as a compulsory component of practical vocational training, and by practising legal practitioners, stipulating that their continued enrolment would be dependent on performing this service. The rules may set out different minimum periods, either continuously or intermittently. The rules must regulate supervision of the candidate legal practitioner. This must take into account the public interest, and would be limited to certain circumstances, as set out in (3)(a) and (c). A definition of community services was given in (4) of the option. Subclause (5) set out the possibility of exemption. This tried to convey that community service was in place both to assist candidates (in particular) in entry to the profession, as well as serving the interest of the public.

The Chairperson pointed out that it was not intended to be punitive.

Ms Smuts noted that (1)(b) still included community service as a requirement for continued registration of legal practitioners. She did not agree in this, but did believe that the Committee should attempt to increase the amount of pro bono work being done, and perhaps somebody would have to report on it, because there was an impression that it was honoured more in the breach than the observance. She agreed with the reference to candidate practitioners being able to do their community service assisting maintenance officers and similar “service in the state” was included. She would have preferred to see examples, but accepted this could not be done in the Bill.

Mr Bassett answered her first point, saying that Adv Adams had questioned what would happen if a legal practitioner did not do community service, and if there should be a sanction for non-compliance.

The Chairperson said that the Council would deal with this.

Ms Smuts could not speak for Ms Adams, but she had the impression that she had regarded community service as punitive.

Mr Daya recalled that Adv Adams’ submission was made in the context that she supported pro bono, and that a punitive sanction was needed.

Prof Ndabandaba said that social work students at university had to do “practical work” in the field, without which they would not be qualified.

The Chairperson cautioned against including too much detail in the Bill. The Council must draft rules, and perhaps this could be worded “which could include”. 

Clause 30: Enrolment with the Council
Mr Bassett noted that subclause (3) made provision for conversion of enrolment, if an advocate wished to switch status. Therefore (eA) included “any conversion of enrolment as contemplated in section 32.

Clause 31: Cancellation and suspension of enrolment
Mr Bassett noted, in sub-clause (4), a reference to “or from the roll of practising legal practitioners, as indicated by the legal practitioner in question”. 

Clause 34: Forms of legal practice
Mr Bassett noted the insertion of briefing of advocates directly by Justice Centres, under subclause (3)(c).

Subclause (9) was removed, with its content being moved to (11), which now referred to limited liability legal practices and multi-disciplinary practices and the statutory recognition of paralegals. Subclause (10) was deleted as it was moved to the general offences clause.

Clause 35: Fees of legal practitioners
Mr Bassett noted that the first option for determination of fees was to use the Rules Board. A further option was now inserted, that the Council would have to investigate and report back with recommendations, taking into account best international practice, the public interest and interest of the legal profession, on:
(a) the current untenable situation in which access to legal services was not a reality for most South Africa, the reasons giving rise to this and ways to address it;
(b) a mechanism most desirable in the context of this Act, which would be responsible for determining fees for legal services, the establishment, composition and processes of that mechanism, taking into account the anti-competitive laws of the Republic and taking into account the views of the Competition Commission (which were summarised );
(c) the desirability and feasibility of allowing users of legal service the option of voluntarily agreeing to pay fees in excess of amounts set by the legal mechanism.

The Chairperson asked if the Council should report back to the Parliament, or the Minister, and what would then follow. Later, however, he noted that the phrase “with a view to legislative and other interventions” clarified what would happen.

Ms Smuts said that she had, earlier, raised the point that Parliament had, when drafting legislation for the Independent Communications Authority of South Africa (ICASA), imposed some regulations, but she had been unable to track down what followed thereafter. At the very least, Council should be required to take the necessary steps.

Ms Smuts added that this clause had wide financial and social implications, and perhaps the Council should be asked to come back to Parliament first. She noted that (b) was asking the Council to find a mechanism. She was not even convinced that a fee structure was the way to go. Ideally, there should be a free market, but it was known that there were distortions, and she would have to think about it further. Ms Smuts also suggested to Mr Bassett that there should be specific reference to “the Competition Act” instead of to “anti-competition laws”, in subclause (b).

Ms Smuts also noted that a written agreement between client and attorney must be entered into in relation to fees, and perhaps there should be an obligation on the Council to write rules around that.

Mr Swart said that the Competition Commission took the view that tariffs were uncompetitive, but there were already court tariffs. He thought that the part referring to the views of the Competition Commission should rather refer to its unwillingness for fees and tariffs to be set at all, or for them to be determined by competitors”. He was cautious about highlighting only one of the conclusions of the Competition Commission.

Ms Smuts read out that Owen Rogers had written an article on fees, in which he had suggested an inquiry of the two branches of the profession, in concert, and this would be a function giving justification to the joint regulator. Maybe the practitioners and Competition Commission should together hold an enquiry.

The Chairperson pointed out that the Council could take such a decision.

Ms Louw said that the Competition Commission had wide powers, and even if not invited to participate, it could do a market enquiry.

Mr Bassett clarified that the Rules Board option was still on the table.

Ms Smuts asked if the Rules Board was happy with that.

Mr Daya said that he did not have a mandate to speak for the Rules Board, but he had informed the Chairperson that the Committee was considering this possibility. The next meeting of the Rules Board was only scheduled for September.

The Chairperson said that the Bill would be with the NCOP at this stage, but the Rules Board would not be precluded from making a recommendation or decision.

Clause 36 and 37
Mr Bassett said that there were no changes.

Committee Programme
The Chairperson said that the Chairs of Committees had been invited to attend training on Tuesday, Wednesday and Thursday in the following. It was unlikely that permission would be given to hold any meetings, so the Committee would resume in the week of 15 August.

The meeting was adjourned.
 

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