Legal Practice Bill: Reference to regulations under clauses 6 to 24

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Justice and Correctional Services

14 August 2013
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Committee agreed to seek permission to sit from 27 to 29 August, to debate the Legal Practice Bill, and to hold the SAHRC commissioner interviews.

The Department of Justice and Constitutional Development took the Committee through a schedule detailing the clauses of the Legal Practice Bill making reference to rules (made by the Legal Practice Council) and regulations made by the Minister. For clause 6, the majority of Members were of the view that the Minister should not be able to prescribe to the Council and agreed to delete clause 6(1)(t). Members had a long discussion on clause 6(5)(f) that would allow the Minister to create a “mechanism” around legal education. The majority thought that the clause was unclear, questioned what a “mechanism” might be, and thought it unacceptable for the Minister to dictate to practitioners, pointing out also that there was sufficient Ministerial representation on the Council, coupled with other safeguards to ensure transformation in education. No final decision was reached. Two options were still noted for clause 7. Members agreed with the mention of Ministerial regulations in respect of clause 23, provided that the words “in consultation” were included.

Clause 24 dealt with recognition of foreign qualifications. Members pointed out that various scenarios were covered. They suggested that whilst “after consultation” was sufficient for subclause (1), since the Minister already had this power, the phrase “in consultation” must be used for subclause (3). Members asked the Department why subclause 3(c) was inserted, and concluded that this was done at a time when appearance for corporate lawyers and paralegals was still contemplated. The Chairperson insisted that if it was to be retained, the reference to the public interest must be removed and “in consultation” must be used. Finally, Members asked that the wording of (c) be moved to an entirely new subclause (4), because it could relate to either foreign or local practitioners. Members had no problem with the regulations mentioned under clause 25, but asked that “in consultation” with the Council be included. Members also asked that the wording of clauses 26 and 29, referring to “in consultation” should be consistent. Clause 34 related to forms of legal practice, and there had been some duplication created by the insertion of additional wording relating to justice centres. Members asked that Legal Aid South Africa be asked, firstly, whether it did not want direct briefing to apply to its civil cases also, and whether it would have a problem with the current wording that the Council could make rules about direct briefing for Legal Aid. Members asked that the wording be tightened, that the underlined portion of subclause (b), but excluding (ii) be retained, and that (c) be split into different clauses relating to advocates’ briefing, and legal practitioners’ instructions. 
 

Meeting report

Future meetings
The Chairperson noted that it was becoming very difficult to find time to meet, and the suggestion had been made that the Committee request permission to hold meetings during constituency week.

Ms M Smuts (DA) pointed out that there were already some meetings planned for that week, including the interviews for the South African Human Rights Commission (SAHRC). She said it had earlier been suggested that the Committee would have to finalise the Legal Practice Bill in this week to refer it to the NCOP, and asked if it was still the intention to finalise it in this Parliament.

The Chairperson said that this was the intention, but there was still sufficient time for it to go to the NCOP if it was finalised in the NA before end-September.

Mr Vhonani Ramaano, Committee Secretary, indicated that in the following week, it was originally intended to deal with the Judicial Matters Amendment Bill, but if the Department of Justice and Constitutional Development (the Department) was not ready, something else would be slotted in. On Wednesday, the Committee would deal with the South African Human Rights Commission (SAHRC)Bill.

Ms Smuts noted her apology for the following Tuesday, 20 August.

The Chairperson, in answer to a question from Ms D Schäfer (D) noted that the Department would continue to brief the Committee on the SAHRC Bill from clause 12, after which proposed amendments could be considered. This was not too lengthy a bill.

The Chairperson confirmed that the Committee would then meet to discuss the Legal Practice Bill on 27 and 28 August, and hold the SAHRC commissioner interviews on 29 August.

Legal Practice Bill:
Mr JB Skosana, State Law Adviser, Department of Justice and Constitutional Development, tabled the Department’s documents on the costing on the Legal Practice Bill and a table setting out the clauses of the Bill in which reference was made, firstly, to rules, and secondly to regulations.

Ms Wilma Louw, State Law Adviser, Department of Justice and Constitutional Development, said that in the definition clause, it was made clear that “prescribe” referred to regulations made by the Minister and “rules” meant rules made by the Legal Practice Council (the Council). She suggested that it may be easier for the Committee to focus only on the clauses where there was reference to regulations.

Clause 6
In clause 6(1)(c) the Council was to do things necessary for the attainment of the objects “as may be prescribed, on the advice of the Council”. This was quite vague.

Ms Smuts asked why it was necessary to have “as prescribed”, saying that the Minister did not need to make regulations for the Regulator.

Ms C Pilane-Majake (ANC) asked the Department to substantiate why “as prescribed” was included.

Ms Louw suggested that perhaps the words “as prescribed” could be deleted, thus leaving it to the Council to do all things necessary for or conducive to the attainment of the objects.

Ms D Schäfer (DA) agreed that this was already covered. If the Committee agreed that it was unnecessary for the Minister to make regulations, the rest was superfluous.

Ms Smuts reiterated her view that no mention should be made of the Charter, and suggested that the whole of (t) be removed.

Prof L Ndabandaba (ANC) suggested that “necessary” and “conducive” were repetitive.

Mr JB Skosana explained that in relation to the Transitional Council (to be renamed the transitional forum), there was an inbuilt mechanism that if something did not happen, the Minister could step in, and this was in similar vein. The Bill in its original form did not include any deadlock-breaking mechanism. The principle was to ensure that someone – Council or Minister – must do what was necessary to ensure the objects of the Bill. He noted that there was reference to “in consultation” but if no concurrence was achieved, then there should be measures to ensure that resolutions were put in place.

Ms Schäfer agreed with the general principle, but did not think it was applicable here. In this clause, it was already stated that the Council “must” do certain things, so the obligation was clearly created. She asked for examples of when the Minister may need to intervene.

Ms Smuts said that given Mr Skosana’s explanation, she would then be even more insistent that the Minister’s power be removed as it was absolutely inimical to the position of an independent regulator. She could understand the argument for the Minister making regulations on, for instance, vocational training, because the transitional forum would not have powers to set rules as yet. However, this was quite different and created an instrument for the Minister to intervene.

Mr Skosana said that one example of when it may be necessary for the Minister to intervene was if a member of the Council did not believe some objects had been achieved. Now, Parliament could ask the Council to explain.

Ms Smuts did not agree with this; her reading of clause 6(1) was different.

Ms Pilane-Majake said that she would support precautionary measures because she did not want to see a system that could be easily frustrated.

Ms Schäfer did not agree with that at all. There was already an obligation, whether or not (t) remained, and there was nothing to stop Parliament from calling in the Council and asking what it had done to implement the clause.

Ms Smuts stressed that the Minister should not be able to interfere in the independent Council.

Mr Skosana said that in relation to the transitional forum, the Minister could make regulations, but that was something different, and the intention had merely been to ensure that there was a clear commitment to transformation without the process being stifled.

Members agreed to delete clause 6(1)(t).

Clause 6(5)
Ms Louw noted that clause 6(5)(f) related to powers and functions of Council, and this said that the Council must, in the prescribed manner, and “in consultation with the Minister” create a mechanism around legal education.

The Chairperson said that “in the prescribed manner” meant that the Minister would have to list the steps.

Ms Smuts asked if this related to qualified practitioners, and if it differed from vocational training.

Mr Raj Daya, Acting Deputy Director General: Legislative Development, Department of Justice and Constitutional Development, confirmed that it applied to all, candidates and qualified practitioners.

Ms Louw said that it was quite wide and could also relate to law schools for access into the profession.

Ms Smuts noted that the Council would consult with the qualifications authority. A Minister dealing with education should also surely give input.

The Chairperson thought the clause was acceptable.

Ms Schäfer asked if this was not what the law societies were doing at the moment.

Mr Daya said that it was necessary to look at what was being done currently, and what was being done to change the curriculum and close gaps for those wanting to enter the profession. Much work was needed. In relation to the curriculum devised by the law societies, there was a need to look at ethics and ensure that practitioners understood their duty to the public. For this Committee merely to suggest that the Minister should not interfere would go to the heart of transformation intentions, because this clause created the framework for consultation to take the aims of the Bill forward.

Mr Skosana agreed that this was central to the debate on transformation. The profession had formerly been reluctant to, or had suggested that it had not had the muscle to change. Prescribing regulations would offer greater opportunities for access. In addition, there was a clear intention in relation to pupilage, as seen by this Committee’s discussions around stipends, which should open up more opportunities.

Mr S Swart (ACDP) asked where exactly this slotted in, since there would be regulations for the university degree, and for the practical vocational training course for candidates. He asked if (f) related to post-qualification training, and if the Minister may require a practitioner to undertake further education.

Ms Smuts commented that this was potentially huge and thought that the “mechanism” might even involve setting up a law school.

Mr Swart agreed with the principle that the curriculum should be being re-examined, and the points about the inherited legacy. However, this appeared to something in addition to that.

Ms Schäfer was also worried about the clause. It had not been the profession who had changed the LLB curriculum, and that was supposed to be where transformation happened, but it had been a mistake and was being revisited. She too was unsure where this would come in, and said that (f) seemed to link to post-qualification training, but that had already been described earlier in the clause.

Mr Daya said that in the context of the Legal Services Charter (which was now excluded, because there were areas where no consensus could be reached), if no space was created to have transformational educational initiatives built into various levels, there would not be an opportunity to expose practitioners to various areas that the Charter covered. For instance, although there may be training courses, there might be a realisation that candidates from some areas lacked commercial law knowledge, and this would create space for a mechanism to expose them to experience in commercial firms. It might also be a component of continuing legal education. If this subclause was deleted, it may still leave gaps. A broad process, involving all players, would cover the needs.

Mr Swart asked what “mechanism” the Minister would use, bearing in mind that the Council already existed. He was not happy with the suggestion that a practitioner might be obliged to take on more candidates, or a city attorney might be told to go and practice in the rural areas. Those would be serious infringements on the independence of the profession. The “mechanism” could be virtually anything, so it was far too broad. The points about “in” or “after” consultation still remained for discussion later. He recognised the aims of transformation, but these had to be balanced against the independence of the profession. He urged Members to bear in mind that there could be abuse of overly-wide provisions in the future. The Council already had radical transformation-sector representation, and he did not understand why there was a need for more. The Council representatives would have to ensure that there was proper transformation.

Ms Smuts agreed, and said that there was no indication of what “conditions” meant, so it was speculative. Perhaps, once again, the new regulator could be asked to do an inquiry as to how best to achieve whatever this clause envisaged, and that might or might not come up with the suggestion that Ministerial regulation was necessary.

She noted that this related to subclause (f), but (e) was also unclear.

Mr Daya said that the “conditions” meant determining curriculum and content, and he agreed that this wording could be changed. It was really how the content would be devised, and the point system.

Ms Smuts asked who would offer that content. The “mechanism” would presumably put up a curriculum or content, and decide who would teach it, and that sounded like setting up a school. She asked if it was the intention that the regulator determine the content, engaging with the universities. If so, perhaps that had to be discussed. This raised questions around university autonomy, whether the Minister of Higher Education would have to be involved and other issues.

The Chairperson agreed that it made sense for the Council should engage on this issue and decide how to deal with it.

Ms Smuts added that only after that should it go to the Minister, if relevant.

Ms Pilane-Majake noted that the Committee had earlier discussed post-qualification development, and what was happening in other professions. The Council should be looking into all these matters, in consultation with all role players, including the legal profession, who should make input.

Ms Schäfer asked what “transformation of education” actually meant, and what should be taught that was not currently being taught, such as the historical dispensation and Constitution.

Mr Daya noted that the words “transformational education” no longer appeared in the Bill. The point was that the Council should determine what would be included in the vocational training. There was no consultation with the Department of Higher Education. The law societies at the moment had come up with what they thought was in the interests of the candidates. He appreciated that various stakeholders were represented on the Council. However, if they got something wrong, or a flawed process had to be improved, then the question was how to do so. Some practitioners may graduate, go into practice, and attend only to a certain very limited type of work, not wanting to enhance their professional development.

Ms Schäfer pointed out that the Minister had representatives on the Council

Mr Daya maintained that if the Council failed to set up a mechanism, then something had to be done.

Mr Swart was not persuaded on this point. He reiterated that there were, firstly, three Ministerial representatives. Secondly, there was a reference to compulsory post-qualification professional development. Thirdly, the Law Deans would also ensure that there was sufficient transformational legal education. He was very concerned at the suggestion that despite all of this, the Minister should still be able to set up another mechanism if the Minister, subjectively felt that not enough was being done.

Ms Smuts made the point that the whole clause was unclear and it was impossible to legislate for it in these circumstances.

Prof Ndabandaba made suggestions on the proper use of “continuous” or “continuing” education. He stressed that the training should be ongoing.

The Chairperson asked that the Department proceed to the other clauses.

Clause 7
Ms Louw referred to clause 7: Composition of the Council, and said that there were two alternatives. The first was that the Council would be elected in accordance with the procedure determined by Council in terms of rules, but the second was “the procedure as prescribed by the Minister”.

Mr Swart questioned what exactly the Committee had said in relation to these options.

Ms Louw said that the footnote mentioned that these options were inserted early in the discussions, for consideration by the Committee.

Ms Schäfer asked why Members had asked for this. She agreed with procedures being set for the transitional forum, but thought the Council should surely deal with its own composition.

The Chairperson reminded Members of the context; each of the constituencies had their own method for determining who their representative on the Council would be, and it was suggested that they should approach the Minister and ask for regulations in relation to that determination. He also pointed out that the Council would not have been established, so it could not determine anything.

Mr Swart reminded Members that a debate was also still needed on “in” or “after” consultation.

Ms Schäfer commented that the Ministerial regulation could apply to the first election procedure, but the Council should determine any changes after that.

Ms Smuts and Mr Swart said that this was included already under (ii).

Ms Schäfer asked that “comprising of” should be changed to “comprising”.

Clause 23
Ms Louw noted that clause 23 dealt with the establishment of regional bodies. They would be established by the Council, and the Minister must prescribe the areas of jurisdiction. If the Committee’s earlier proposals were accepted, then the words “in consultation” would be used, and the numbering may alter.

Ms Smuts said that she believed that there should be legislation for provincial councils. There was a mention of at least three / four (the Committee was still to decide on this number).

Mr Swart and Ms Smuts thought that this clause was acceptable, if “in consultation” was used.

Clause 24(3)
Ms Louw noted that the next clause referring to regulation was clause 24(3). As introduced, the Bill had read “after consultation”, but the Committee requested a change to “in consultation”. She said that the acceptance of foreign qualifications was a matter of government policy and foreign countries concluded agreements in relation to qualifications. If “in consultation” was used, it could impact upon government policy.

Mr Swart commented that this was a very small area.

Ms Smuts pointed out that there were different items covered under clause 24(3). The legal profession felt strongly about, and had an interest in, whether people qualified in foreign countries should have rights of appearance. Therefore, at minimum, she believed that “in consultation” must be used, as the Minister must consult with the profession who would be directly affected. The second matter, giving effect to reciprocal international agreements, may be technical. She asked if these types of agreements were concluded under the General Agreement on Trade Services (GATTS).

The Chairperson said that this clause dealt with provision of service, or admission and enrolment of foreign legal practitioners.

Ms Smuts continued that the third matter envisaged in the clause was a problem, because it was undefined and meaningless. It was different from what was contained under (b), and basically referred to rights of appearance being fast-tracked.

Ms Schäfer did not agree that the Minister should be able to make agreements with foreign countries to let foreign practitioners practice, without having the same qualifications.

The Chairperson pointed out that it was “in consultation”.

Ms Schäfer conceded that that would be acceptable.

Mr Swart asked what the current situation was.

The Chairperson asked what “if it is in the public interest” meant, and asked for an example of a situation where it would be deemed in the public interest.

Mr Skosana responded that the current Attorneys Act allowed the Minister to designate a country whose practitioners would be able to practise in South Africa. This would depend on the political international relationships. A number of requests to the Minister were still pending, in light of this legislation, and because of conflicting views. For instance, the law societies may have no objection, but Cabinet might not be willing to allow reciprocal rights because of a lack of diplomatic relationships with the particular country. There were no formal guidelines. Even in relation to Botswana, some took the view that this country’s practitioners were merely applying the law, but others had an in-principle objection to the death sentence still being on Botswana’s statute book. The “in consultation” suggested that government policy would not be the only determinant.

Mr Swart thought that subclause (a) covered this. If the Minister presently had the power, which he could exercise unfettered, and if he had already made designations, then it was not a new power. However, he did have a problem with subclause (c). He appreciated that the Minister must given effect to international reciprocal agreements but would insist on consultation with the Council. He asked how many applications had been made.

Ms Smuts said that there was a long-standing arrangement with the SADC countries.

Ms Schäfer still had concerns and suggested that even if there were only a few cases, then “in consultation” was still needed. She thought it problematic if someone with lower training was allowed to appear, as this would defeat the whole purpose of the Bill.

Ms Smuts said that GATTS had huge implications and it was impossible for every sector to have a veto over government in this regard. She was not opposed to subclause (b) but believed that (c) must be removed.

The Chairperson again asked for an explanation of what “in the public interest” meant.

Mr Daya explained that there were some categories who did not currently fall into the definition of legal practitioner, and this clause was inserted to allow consideration of, for instance, paralegals or corporate lawyers, should it be so desired, in the future. “In the public interest” was inserted in the context of access to justice.

The Chairperson pointed out that this was covered in the next clause.

Mr Daya conceded that if the phrase “if it is in the public interest” was excluded, the result was the same.

Ms Smuts reiterated her view that the whole of this subclause should be removed, because if was meaningless and gave the Minister too great a discretion.

The Chairperson pointed out that it did refer to “in consultation”.

Ms Smuts still asked why it was necessary. The Bill was largely devoted to defining forms of legal practice, and this was little more than an escape clause that could permit some people to quickly enter practice, whereas everyone else must have followed the correct route.

Ms Louw said that the whole idea of corporate lawyers and Chapter 9 employees had fallen away, and this clause had been inserted when they were still being contemplated.

Mr Daya asked what the mischief would be in retaining this.

The Chairperson said that essentially it gave the Minister the power to allow certain people to practice without meeting all other requirements of the Bill. He personally believed it could be retained, if “in consultation” was used for (c) (although “after consultation” was acceptable for foreign legal practitioners), and the phrase referring to the public interest was deleted.

Adv L Adams (COPE) asked if subclause (c) was intended to apply in respect of foreign and local practitioners. She had understood that the whole clause related to foreign legal practitioners in general, and those covered under international agreements. Clause (c), however, did not specify either foreign or local, and as currently worded, it could be used to allow a local person who had not met the standards to be permitted to practice.

The Chairperson said that this was why “in consultation” was included.

Adv Adams reiterated that this subclause must state specifically whether it related to foreign practitioners.

Ms Smuts agreed, but also said that if it was intended to deal with corporate lawyers, then it should not be included.

Members agreed to move this wording to a new subclause (4).

Clause 25
Ms Louw said that clause 25(3) dealt with rights of appearance, and referred to a “prescribed certificate”.

Mr Swart said that this was merely a form, and had no problem with this.

Members agreed that this was acceptable.

Ms Louw noted that clause 25(3)(d) referred to “appropriate experience”.

Members requested that “in consultation” be included.

Clause 26
Ms Louw said that clause 26(1)(b) noted that a person could qualify to be admitted and enrolled if that person had completed requirements as prescribed by the Minister.

The Chairperson said that this must be read in conjunction with clause 29(1), and the wording should be consistent.

Members agreed that “in consultation” should be used in both clauses 26 and 29.

Clause 34
Ms Louw noted that clause 34(2)(b) related to forms of legal practice.

Ms Smuts pointed out that there was alternative wording also – that the Council must determine rules about the briefing of advocates. She thought that clauses (3)(a) to (d) covered what was already in (2).

Ms Louw agreed that the insertion had created a duplication, with both the Council and the Minister currently being named.

Ms Smuts would prefer that the Council make the rules. The direct briefing was essentially a relaxation of a old Bar rule. The rationale for placing it in the hands of the Minister was possibly that the Minister should also consult with the Legal Practitioners Fidelity Fund (the Fund), but she wondered if that was really necessary.

Mr Swart pointed out that there was a Fidelity Fund Board member on the Council.

Ms Schäfer said that Legal Aid South Africa was broadening its services to render civil services also. She preferred subclause (3) was better, because it was broader than the reference only to justice centres.

Mr Swart asked if subparagraph (b)(ii) was needed.

Other Members expressed the view that it was unnecessary, and Ms Smuts suggested that it be removed, so that it remained for Council to set the rules.

Ms Louw said that Legal Aid South Africa had only requested this leniency in respect of criminal matters, saying that Legal Aid acted as instructing attorney in civil matters.

Ms Schäfer thought that this was strange in light of the fact that Legal Aid South Africa had been urged to expand its civil mandate, where surely direct briefing should also be mentioned. She suggested that Ms Louw should ask Mr Hundermark of Legal Aid South Africa whether it would not be better to expand this to all types of matters.

The Chairperson noted the instruction to the drafters to keep the underlined portion of (b), to delete (ii), and to retain (3). He asked, however, if there was not duplication between subclauses (b) and (c).

Ms Louw said that (b) made specific reference to the requirement of a Fidelity Fund certificate, but this was not included in (c), so that the latter related to a brief from a Justice Centre. It was actually an addition, not an alternative, and must remain.

Mr Swart asked why the Council should make rules for the Justice Centre, in relation to briefing by an advocate.

The Chairperson agreed that this could be problematic.

Mr Swart suggested that the Department ask Legal Aid South Africa for its views on this point.

Mr Daya said that the expansion of the Justice Centres to accept civil work could be the problem. The justice centres had applied for amendments of the Attorneys Act and had asked for an exemption in relation to the briefing.

Adv Adams said that there had been duplication of part of (c). In subclause (3), the Council was to determine rules but there was reference to “by” attorneys or “instructed by”. The only way to be briefed was directly by the public or by attorneys.

Ms Louw agreed that there appeared to be a duplication, and suggested that the Department tidy up the wording.

Ms Christine Silkstone, Content Advisor to the Committee, said that (c) was about briefing and there was merit in having separate rules about instructions by attorneys.

Ms Louw suggested that perhaps (d) should be a separate sub-clause relating to the briefing of advocates and the instructions of attorneys.

Adv Adams asked if the reference should not be to “legal practitioners”.

Ms Schäfer agreed that this was a good suggestion, as it could cover correspondent lawyers.

Ms Louw agreed, and said that the clause would be re-worded to separate out the briefing of attorneys and advocates.

The meeting was adjourned.
 

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