The Department of Justice and Constitutional Development (the Department) produced the third draft of the Legal Practice Bill, and outlined the changes made up to clause 24. A Member suggested that there was a need to amend the Long Title, because the Bill was actually not addressing transformation and achieving de-racialisation, and the representivity requirements could not be achieved. She suggested that there should instead be reference to “rationalisation and restructuring”, since the Bill was separating the regulatory and representative functions of the bodies, and that the purpose of the Legal Practice Council (the Council) should be specified. The DA and ACDP reiterated their belief that each of the branches of the profession needed to have a separate chamber to deal with their own rules, although the ACDP suggested that this could be done at regional level. ANC representatives thought that formal and substantive changes could only be achieved by specifying “transformation”. They also noted their disagreement with the two-chamber model.
Members accepted the alternative option for the Preamble. A new Member of the Committee asked for clarification of the difference between unification and fusion, and it was stressed that fusion was no longer being considered as an option. The same Member felt that clause 6 was overly bureaucratic. Several amendments to clause 7 were made, and although Members debated some points, including the numbers of academic representatives, the unworkability of the representivity requirements, and whether the Ministerial representatives must have certain specified competencies, no final decision was made. Later in the meeting, a further option was called for, setting out that the Council should comprise nine advocates and nine attorneys, one of each from each of the provinces. Concerns were repeated, in respect of clause 12, that instability in the nominating bodies might cause withdrawal of candidates, but the drafters pointed out that there had been safeguards now included, with the Ombud to confirm removal. A Member reiterated her strong view that the Ombud must be a retired judge. The new Member re-opened the debate on whether Ministerial involvement was desirable, and later questioned why the Committee appeared to be limiting executive involvement. The DA and ACDP indicated their opposition to clause 14, permitting the Minister to dissolve the Council, which ran contrary to the independence of the profession. The clause remained flagged for further discussion. The Committee agreed that it would be useful to ask the Sector Education and Training Authority for details on how funding for training and articles was allocated, and whether it addressed the apparent disjunct that practitioners were unable to take on more candidates.
Clause 18, dealing with committees of the Council, followed through the suggestion for a two-chamber model, and there was further clarification on the position of attorneys with rights of appearance, advocates accepting briefs directly, and the differences in the working of the branches of the profession. The whole of clause 23, relating to regional councils, was still flagged for further debate. Members debated whether the clause should refer to regions or provinces, suggested that nine provincial structures, phased-in, would be ideal, but that a minimum number could be named in the interim. One Member suggested that some of the current costs, including paying members of the statutory councils, were not justified, and urged that more decision-making power attach to provincial structures. Under clause 24, the new Committee Member questioned why “in consultation” was used, and it was explained that this had been agreed upon as a general principle. However, Members were still not sure whether clause 24(4) was needed; it was originally included to cater for the possibility of in-house counsel and paralegals being given rights of appearance. Some Members felt very strongly that this was a premature inclusion as both matters had still to be debated fully in principle; others urged that there should be more immediate consideration of the issue, particularly for paralegals. The clause remained flagged for further consideration.
The Department then gave a presentation on the costing for the yet-to-be-named transitional structure (referred to in the meantime as the Forum), which would be funded from the Department’s baseline allocations, and the Ombud, which would be funded by a separate allocation still to be requested from National Treasury. Each costing included inflation, staff estimates, facilities and administrative start-up costs. Clause 98 requirements had been taken into account. It was anticipated that the Ombud would take over the premises of the Forum, once the latter had completed its tasks, and the new Council would find its own accommodation. Members questioned how the needs for the Ombud were calculated, queried the inflation figures, asked about the funding of the economic inquiries by the Council, whether it was anticipated that the Council could seek further appropriations from Parliament, and whether there might be cost implications for the Sector Education and Training Authority. The position of the current statutory law societies and voluntary bar associations, vis-à-vis the Forum, was explained. The new Member expressed concern that this would be an expensive structure, questioned if in principle it was correct to use State funding to sort out matters that the profession itself had not been able to resolve, questioned why the whole process had taken so long, and thought that Parliament had to deal with it urgently. Another Member countered that the problems and delays had been caused by the insistence on either fusion directly or by stealth, and that government had simply not considered the needs of the public in any of the previous drafts; only now, for the first time, was the question of costs being canvassed. She suggested that, pending the inquiry into costs, the Bill should contain a provision requiring practitioners to agree a fee with all clients in advance.
Election of Acting Chairperson
Mr J Sibanyoni (ANC) was elected, after due process, as Acting Chairperson.
He welcomed Adv M Motshekga (ANC), the new Member of the Committee.
Public Protector matters
Ms M Smuts (DA) noted that the latest Noseweek carried an interview with the Public Protector, in which she made reference to being “stabbed in the back” by her staff. The Committee had already asked the Public Protector to appear before the Committee, and to comment on various matters, including an interview reported in the media after she had briefed the Committee on the Strategic Plan. She requested that matters raised in the Noseweek article also be included in the matters for the forthcoming meeting. The interview dealt with some of the same allegations about Mr Justice Molala, and there was more detail about the letter from Mr Malunga, including a statement that there had been discussions with Members of the Portfolio Committee. The Members had checked amongst themselves and nobody had in fact met with the Deputy Public Protector, and this was also confirmed when a direct question was put on that point.
The Acting Chairperson noted that a date had initially been agreed upon but found not suitable. He wanted to emphasise that the Committee was intending still to meet with the Public Protector. He agreed with her request, and would convey it to the Chairperson. A suitable date would be announced for that meeting.
Legal Practice Bill: Third Draft based on discussions from 13 to 15 August
Mr Lawrence Bassett, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development, noted that draft 3 of the Bill gave effect to the deliberations of the Committee on 13 and 15 August. He also noted that the Department would be referring to the document headed “Provisions in the Legal Practice Bill in terms of which regulations or rules may be made”.
Mr Raj Daya, Acting Deputy Director General, Department of Justice and Constitutional Development, said that there would be a presentation on the costing, but it was agreed that this be given during the afternoon session.
Ms Wilma Louw, State Law Adviser, Department of Justice and Constitutional Development, said that the first changes appeared in clause 6.
Ms Smuts interjected to request the Chairperson for permission to speak to the Long Title of the Bill. The conceptualisation was problematic, in her view. She would address the Committee on her concerns, and then confirm it in writing.
Mr JB Skosana, State Law Adviser, Department of Justice and Constitutional Development, suggested to the Chairperson that it would be useful to look at all key issues and principles, as this would help the Committee move forward, leaving only technical changes to be made later.
Other Members agreed with this approach, and the Acting Chairperson asked Ms Smuts to proceed.
Ms Smuts said that the Committee would have to observe the rule of law and provide justifications for any limitation on Constitutional rights, particularly since many interested parties would be looking for opportunities to challenge this Bill before the Constitutional Court. All legislation must a goal of meeting a legitimate government purpose. She believed that from line 1 of the Long Title, there was a problem. The legitimate purpose behind the Bill had shifted over the last twelve years that this Bill had been in gestation. The Bill sought to provide a legislative framework for transformation and restructuring, and purported to be about de-racialisation. However, the Bill actually did not do anything on this, as pointed out in one of the submissions from a black lawyers’ body. “Transformation” was not a statutory word. The Bill did introduce a requirement that the bodies being created, such as the Legal Practice Council (the Council) must be broadly representative, but that was already problematic because it was the components of the bodies who would elect their delegates. It was not correct to assume that that advocates were for the most part white, and attorneys for the most part black.
Ms Smuts noted that section 22 of the Constitution dealt with regulation of professions. She suggested that the Long Title should then read along the lines of “To provide a legal framework for the rationalisation and restructuring of the legal professions, to align their structures with the Constitution”. In this sense, rationalisation meant bringing them in line with Schedule 6 of the Constitution, similar to what had been done with the Superior Courts and 17th Constitution Amendment Bills. It was also possible, in the Long Title, to refer to the unitary state and the fragmentation of laws. This Bill was repealing pre-Constitution laws and setting a new organising body for the profession. The word “restructuring” should mean separating the regulatory and representative functions of the bodies. This would be one of the real achievements of the Bill, and this would follow other comparable jurisdictions. There must be regulations, in the public interest, and the Long Title should make it clear that this was what the professional bodies were doing, and that their existence served the public interest.
The Long Title should also specify that the Bill was “providing for the establishment of the Legal Practice Council, whose purpose would be to promote access to justice and affordable legal services”. This would be done through the economic inquiry into legal costs, and the inquiry into new forms of legal practice. Those, to her mind, were the real justification for creating one Legal Practice Council. She repeated the DA’s formal position that the two professions should each have their own chamber or committee, to regulate their own rules. Those suggestions underlay the entire justification for the Bill.
The Acting Chairperson said that there still was a need to deal with the earlier discussions about the possibility of the two chambers.
Mr S Swart (ACDP) supported Ms Smuts’ submission and asked that she should put it in writing, so that it would stand as an option before the Committee. Even if the two-chamber model was not finally adopted, there was merit in the wording she had suggested. He reminded Members that he had suggested an alternate model, of having sub-committees or chambers at the regional level.
Dr M Motshekga (ANC) noted that he had not been part of the discussions to date. The rationalisation and restructuring spoke to form, but transformation spoke to substance. The Long Title of the Bill had to make it clear that the country wanted to effect formal and substantive changes, which, in his view, could only find expression in the word “transformation”. The words “rationalisation” and “restructuring” would not address those aspects.
Ms C Pilane-Majake (ANC) agreed, saying that “rationalisation” suggested a correction of a situation, perhaps reducing or increasing numbers. Whilst Ms Smuts had noted that the Bill aimed to promote access to justice, the wording she had suggested was not linking this to transformation in the legal profession.
Mr Bassett noted that “restructuring” was already in the Long Title and he would have a look at Ms Smuts’ wording, if she could provide something in writing.
Ms Smuts stressed that “restructuring” was not included in the original version of the Bill. One of the poor aspects of the Bill as originally presented was the disestablishment of voluntary organisations. She wanted to emphasise that “restructuring” meant separating regulatory aspects from own interests.
Adv Motshekga thought that if the written submission was merely to be an elaboration of restructuring, then there was no purpose in pursuing it. He indicated that he would not be supportive of the two chambers.
Ms Smuts was sad to hear that the two chambers would not be supported by the ANC. This was fundamental to the whole Bill. There was not going to be fusion of the professions, and she therefore questioned why each branch should not be able to write their own code of ethics. If the Committee was merely rejecting those suggestions, then she would have no option other than to oppose the Bill. She reiterated that there was no elaboration on what “transformation” meant and nothing in this Bill was actually about transformation.
The Acting Chairperson suggested that there was still room for Members to find common ground.
Ms Louw said that alternative options were inserted into the Preamble, at the request of the Committee, and that must still be considered. They were indicated by double underlining.
Ms Smuts suggested that the “Alternative Option” be accepted. The two last bullet points, which said the same thing, could fall away.
Ms Louw agreed that the bullet points had been discussed at length but agreed that the alternative option did seem to cover the points.
Members agreed to accept the “Alternative Option”.
Adv Motshekga asked what the difference was between “unification” and “fusion”. There was still mention of a “unified profession”.
The Acting Chairperson explained that the term “fusion” should be avoided, as the Committee had taken a decision not to pursue that route.
Ms Smuts noted that the word “unified” was indicated as having been deleted already. She said that the Bill could not say that it created a unified profession, because it did not. The solution suggested was to delete any reference to “unified profession” and to refer instead to a “unified regulator”. This was very much a Bill that had followed a “cart before the horse” approach, because the Committee was specifying the functions that the interim body must perform and that would include inquiries into new forms of legal practice and costs.
Clause 6: Powers and functions of Council
Ms Louw noted that subclause (1) had been broken down and redrafted to show which powers must and may be done. The wording remained largely the same.
She reminded Members that clause 6(1)(t) was deleted after a previous discussion by the Committee.
Adv Motshekga asked if Members were being asked to choose whether the wording should be “may” or “must”.
Ms Louw explained that this was not how the original Bill was worded, but the Committee still needed to decide whether the alternative options should be included, or if the original wording should be used.
Mr Bassett expanded that the original Bill had merely used the word “may”, but the Committee wanted more specifics statements and guidance on those aspects that the Council must attend to, and those where it would have a discretion. The drafters needed confirmation from the Committee whether “may” or “must” was more appropriate for the various functions listed.
Ms Smuts noted that the footnote mentioned clause 6(1)(k). Originally the word “determine” was used, the new wording suggested here was “develop” and the General Council of the Bar (GCB) had suggested the word “monitor”. However, the GCB submission was not consistent in making reference only to monitoring. It was not in fact the Council who would be making norms and standards, but the representatives.
Ms Smuts noted that there seemed to be reference to a single publication, in clause 6(1)(g), and she asked if the implication of that would be that De Rebus and The Advocate would not continue to be published separately. She questioned whether it was correct, given that the Council had a numerical bias towards attorneys, to give it the authority to deal with legal publications. She would have preferred to carry through her suggestion for a two-chamber model into clause 6. She believed it was dangerous to create a broad Council and leave it to it to decide precisely what to do, and this confirmed the need, as she had mentioned earlier, for the Long Title to specify that the two professions would essentially continue.
Mr Swart indicated that the Committee had already indicated its broad agreement about the “may” and “must”, and this was preferable to the tabled version. He asked that the majority party should consider carefully the valid points that Ms Smuts had made.
Dr Motshekga said that it could be left to the drafters to distinguish between discretionary and mandatory powers. However, he believed that a firm position was needed on “develop”. The suggestion to use “monitor” or “determine” would suggest self-interest in the matter, and furthermore the use of “monitor” implied a shifting of responsibility, which could defeat the purpose of the transformation.
Mr Skosana suggested that the use of the word “may” could be tightened up from a drafting perspective.
Dr Motshekga did not believe that issues such as who would publish, and what publications, were not for this Committee to debate.
Ms Louw continued that clause 6(5) mentioned the Council’s role into education, law or legal practice generally. In subclause (b) there had been an insertion following the Committee’s discussions on the role of the Council for Higher Education.
Dr Motshekga questioned why there appeared to be such “bureaucratisation” in the Bill, and why there should be an inquiry into community service.
Mr Bassett reminded Members that this point had been raised, following a conference where it was suggested that it was important for the Bill to say something about community practice courses at universities. Whilst this Bill dealt with legal practice, and not university courses, the Members had nonetheless asked the drafters to see if they could insert something, and this was noted in Footnote 65. The inclusion was intended to urge the universities to address the matter.
Dr Motshekga said that if the Bill was about access to justice, then students should be sent to the rural areas, and this should be written into the Bill. However, he conceded that he was not sure about the full background and would like to acquaint himself further with the issues.
Clause 7: Composition of the Council
Ms Louw noted that several aspects had been flagged for clause 7. There had been amendments to the procedure of how members of that Council would be elected, and the fact that the transitional body would determine the process. A provision was inserted, similar to the Independent Communications Authority of South Africa Act, on persons who may not be designated by the Minister.
Mr Bassett noted that the numbers of legal practitioners (attorneys and advocates) also needed to be discussed.
Ms Louw noted an alternative option for clause 7(2), which provided certain criteria for Council members. The Committee still needed to make a final decision on paragraph (a),which related to regional demographics, and (e), where Members needed to consider whether a person experienced in Competition Law should be included. If those proposals were accepted, the Council would consist of 23 Members, and the uneven number was desirable.
Ms Smuts said that the composition of the Council went to the heart of the issue. She was in favour of the clauses setting out the representivity, but thought that in practice this was unworkable. The attorneys and advocates would elect their members, and so would the Minister and the academic body. Not all the requirements could be guaranteed. She suggested that perhaps the three representatives for the Minister should be specified as needing expertise in Competition Law, economic aspects and forms of practice, to ensure that the Council then had that expertise at least. It was possible to follow the Irish model and specify the gender. Somehow this Council was expected to emerge with broad representation as set out in (i) through (xviii) and that was impossible. She thought that the question of having nine advocates and nine attorneys needed more discussion.
The Acting Chairperson also noted that the number of representatives of the teachers of law still had to be decided upon.
Ms S Shope-Sithole (ANC) indicated her concern that “expertise in Competition Law” may not be found in the rural provinces, because of the past practices that did not allow much of this work to be done in those areas.
Dr Motshekga was concerned about the mention of legal academics and said that the Committee would have to enquire into whether the Law Deans Association was organised, whether it operated at provincial levels and how it appointed representatives.
Mr Raj Daya confirmed that the Department had already done the necessary enquiries on this point and was satisfied that there was a proper structure for election of the academic representatives.
Ms Louw continued, explaining the disqualifications set out in clause 8(2)(c), which was similar to wording of the Constitution. Another alternative option was included, to cover the position where appeals could be lodged against a conviction.
(Note: later in the session another option was requested by Ms Smuts and Dr Motshekga, for a Council with parity of representation between attorneys and advocates, nine of each, representing the nine provinces).
Clause 9: Chairperson and Deputy Chairperson of Council
Ms Louw noted that there was an alternative included to specify that if the Chairperson was an attorney, then the Deputy Chair must be an advocate, and vice versa.
Members indicated that they were satisfied with the “Further Alternative”.
Clause 12: Vacation or removal from office .
Ms Louw reminded Members that this clause set out the instances where the Council may remove a member, and the procedures where a member vacated office. There were substantial amendments. The alternative wording to (d) read that a member must vacate if the nominating body or Council requested. There were other options, including one for confirmation of removal from the Ombud.
Dr Motshekga said that when organisations were requested to nominate people to serve, instability in the organisation might result in it withdrawing its member, and this could dent the image of the Council, even if not due to any incompetence of that representative.
Mr Daya explained that a clause was inserted to deal with that situation, and the Committee had discussed the point that the constituent body may not agree with the way their representative handled matters. That was why the new draft spoke to confirmation of removal by the Ombud.
Dr Motshekga said he would be happy with a safeguard but felt that it was necessary to ensure that a person was not removed arbitrarily.
Ms Smuts noted that each constituent body would be electing a person in whom it had confidence, and would give a mandate to that person. There was a residual right that if the body was not satisfied with the representative’s performance, there should be the right to substitute. She felt that the inclusion of “on good cause shown” was enough and was not sure that confirmation by the High Court or Ombud were required. She reiterated her view that the Ombud should be a retired judge, but the final functions of the Ombud still needed to be finalised.
Dr Motshekga said that the point was also that the nominating bodies may be trying to advance their own interests rather than the public good.
Ms Pilane-Majake said that the point had been clearly articulated. She noted that there were provisions dealing with misconduct on the part of the member. The removal contemplated in this clause would be linked to mandate issues.
Mr Bassett noted that the Committee had not made a firm decision so the alternative options would remain for the moment.
Ms Louw noted that clause 12(4) had been amended to read that the Council must allow due process in law if it intended to remove or suspend a person from office. Internal processes should be spelt out in rules, alternatively in regulations. This might require a consequential insertion in clause 95. The whole of clause 12 had been amended numerous times, so it would be necessary for Members to look carefully at the wording.
Dr Motshekga asked if Members were being asked to decide between rules of regulations.
Ms Louw explained that the Bill, as introduced, referred only to “due processes of law”. However, the Committee had considered the possibility that the whole process of removal should be set out clearly, either by rules made by the Council, or regulations made by the Minister. This was an option. However, it was not necessary to prescribe this at all.
Dr Motshekga said that there had been many suspicions and debate as to why lawyers were removed from the roll, with some question as to what value systems were applied. He believed that the Minister, as an independent person, should be setting regulations, not the Council.
Ms Shope-Sithole said that these suspicions would need to be addressed.
Mr Swart appreciated that Dr Motshekga was a new Member of the Committee, but made the point there had been lengthy discussions on this very aspect. He referred to clauses 74 and 85. The main philosophical argument went to independence of the judiciary and the profession, which could be severely affected by Ministerial involvement. The Minister himself had said that he did not want to control the professions, which was precisely why there was a statutory Council, with Ministerial representation.
Ms Smuts agreed with Mr Swart, and added that it was the view of many Members that the Minister should not be able to make regulations specifying how and when representatives of the profession should be removed from their own Council was completely undesirable. This was completely contrary to the notion that the Council and the profession should be independent.
Clause 14: Dissolution of Council
Ms Louw said that, as originally worded, the Minister had the power to dissolve the Council if the Minister lost confidence in it. However, there had now been alternatives framed. Under one, the Minister should request intervention from the court, and an interim Council could be appointed. Under another, if the Minister lost confidence in the Council, s/he must seek reasons from the Council why it should not be dissolved, and then ask the Ombud to conduct an investigation, then approach the Court for an order to dissolve.
The Acting Chairperson added that this clause had also been discussed at some length.
Ms Smuts reiterated that the DA would not contemplate supporting the Bill if there was any dissolution provision by the Minister. She urged Members to consider seriously why such a provision should be necessary. The profession had failed to reach agreement for twelve years, but that was not surprising, given the fact that the Bill had originally tried to create a unified profession. She suggested again that the Council would have to deal with specific points. It was not as if the Legal Practice Council would decisively rule on anything; it would merely write the Codes of Conduct for its own professions. She saw no practical point in this clause.
Ms Pilane-Majake agreed that there had been a lengthy debate, but reminded Members that the point was raised that there may be a need for intervention if the Council – like the SABC Board – became dysfunctional. If everything ran well there would be no need for this form of intervention.
Dr Motshekga said that the country was still transforming. If there had been success in transforming the profession, there would be one body of lawyers. The fact that the Black Lawyers Association, Lawyers for Human Rights, National Association of Democratic Lawyers still existed - and the fact that the majority of those constituents had not united into one body -meant that there was still the possibility of dysfunctionality. He thought the Minister would be ideally placed to deal with these kinds of challenges, which had not been solved yet.
Mr Swart said that the ACDP was totally opposed to this clause. Elements of the BLA and NADEL were already included in the Law Society of South Africa. There was already representivity of the designating bodies. The main concern was that if the Minster, subjectively, believed that certain aims were not being fulfilled – which could have nothing to do with dysfunctionality – s/he could have the power to close the Council down. That went to the heart of challenging the independence of the legal profession. He felt that the Council could not be equated with the SABC Board. The points raised merely seemed to be opening up the issue again and he suggested that the Committee needed to flag the clause and return to it.
Dr Motshekga said that the concept of independence was important, but also problematic. Some groups regarded their own independence as more important than the public interest. Designating bodies’ interests did not always coincide with the rest of society. There had to be safeguards to protect society. They could be functioning well in their own selfish interests, so that criterion alone was not adequate.
Mr Swart said that this was the reason for having three Ministerial representatives on the Council. However, he also noted that this clause had been introduced only at a very late stage, and almost every submission, including (he spoke under correction) those of NADEL and BLA had expressed concern on it. It was probably not possible to finalise this today.
Ms Smuts said that the GCB had incorporated some transformative elements also. Each of the statutory law societies had different ways of electing their representatives, so it was clear that they needed to deal with this. Hopefully the first stage should resolve the problems alluded to. She noted that she was not so worried about having separate organizations, pointing out that specific women’s organisations still found a place after so many years. The process would encourage further integration. All that needed to be resolved was a mechanism for all the disparate bodies to find a way to elect advocates, and attorneys.
Ms Pilane-Majake agreed on the need to encourage free association but said there was also a need to address the problems that may exist. She still thought that the Minister should have power to dissolve, and said that this was not about the Minister having control.
Ms Smuts heard her argument, but disagreed.
Dr Motshekga emphasised that nobody would challenge the right of free association, which was constitutionally protected. However, the reason for the existence of these separate groups was a reaction to discrimination in the profession, and the difficulties of entry into the profession. The potential for dysfunctionality would remain, and that was why the Minister’s powers could not be removed. He thought this was a guarantee of protection of the interests of society.
The Acting Chairperson said that the point of departure was that the profession could not continue as it was before. There was a necessity for the profession to move. He urged Members to try to find a way to make progress.
Dr Motshekga added that the social realities had to be taken into account and made the point that many Masters’ graduates could not get articles. There was also a form of discrimination in that only the students from certain universities would be given preference when seeking articles.
Ms Smuts maintained that this merely confirmed what she had said earlier. The Bill, as the Long Title stood, purported to transform or de-racialise the profession, but that was not possible. She suggested that Dr Motshekga should look at the statistics on black, white, female and male students in universities and the profession. Things had changed and, as in every other sector, there had been progress. However, achieving non racialisation could not be done through creating a Legal Practice Council. She respected and shared in a deep desire to see de-racialisation and equality. In every other jurisdiction, legal practice reform had focused on the economic aspects of the legal sector. Legal practice was burdened by antiquated rules, and it was necessary to ensure that markets and clients met each other.
Dr Motshekga said that he had not mentioned race when citing difficulties in entering the profession. He was asking for a balance between the interests of society and lawyers.
Mr Swart said that from a broad philosophical perspective, the address by former Chief Justice Chaskalson was very useful. Page 14 said that access to affordable legal services was not a reality for most South Africans, and entry to the profession was dependent on outdated prescripts. These must be addressed and responded to by the profession, through dialogue, public debate, and looking for solutions that did not undermine the independence that was necessary for the legal profession to operate.
Dr Motshekga said that there seemed to be a focus on the practising lawyers and he did not believe that the re had been engagement with the universities and students.
Ms Pilane-Majake said that the entry to the legal profession must be opened up. There was a contentious clause on community service. The legal profession was far removed from the people of South Africa and needed to be in a position to better understand those people.
Mr Swart said that many useful comments had been made. He agreed that there should be engagement with qualified students who were unable to get articles. However, he reminded Members that the legal domain and amount of work were decreasing, such as Road Accident Fund cases and wills. That was contributing to the profession’s difficulties in taking on candidates. Even those who had been articled often did not get a position with the same firm but had to open on their own and find their own clients.
The Acting Chairperson noted that he served on the Judicial Service Commission (JSC), but despite the accusations and suspicions, there was not in fact attention paid to race. Some people simply did not impress the JSC that they had any commitment to transformation or had changing the way they had operated prior to 1994.
Prof L Ndabandaba (ANC) agreed that it was a major problem that the youth graduates would not be employed, but his was prevalent in several sectors.
Ms Smuts said that there was 40% unemployment in the country.
Dr Motshekga said that these arguments emphasised that this could not just be left to the profession. Parliament represented the people. If the existing profession claimed that the pie was getting smaller, they would hardly be likely to advance the interests of others wanting to enter the profession.
Mr Daya questioned whether the Committee might not want to ask the Sector Education and Training Authority SASSETA to brief the Committee on how funding was allocated. The system of workskills plans and monitoring appeared to be a hindrance. Although the law firms were paying skills levies, he thought that there was probably a disjunct in the system, if they were financially challenged in taking on candidates. He had written to SASSETA, but there had not been any response to his queries yet.
Dr Motshekga thought this would be a good idea.
Clause 18: Committees of Council
Mr Bassett noted the alternative option for clause 18(4) and said this went back to the discussion about the two chambers, one for advocates and one for attorneys. The alternative option noted that the Council should establish two standing committees to exercise powers and functions. One would consist of attorneys, and the other of advocates, and each would deal with issues relating purely to their own branches of the profession.
Dr Motshekga asked if this formulation took account of attorneys’ right to appear in the High Court. He said also that advocates practicing in the independent bar would be acting as attorneys if they took cases directly from the public.
Ms Smuts said that she did not agree with the suggestion that the dividing line between the two branches of the profession had been blurred or that the distinction had fallen away. The referral rule was not essential for a split profession and a referral profession. This Bill would not bring the current separation of professions to an end, which was why she felt that there was a need for two chambers, although she also noted that this was effectively a “softer” option of two committees. She agreed with clause 18(4)(a) and (b) but rejected (c). She believed strongly that it was not for the Council to implement or veto the decisions of the committees, who must implement the separate codes. She pointed out that there were ten attorneys and six advocates represented on Council, so there was a distinct possibility of attorneys outvoting the advocates on their own codes of conduct, and that made no sense. The situation was very different from the economic enquiry into whether rules were having an effect on access.
Dr Motshekga said that the question of a “unified” profession or “unified” regulator were not resolved.
Ms Smuts pointed out again that the idea of a unified profession had been dropped.
Mr Swart also emphasised that the two professions were not being fused. There would be a statutory Council, which would regulate and have representation from the two branches of the profession. There were indeed attorneys who could appear in the High Court, but the separation of the two professions was being maintained. There was representation of the National Forum of Advocates (independent advocates) on the GCB. Many of Dr Motshekga’s suggestions were covered already.
Dr Motshekga pointed out that the independent advocates had been formed to address issues in the organised profession.
Ms Smuts said that this was being addressed. The referral rule was being relaxed.
Ms Louw agreed that although some attorneys could appear, there were not many who actually made use of that right of appearance. As the Bill had now been amended, advocates could opt to take direct briefs, but they would be doing so only in respect of work that they were currently performing, which was court work, and they would not be moving into doing estates and other non-court work. There would still be huge differences between the working of the two professions.
Clause 23: Establishment of Regional Councils
Ms Louw pointed out that there were several amendments to the Bill as introduced and the Committee had flagged the whole clause for further consideration. Certain options were included.
Mr Swart noted the new insertions under subclauses (6) and (7), which followed his suggestion to deal with attorneys’ and advocates’ matters at regional level, particularly in view of the huge numbers of complaints and disciplinary matters. He also reminded Members that the Council would be meeting only four times a year and most of the work would be done by regional councils.
Ms Smuts suggested that 23(1) should read “regional councils in each province” and then, at the end, there should be addition of the phrase “but must delegate the investigation of complaints and the instigation of disciplinary proceedings”. She did not believe that the Council, meeting four times a year, or its staff, could deal with around 30 000 complaints a year. She also did not think that there should be only three or four regional structures. Perhaps “at least three or four” should be used, and she reminded Members that this number was selected because the infrastructure of the existing four societies should be used as the basis for the new bodies. The ultimate goal perhaps was to have one in each province, at the seat of the High Court. Perhaps it was possible to say that although three or four should be established when the Bill commenced, the aim was to have one at the provincial seats.
Dr Motshekga pointed out that there were nine provinces, and wondered why somebody at the top structures should decide on these bodies. He suggested that the provincial councils be formed and perhaps they could decide on regional councils. He said there was a need to “democratise” the profession.
Ms Smuts agreed. She thought that the notion of “regional” should be disbanded and that “provincial” be used instead.
Mr Bassett said that the Committee would have to decide on the final wording. The Council could establish as many structures as it wanted. Financial considerations were taken into account. The reason why “provincial“ was not used was that it was probably desirable to leave the ultimate decision on the sub-structures to the Council.
Mr Skosana said that the desirability of having nine sub-structures was raised by the profession, and the point was made that the number of lawyers in one area may not justify a whole separate structure, and there should be the possibility of joining. Courts were not provincial any longer, because the jurisdiction of a “division” could include an area from another province, by regulation. The transitional body would be obliged to do a cost analysis and decide how many regional structures it was able to establish. Over time, however, he noted the idea that every province must have its own structure, linked to the High Court.
Dr Motshekga said that the Bill could include provision for provincial structures, but make it clear that these did not have to be established immediately, but could be phased in. The overlaps of jurisdiction as outlined by Mr Skosana justified the need for rationalisation.
Mr Daya said that one of the main challenges was funding, and another lay in deciding what the provincial structures should do, and whether this would duplicate work and costs. The current structure whereby the Attorneys Fidelity Fund financed the four statutory societies had heavy cost implications, which the Fund had indicated that it would not be able to maintain, and the profession had been urged to be more frugal in the future. He cautioned against including anything in the Bill that could put the Fund into an invidious position, and would be happier to see a minimum requirement. The transitional structure and the Fund would have to decide the future structure because it was not financially possible to continue as it was.
Dr Motshekga said that sometimes money was being spent where it was not necessary, for instance, paying professionals for sitting on the Council. He did not think that money and numbers should be an obstacle, and said democratisation of the profession was more important. The young graduates should be able to determine their own future in their own provinces, and no central point should be controlling the pace of transformation.
The Acting Chairperson noted that the briefing on costing to be given later would outline the commitment from the Department.
Dr Motshekga thought the Bill should provide for the overall structure, but the implementation should be progressive and dependent on resources being available. Practising lawyers were making money, and must fund their own structures.
Ms Smuts agreed that justice was a national competence and that was why there was no longer a reference to “provincial divisions”, but did not think that the term “ provincial councils” would create any confusion around provincial competency. She also agreed that incremental formation would be possible. Already, the profession was asking how it could afford a Council, over and above what was already being done. The Council would have to determine the fees to be paid for membership, enrolment and the like. She reiterated that every profession should self-regulate, and the practical place to do this would be in the provinces, given the numerous complaints. Each branch of the profession should be allowed to attend to its own code variations.
Dr Motshekga said that self-regulation always should have safeguards because open-ended self-regulation defeated the purpose of justice.
Ms Pilane-Majake asked how many High Courts there were currently.
Mr Skosana said that there were thirteen, and the offices of the GCB were aligned to those. The four law societies were not aligned, because they were grouped on the old provincial boundaries. Some of those high courts would, over time, become a seat of another High Court as the intention was to have nine High Courts.
Ms Pilane-Majake confirmed that provincial councils would then be more appropriate.
Dr Motshekga added that the fact that people, in the past, had to travel from rural areas to consult with lawyers and have their cases heard had made justice inaccessible. The decentralisation of the High Court was appreciated, and the decentralisation of the Council should follow.
Department of Justice and Constitutional Development: Costing briefing
Ms Charise Fryer, Director: Legislative Costing, Department of Justice and Constitutional Development, said that the scheme in the Bill provided for national and regional funding of the Council by the profession itself. Clause 8 provided that the transitional body would look into the funding of the profession. Public funding would be provided in respect of the currently named Transitional Council –probably to be renamed the Transitional Consultative Forum (the Forum) - and the Ombud.
The costing for the Forum, over the three year period, was R4.3 million. The costing was based on figures for the next financial year, and there was consideration given to inflation, but the final figure would depend on when exactly the Bill came into operation. The councillors’ fees were not included, but the costs were basically set out under goods and services, facilities and administrative start-up costs. This included municipal costs.
Employees salaries for different levels were set out. The Secretariat of the Forum was envisaged as including a Chief Executive Officer, Deputy, and various other administrative staff. A senior, and general legal researcher, were also included.
Mr Swart asked how many directors were envisaged.
Ms Fryer said there would be four directors, four administrative officers, six personal assistants, two legal researchers, and one senior legal researcher.
Mr Skosana indicated that the directors would be dealing with different spheres of functions. There was a director for legal education, which was quite intrinsic to the Bill.
Ms Fryer continued that two tables dealt with goods and services. The calculations were based on 21 Council members, and she pointed out that if these numbers were to be changed, then the costing would have to be updated. The costing was based on each Councillor attending three meetings per month (which would include sub-committees) for which they would get retainer fees. At least 66% of the Councillors would need to travel, and travel costs were calculated at around R3 000 per day. Goods and services would include administrative items such as telephone, fax and library, estimated at about 5% of personnel costs. Office accommodation and furniture was also included. She explained that the Department’s existing payment thresholds had been used as the basis for this costing.
She then tabled the figures for the Office of the Ombud. Here, the inflation figures were set at 5.5%, based on an average of the current inflation costs, as National Treasury did not have a set estimate for that far ahead yet. Unlike the Council, the Ombud would be continuing for longer than three years. There was provision for an Ombud and Deputy, personal assistants, and other administrative staff, including HR, finance and supply, and provision for Occupation Specific Dispensation.
Mr Swart asked how the decision was made that twelve case workers were required. There would no doubt be a huge amount of work, as many of the complaints could end up being referred to the Ombud. He accepted that it was necessary to pin some starting point, but said that Members had to know how those estimates were arrived at.
Mr Skosana agreed, and explained that the Department had used examples from the Public Protector and the Correctional Services as background.
Mr Swart also noted that the inflation rate was different for the Council and Ombud, and that these figures differed from the current rate of inflation at around 6%. He also asked when the application would be made to National Treasury.
Mr Skosana said that a submission had been made. From its baseline, the Department would be carrying the Forum’s costs, but that would transfer into carrying the costs of the Ombud over the next three to four years. Once the Bill was finally enacted, separate funding would be allocated for the Ombud, which would not be from the Department’s baseline.
Ms Fryer noted that National Treasury used the previous year’s inflation and asked departments to calculate for it against a set figure. At the moment, departments were required to calculate for 5% inflation. However, given that a higher inflation rate was now showing, the Department had taken an average over the last three years when doing the calculations for the Ombud.
Ms Fryer noted the figures for goods and services for the Ombud, saying that no fees would be payable to councillors so the administrative charges were larger than 10% of employee costs. The start-up costs were larger, because the Ombud would have more staff than the Forum, and would thus require more furniture and equipment in the first year. However, the Ombud would continue to use the same premises as the Forum had done.
Mr Skosana added that the Department believed that the Forum must be sited separately from the Minister and Department, to promote a more conducive environment for engagement. The building would be procured for the Forum, as a state-funded building paid for by the Department, but would then be passed on as a permanent feature to the Ombud, whilst the new Council would move to its own premises. The transitional arrangements were intended to enable the profession to plan its future, and he noted that the costing must be considered in light of clause 98(3), which dealt with the powers and functions of the Forum. The Department had proposed, and Members had accepted in principle, that the Council must conduct an analysis of its operations and cost, and make recommendations to the Minister. He reiterated that the Department would not be able to project what the Bill would cost the profession, although it would be easier for the Forum to determine the current costs of the GCB and law societies, and determine what was necessary and what could be changed, for the future costs.
Once this analysis was done, the Minister would advise Parliament what it would cost to run the operations of the Council, and where that funding could be sourced. At this stage, therefore, the Department was essentially assisting the profession through the Forum, and enabling it to get on its feet while its costs were being funded. The Department had not been able to be quite as specific about the core structure of the Ombud.
Mr Swart said that this presentation was an attempt to estimate the cost of implementation to the State and the profession, but he was not sure whether it went far enough. He asked whether the funding for the cost analysis would come from the budget of the Department, or whether a separate allocation would be sought for that.
Mr Swart also wondered if the analysis was suggesting that more funding may need to be appropriated from Parliament if the new Council would cost more than the current structures (paid for presently by the Fund and the profession). An accurate cost analysis was crucial, not least because the buy-in of the professions was needed. Finally, he noted that there had been broad discussion on the position of the Sector Education and Training Authorities, and he asked if there might be cost implications for them, particularly if they were to fund the salaries to be paid to candidate practitioners.
Ms Pilane-Majake asked if there was certainty that the money would be available, and by when. She agreed that it would be useful to allow the profession to do its own cost analysis. However, this may link to the role of the Minister in the council and perhaps that role should be decided only after the costing had been done.
Dr Motshekga asked if the Forum was meant to replace the current law societies and the Bar Council.
Mr Skosana said that it was not. This Forum was to operate preparatory to the setting up of the Council. Some of the existing functions would continue to be dealt with by the law societies and voluntary structures – such as disciplinary functions, but certain matters set out in clause 98 would be dealt with by the transitional Forum. Some of the fundamental aspects of transformation would be resolved through this negotiated process, with oversight of Parliament. The transitional Forum was specifically required to resolve the matters that had held up the processes of transformation over the last eighteen years.
Dr Motshekga was worried that if this process was adopted, and was funded by the state, for the legal profession, then other professions might equally demand payment for restructuring. This would be a very expensive Forum. He had been involved in the fusion of the Bar in Zimbabwe, which was managed swiftly and could not understand why it had taken so long to deal with this. He, as an MP, would not like to see Parliament criticised for having delayed the process.
Mr Daya pointed out that the costing covered a three-year period. The profession would have to consider very carefully whether the new structures would be likely to cost more than current structures, but he did not think that any additional allocations would be sought from the State. The profession was jealously guarding its independence and would be loath to accept money from government, which could be perceived to or have strings attached. He reiterated that the profession and Fidelity Fund were already in deliberations on a new model that would be considerably different from the current funding model. The law societies knew that they would have to scale down considerably on members’ interest work, and requests for funding were likely to drop.
Mr Daya added that although the regional councils would not consist of 23 members, there should be proportional representation and the profession would have to interrogate the most efficient model for all structures. The regional councils would be dealing, in the main, with admissions and discipline. Another point to be considered would be law schools’ funding.
Dr Motshekga questioned why, if the bulk of the work at regional level would involve discipline and admissions, there were projections for researchers and directors. Discipline would rather require presiding officers and prosecutors. He was worried that this was a big infrastructure and, if established in all provinces or regions, would be immensely costly. It would be difficult to justify to the public why so much money was being spent on sorting out the problems of the profession, especially if it was so insistent on self-regulation.
The Acting Chairperson noted that all Members had expressed concerns about the lengthy delays but reiterated that leeway had been given to allow the advocates and attorneys to try to reach consensus. Some of the major points of contention had been reduced. Parliament must play its role now in legislating in a way that would bring the matter to conclusion.
Mr Daya added that the Bill specified that the current operations of the profession would continue until the Bill was finalised, and the work of the existing structures would continue even when the transitional Forum was set up, until the date when the whole Bill was put into force. He agreed that there was a financial burden on the State, and this Committee would need to decide how long the transitional Forum would need to finalise the matters.
Mr Skosana said that the GCB had suggested that it might be ready to change over to the new process within six months. However, this Bill was putting the commitment of the professions in writing, and Parliament would play an oversight role as guardian of the fiscus. Parliament was likely to place fairly stringent restrictions to ensure that the money spent would not directly benefit practitioners, but would ensure that more people had access to legal services, which was linked to the recognition of the need to regulate. The Ombud was introduced to ensure that ordinary citizens could raise issues within the context of the independent and self-regulatory framework. The Bill had been crafted to allow the Minister some role, but to ensure that s/he would not interfere with the independence of the profession. He agreed that Parliament should not appropriate anything to the Council, once it was set up, and that the profession must find ways of funding itself. The principle behind the transitional funding was to provide for a protective mechanism by the State. Through the SETAs and community services, there would be empowerment of ordinary people, both to access justice, and to enter the profession. All funding would empower others, not line the pockets of the existing profession.
Mr Skosana mentioned again that the figures were estimates, but they were based on similar structures. The MTEF process was under way for 2014/15, and the major cost driver was the infrastructure (leasing, start-up costs) and this would be passed on in due course to the Ombud. The details of headcount and so on would still have to be dealt with, but the Bill required regular reporting to Parliament, as the oversight body.
Dr Motshekga said that the public should be involved in the legislative process, but he had the feeling that this Committee was being subjected to veto and dictation by the profession, which was why this whole matter had been unresolved for so long. He thought this was a betrayal of the mandate of Parliament, as set out in the Constitution. It was up to Parliament to make a decision, after consultation, but there did not have to be concurrence. He repeated his concerns about lack of consultation with law students or law teachers. He would have thought that six months for the Forum to sort out the matters was reasonable, but anything beyond that was possibly not. He urged that this legislation be brought to finality. Public money was being spent to support MPs who, for the last twenty years, had not concluded the Bill.
Ms Smuts said that the legislation had been incorrectly framed from the start, and the whole process had been bogged down precisely because government was not thinking of the people. Government was unduly insistent on fusion, or fusion by stealth, and it was the engagement between government and the professions that was problematic. The real justification for creating a Legal Practice Council was an economic one, but she stressed that no Minister prior to Minister Radebe had ever raised the point about legal costs. The current Bill had asked for consideration of a fee structure, but even that had not gone far enough. The costs were the real problem because consumers (clients) could not afford legal services, and that was unacceptable in a constitutional democracy. That was precisely why the inquiry into legal costs was so necessary. Ms Smuts said that new legislation to regulate the profession had been contemplated prior to 2006, but the problem was that none of the previous drafts had considered the position of the ordinary people. She agreed with Dr Motshekga that the most important point was to achieve access to justice. However, she urged that Members should not seek to blame the profession only, because all previous versions of the legislation had suggested the residual insistence on fusion by the ANC. Everywhere else that fusion had been effected, the Bar had survived, so that fusion was in any event an illusion. There was a firm place for both professions, although there would no doubt be an evolutionary process. South Africans needed, above all, the small firms, although the big firms were necessary to keep the economy going. She urged the Committee to concentrate on legislation that would best serve the general public.
Ms Smuts asked Mr Skosana if the GCB’s mention of six months was not linked to some condition.
Mr Skosana noted that the Department had suggested a maximum period of three years to complete the transition, but the GCB said that resources could be put in.
Ms Louw added that one of the GCB’s arguments for moving directly to a permanent structure was that the GCB should become a regional chamber.
Ms Smuts noted that the GCB and other bars were voluntary associations and she believed that the Department should accept this. She thought that two separate “chambers” were needed, at regional and national level.
Mr Swart said that the process had been a lengthy one of negotiations between government, attorneys and advocates. The initial proposal from government was that the Council should be composed mostly of Ministerial representatives, and that was unacceptable from a Constitutional standpoint because the Minister or Executive should not be attempting to govern or manage the profession, as it flew directly in the face of its independence. He noted, in answer to Dr Motshekga, that Parliament had not been “sitting” on the Bill for the last twenty years. This current Bill had only been with Parliament for 15 months, and only this year had the Committee been able to start working on it. There had indeed been various drafts, but it was not Parliament delaying the issue.
Mr Swart could not recall whether the GCB suggestion was tied in to the chamber model, but noted that there was a vast difference between the GCB, which was merely a voluntary association, and the statutory law societies, who had assets and other matters that had to be collapsed, with huge consequences, and in Gauteng there were even two bodies. That whole process could not be concluded in six months, and he agreed that it was correct to give a maximum period to the Forum, and to recognise that this was an ongoing process.
Ms Pilane-Majake said it was necessary to understand what difference this Bill would make to the public. Unaffordable costs were impacting directly on access to justice, but that had much to do with the systems and arrangements within the profession. The main problem, for the ordinary person, lay with the referral rule and rights of appearance for attorneys, as people could not understand why they should pay for both an attorney and advocate. Lawyers would obviously be worried about and try to protect their own position, but a justice system was needed that catered for the people. Parliament would have to be outspoken if it did not believe that the legal business was being sufficiently changed. She agreed that within the profession, not all lawyers were on an equal footing and that too would need to be addressed. It was necessary to ensure that the qualified but unemployed law graduates were also dealt with.
Dr Motshekga pointed out that the biggest challenge facing South Africa was the dismantling of the whole apartheid state, because the Bantustans had their own assets, liabilities and employees. Transitional Councils were used for this, and the Interim Constitution had only been in effect for a relatively short time, which begged the question of why it should take so long for the legal system to change. He thought that the GCB’s suggestion was no more than a renaming without actually changing the structure. Transformation was all about change. Parliament had to provide leadership. Other sectors of society should be heard as well. He doubted that the Bill would be passed in this Parliament, and he feared that people would lose confidence in the legal profession.
Ms Smuts thought that the people’s views would be heard more clearly during the NCOP process. The two matters of greatest concern were costs and the disciplinary procedures, which had been run by the professions themselves, had lacked transparency and had not addressed the pecuniary injustices suffered by clients. She disagreed with Dr Motshekga that apartheid had failed because people had lost faith in the legal sector, because so many people in the struggle had gone to the courts. The existing system and the struggle activists had both maintained their faith in the law.
Dr Motshekga clarified that this was not what he was suggesting; he meant that if Parliament took 20 years to pass this law, it would lead to loss of faith.
Ms Smuts asked for clarity on Ms Pilane-Majake’s statements, and Ms Pilane-Majake clarified that she had been speaking of leveling the playing fields within the system, to allow all candidates an equal chance of entry into the profession.
Mr Daya noted that the public perception was not always correct. Some people still believed that advocates were more learned than attorneys, perhaps because of the forum in which they practised. This perception had to be changed, and the Bill could do this.
Mr Daya also noted that the GCB had embraced the Bill earlier on, but it said it was prepared to be part of the new structure, provided that it could continue as it was, and that it would be accredited. However, that did nothing to address the need for a unified regulatory structure.
Ms Smuts said that this had been included in the “Budlender Bill”, and this had been what had been done in the UK. There was a unified regulator, which was looking at alternative business structures and costs, for the benefit of the consumer, but the two professions were essentially left to regulate themselves in other bodies. She said that the ANC had a deeper drive to homogenise, although stopping short of fusion. If the Committee did not face up to that, it would not get the Bill right.
Dr Motshekga said that the history of South Africa was unfortunate, because of the deep divisions, and he thought that models from other Western countries may not work. Perhaps the Committee should look at Nigeria and other countries in Africa.
Ms Smuts said that the Committee had read very widely and had considered a number of models.
Dr Motshekga said that instead of critiquing each other, Members should be looking for consensus.
The Acting Chairperson stressed that the idea of fusion was no longer being pursued.
Ms Pilane-Majake thought that the suggestion of six months was not realistic, but she thought that definite timeframes were needed.
Dr Motshekga said that the Department had produced a costing on which the Committee could work. He agreed that whilst the nine sub-councils would not come into play for some time, it was necessary to have a Forum. He suggested that the costing be accepted and that the Department should work on the final model. He thought that the process might be delayed if the NCOP re-opened too many matters and proposed that this Committee do as much to finalise matters as possible, to lessen the work of the Select Committee.
Members indicated their broad acceptance of the costing model.
Continuation of Departmental briefing on the Bill
Ms Smuts noted that clause 23(5)(a) suggested that the same ratio of advocates and attorneys should apply at both the main Council and the regional structures. She did not agree with this, and thought that there should be equal representation of advocates and attorneys at regional level, because of the clause that allowed for a veto. Returning to her earlier comments on the impossibility of achieving all the representivity suggested for the main Council, she suggested that perhaps that Council needed nine advocates and nine attorneys, one of each from each province.
Ms Pilane-Majake thought that the ratio of 10 attorneys and 6 advocates was to apply only at national level, but that smaller numbers were needed at the regional levels.
Mr Daya clarified that he had earlier raised a concern that it was simply not practical to have 23 members on each of the regional councils. There should be a proportional representation, but with smaller numbers; for instance Free State may have the smallest regional council. Ms Smuts’ suggestion was something new, not included in the current draft, and he asked if she was calling for a further option.
Ms Smuts said that she and Dr Motshekga agreed on provincial representation, and therefore were asking for a further option to be included, in clause 7, for nine advocates and nine attorneys, one of each from each of the provinces.
The drafters agreed to do this.
Clause 24: Admission and enrolment
Ms Louw noted that the Committee had asked for changes to clause 23(3), by changing “in consultation” to “after consultation”. A new subclause was added to deal with the Minister’s power, in consultation with the Council, to permit a person or category to commence practicing immediately by virtue of his or her academic qualifications or experience.
Mr Swart noted that the changes to “after consultation” were to allow the Minister to comply with international commitments.
Ms Smuts asked why clause 24(3)(a) was worded “after consultation” and whether the Minister should be able to determine rights of appearance. She also did not like the wording for clause 24(4).
Dr Motshekga asked why (b) was also not worded as “after consultation”. He pointed out that a prosecutor who had been in practice for 20 years was probably more qualified to practice than someone with a Masters degree but no experience.
Ms Smuts said that there was nothing stopping that person from applying for admission and setting up a practice. She did not understand why any of these provisions were needed.
Mr Swart said that the Committee had already agreed that “in consultation” was needed for several matters. Subclause 24(3) was an exception because of the foreign legal qualifications. In the case of the public prosecutor, the Council would have to check whether the necessary requirements had been met. It was not for the Minister to excuse anyone from having qualifications. He could not recall what the “category” of persons was.
Dr Motshekga said that for argument’s sake, this might be people from disadvantaged backgrounds. The Council might object, saying that bringing such people in could lower standards, and veto their admission.
Ms Smuts disagreed that this would apply. The new criteria were specifically set out and they were not arbitrary.
Mr Skosana noted that (3)(a) and (b) had been agreed upon, and that the Chairperson had asked that the subclause (4) remain unless the Committee decided to remove it.
Ms Smuts suggested that then it must simply be removed.
Dr Motshekga proposed that Members must learn to trust government.
Ms Smuts countered that this would be a very bad thing!
Dr Motshekga noted that people voted in order to give mandates to govern. The word “Executive” meant that this body must implement, and its hands should not be tied.
Ms Smuts said that the Executive could not implement what had not been decided as policy.
Mr Daya noted that subclause (4) was included to allow for the possibility that in future in-house legal counsel may be permitted to appear in court. The Minister could only regulate this “in consultation” with the profession
Dr Motshekga wondered if this was not supposed to address the position of paralegals.
Ms Smuts noted that an inquiry was still to be conducted into both the in-house counsel and paralegals, before any such clause could be implemented. Ideally, the Council should do an inquiry, report to the Minister, who must table a report in Parliament. She suggested that subclause (4) must be removed and that the whole question of in-house counsel should not be considered before the basics were sorted out.
Dr Motshekga suggested that (4) should be retained, because of the possibility of allowing paralegals to appear, although whether this should be “in” or “after” consultation could be debated later.
Ms Pilane-Majake emphasised that perhaps there should not be a focus on paralegals, because there were numerous advice offices.
Dr Motshekga thought that precisely because there were so many advice offices, staffed by paralegals who were both well experienced and skilled, the clause should be retained.
Mr Swart said that the Committee was moving backwards. On a point of order, he asked that Dr Motshekga not interrupt other Members. The Committee had already decided to use “in consultation”, after extensive deliberations. If this debate was being re-opened, then every clause containing those words would also have to be reconsidered. This was not an issue of co-governance; and the need to use “in consultation” was decided upon after looking at Adv Bizos and Judge Chaskalson’s submissions.
Mr Swart also noted that a paralegal association had made a submission, but the Committee had taken a decision already not to deal with paralegals in this Bill, for various reasons. Re-opening all of these issues would merely delay the process.
The Acting Chairperson noted that in any event, clause 34(11) noted that the Council must, within two to three years, investigate and make recommendations on the creation of other forms of legal practice, including statutory recognition of paralegals.
Dr Motshekga countered that justice delayed was justice denied. He thought such an investigation could take too long and he did not think that clause was necessary. There was already a national association of paralegals, and there was no reference to consultation with that body.
Ms Smuts took Dr Motshekga’s point about the time frame, and said that whilst the inquiry into legal costs was necessary, the Council would only be reporting on that two years after it came into operation. The Australian legal profession had some wonderful clauses about disclosure of fees up front, and she would be recommending that these be included in this Bill, as this was one way to deal with fee issues now, whilst the longer inquiry was pending.
Dr Motshekga said that there was an inherent conflict of interest. Attorneys saw paralegals as competition, so they would be likely to delay on considering their position.
The Acting Chairperson expressed his agreement.
Mr Skosana reminded Members that the Minster would still have the power to regulate, and the Rules Board Act was needing a complete revision. Whilst there was indeed a mention of a report two years after the Council began to operate, which would be some time between 2018 and 2020, many of the issues could be settled before then, because there was nothing to stop engagement in the meantime.
Dr Motshekga said that under the English common law any member of the public could represent another person if the litigant in court proceedings could not represent himself or herself. Many of the paralegals at advice centres were able to draft papers, and many of them should be able to practise now. All that was needed was a clause allowing the Minister to declare that they could practice if they met certain standards.
The Acting Chairperson noted that point, but Members did not take a decision on it.
The meeting was adjourned.
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