Legal Practice Bill: clauses 25 to 116 deliberations

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Justice and Correctional Services

03 September 2013
Chairperson: Mr J Sibanyoni (ANC)
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Meeting Summary

The Department of Justice and Constitutional Development continued with its detailed explanation of the latest changes made to the Legal Practice Bill. Clause 25 dealt with the Right of Appearance of legal practitioners and candidate legal practitioners, and specifically stated that any attorney wishing to appear in the High Court, Supreme Court of Appeal or the Constitutional Court still needed to apply to the Court Registrar. One Member queried why there was still a requirement that attorneys undergo trial advocacy training in order to be given the right of appearance, commenting that it was undue bureacratisation, but the point was made that this requirement was introduced to deal with a specific problem that had been noted in the courts. Clause 29 dealt with community service, and contained several options. The DA voiced its opposition to compulsory community service by practising practitioners, and it was generally agreed that it would be preferable to urge the universities to include a compulsory element of community service, in the university legal aid clinics, in the LLB curriculum, although it was pointed out that this Bill could not actually prescribe changes to the curriculum. Clause 34 dealt with forms of legal practice and Members decided to specifically mention all Chapter 9 institutions, not only the South African Human Rights Commission, in the option, to prevent a situation where legislation excluded a group.

Clause 35 dealt with the fees structures of legal practitioners, juristic entities and justice centres. Several changes had been made to this clause. The suggestion was made that it would be useful to look at the Australian legislation. which contained requirements around cost disclosure to clients in advance, to ensure that both legal practitioner and consumer were aware of the legal costs prior to embarking on matters.  Clause 37 dealt with the establishment of disciplinary bodies and it was suggested that discipline be delegated down to the Regional Council level. Clause 48 dealt with appointment and independence of the Legal Services Ombud. Members said that appointing a retired judge as an Ombud was more desirable rather than other alternatives. They asked why the President had the option of appointing five persons nominated by an Ad hoc Joint Committee of Parliament. They asked what the executive interest was in this. Later, in discussions on clause 51, Members formally agreed that they were in favour of the Ombud being a judge who had been discharged from active service. This meant that the appointment would be done by the Minister, and any appointment to fill a vacancy must also be a judge of similar status.  A member raised a query about possible misconduct, but it was confirmed that this would be dealt with by the Judicial Service Commission, which retained jurisdiction over judges discharged from active service.

Members indicated their satisfaction, in principle, with clause 52, but did not debate the details, and the options not covering a judge would fall away. Members asked that any wording referring to broad demographics for any of the bodies should not only mirror the wording in the Constitution, but include the phrase “as far as practicable”. It was indicated, by the drafters, that all the clauses dealing with composition, disqualification or removal from office, of members of the Legal Practice Council, the Fidelity Fund Board or the Transitional Consultative Forum, would be brought in line.

Members indicated that, for clause 65, they preferred the last option, including a possible suspension, but that the words “may suspend” were preferable. Clause 68A had been inserted because the original version of the Bill had nothing on termination of office for the Board. The numbering would, however, be corrected at the end of the process. Similar provisions to clause 12 were now included in clause 69, with involvement of the Ombud. Clause 71 was amended to clarify that the Chair and Deputy of the Board would hold the same positions, ex officio, in the executive committee. Under clause 84, it was confirmed that there was a specific reference to members of the South African Human Rights Commission, but Members felt that other Chapter 9 institutions should not be included. In addition, the Committee had asked for insertion of a provision exempting certain people from holding a Fidelity Fund certificate, and they agreed that this would cover all bodies apart from the Legal Aid South Africa, which was in a special position because of the work that it did.

Clause 93 now included all offences and penalties. The drafters asked that the finalisation of clauses 94 and 95 stand over until all other clauses had been settled. Members agreed to add “and transitional provisions”  to the heading of clause 96, and the name of the Transitional Council would be changed consistently. Members agreed, in relation to this clause, that one academic was probably sufficient. The alternative chamber model was still included in clause 97, but the clause was not discussed. In clause 98, the drafters noted that the Forum would have to report to the Minister, since the Council would not yet have been established.  Clause 99 was brought in line with similar clauses around membership of the Fidelity Fund and Council. Members discussed whether the Minister should have the power to appoint the Chairperson and Deputy Chairperson of the Forum. Some Members preferred that the Forum elect its own, but some felt that the appointment by the Minister was a formality, and that the Minister should have the power to appoint to break a deadlock or where the Forum’s suggested candidates were unsuitable. An option of “after consultation with the Forum” would be included, and the same would apply to clause 102. In clause 116, the reference to voluntary associations was misplaced, since their functioning was not dependent on Chapter 2. The DA Member provided a draft of her option for the Long Title to the drafters, and it would be considered formally by the Committee.
 

Meeting report

The Chairperson asked the Department of Justice and Constitutional Development (DoJCD) to proceed with its deliberations on the Legal Practice Bill starting from clause 25.

Clause 25 Right of appearance
Ms Wilma Louw, DoJCD State Law Advisor, said that clause 25 dealt with the right of appearance of legal practitioners and candidate legal practitioners. Initially, the Bill only provided for attorneys and advocates the right to appear in any court, but at the request of the Committee this was limited by clause 25(3) according to the current Right of Appearance in Court Act which stated that any attorney wishing to appear in the High Court, Supreme Court of Appeal or the Constitutional Court needed to apply to the registrar of the Division of the High Court in which he or she was admitted and enrolled. A further addition to the clause was 25(3)(d) which stated that an attorney required relevant experience as prescribed by the Minister, and it was agreed by the Committee that this function of the Minister needed to be done in consultation with the Council.

Mr Lawrence Bassett, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development, clarified that the right of appearance of candidate legal practitioners was only limited to candidate attorneys and did not deal with pupils in this current legislative framework.

Mr Raj Daya, DoJCD Acting Deputy Director General: Legislative Development, brought the Committee's attention to 25(3)(a) and said that insertion was a new provision added to the existing Attorneys Act, which gave an attorney the leeway to appear in court without having to go through the full three-year mandated waiting period, alternatively if the attorney had undergone a trial advocacy training programme approved by the Council this three-year mandated period could be reduced.

Dr M Motshekga (ANC) asked why experienced attorneys were expected to undergo trial advocacy training in order to be given the right of appearance. This process further bureaucratized the system and induced gate keeping.

Mr Bassett said it was up to the Committee to decide on whether it agreed with the distinctions that currently exist between advocates and attorneys.

Mr S Swart (ACDP) said the provision requesting attorneys to undergo trial advocacy training came about because it was noticed that newly appointed attorneys appearing before the High Court lacked sufficient experience. If one had sufficient experience, they would fall under 25(3)(d) and would not have to go through the three-year mandated waiting period before appearance.

The Acting Chairperson thought that the provision in the clause was acceptable.

Clause 26 Minimum legal qualifications and practical vocational training
Ms Louw noted that some amendments to the clause had been proposed. Clause 26(1)(c) stated that community service would serve part of vocational training. Once clause 29 was finalised the area dealing with community service would be better clarified since clause 26 and clause 29 were related to one another.

Clause 27 Practical vocational training
Ms Louw said that clause 27 had been inserted to provide remuneration to all candidate legal practitioners, as well as pupils who at the moment who were not receiving any form of payment.

The Chairperson clarified that clause 27 gave discretion to the Council to ensure that pupils would receive remuneration.

Mr Daya clarified that this provision did not mean that the Council would pay; it would serve as a body to recommend a stipend to pupils.

Clause 29 Community service
Ms Louw noted that this clause was in the process of being amended further, as requested by the Committee. Initially it provided for the Minister to prescribe requirements for community service as well as a list of acts deemed as acceptable forms of community service. The first option inserted gave the Minister the right to prescribe the requirements for community service. The second option provided that either the Minister or the Council could make regulations stating the compulsory component of practical vocational training by candidate legal practitioners, upon which enrolment was dependent, upon as well as a list of what community service would entail. The South African Human Rights Commission was also now included in 29(3)(h) of the Further Alternative Option, and this stated that community service may include service in an institution established by Chapter 9 of the Constitution of the Republic of South Africa, 1996. Clause 29(5) provided one the possibility of exemption in performing community service.

Mr Swart asked what the difference was between 29(3)(b) "service in an institution supporting constitutional democracy" and the new 29(3)(h).

Ms Louw said that in her personal opinion the two were the same, and asked whether the wording needed to be refined to make the statement more clear.

Members stated that the insertion the statement in (h) of service in an institution "established by Chapter 9 of the Constitution of the Republic of South Africa, 1996" had clarified things.

Ms M Smuts (DA) said she approved of pro bono work but she remained opposed to the provision stating that legal practitioners needed to do further community service which determined their enrolment status.

Mr Motshekga said volunteerism should not be prescribed by law. The rationale for community service in listed institutions was to give students the opportunity to gain constructive experience. By extending it to legal practitioners, this took valuable experience away from students who could benefit from it.

Ms C Pilane-Majake (ANC) agreed that forced community service should not be prescribed for practicing legal attorneys.

Mr Bassett clarified that the current legislation did not deal with pro bono matters.

The Acting Chairperson noted that currently the statutory law societies did require attorneys to do some form of pro bono work.

Mr Swart commented that pro bono work should not be prescribed because most attorneys were single practitioners and prescribing additional pro bono work could affect their business. It would be more constructive to look into the requirements expected of candidate legal practitioners and other requirements in the Bachelor of Laws (LLB).

Mr Bassett said the Department would take out 29(3)(b), so that the Further Alternative Option sub clause 29(3)(h) would form the basis of this provision. If community service was only to be done by candidate legal practitioners, the Committee needed to provide guidance on where community service could be carried out.

Mr Motshekga said he thought community service was only meant for law students, he did not expect community service to be applied to candidate attorneys.

Ms Bassett said clause 6(5)(b) already set out a provision that urged universities to consider including a community service provision in the LLB curriculum: "including the desirability of including in the LLB curriculum a form of community service to be undertaken by all law students". This Bill specifically dealt with prescribing community service for candidate legal practitioners because of its potential benefits, but it could not prescribe what law students had to study. That particular issue was dealt with by other legislative means.

Mr Swart commented that it would make more sense to include in the LLB curriculum a form of community service. Having legal aid clinics at the universities would be well suited.

Mr Motshekga agreed to that proposition.

Mr Daya said the rationale behind the requirement of having candidate legal practitioners engage in community service was to produce a South African lawyer who would be able practice law in a holistic manner. Community service exposed legal candidates to the realities experienced by many South Africans and in turn provided them with further experience. He asked the Committee to take that into consideration.

Dr Motshekga said Mr Daya had a point. If candidate legal practitioners were to engage in community service, it was important to establish the stage at which this would happen.

Ms Pilane-Majake said it would be important to establish a time frame in respect to the amount of community service expected to be done. She agreed that legal aid clinics should be brought into the LLB.

A Committee member stated that establishing a time frame would be important but asked who would be accountable for ensuring that candidate legal practitioners followed through with their requirements.

Mr Swart said the Committee was in agreement that clause 6(5) was correctly worded. He said clause 29(1)(a) should be left to be determined by the Council or Minister, who can make the rules for candidate attorneys to do community service.

Clause 30, 31, 32, 33
Ms Louw noted that these were technical amendments.

Clause 34
Clause 34(2)(a) and (b) were changed. The Committee had requested 34(2)(b)(ii) should be deleted and an additional paragraph (c) was added which stated that:
'An advocate may render legal services in criminal “or civil” matters in expectation of a fee, commission, gain or reward as contemplated in this Act or any other applicable law upon receipt of a request directly from a justice centre for that service, in which event the provisions of paragraph (b) do not apply'.

Clause 34(3)(c) and (d) had been deleted and a new 34(4) was inserted which was merely a technical drafting change.

She explained the new clause 34(5). The South African Human Rights Commission (SAHRC) wanted their attorney employees to be considered as form of legal practice, similar to the advocates named in the new clause 6(d). It was only the SAHRC institution where admitted practitioners actually worked as practising attorneys and advocates although they did not require Fidelity Fund certificates because they did not receive trust funds.

Dr Motshekga asked how many Justice Centres were available in the country.

The Acting Chairperson stated that Justice Centres had established offices but they also had established satellites with employees who were placed very far from the centre. Where satellites were not present, Justice Centre employees would visit the magistrate courts periodically. He did not know the total number of Justice Centres and could not vouch for how productive they were.

Ms Pilane-Majake said that in her opinion, clause 34(4)(f) should be left as mentioning only ‘Chapter 9 institutions’, and not SAHRC specifically, so as to prevent a situation where the legislation might exclude a group of people from being assisted legally.

Mr Bassett pointed out that the SAHRC was the only Chapter 9 institution that could litigate and appear in court on behalf of the people they were supporting or assisting. The SAHRC was set apart because of the litigation role that was specifically provided for by its founding legislation.

Dr Motshekga said that approach was narrow and it needed to be opened up. It would be best to include Chapter 9 institutions in all areas applicable.

Mr Daya cautioned that by opening this up and including the phrase ‘Chapter 9 institution’ this would not provide sufficient protection for any malpractice that might ensue.

Ms Louw clarified that the role of the SAHRC and the work it did was similar to that of a practitioner. Currently it was exempt by some of the statutory law societies from having to obtain a Fidelity Fund certificate. SAHRC would prefer to be recognised in the Bill because the work it did was actually the same as a legal practitioner but the practitioners it employed would still have to meet the other prescriptions of the relevant Act. After that whole process, if candidate legal practitioners decided to go to the SAHRC instead of practising privately, SAHRC would like it to be considered as a form of legal practice but be exempt from the Fidelity Fund certificate.

The Acting Chairperson asked the Committee to consider the situation of the legal aid clinics at the universities and advice centres who employed attorneys but would apply to the relevant Law Society for accreditation, so that its employed attorneys could do the same job as other practitioners. Here, the liability and responsibility was borne by the legal aid clinics or advice centre of the university.

Dr Motshekga asked whether an attorney employed by the Gender Commission could add value to the Commission if he/she were exempt from Fidelity Fund requirement and given the opportunity to practise.

Mr Daya asked the Committee to consider an amendment which stated that exemption could be applied for to the Council by whatever Chapter 9 intuitions fell into this category and wanted to be exempted.

Committee members said they would support this consideration.

Ms Louw noted that nothing else specifically had been flagged in clause 34 by the Committee.

Clause 35: Fee structure of legal practitioners, juristic entities and justice centres
Ms Louw said that several changes had been made to this clause and there had also been a request for a further insertion, stating that the Minister may by Notice in the Gazette prescribe minimum tariffs payable to legal practitioners who were instructed by any state Department or Provincial or Local Government in any matter OR the Minister may by Notice in the Gazette prescribe maximum tariffs payable to legal practitioners.

Ms Smuts added a further option to clause 35 which stated:
- The Council must conduct an inquiry into legal fees and reports its finding and recommendation to the Minister for tabling in the NA:
- Whether legal fees were placing legal services beyond the reach of consumers, if so what were the effects on legal practitioners and consumers;
- What factors other than fees were impeding the operation of legal services in the legal market;
- Was the creation of a mandatory structure advisable, if so who should determine fees and should such a scheme allow for exemption where a legal practitioner is willing to work for a lower fee or if a client is willing to pay more.
She said she was not in favour of the possible insertions suggested for clause 35

Mr Swart said the Department should consider the further options stated by Ms Smuts, and he too did not agree with the possible insertions suggested by the Department in clause 35.

Mr Motshekga said it was important to have a body present to referee legal fee prices. The Minister was best suited for this position.

Ms Pilane-Majake said the purpose of this Bill was to ensure that consumers had access to affordable legal services. A system needed to be put in place which would ensure affordability.

Ms Smuts suggested that in dealing with the fee structures of legal services, the Committee should make reference to the Australian legal profession legislation, which had requirements for cost disclosure. It had a system of cost assessment practices that would ensure that both legal practitioner and consumer were aware of the legal costs involved prior to matters being pursued further.

Dr Motshekga said that a referral to the Australian legislation was making the process overly complicated. It was important to put in mechanisms that would ensure fees were affordable, and thus a referee needed to be put in place to control the fees.

Mr Swart said currently there was a regulatory framework for litigation costs, but it would be helpful to the consumer if cost disclosure was included as part of the client and attorney understanding.

Dr Motshekga opted for the acceptance of clause 35(6).

Mr Swart said there needed to be further debate on clause 35(6) before an agreement could be formulated.

Mr Daya asked if the Committee would agree to add the aspect of capping legal fees to the investigation.

Dr Motshekga said that would be a fair compromise.

Clause 36/37 Code of Conduct / Establishment of disciplinary bodies
Ms Louw noted that in clause 37 it had been suggested that discipline be delegated down to the Regional Council level. The alternative 37(1) dealt with that provisional change.

Mr Swart said it was unrealistic to expect the National Council to conduct all investigations. It would make more sense for complaints to firstly be directed to the regional or provincial Council, but there would also be the option of complaints being directed to the National Council.

Mr Daya said clause 23(1) dealt with the establishment of regional Councils and thus, when dealing with clause 37, there was a need to ensure that the power was not taken away from the National Council.

Ms Pilane-Majake said none of the clauses should be labelled as giving the power to the Regional Council; instead an insertion was needed which stated that the Regional Council “may” be delegated powers.

Ms Louw noted that there was a further alternative to 37(3)(b).

Clause 38/39 Procedure for dealing with complaints of misconduct / Disciplinary hearing
Ms Louw explained only that clause 38 dealt with complaints of misconduct and procedure to be followed in disciplinary hearings, and clause 39 dealt with disciplinary hearings.

Clause 40 Proceedings after disciplinary hearing and remedial sanction
Ms Louw noted that clause 40 dealt with the proceedings after disciplinary hearing and sanctions and stated that the insertion 40(3)(b) implied that council must apply to the high court for an order to compensation to the complaint which order is subject to confirmation by any court having jurisdiction in the circumstances in the prescribed manner.

Clause 41/42/43/44/45
Ms Louw pointed out that clause 41 on the Review by Legal Services Ombud had been deleted. Clause 42 which dealt with the Appeal against the finding of the investigating committee or disciplinary committee had several amendments but nothing was flagged. Clause 43 dealt with the Monitoring by Legal Services Ombud. Clause 44 dealt with Urgent legal proceedings and Clause 45 dealt with Powers of the High Court.

Chapter 5 Legal Services Ombud

Clause 46 Establishment of Office of Legal Services Ombud

Nothing was flagged here.

Clause 47/48 Appointment / Independence of the Legal Services Ombud
Ms Louw noted there was an alternative option to clause 48(1).

Ms Smuts said that appointing a retired judge as an Ombud was more desirable than the alternatives. She asked why the President had the option “to appoint one of not more than five persons nominated by an Ad hoc Joint Committee of Parliament”. She asked what the executive interest was in this.

Dr Motshekga said having the option of five names was practical, because for the nine Provincial Councils there were not enough judges available everywhere. The submission of multiple names provided more options from which to choose from if certain members chosen were not available.

Ms Smuts said a judge was suitable to fill the position of the Ombud because the courts had inherent jurisdiction, and a retired judge was above reproach and hence Parliament was not needed to sit during this process.

Dr Motshekga said it would not be wise to remove Parliament from this provision, the clause should be left with the understanding that the preference would be a retired judge.

Mr Bassett asked for clarification on what mechanism of appointment the Committee wanted to agree to.

Ms Smuts said there were two options:
- a judge appointed by the President
- the President appointing one of not more than five persons nominated by an Ad hoc Joint Committee of Parliament.

Clause 49 Powers and Functions of the Ombud
Ms Louw noted that there was an alternative option to clause 49(1).

Mr Bassett said initially the Bill gave the Ombud review powers but there was a strong view that the Ombud should not hold such powers. The alternative clause instead functioned by giving the Ombud recommendatory powers instead of decision-making powers.

Ms Smuts said that she preferred the alternative clause.

Clause 50 Remuneration and other terms and conditions of employment of the Ombud
Ms Smuts said it would be desirable to have a non-renewable term of seven years.

Clause 51 Removal of the Ombud from office on account of misconduct
Ms Smuts said she disagreed with this clause because she did not find it appropriate for the President to have the power of removing anyone he wished from the position of Ombud.

Afternoon session
Clause 51
Ms Louw explained that the third draft did have a footnote, and the dismissal and appointment process would depend on who was being appointed. A Minister would generally appoint a judge, whilst Parliament may appoint another person.

Ms Smuts asked if other Committee Members agreed with her that the Ombud must be a retired judge.

Dr Motshekga said that he would be happy with that. He asked what would happen, however, in the case of misconduct, citing a recent instance where a judge was depicted in the Press after a drunken driving incident.

Ms Smuts noted that the disciplinary process would be handled by the Judicial Service Commission.

Ms Christine Silkstone, Content Advisor to the Committee, confirmed that the Judicial Service Commission Act definitions referred to a judge who had been discharged from active service.

Ms Smuts confirmed that if there was a vacancy, the President would have to appoint, but this would contemplate that another judge be appointed.

Clause 52
Ms Louw explained that this clause was intended to enhance the independence of the Ombud.

Ms Smuts was satisfied with the clause, now that Members had agreed on the principle of the Ombud being a judge, and said that there was no need for the Committee to debate and agree on the remainder of the clause at this stage.

The Acting Chairperson asked about Footnote 305

Mr Bassett explained that the information set out there had been checked, and that the provisions now reflected the wording of the South African Judicial Education Institute Act.

Mr Bassett confirmed that the two options would now fall away, since the Committee had decided upon the appointment of a judge.

Clauses 53 to 64
Ms Louw said that although there had been changes to some of the clauses dealing with the Fidelity Fund, because of the changed definitions of advocates accepting direct instructions, nothing had been flagged specifically. Although there were also some quite substantial changes to clause 58, there was no indication that the Committee wanted to debate any of the points again.

Ms Smuts asked if the wording relating to the broad demographics (for the composition of the Legal Practice Council (the Council), the Transitional Consultative Forum (the Forum) and the Legal Practitioners Fidelity Fund (the Fund) Board mirrored the wording in the Constitution. She thought that the words “as far as practicable” should be used consistently, and liked the use of the phrase “should be considered”.

Ms Smuts noted that the new National Director of Public Prosecutions had served with both the Fidelity Fund and Legal Aid South Africa.

Clause 65: Membership of the Board
Ms Louw noted an alternative under subclause (2)(c) as well as an amendment to (c). This was similar to clause 8, relating to membership of the Council, and set out the considerations for a person who had been convicted of an offence, covering the questions of whether that conviction should be in a court of first instance, the pending appeal process, and a further alternative option for a suspension. This had not been finalised on the previous day when the Committee had been discussing clause 8 and the drafters needed guidance on the preferred option.

Mr Bassett explained that this was similar to wording used in the Constitution, insofar as lapsing of convictions of Members of Parliament were concerned. The Committee Members had been concerned about the time taken for appeal processes, and this was why the suspension provision was incorporated, to allow for immediate replacement on the Board by another representative. He thought that the latter option was the one preferred by the Committee.

Ms Smuts and Mr Swart confirmed this, but also confirmed that the wording should remain as “may suspend”, so that it was discretionary.

Clause 66: Chairperson and Deputy Chairperson of the Board
Ms Louw said that although there were changes, nothing had been flagged specifically for a decision.

The same applied to clauses 67 and 68

Clause 68A: Termination of Office
Mr Swart asked if clause 68A would be changed.

Mr Bassett explained that the drafters had tried to align this with the provisions dealing with membership of the Council, so it used the same wording as applied to the Council. There was no clause, in the original Bill, for termination of office for the Board members, and so it was inserted later. He assured the Committee that there would be a full renumbering and cross-referencing, once the discussions on the Bill contents had been finalised.

Clause 69: Removal from office
Ms Louw noted that there was an alternative to clause 69(1)(d), reading that the Board may remove a member at the request of the body who elected or designated that member, on good cause shown, with confirmation by the Ombud. There would also be removal if the person became disqualified. This was similar to the provisions for the Council, as set out in clause 12(1)(d).

Clause 71: Committees of Board
Ms Louw noted that clause 71(2) was amended and (b) now read that the Chairperson of the Board, and the Deputy Chairperson, would ex officio hold the same office in the executive committee.

Remainder of Chapter
Ms Louw noted that the other changes in the Chapter only related to consequential amendments dealing with the position of advocates taking direct instructions.

Clause 84: Handling of trust monies
Ms Louw noted that this had been amended to make reference to the members of the South African Human Rights Commission (SAHRC) who conformed to the provisions of the Act. She asked if this should be changed to refer to Chapter 9 institutions.

Ms Smuts said it should not be changed; this was different from the earlier matters discussed.

Mr Bassett said that the Committee had earlier decided that the Bill should provide for an exemption for certain people from having Fidelity Fund certificates. He would check whether this was not already mentioned elsewhere, but he thought this was the appropriate place to insert such wording.

Dr Motshekga said that perhaps there should still be a reference to the SAHRC here, but that a more general mechanism should be created for exemption.

Ms Pilane-Majake asked the drafters to look into the technicalities of the discussions earlier.

The drafters agreed that they would do this, and come up with appropriate wording.

Mr Daya said that if a general mechanism was being created, there seemed no reason to single out the SAHRC. The mechanism would cover everyone. The only difference was in respect of Legal Aid South Africa, because of the substantially different work that this body did.

Dr Motshekga then agreed that a general clause would be preferable.

Clause 85: Application for and issue of Fidelity Fund Certificates
Ms Louw said that clause 85(1)(b) was inserted because the Committee had decided that everyone commencing practice in a form that would require a Fidelity Fund certificate would have to also complete the practice management course.

Other clauses in the Chapter
Ms Louw noted that although other amendments were made, they were consequential to the changes made for advocates accepting direct briefs, and nothing was flagged for specific discussion.

Clause 93: Offences and penalties
Ms Louw said that this clause was amended substantially, because all clauses referring to offences and penalties were brought in under this clause.

Clause 94: Regulations and Rules
Ms Louw reminded the Committee that the drafters had started taking Members through the document setting out all the clauses that referred to rules (made by the Council) and regulations (made by the Minister). It would, however, be more productive to return to that only when the other clauses had been decided upon. Clauses 94 and 95 would still need further changes.

Clause 96: National Consultative Forum on the Legal Profession
Ms Louw noted that the name would still have to be finally decided upon, and that would affect not only the heading of the clause, but all other references (still noted as “the Transitional Council)

Mr Bassett thought that the heading of this clause should be changed also to reflect “and Transitional provisions”.

Members agreed to change the heading.

Ms Louw continued that although there were several changes to this clause, when compared to the previous draft, there was nothing flagged. There was an alternative option for subclause (2), around the composition and representivity. All the clauses dealing with composition and representivity would be brought in line with each other.

Mr Daya noted that his discussions with the South African Law Deans Association had established that that Association was empowered to nominate a law teacher, not only a law dean. He questioned whether the Committee still wanted to have two legal academics represented.

Ms Smuts thought, and other Members indicated that they agreed, that one academic would be sufficient.

Clause 97
The alternative chamber model was reflected in this clause, but it was not discussed

Clause 98: Powers and functions of the (Transitional Council)
Ms Louw noted that Mr Skosana had spoken to subclause 98(3) on the previous day, when dealing with the costing. This transitional body (referred to as the Forum) must conduct an investigation of the operation of the Council and regional councils, and make recommendations on the future structure and funding.

She noted that the clause currently read that the body would have to “make recommendations to the Council”, but pointed out that this was not possible, since the Council would not yet be operation, so perhaps this should be changed to reflect that recommendations must be made to the Minister.

Members agreed.

Clause 99: Membership of Forum
Ms Louw noted once again that there had been insertion of a reference to a conviction by a “court of first instance”. As mentioned earlier, all the provisions around membership of the three bodies, Council, Fund and Forum, would be brought fully in line.

Ms Louw also noted the alternative for clause 99(1), to allow the Minister, in consultation with the members of the transitional body, to designate a person as Chairperson and Deputy Chairperson.

Ms Smuts thought that this was not practical. The Minister could designate someone unpopular and that would hinder the working of the Forum.

Dr Motshekga asked why the clause should not allow for appointment by the Minister, at the recommendation of the Forum.

Ms Louw thought that the words “in consultation” would cover that.

Ms Smuts clarified that this was not what Dr Motshekga was suggesting. She felt that the body should be able to nominate its own Chairperson, and Dr Motshekga was essentially suggesting something similar.

Dr Motshekga confirmed that he agreed with the Forum deciding who should be the Chair and Deputy. However, the Minister would, as a formality, make the appointment.

Mr Daya asked what would happen if there was not consensus in the Forum. He suggested that there was perhaps merit in allowing the Minister to decide upon the appointment if there was a stalemate.

Dr Motshekga said that the final decision would then rest with the Minister. Perhaps there should be something to allow that if the person nominated by the Forum was not appropriate, the Minister should be able to appoint someone else.

Ms Louw said that if this was what he wanted, then the use of the words “after consultation” would allow the Minister to make the final decision.

Clause 100(6)
Ms Louw pointed to the alternative option for clause 100(6), which allowed for Ministerial appointment if there was a vacancy. Consequent upon the earlier discussions, this should read “after consultation with the members of the Council”.

Clause 102: Removal from office
Ms Louw noted an alternative option to clause 102(d). This was similar to provisions relating to the Fidelity Fund Board and Council.

Mr Daya thought that the confirmation of removal was surely to come from the office of the Ombud.

Ms Louw corrected him, noting that because this related to the transitional body, the Ombud would not yet have been established. That was the reason for the difference.

Parts 2 and 3
Ms Louw noted that no matters had been flagged.

Clauses 110 to 119
Ms Louw said that there was nothing further flagged in relation to the transitional provisions.

Clause 116
Mr Daya said that there was still a note relating to the “voluntary associations”. That reference should be removed, because their functioning was not in any event dependent on Chapter 2.

Members agreed that thanked him for picking up this point.

Long Title
Mr Bassett noted that Ms Smuts had read out an option for the Long Title yesterday, but she had not provided anything yet in writing.

Ms Smuts said that she would be delighted to, but had not done so, since Dr Motshekga had objected to the suggestions and indicated that they would not be supported.

Dr Motshekga said that he had not actually vetoed it. However, he had objected to some of the wording, which he did not think was formal and substantive. This whole process in the Bill may lead to fusion, but he said there was no need to fear the outcome, because this was establishing a mechanism that would take the process further. Parliament should not try to prevent what may develop out of the process. He said that “fusion by stealth” was not happening.

Ms Smuts still thought that this was being done.

Mr Swart said that Ms Smuts could still propose an option, and it was up to the Committee then to vote on it.

Ms Smuts said that she did not want to waste her time, if the vote would clearly defeat her. She did not want to make empty gestures, but preferred to put her time into work that would produce results.

Dr Motshekga said that the Committee wanted to get a good product and Members would take any proposals seriously. He was not saying that Ms Smuts’ draft should not be considered. However, he was saying that any law had to comply with substantive and formal aspects.

Ms Smuts said that whilst she had not worked on her suggestion further, to bring it to the stage of a formal draft, she was happy to hand her notes to Mr Bassett, which she then did.

The meeting was adjourned.
 

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