Legal Practice Bill: Draft 4

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Justice and Correctional Services

09 September 2013
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Department of Justice and Constitutional Development took the Committee through the fourth draft of the Legal Practice Bill, indicating where changes had been made in line with the Committee’s instructions. The Committee must still take a final decision on the clauses. Members agreed to change the order of wording in the option to the Preamble, and clauses 3 and 5, so that the phrase read “broadly representative”, as worded in the Constitution. For clause 6, Members would be working from the Further Alternative Option, although there would still be debate on the principles. An alternative option was included on the composition of Council, in clause 7. Members were broadly in agreement that both the Transitional Forum and Council should have one academic representative. In clause 8, discussions would be based also on the Further Alternative Option, but Members must still decide on whether “may” or “must” should be used. They accepted the Further Alternative Option for clause 9. Members discussed whether regional structures would be the only bodies to deal with disciplinary matters; and whether this would be under original or delegated powers. They agreed that for practical reasons, these bodies were likely to deal with complaints and admissions, but no decision was made on the basis of the power. The DA representative reiterated her party’s firm view that there should be separate chambers to deal with advocates’ and attorneys’ matters, although the final disciplinary enquiries must include representatives from both professions and the public. Other matters flagged for further debate included whether there should be a structure in every province, their names, and whether, as suggested by the drafters, it might not be preferable to include mention of nine provincial councils in the main body of the Bill, but to make it clear that their establishment was dependent on financial feasibility, and then to expand more fully on the process of setting them up, in the transition clauses. Members noted the difficulties in persuading those in power to give up their powers, and the need to consider the rural provinces and practitioners’ needs.

Various options were still noted for clause 29, for community service, but the Further Alternative Option was used as the basis for discussion in the previous week. Members debated again whether this Bill could do any more than recommend that the universities include community service in their curricula, but agreed that the point could be raised with the Minister and Portfolio Committee on Higher Education and Training, and asked the Department to convey the concerns also to the universities who were already discussing the problems around the LLB. One Member suggested that firm action was needed because the universities were not producing law graduates of the correct calibre, but others cautioned against interfering with academic autonomy, and pointed out that unemployment of graduates were also linked to the shrinking pool of work. They noted that social work graduates were obliged to undertake community service, but were concerned about the practicalities.

The position of the South African Human Rights Commission (SAHRC) and other Chapter 9 institutions was discussed in relation to clause 34 (forms of legal practice) and clause 84 (exemption from holding Fidelity Fund certificates). The drafters had now established that only the SAHRC was empowered to litigate in its own name or on behalf of a class of persons, and so it must be acknowledged as a form of practice. After debate, Members decided that the possible exemption at the end of clause 84(1)(b) must be removed, since the exemption was to apply to the SAHRC only. The Department advised that the South African Law Reform Commission was also busy with an enquiry into different forms of legal practice, which Members welcomed as an enrichment of the Council’s processes.

It was also noted, in respect of clause 35, that the Rules Board for the Courts of Law was to be given a more substantial role, and it was possible that separate legislation on fees may be tabled prior to the Council completing its enquiry into costs. Members agreed that earlier debate and resolution on fees and costs in the sector was desirable, but an appropriate mechanism must be found.

Members had agreed that the Legal Services Ombud must be a retired judge and so there was agreement in principle on the appointment process. When discussing clause 96, the DA reiterated that it believed firmly that there should be reference to a Code of Conduct for each branch of the profession. Members noted the problems that could arise with nominating bodies removing their representatives, under clause 102, but were asked to consider if the safeguard “for good cause shown” was sufficient. Members also wanted more debate on clause 100(6), as some felt that the Minister should not be designating a Chair or Deputy, but that this should be left to the Forum.

The Chairperson was hopeful that the Bill could be tabled in the House on 19 September.
 

Meeting report

Draft 4 of Legal Practice Bill
Mr JB Skosana, State Law Adviser, Department of Justice and Constitutional Development, tendered apologies for Mr Lawrence Bassett, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development (the Department). He suggested that the drafters should take the Committee through the latest draft, indicating where changes had been made.

Ms Wilma Louw, State Law Adviser, Department of Justice and Constitutional Development, noted that the latest changes were indicated in curled brackets and italics, with insertions being noted in capitals and underlined.

Long Title
There was now an alternative for the Long Title.

Ms M Smuts (DA) said that she wanted to speak to it, but would do so later.

Dr M Motshekga (ANC) asked if the inclusion of this meant that a decision was taken on the point.

The Chairperson explained that this Committee usually worked on the basis of all options being included until the final point at which a decision on the clause was reached.

Preamble
Ms Smuts spoke to footnotes 10 and 15, and said that what she had proposed was not correctly reflected in the latest draft. She said that instead, the wording of the Constitution should be followed, so that the phrases should read “The legal profession is not broadly representative of the demographic…” and “which is broadly representative of the Republic’s demographics”. The same applied to page 10, in clause 3(b)(iii), and page 11 at clause 5(i).

Members had no objection to changing the word order so that “broadly” appeared before “representative” each time.

Clause 6: Powers and functions of Council
Ms Louw indicated that the ‘may” and “must” provisions had been separated out.

The Chairperson indicated that clause (p) had been deleted, but noted that there was a problem with some pages on the copied document.

Ms Louw indicated that in Clause 6(1) there was insertion of a further option.

Mr S Swart (ACDP) said that essentially this was merely a re-wording. He suggested that it was possible for the Committee now to agree upon the “Further Alternative Option”, which changed only the wording, and not the principle.

Clause 7(1): Composition of Council
Ms Louw noted that there was a new request to change the Legal Practitioners Council (the Council), so that there would be eighteen representatives from the practicing profession, or nine attorneys and nine advocates, drawn from each of the nine provinces.

Ms Smuts noted that this followed a discussion and agreement by herself and Dr Motshekga that provincial, rather than regional representation, was needed, because they thought that having one advocate and one attorney from each province would solve the regional problems.

The Chairperson asked if this was an alternative, or an agreed substitution.

Ms Smuts said that she would like to run with what was reflected now, but the ANC Members must indicate whether they would agree. That would lead to a total Council of 24 members, but the Chairperson did have a casting vote.

Mr Raj Daya, Acting Deputy Director General, Department of Justice and Constitutional Development, suggested that if the draft only set out that option, then it did not give Members leeway to consider others later, and suggested that the original wording should still be included also in this draft.

Ms Smuts respected Mr Daya’s concerns, from a drafting perspective, but thought that what was captured here was a correct reflection of the Committee’s instructions, and thought that there had been agreement between the Members on that point.

Dr Motshekga said that alternatives were being developed, and this was one of them.  

The Chairperson said that there was no need to change the current draft, but Members would bear in mind that this was an option, and could refer to the original Bill for the original wording.

Ms Louw noted that the original draft had provided for one teacher of law, then later there was an option for two. In respect of the (still-named) Transitional Council (referred to later as the Forum), there had been a decision to revert to one teacher of law. She asked what the Committee wished to do for the main Council.

Mr Swart said that there had been a lengthy discussion. For the sake of consistency, the same number of teachers of law should be on the final and transitional structures. He suggested formally, that the Committee should revert to one teacher of law.

Ms Smuts proposed that a final decision of one teacher of law be made.

The Chairperson asked the Committee to think about this, as the final decision would not be made today.

Ms D Schäfer (DA) reminded Members that the previous discussion had been based on the fact that the Committee had not been sure who would nominate law teachers, but now that it had been established that the Law Deans Association could do so, it made sense to revert to one academic representative.

Ms Louw moved to clause 7(2). It had been argued that the wording of clause 64(5) was more workable. The drafters had re-arranged the wording of the alternative option for subclause(2) as now reflected in the Further Alternative Option. This would make for better consistency.

Clause 8: Membership of Council
Ms Louw said that the Alternative Option and the original 8(2)(c) had been deleted, following a discussion on clause 65, when the Committee decided to align it with clause 8.

Mr Swart pointed out that the Committee was proceeding on the Further Alternative Option, but noted that the Committee must still decide on the “may” and “must” options.

Clause 9: Chairperson and Deputy Chairperson of Council
Ms Louw noted that the Committee had decided that the Further Alternative to subclause 9(1) must be accepted, as discussed on 31 July.

Clause 23: Establishment of Regional Council
Ms Louw noted that there was a view that the disciplinary powers must be delegated to the Regional Councils. It was accepted that, in practice, disciplinary and admission cases would be devolved to Regional Councils.

Mr Swart noted that there were pages missing from the draft and Ms Louw read out the clause.

The Chairperson asked if, in principle, the Regional Councils should be the only bodies to deal with disciplinary matters.

Ms Smuts noted that she had previously argued that it was unrealistic to think that the Council would be able to handle the sifting of complaints. Each statutory law society currently handled around 8 000 complaints, although these were substantially reduced by the time they reached disciplinary enquiry stages. For this reason, she thought it made sense to devolve this to the regional structures. She also reiterated the DA’s view that, firstly, each profession must write its own code of conduct, at national and regional level. The DA also rejected clause 18, in relation to powers and the veto. She firmly believed that the national Council could not devolve powers yet not divest itself of them. As far as discipline was concerned, there were practical considerations, and she firmly believed that the practicable route would be for attorneys and advocates, each in their own chamber or committee, to deal with their own complaints. At the final stage, she agreed that the disciplinary enquiry committees must consist of one attorney, one advocate and a lay person.

Dr Motshekga thought that this was a transitional Bill, and its implementation would require management from the centre. In addition, the implementation would be progressive. If, from the outset, there were original powers given to regional structures, there might be some cases that could not be taken forward because of challenges that could arise in those structures. He suggested that the powers should remain at the centre, but that they could be delegated.

Mr Swart said that the question was then whether “may” or “must” should be used. If “must” was used, then the capacity issues would be solved. The Council would be meeting only four times a year. There were already provincial bar councils and law societies in place. He thought that the over-arching power, in clause 6(1)(j), which also referred to delegation, was important. This noted that the Council was not divested of powers, and so it would not preclude the Council from dealing with complaints. If original powers were needed, then 6(1)(j) would have to be changed.

Ms Schäfer said that the whole purpose of the Bill was to change what was being done at the moment. Attorneys and advocates were protecting each other. She agreed that from a practical consideration it was likely that the matters would need to be dealt with at the region.

Ms Smuts suggested that the solution would be that the two Council chambers or committees of advocates and attorneys should be the ones with original powers, which were devolved to the regions. Otherwise, the committees would become a chimera.

Ms Louw noted that there were also other matters flagged in respect of this clause. There was discussion whether there should be a regional council in every province, and whether the heading should change then to “Establishment of provincial councils”. She summarised that in addition to the change of heading, subclauses (1) and (2) referred to the fact that the Council may / must (still to be decided) establish regional councils, with considerations around the establishment being set out. Subclause (5) noted that the proportion of advocates and attorneys would be the same as in the main Council. In subclause (7) it was stated that exclusively advocates, or exclusively attorneys, should deal with their own professions.

She added that although there was mention of provincial councils, it was recognised that this may not be immediately feasible. That was why there had been a note that a certain number should be established on commencement of Chapter 2, with others perhaps to follow.

Dr Motshekga was still not convinced about the continuing emphasis on regional councils. The Constitution established provinces. He thought that the word “regional” implied local government demarcation, and this would require the Minister to identify where the regions should be. He thought also that there was a contradiction in using this term. If not more than one region could be established per province, that necessarily implied that there would be one provincial council in each province.

Mr Skosana said that from a drafting point of view, the wording could be improved. If the Committee decided upon nine provincial councils, it would make more sense to deal with this under the transitional arrangements clause, which could specify what would happen pending the establishment of all provincial councils, including, perhaps, that some areas would be served by other structures. Ms Louw had specifically noted that it was possible to insert a condition that this would be subject to availability of resources. Once all provincial structures had been established, the transition clause would merely fall away. If the main body of the Bill were to refer still to three or four regional structures, this would not cover all the administrative processes. The Minister’s power would be informed by the need to manage the transition.

Mr Swart asked why the word “regional” instead of “provincial” was used, from the outset.

Mr Skosana said that the original intention was not to have a council in each province. If two or three provinces were combined, this had to be referred to as a region. He agreed that if one office was set up in each province, the word “provincial” would make more sense. The final nomenclature would be informed by the decision of the Committee.

Ms Smuts added that she was under the impression was that the reason for specifying three or four initially was the fact that there were currently four statutory law societies, and the new structures would be based on their existing infrastructure, which was linked to the four original provinces. However, for the purpose of building the new architecture, the Committee should not be bound to the old four provinces, but seek to establish something that reflected the new Constitutional order of nine provinces.

Dr Motshekga said that the Committee should not be directed by people who did not want to let power go, particularly those operating from the main centres. The challenges of attorneys operating in the rural areas were not considered. He did not think the clustering of provinces should be allowed. Attorneys in the rural areas should be able to have some autonomy to run their own affairs, subject to the overarching authority of the Council.

The Chairperson said that none of these views could be faulted. He had always wondered why there was a Law Society of the Northern Provinces.

Mr Swart noted that there was much here that was transitional, and the Committee was now thinking beyond what was discussed by the Department and profession. He agreed that including something in the transitional arrangements would make sense.

The Chairperson noted that the key question was whether there should be one structure per province.

Mr Swart thought that the Bill should aim for this, but the transitional phases should dictate how matters would run until all structures were fully set up. The four statutory law societies and bar associations were giving blanket cover at the moment to all areas.

Mr Skosana added that if the Bill were to specify one Council per province, this would have to be considered during the costing analysis, and preparations done for the evolution. There might, for instance, not be enough lawyers or resources in Northern Cape to warrant a separate body.

The Chairperson said that it was a fact of human nature that existing bodies may not wish to give up their power easily. The Bill would have to be carefully worded.

Mr J Sibanyoni (ANC) mentioned that people were of the view that there should be courts in all provinces, but transforming the courts may be easier than transforming the profession.

Ms Schäfer cautioned that the Bill would indeed have to be carefully crafted, to avoid creating an obligation of one Council in every province, whether or not this was feasible from a cost point of view.

The Chairperson asked the drafters to prepare an option for nine provincial councils, but to word the Bill so that it was clear that this should not take effect immediately, and that in the meantime, the existing structures could be used.

Ms Shope-Sithole wondered if time-frames should be put on the transitional arrangements. She suspected that the law societies, particularly in Cape Town and Gauteng would prefer to keep their existing powers and were likely to discourage involvement of those from the rural provinces.

Clause 29: Community Service
Ms Louw pointed out that there were several options. The Further Alternative Option was used as the basis for discussions in the previous week. The Committee, in the previous week, had decided to delete 29(1)(b). Chapter 9 institutions were referred to in (b) but this was later moved. Subclause (3)(d) was also deleted, consequent to the abandonment of the requirement for practicing legal practitioners to do community service. It was also decided that candidate attorneys should not be mentioned under (e).

Mr Swart suggested that clause 29(3)(g) still needed to be deleted also. The discussion had centred largely around the need for community service to be included in the LLB curriculum.

The Chairperson summarised that from the time that a person entered university to study for an LLB, it must be acknowledged that community service was to form part of the curriculum.

Ms Louw said that she was not sure that the Bill could impose this upon the universities, but it was worded as a recommendation.

Dr Motshekga said that he had a problem with the universities producing graduates who were actually not able to commence practising law immediately, as distinct from medical school graduates, who were immediately competent and able to perform their profession. Those lawyers produced by the universities were actually not able to assist the public. In addition, compulsory community service would serve the purpose of developing a social conscience, as the current graduates were too elitist. He thought that the universities should be under an obligation to include it in their curricula.

Ms Louw reminded the Committee that in terms of clause 6(5), the Council may advise the Council for Higher Education on various matters, and this now included a reference to community law service. The Committee had generally agreed that this Bill could not impose that obligation.

Dr Motshekga said that it made no sense to not impose an obligation in this Bill. The lawmakers knew that the graduates had no social conscience and were not adequate for their task. He had a problem with leaving this to another body to decide.

The Chairperson said that the discussion had recognised the limitations of this Portfolio Committee, and there had been quite a long debate whether this Committee, or Parliament, had the authority to dictate to bodies that resided under the Department of Higher Education and Training. Members felt that no obligation could be imposed in this Bill, certainly not without consulting with the Minister of Higher Education and Training. In addition, it must be remembered that the universities had their own bodies and autonomy. Many may agree with the recommendation, but that was all that could be done. He agreed fully with the sentiments expressed but was concerned about the practicalities.

Ms Shope-Sithole felt that the Committee might in fact be entitled to put such a provision in the Bill, and should perhaps work with colleagues in other committees. The country had a challenge of unemployment because the universities were producing unemployable people, and that must be addressed in the Bill. She suggested that perhaps the Chairperson should discuss the matter with the Chairperson of the Portfolio Committee on Higher Education.

Prof L Ndabandaba (ANC) repeated his wish to see community service made compulsory. Social workers had to do community service as part of their training. However, he also noted that the universities were very jealous of guarding their academic freedom.

Mr Swart fully agreed, and said that academic autonomy was the main reason why the clause was phrased in this way. Even the Minister had to be very careful in dictating what the universities could do. The employability of law graduates was, to his mind, not solely a question of their skills, but was also linked to the economic position of the country and the shrinking pool of legal work. There had been discussion around whether the four-year curriculum was sufficient and that was why the Council was being asked to look into other matters. He was worried that putting this any stronger would run foul of the principles of academic freedom. In addition, however, the Committee could include something in its report on the Bill.

Dr Motshekga said that it must be accepted that colonial philosophies were inherited, and that there was a desire to establish a developmental state. Academic institutions had to be geared up to advance that concept. He did not believe that academics should be allowed to act contrary to the direction that the country wanted to take. Parliament should be making laws that would speak to addressing poverty and unemployment. He thought that there should be engagement on what academic freedom meant.

Ms Smuts proposed that there should not be debate on that at all, and felt that his assertions were “shocking”. The relevant issues were already captured in the Bill of Rights, and academic autonomy was part of freedom of speech and debate as set out in section 16 of the Constitution.

Dr Motshekga said that section 16 did not necessarily mean that the institutions should not be told to instruct their graduates in a way that could deliver on the country’s needs. That would not necessarily limit academic freedom. He meant that the curriculum should be structured in such a way that the people being produced were able to do what they were trained for.

The Chairperson thought that it would be useful to consult with Minister Blade Nzimande, Minister of Higher Education, and the Portfolio Committee on Higher Education and Training. He did not see any problem with the way the clause was presently drafted. The Council would have to meet with other bodies and discuss these matters.

Ms Smuts noted that consulting the Minister now might affect the time frames. She believed that this Bill would have to be passed by end September and asked if it was intended that this Bill should be finalised at the plenary on 19 September.

The Chairperson noted that it was possible to pass the Bill by end September and consultations with the Minister could still take place while the Bill was with the NCOP. He hoped that the Bill would be passed next Thursday.

Dr Motshekga did not think that what was raised here should stop the Bill being passed. He recognised that there were several bodies and approaches.

Mr Skosana reminded the Committee that there was an ongoing process by universities to review the LLB degree and graduate output. The universities were aware that there were challenges and that their graduates were not up to standard. He thought there would be merit in conveying the Committee’s view also to the university structures. 

The Chairperson explained to Dr Motshekga that there was an outcry shortly before the Committee began working on the Bill, when a report was made that many graduates were not able to read or do maths properly. There was a realisation that the new LLB was not achieving what it was supposed to, so he agreed that broader discussions were ongoing. He agreed that it would be useful for the Department to feed in the views, particularly around community service.

Ms Schäfer cautioned that Members should not make broad statements such as that graduates did not have a social conscience. This may be so for some, but it must also be recognised that there were many bodies and individuals who were doing excellent work.

Clause 34: Forms of legal practice
Ms Louw noted that there had been discussion on subclauses (4) and (5), specifically relating to the South African Human Rights Commission (SAHRC), and the drafters were asked to ascertain whether all Chapter 9 institutions required the service of a practising attorney and advocate. Their research showed that only the SAHRC was empowered, in terms of its legislation, to litigate, in its own name or on behalf of a class of persons. There were no such provisions in any of the other Chapter 9 institutions’ Acts. The Commission for Gender Equality Act envisaged that any matters requiring litigation should be referred to the SAHRC. Other institutions had attorneys in their employ, but they were not employed as practising practitioners, merely as legal advisers. The only exception was the State Attorney. Although the Committee had asked that the reference to the SAHRC be substituted with “Chapter 9 institutions” this could give rise to unintended consequences, and she recommended that only the SAHRC should be acknowledged in this clause as a form of practice. Some of the law societies currently regarded the SAHRC attorneys as practising practitioners, but this was an informal arrangement, and the SAHRC wanted it to be formalised in this Bill.

Mr Sibanyoni proposed, and other Members agreed, that the wording revert to a specific reference to the SAHRC.

Ms Louw noted that subclause (5) related to advocates, but it might be more appropriate to move the position of this, to insert “and the SAHRC” under (e) rather than (d).

Ms Smuts noted that in clause 34(11), there was reference to the Council needing to investigate and make recommendations to the Minster on other forms of legal practice, including limited liability practices and multi-disciplinary. She wondered whether this perhaps needed to be worded more widely, perhaps to include “from other jurisdictions” to offer some guidance and to encourage the new Council to think quite boldly.

The Chairperson explained that presently an attorney in South Africa was not allowed to practice in multi-disciplinary partnerships, although these were allowed in other jurisdictions. He thought, however, that the current wording might already cover this.

Ms Smuts thought it would, but thought that it was desirable to cast the net wider and refer to alternative business models.

Ms Schäfer said that some types of partnerships were not appropriate.

Dr Motshekga asked why Members wanted to make reference to other jurisdictions and asked if this meant overseas countries. He thought that South Africa was dealing with transforming itself.

The Chairperson said that nothing was precluded, and the wording would be interpreted to mean that only some had been mentioned, but there could be more possibilities.

Ms Smuts said that the legal profession was very conservative and she was not sure if the profession itself was aware enough of the other possibilities. She wanted to encourage more innovation, which would be to the potential benefit of both practitioners and clients. The citizens and consumers had to be protected, but that would be done by ensuring that they had the right qualifications. At the moment, people were not getting services.

Mr Daya noted that there was already mention of multi-disciplinary structures, and of alternative business structures (the same discipline, but practicing in a different form, such as advocates and attorneys in partnership)> He did not think that there would be any problem in casting the net wider.

The Chairperson wondered if such wording would not encroach on the independence of the profession.

Ms Smuts countered that it would not, because the Bill was not imposing anything, merely requiring the Council to do the enquiry and table a report to the Minister, and the safeguard was that Parliament would still need to deal with this.

Mr Skosana told the Committee that the South African Law Reform Commission (SALRC) had also been asked to investigate the same matter. This option, in the Bill, might only commence after two to three years, once the final Council was established, but in the meantime the SALRC, which was comprised of experts in the legal field, not limited to the practising profession, would be engaging on these issues, and the SALRC document might be available within the next couple of years.

Dr Motshekga asked if there was then any point in the Committee pre-empting the outcome. He also noted that there were already challenges around resources, and questioned why the Council should duplicate the process of the SALRC.

Ms Smuts answered that this was not pre-empting. The SALRC did some wonderful work, but it did take some time. It would be excellent if the two enquiries could cross-pollinate. All the SALRC reports came to Parliament. The legal profession was merely being asked to do an enquiry, and make recommendations to the Minister on the creation of other forms of legal practice, which would require statutory amendments. It would be interesting to see what differences were to emerge from the SALRC and Council processes. The main purpose was to find answers to the problems of access to justice.

The Chairperson suggested that the SALRC should remain seized with the matter. It would be a while before the Council was up and running. In addition, the Council would not be precluded from asking the SALRC what it had done so far, and whilst the word “must” meant that it had to do an enquiry, it was not bound to accept what the SALRC research.

Clause 35: Fees
Ms Louw noted that a fourth alternative to subclause (4) was proposed.

Ms Smuts said that she believed that still further improvements were possible.

Mr Skosana noted that there were initiatives by the Minister, arising from the Superior Courts Act, to revise and reform the Rules Board for the Courts of Law. The Rules Board would be given a more meaningful role, including advising on aspects relating to fees and legal services, and generally considering a broadening of its mandate. By the time the Council had completed its investigation into fees, there might already have been legislation relating to the Rules Board. The process of this Bill would not stop the ongoing matters currently being handled by the Minister.

Ms Smuts agreed that it was still an option for the Rules Board to look at fees and tariffs. Whilst she personally believed that the enquiry route should be followed, there was no harm in the Ministry looking at amendments, particularly since they would need to be considered by this Committee. That would precede any inquiry by the new Council.

The Chairperson thought that there might be a need to pre-empt the enquiry into fees, and not wait until 2016.

Ms Smuts agreed in principle that it was urgent but said that the appropriate mechanism would have to be decided upon.

Clause 38: Appointment and independence of Legal Services Ombud
Ms Louw noted that consequential amendments were made to this clause, and other clauses, following the decision by the Committee that the Legal Services Ombud must be a judge discharged from active service.

The Chairperson noted that the role of the Chief Justice would then fall away, if the appointment was to be a retired judge.

Mr Skosana agreed, but said that some refinement may be required, and the Committee might want to consider perhaps inserting any provisions around age, for instance. The provisions around the salary must be linked to the Judges Remuneration and Conditions of Service Act.

Ms Smuts asked how this could be done “delicately”.

Mr Skosana said that he was merely referring to the need to cross-reference, on conditions of service.

Clause 50 and 51: Remuneration, and removal of Legal Service Ombud
Ms Louw noted that these clauses were linked to what Mr Skosana had said. There was a proposal that the heading of clause 50 be changed to “Term of office”. The drafters would advise the Committee whether it was necessary to refer to the other legislation here too. Sub-clauses (1) to (3) would be removed.

Similarly, there were several consequential amendments in clause 51. The Judicial Service Commission (JSC) Act would apply, because of the definitions, and that would provide for matters relating to misconduct of judges. Subclause (1) was deleted, but (2) to (4) remained.

Clause 65: Membership of (Fidelity Fund) Board
Ms Louw noted that the Committee had accepted the Further Alternative Option to (c), similar to what had been discussed for the Council. 

Clause 84: Obligations of legal practitioners relating to handling of trust monies
Ms Louw said that the Committee had suggested that there be a specific reference only to the SAHRC, and not the other Chapter 9 institutions. However, the drafters were also asked to provide for a possible exemption, at the end of clause 84(1)(b), including the words “on good cause shown”.

Ms Schäfer asked what the reason was for this.

Ms Louw responded that clause 84(1) already provided for exemption for the State Attorneys and others, so she was not sure why the drafters were asked to provide for a further exemption.

Mr Daya clarified that the Committee had discussed whether there should not be a blanket application for all Chapter 9 institutions, and suggested that a provision should be drafted to cater for that eventuality.

Ms Schäfer said that this was now irrelevant, as not all the Chapter 9 institutions were included.

Ms Louw agreed that now that there had been a decision that the SAHRC only was named, which was already exempted under the first part of sub-clause (1), it was possible to delete the provision.

Ms C Pilane-Majake (ANC) wondered if the naming only of the SAHRC would exclude the other Chapter 9 institutions, and thought that this was intended to assist other Chapter 9 institutions who may want to litigate.

Dr Motshekga explained to her that prior to her arrival at the meeting, an opinion was given on the specific and unique position of the SAHRC.

Ms Pilane-Majake said that she was then in agreement.

Mr Daya said that he was posing the question for the future. There might be another Chapter 9 institution who might fall into a similar category and may apply to the Council for exemption.

Ms Schäfer said that this would not be possible.

Mr Sibanyoni reminded the Committee of the deliberations of the ad hoc committee chaired by Dr Kader Asmal. He asked if it would not simply be possible to amend the Bill later if this were to happen.

Mr Daya pointed out that if such a provision was not created in the Bill, there would have to be a later amendment, rather than using an existing mechanism.

Mr Skosana cautioned that Parliament was already taking a risk in exempting the SAHRC, and it must be remembered that the requirements were intended to protect the public. The SAHRC should not be seen as “a holy cow”, forever exempt from any problems, and he cautioned against opening this up further at the moment, but rather to check and manage the risk over the next few years.

Ms Schäfer pointed out that a Constitutional amendment would be needed to create a new Chapter 9 institution, and that if that was created, then this Bill would have to be amended also.

Ms Smuts added that it was likely that in fact new institutions were not to be created. One of the recommendations was that the SAHRC should become an umbrella body for the other institutions. That proposal was dependent on the excellence of the SAHRC at the time. She also said that if the SAHRC was to be an umbrella body, then a lot of new candidates would be introduced.

The Chairperson said that this was not relevant to the present discussions.

Mr Swart agreed with Ms Louw that this provision should be deleted. He pointed out that as it was currently worded, it did not apply only to Chapter 9 institutions, but implied that any attorney could apply for exemption. It was undesirable to leave open any avenue that could be abused.

Ms Pilane-Majake said that if there was so much risk, and only the SAHRC was included, perhaps this might be discriminatory.

Dr Motshekga said that legal certainty was needed, and also cautioned against legislating for what may happen in the future.

Ms Louw noted that clause 84(10) also had an insertion of the reference to SAHRC, to provide that they could not keep money in trust. This was consequential upon the earlier decision.

Clause 96
Ms Louw noted that there should be one teacher of law on the transitional body.

Ms Smuts wanted to raise another point. The clause referred to “a Code of Conduct”. The DA firmly believed that this should be a reference to “Codes” (in the plural) because each branch of the profession should write its own Code.

Dr Motshekga said that regulation of conduct was about ethical conduct. He asked why there should be different ethics for advocates and attorneys.

Ms Smuts said that there were different rules relating to the different aspects of how they practiced.

The Chairperson said that this should be left to the Council to decide on that.

Clause 102
Ms Louw noted that if a person was suspended from the permanent Council, s/he could be replaced by the nominating body, but a similar provision had not been included in respect of the transitional Forum.

Members agreed that this should be included.

Dr Motshekga asked whether it was intended that the voluntary associations should be allowed to deal with their own matters. Bodies would nominate someone to the transitional body, but any disturbance in the designating bodies could de-stabilise the Forum.

The Chairperson said that this was a slightly different situation. This particular clause dealt with a representative who was guilty of misconduct. If a body had instability, and wanted to remove someone, there would have to be a valid reason.

Ms Schäfer agreed that there must be a valid reason for removal of a representative, but stressed also that it was very important for the transitional Forum to have full membership, and provided the safeguards were in place, there should be a provision to replace representatives.

The Chairperson asked that the Committee must think carefully about the position of the nominating bodies.

Ms Louw clarified that this deal with the limited instance where a person was convicted in a court of first instance.

Dr Motshekga thought that it was not the right to remove, but the right to replace that was important.

Clause 100: Chairperson and Deputy Chairperson
Ms Louw noted that there was an alternative option to subclause (6).

Ms Smuts said that this should not read “after consultation”.

Mr Swart explained that there had been a lot of discussion in the last week, after Dr Motshekga had raised points about “in” or “after” consultation.

Ms Smuts also did not agree with the alternative option to (6), whereby the Minister could designate. At the very minimum, this should read ”in consultation”, although she believed that the members of the transitional body should designate their own Chair and Deputy Chair.

The Chairperson agreed that this would need to be more fully discussed.

Procedure
The Chairperson urged all Members to try to take the Bill to their caucus. It would be difficult, but there were a number of matters on which a decision was needed on the options.

The Chairperson noted that it was likely that the SAHRC Bill could be finalised by 18 October, or even earlier, and asked Members to look carefully and check what matters were outstanding. He had given advance warning to the Department also to prepare itself to deal with it perhaps even before 18 October.

The Committee Secretary proposed that perhaps the Committee could deal with that in the first week of constituency week.

The meeting was adjourned.
 

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