Judicial Matters Amendment Bill: adopted; Criminal Law (Sexual Offences) Amendment Bill & Legal Practice Bill (draft 5): deliberations

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Justice and Correctional Services

01 October 2013
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Meeting Summary

The Department of Justice and Constitutional Development (the Department) tabled the latest version of the Criminal Law (Sexual Offences) Amendment Bill and described the changes. The Long Title was amended to use “certain courts” instead of “specific courts”. Clause 2 inserted a new section 55A into the principal Act, dealing with the designation of Sexual Offences (SO) courts. Revisions to subsection (1) clarified that the Minister may wish only to designate part of a division, and a new (1)(b) clarified that the Sexual Offences (SO) courts could deal with offences arising under other legislation such as the Trafficking and Film and Publications legislation. The new section 55A(2) had been amended by cross referencing to the Superior Courts Bill, but Members decided, after further debate, that the phrases “in consultation with the Chief Justice” and “after consultation with the National Director of Public Prosecutions” should both be inserted. A similar change was made to the new section 55A(4). Subsection (3) was also amplified with a reference to “other law” (on jurisdiction) and “or a seat thereof” was added at the end. A new clause, containing amendments to clause 3, was proposed, following the Committee’s acceptance of comments made by Shukumisa. The citation of the Minister of Police would be corrected, and provisions on the making of directives, by the South African Police Service, the National Prosecuting Authority and Department of Health on the implementation of the SO courts, were inserted. In addition, it had been proposed that the Department of Social Development should also, for the first time, be required to make and publish directives. However, after discussion, it was apparent that this latest amendment had not been conveyed to those departments, and the Chairperson would write letters to their Directors-General calling for comment. Members asked what the relevant departments would do pending the regulations being passed on the directives, and expressed their fear that this might be used as an excuse not to implement, but this was countered with the observation that SO offences were presently being prosecuted and this would continue. The Committee Report would emphasise the urgency of implementing the Bill, to protect vulnerable victims, although the budgetary constraints were understood.
In relation to clause 4, dealing with regulations, the suggestion had been made that the empowering clause should be far more specific on what regulations must cover. However, Members did not like that formulation, and opted for the original wording, with the proviso that it should be clear that the Chief Justice should not be consulted in relation to prosecutors. A proposal had been made that the Preamble be amended to make specific reference to the SO courts, but the Committee had instructed rather that a new bullet point be inserted into the Long Title, which was read out. Members asked for the title of the Bill to be reworded. Some of the paragraphs in the Memorandum of the Objects would require consequential amendments.

The Department highlighted the latest changes to the Judicial Matters Amendment Bill, in clauses 6, 8, 15, 17, 42, 44, 45 (similar to the amendments in clause 8), and 49. The State Law Advisers had agreed with the latest version. Changes to the Memorandum on the Objects of the Bill, which were technical corrections, were noted in paragraphs 2.8.3, and 2.8.5, describing the changes to the Attorneys Act, paragraph 2.10, relating to the Judicial Service Commission Act, and paragraphs 2.20, 2.24.1 and 2.24.2, in relation to the Child Justice Act. Members questioned whether the wording in clause 15 might need to be changed but were informed that this wording had been agreed to by the Law Society of South Africa and Attorneys Fidelity Fund. Members then unanimously adopted the Bill, and the Committee Report, save to an adjustment of the heading to reflect that it was a section 76 Bill.

The Department tabled Draft 5 of the Legal Practice Bill, and noted the latest changes in wording in clause  3(b)(iii) (and similar instances), and clause 23, where alternative options were included. A DA Member argued that this clause and clause 7 both had to do with “nationalisation" of the legal profession, and noted that at a previous meeting the DA and one ANC member had proposed that the Legal Practice Council (LPC) should consist of nine attorneys and nine advocates, drawn from the provinces in equal numbers, and this was a similar principle. She further believed that the LPC should not be allowed to revoke the delegation of powers to the separate bodies of advocates and attorneys who would be making their rules for their branch of the profession. Another DA Member indicated her concern with the financial implications of the clause.

In response, the Chairperson set out the ANC’s view on proposals made. The ANC believed, on the composition of the Council, that the original wording should be used, of ten attorneys and six advocates. The ANC was not in favour of having two chambers legislated but commented that the Council was empowered to establish committees as it saw fit. It did not believe that separate codes were necessary. In addition, the ANC believed that the Minister should have the right to dissolve the LPC if it was not functioning, similar to the position in the medical profession. The DA and ACDP expressed regret at the announcement, saying that parity would have contributed to buy-in by the profession. They indicated that the medical profession model was not applicable to the legal profession, in view of its unique requirement of independence.

The Department continued to set out the changes to clause 34, where the reference to all Chapter 9 institutions had been deleted, and the South African Human Rights Commission and the State Advocates were separately mentioned in view of their particular position. Clause 99 also now provided for replacement of a suspended member of the transitional body.

Members proceeded to a general discussion on the work that the Committee needed to do. A DA Member reiterated her proposal that, in addition to the requirement that the LPC undertake a full investigation into fees, there should be a specific provision in the Bill, similar to what was applicable in Australia, requiring all practitioners to disclose costs, including hourly rates and estimates on court costs, to their clients up front. Another Member commented that she was not in favour of some of the wording proposed on clause 35. Members noted that other matters requiring discussion included regulations, whether “in” or “after” consultation was needed on various clauses, why there was parity of representation on the transitional body but not the LPC, and the dangers of possible abuse of Ministerial power, particularly in relation to the dissolution of the Council. The ANC countered that it could be suggested that the legal profession itself had been abusing its own power by delaying the Bill for so long, but the DA countered that this suggestion was “outrageous” and the reason for the professions’ disquiet on previous versions of the Bill was that they were effectively proposing fusion. The ACDP suggested that at least, the Minister should be bound by the recommendations of the Ombud on allegations of the Council being dysfunctional, but the DA suggested that the Minister should be obliged to approach the Court to compel the Council to act in a certain manner. All items were flagged for further deliberation.
 

Meeting report

Criminal Law (Sexual Offences) Amendment Bill
Mr Lawrence Bassett, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development, conveyed the apologies of his colleague, Mr Jacob Skosana, who was unable to be present at this meeting.
 
Mr Bassett tabled the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill (sic) incorporating the changes up to 18 September.  He took Members through the latest changes.

Long Title
The Long Title had been amended to specify that “certain” courts would be designated where necessary. In the responses to the comments, the Department had proposed designating “specific” courts, but the Committee suggested that “certain courts” was more appropriate.

Clause 2
Mr Bassett said clause 2 inserted a new section 55A into the principal Act, dealing with the designation of Sexual Offences (SO) courts. Subsection 55A(1) clarified that a main seat or a local seat of a Division was included, the word “exclusively” was used for matters dealt with by SO courts and a new (b) had been added. The revised subsection (1) gave effect to the comment by the National Prosecuting Authority (NPA) that the Minister may not want to designate a whole division. The word “dedicated” was deleted, because of the uncertainty about the meaning and the different contexts in which it was used. The new subsection (1)(b) was inserted to answer a number of submissions that these courts should not be restricted exclusively to SO matters under the principal Act, but could also deal with matters in terms of other laws, where it was appropriate to use the courts, particularly where witnesses were vulnerable.

Mr S Swart (ACDP) asked, and received confirmation, that this would cover offences under the Trafficking and Film and Publications legislation. trafficking and Film and Publication Act purposes. He appreciated the amendment.

Mr Basset read out the original wording of the new subsection 55A(2). He reminded Members that a question had been raised why the Minister must designate SO courts “in consultation”, and why the Chief Justice was mentioned in the original wording. The latest proposal inserted the phrase “taking into account the provisions of sections 2(1)(c) and 8 of the Superior Courts Act, 2013” to qualify when the Minister may exercise power. Section 2(1)(c) of the Superior Courts Act stated that one of the objects was to make provision for functioning of courts and section 8 covered judicial functions. The Bill had originally proposed that other functionaries must be consulted because there should be consensus on designation, to ensure that all logistics were in place, and that the designation was appropriate. This wording now recognised the need to consult with the appropriate people.

Ms D Schäfer (DA) thought that this may need to be reconsidered. The main concern was that the NPA might not be willing to implement the decision to create a specific court in a certain area. She believed that “in consultation with the Chief Justice” was needed, because the Chief Justice controlled all courts, but it may also be necessary also to say “after consultation with the NDPP”. 

Mr S Holomisa (ANC) wondered if the current framing did not in fact contradict the Superior Courts Act, if it provided for “after consultation”. The formulation must recognise the Chief Justice as head of the judiciary.

Mr Bassett noted that he would amend the clause, to make reference both to “in consultation with the Chief Justice” and “after consultation with the National Director of Public Prosecutions” (NDPP).

Mr Swart asked if section 8(4)(c) of the Superior Courts Bill said that the Judge President was responsible for Magistrate’s Courts.

Mr Bassett confirmed that this was correct.

Mr Basset then moved on to the new section 55A(3), which dealt with jurisdiction. An insertion had been made to refer to “other law”, following comments that other legislative provisions also regulated jurisdiction, and the word “or a seat thereof” had been added at the end.

The new subsection 55A(4) dealt with increasing or decreasing the area of jurisdiction of a court. He suggested that this formulation now needed to be amended in the same way as (2), to refer to “in consultation with the Chief Justice”, and “after consultation with the NDPP”.

There were no proposed amendments to subclause (5).

New clause 3: Amendment of section 66 of principal Act
Mr Bassett noted that these amendments were inserted following suggestions from Shukumisa, and related to directives and national instructions in respect of the implementation of the Act. It was suggested that if the Minister of Justice was to designate SO courts, this should be catered for in the national instructions and directives. The NPA supported that suggestion. Essentially, clause 3(a) thus amended section 66(1)(a), and a new subparagraph (vii) would be inserted, requiring the National Commissioner of South African Police Service (SAPS) to issue directives around how police officials must carry out their responsibilities.

Ms Schäfer reminded the drafters that the reference to the Minster of Safety and Security must also be amended to reflect the new title of the “Minister of Police”.

The remainder of the amendments were similar to what had been done earlier. A paragraph was also inserted to specify directives on how prosecutors must carry out their duties, and the Director-General of the Department of Health (DOH) was also to issue directives on this matter, in subclauses (b) and (c).

Mr Bassett indicated that a new (d) was now also inserted, inserting a new subsection 66(3A) into the principal Act. The Director-General of Department of Social Development (DSD) was , for the first time, also placed under an obligation to issue and publish national directives that had a bearing on how officials in the social development environment must carry out functions related to the SO courts, and the introductory wording was the same as for the NDPP and SAPS. Mr Bassett was not sure why the DSD had not been given this duty when the principal Act was passed.

He also noted an amendment to section 66(4)(a). The Committee had indicated, when discussing the provision, that the first national instructions and directives in line with these amendments must be issued within six months but he suggested that rather than the six months being counted from the date of operation of the Act, it should be counted from when the regulations were passed.

Ms Schäfer asked what the bodies would do in the meantime, as there was likely to be a long period before the regulations and directives came into effect.

Mr Bassett said that there could be a gap, but pointed out that because this was not an entirely new provision (except for DSD) directives could have been made in terms of the existing general powers of the NDPP and Director Generals concerned.

Ms Schäfer feared that SAPS was likely to say that it could not implement without the regulations and directives being in place.

Mr Swart pointed out that at the moment there were prosecutions and investigations being carried out. This new section was intended to improve the situation, which was covered by an existing framework, so it should not be assumed that there would be a vacuum. He suggested that the Committee include, in its report, a statement on the need to monitor what the SAPS was doing.

The Chairperson asked if all the role players were aware of what the Committee was doing at the moment.

Mr Bassett noted that this proposal had come through at a late stage, and had only just been acceded to by the Committee, so the Ministers had not been consulted, and may not be aware of it. He had drafted letters to alert the role-players of this possibility.

The Chairperson confirmed that letters should go out, to the Directors- General (DGs) and political heads. Directives would have to be drawn by the DGs and they should be alerted to what would be expected of them.

Mr Bassett said that the fine tuning of all the implications could come at a later stage; the focus was on implementation.

Mr Swart noted that the Bill should be implemented as quickly as possible. However, the Memorandum on the Objects of the Bill said that the SO courts would only be designated after funding was found, training was done and the specialist services for victims were available. That would also have to be monitored, and mentioned in the Committee Report. The Memorandum noted that some of the courts had infrastructure and basic capacity to deal with SO. The Bill, once passed, was due to come into operation “on a date to be fixed by the President”. He thought that the Committee Report should also indicate the degree of urgency and the desire to put the legislation in operation as soon as possible, particularly to address vulnerable victims. The Committee was aware of the funding constraints, and the possible delays by consultation with the Ministers. Perhaps the Department could be asked to indicate a time line.

Mr Bassett said that it was difficult for him to respond directly as it was the Vulnerable Groups division of his Department that was driving this. He did understand the concerns.

The Chairperson said that his understanding was that the Bill would be implemented incrementally. It was difficult to tell exactly how long it would take.

Mr Bassett noted that there were some courts that could be designated almost immediately.

Ms Schäfer pointed out that the budgetary information was available in the Task Team report, which indicated it was likely to cost R60 million, but only R20 million was available. She agreed with the need to mention the points raised in the Committee Report.

Ms Schäfer questioned why these new provisions were being put in the Act if they were not necessary. Whilst it was desirable to have directives, she did not want to see departments using the need to draw them as an excuse not to continue with the work. She noted that the National Commissioner of SAPS probably had wide powers to make directives anyway.

Mr Bassett agreed, and said that was why the Department of Justice and Constitutional Development (the Department) had questioned whether there was a need to be so specific on national instructions and directives. It was necessary to effect amendments on the DSD, as it had not had responsibilities prior to this. This Committee could also exclude these provisions but request the Directors General, in the Committee Report, to draw national instructions and directives.

The Chairperson said that Shukumisa was very explicit on this point, and he feared that if the provision was not legislated, the departments may well not make directives.

Mr Bassett could understand the requirements for NPA and SAPS directives, but was wondering what kind of directives would be made by DSD and Department of Health.

Ms Schäfer suggested that DOH was likely to have directives around preservation of samples and HIV testing. She repeated her concern that she would not like to see the new provisions being used as an excuse for not attending to matters until regulations were passed.

Mr Holomisa suggested that it would be useful to get comment from these departments, and agreed with Ms Schäfer’s concerns.

Mr Swart said that DOH already had a role to play in terms of the existing regulations, but the main concern would be whether to insert DSD. He agreed with giving that department time to comment, but urged that this process should not be allowed to delay the finalisation of the Bill. He suggested that if the Department did not respond, the Committee may decide to leave the provisions out.

The Chairperson interjected that they could be left in.

Mr Swart continued that the main emphasis must be on improving the prosecutions and investigations, to increase the efficacy of the system.

The Chairperson asked that the letters that the Department had prepared should be forwarded to him, so that they could go out under his name and signature. A response would be requested from the relevant bodies within the next ten days.

Clause 4:
Mr Bassett noted that this clause dealt with regulations. A new (b) had been inserted, to the effect that the Minister, in consultation with the Chief Justice, may make regulations to give effect to designations, including requirements for the efficient and effective functioning of the SO courts. A comment had been made that the empowering clause should give more specifics. The proposal was therefore now for a redrafted (b), referring to the Minister making regulations to give effect to the designation of the courts, including the efficient and effective functioning thereof, and then various specific matters were listed in (i) to (iii). 

Mr Bassett said that NPA had questioned why the Minister had to make regulations “in consultation” with the Chief Justice. It was suggested that (b) be included in what was originally in (a). The changed wording noted that the Minister may, after consultation with the cabinet ministers and the NDPP, make regulations.

In regard to the role of the Chief Justice, he noted the suggestions of the drafters for a new subclause (2). This provided that any regulations made in terms of (1) must be made taking into account the provisions of sections 2(1)(c) and 8 of the Superior Courts Act. That might not be necessary if the Committee wanted to revert to the original wording of (a) and (b), where (b) related to regulations on designation of courts made “in consultation” with the Chief Justice.

Ms Schäfer thought that the phrase “with particular reference, among others” did not make sense. One or the other formulation should be chosen. She felt that any regulations having a bearing on the administration of the courts must be done in consultation with the Chief Justice. He could not be consulted on prosecutors, but he was in control of the administration of the courts. She suggested a reversion to the original wording, but it should be clear that the Chief Justice should not be consulted on prosecutors.

Mr Holomisa agreed that the original formulation was preferable.

Mr Bassett confirmed that all the words underlined in (i) to (iii) would be removed, and that (2) would also be removed. There would not be specific reference to the matters to be covered.

Clause 5
Mr Bassett noted that a proposal had been made that the Preamble of the principal Act be amended to recognise the SO courts. The Committee felt it preferable not to insert this kind of detail into the Preamble, but instead to amend the Long Title. He noted that a new bullet point now read: “designating certain courts, where necessary, to deal with matters relating to sexual offences”.

Clause 6
Mr Bassett confirmed that the Act would come into operation on a date fixed by the President.

Mr Swart asked if it was not possible to change the wording, which currently referred to “Amendment Act Amendment Bill”. The legislation could perhaps be distinguished by dates, or the word “further”, or the use of “second amendment”. 

Mr Bassett agreed that this was a valid point.

Mr Swart said it would be preferable to specify a date for implementation, but he accepted that there was much preparatory work to be done.

Ms Schäfer confirmed that there were numerous logistics to be dealt with.

Mr Swart added that some courts were already operating and sexual offences were being prosecuted, and accepted that there would be difficulties in being more precise.

Memorandum on the Objects of the Bill
Mr Bassett said that some of the issues in the Memorandum would need to be changed in line with discussions today, and the new section contained in clause 3 would have to be included.

Mr Swart asked if there was anything in the Memorandum about consultation.

Mr Bassett noted that this was a Committee Bill, and so it was different from bills introduced by the Minister.

The Chairperson noted that this Bill had been advertised and was published in the Gazette. He asked whether Members thought that consultation with specific ministers must form part of the process with Committee Bills – he had understood that Committee Bills followed a different method in order to speed up the processes.

Mr Swart said that the public hearings were slightly different to the pre-consultation phase that the Department usually followed. He thought it not necessary to consult further at this stage, save for sending out the letters discussed earlier.

Mr Holomisa said that Ministers would be responsible for implementation of the Act, so they were in a slightly different position to the public.

Mr Swart asked where there was any mention that this was a Committee Bill.

Mr Bassett said that his understanding was that when the Committee was ready to finalise it, it would be printed as a Committee Bill.

Mr Swart then noted that the front page referred to “Portfolio Committee on Justice” rather than a reference to the Minister, and “as agreed to by the Portfolio Committee”.

The Chairperson agreed that it was probably possible to finalise this Bill in the next two weeks, after comment from the Director General of DSD had been received.

Judicial Matters Amendment Bill, incorporating changes to 10 September
Mr Bassett took Members through the latest version of the Judicial Matters Amendment Bill, noting the changes marked with double underlining and strike-through.

Clause 6 was effecting a technical correction to section 271B(1)(a) of the Criminal Procedure Act, to insert the word “on”.

Clause 8 was inserting a new section 271DA into the Criminal Procedure Act. Following the suggestion of the Cape Bar Council, the words “in writing” were inserted into subsections (a), (c) and (d), and a change in wording was made in (b), to replace “be” with “remain” (expunged).

Clause 15 inserted a new section 46A to the Attorneys Act, which allowed the Attorneys Fidelity Fund to institute a private prosecution.

Clause 17 was effecting an amendment to section 78(8) of the Attorneys Act, to also give the Attorneys Fidelity Fund the power to apply to court to prohibit a legal practitioner from operating on his or her trust account.

Clause 42 amended section 77(4) of the Child Justice Act. Mr Bassett noted that the Bill as originally worded had paragraph (c), which allowed for a sentence of correctional supervision as well as imprisonment. Following a submission from the Child Justice Centre, the Committee agreed that this type of sentence would be overly harsh for children and that provision was now removed.

Clause 44 was amending section 85(1) of the Child Justice Act, which stated that the provisions of Chapter 30 of the Criminal Procedure Act would apply to all children convicted in terms of this Act. However, further criteria were now added, changing paragraph (b), and inserting a new (d), in line with suggestions made by the Child Justice Centre to the effect that all cases involving children should go on automatic review, regardless of whether the child appeared in a District or Regional Court, and regardless of the period for which the magistrate had held office.

Mr Bassett added that earlier in the provision, the phrase “ that was not wholly suspended” was also deleted, and this meant that even where a sentence was wholly suspended, the case would also still be subject to review, as suggested by the Child Justice Centre and agreed to by the Committee.

Clause 45 was being amended in similar vein to the amendments in clause 8. Section 87b of the Child Justice Act now also had wording calling for reasons “in writing” in subsections (a), (c) and (d) and a change of wording in (b).

Clause 49(3) dealt with the Bill coming into operation. Most of the clauses would come into operation once the President had signed, and the Bill was published. Clauses 10 and 11 would be deemed to have come into operation on designated dates. Clauses 36, 39 and 46 would come into operation on a date to be fixed by the President by publication.

He pointed out that on page 2, it would be necessary to change the words “amendments proposed” to “amendments agreed to”.

He noted that the State Law Advisers were in agreement with the Bill.

Mr Bassett then turned to the Memorandum on the Objects of the Bill. Changes appeared in paragraphs 2.8.3, and 2.8.5, describing the changes to the Attorneys Act. In paragraph 2.10, the word “incompetent” had been substituted for the wrongly-typed “competent”. The word “the” was being inserted into paragraph 2.20. In paragraphs 2.24.1 and 2.24.2, the phrase “the relevant division of the High Court” would be used.

Discussion
Ms Schäfer noted that the Committee had agreed to the words “in consultation with the Law Society” in relation to clause 15, and the formulation was in line with instructions, but she thought that it may need to be reconsidered. The Attorneys Fidelity Fund would be freezing trust accounts when the Law Society had failed to act. She was worried that the requirement “in consultation” may allow the Law Society to delay matters, and questioned if it should not read “after consultation”.

Mr Bassett pointed out that the Committee had been informed that “in consultation” had been agreed to by Law Society of South Africa and the Attorneys Fidelity Fund.

Ms Schäfer said in that case, it should remain.

Mr Bassett added that this was effectively a temporary arrangement, as this situation would be covered in the Legal Practice Bill.

Members indicated their agreement with the Bill.

Mr Holomisa asked if the Committee Report was available, and the Committee Secretary left to prepare a report.

Adoption of Judicial Matters Amendment Bill and Committee Report
On his return, and after two more ANC Members had been co-opted to the meeting, Members agreed that the Bill should be put to the vote. They did not believe it necessary to move clause by clause. The Bill was passed unanimously by Members present.

Members turned to the Committee Report, and Mr Holomisa questioned the reference to the tagging. It was confirmed that the Bill had originally been tagged as a section 75 Bill but was now a section 76 Bill.

Members unanimously adopted the Committee Report, subject to the amendment of the heading would be amended to refer to “a section 76 bill”. 

Legal Practice Bill: Draft 5, incorporating all changes by 10 September 2013
The Chairperson noted that a letter from the Minister of Trade and Industry had been circulated, in relation to treaty-making powers, and suggested that this may have an impact on clauses around recognition of qualifications and experience in the Legal Practice Bill.

Ms M Smuts (DA) agreed, and said it would be necessary for the Committee to examine the relevant clauses and undertakings carefully. The view was expressed that a domestic council could not thwart international arrangements and “after consultation” would be appropriate when international treaties were concerned.

Ms Wilma Louw, State Law Adviser, Department of Justice and Constitutional Development, tabled Draft 5 of the Legal Practice Bill (the Bill). The proposed insertions were shaded and in capitals, whereas proposed deletions were in a different font.

Wording in relation to demographics
Ms Louw noted that there were several instances where the wording around the recognition of demographics had been altered. The first appeared in clause 3((b)(iii), where the wording “broadly representative” appeared. This had been changed consistently in all other relevant clauses.

Clause 23: Establishment of Regional Councils
Ms Louw explained that the Committee had taken a decision that it was possible that Regional (provincial) Councils should be established incrementally, so that not all nine would come into existence immediately. Alternative options were included for subclauses (1) and (2). Subclause (1) referred to establishing “a provincial council in every province” but (2) stated that at the commencement of Chapter 2, the Council must establish at least four provincial councils, taking certain factors, (listed in paragraphs (i) to (vii)) into account. Subclause (2)(b) stated that if not all provincial councils had been established, the Council would have to determine under which provincial council the province should fall.

Mr Swart asked if this took into account the transitional arrangements.

The Chairperson thought that the wording was confusing.

Ms Louw gave the example that if no provincial council was established in the Northern Cape, the decision could be taken that in the interim, it might fall under Western Cape.

Ms Smuts recalled that clause 7 had also been changed. She had argued that this concept had to do with the nationalisation of the legal profession and that the provincial structures should be brought in line. She noted an agreement reached previously between herself and Dr M Motshekga (ANC) that the Legal Practice Council (LPC) should consist of nine advocates and nine attorneys, selected one from each province. Clause 23 was part of the same approach, and established councils to accord with the geo-political boundaries. She also remarked upon the concept of delegation in the third line, referring to “may delegate” to the provincial council the powers and functions best performed at regional level. When it came to delegation to separate bodies of attorneys or advocates for the making of rules, the DA believed that these delegations could not be revoked by the LPC.

Ms Schäfer expressed her strong reservations about he cost implications of establishing one council in each province, and believed that the Alternative Option was preferable. She was worried about the practical implementation of this provision.

The Chairperson said that he would set out the views of the ANC on the proposals that had been made earlier.

Firstly, the ANC believed, in relation to the composition of the Council, that the wording of the original Bill should remain.

Ms Smuts asked if this was notwithstanding the agreement reached between Members of the Committee, as reflected in draft 4 and 5. She said that this wording effectively returned to lack of parity, for advocates would be “junior partners” on the LPC. It had reversed the agreement that she had reached with Dr Motshekga. She was very sorry to hear of this. She wondered if Dr Motshekga might take a different position, and asked if he would be attending the meeting.

The Chairperson confirmed that Dr Motshekga had a prior engagement to address a meeting. He could not speak for Dr Motshekga but was outlining the ANC’s position.

Ms Smuts took note of this, but again expressed her regret and believed that this would put the profession on a backward trajectory.

The Chairperson continued that the ANC was not in favour of two chambers. However, he did note that the Council was empowered to establish committees as it saw fit.

Ms Smuts stressed the DA view that each branch of the profession must have a body where it created its own regulations, and ethical codes of conduct.

The Chairperson noted that the Council may well deem it necessary to do what the DA had suggested, in practice, but the ANC was opposed to legislating for it in the Bill.

Ms Smuts again said that she was sorry that there was such a radical division of opinion.

The Chairperson noted, in regard to each branch making its own rules, that an attorney may wish to appear in the High Court, and equally an advocate may decide to accept briefs directly from the public. In both instances, it was immediately not clear as to who was responsible for making the relevant rules.

Ms Smuts differed in her opinion and said that there was no need for confusion. Rights of appearance were legislated for in 1995, and there had not ever been a problem.

The Chairperson said he had not suggested that there was a problem.

Ms Smuts countered that never before had there been a need for joint codes.

Mr Swart, on behalf of the ACDP, also expressed regret, and said that achieving parity on the LPC would have gone far in getting the buy-in from the two professions. He was also sorry that the model of two chambers at a national level was not accepted. He was pleased to see the possibility of that model at regional level, albeit that the LPC still might have the power to overrule it.

Mr Swart asked what the ANC’s view was on dissolution of the Council.

The Chairperson responded that during the ANC’s discussions, there had been reference to the model in the medical profession, where the relevant Minister had the right to dissolve the Council.

Ms Schäfer thought that there was a fundamental difference between the medical and legal professions, which meant that using that model was not relevant.

Clause 34
Ms Louw noted the amendment of clause 34(4). There had been discussion whether this should refer to all the Chapter 9 institutions, or only the South African Human Rights Commission (SAHRC). She read out how (4) would now read, specifically (f), which now stated:  “as an attorney in the full time employment of the State or the SAHRC”.
Clause 34(5)(e) now referred to “as a State Advocate or the SAHRC”

Clause 84
Ms Louw noted that in this clause the reference to all Chapter 9 institutions had been removed, and a specific reference to the SAHRC remained. The same applied to the Proviso and subclause (10).

The Chairperson questioned the manner of citation of the SAHRC.

Ms Louw said that what was set out was actually how it was cited. The alternative was to use a shorter reference in the main body of the Bill, and then to insert a definition.

Ms Schäfer asked if there was still provision for exemptions from holding a Fidelity Fund certificate.

Ms Louw noted that this clause excluded the SAHRC.

Clause 99
Ms Louw noted that clause 99(2)(c) had been amended, following earlier discussion and now provided that a member of the Transitional Council who had been convicted of an offence could be replaced by the designating body, pending his or her suspension.

General discussion on costs
Ms Smuts suggested that there was one thing that every Member of this Committee could try to do for South Africans, and that was to try to address the question of legal costs.

Clause 35 contained two options relating to the LPC having to undertake an inquiry into costs. She believed strongly that the LPC should do an inquiry that would examine, in depth, all the factors affecting access to the profession, including costs. However, because that would take a long time, she asked that the Committee seriously give consideration to a proposal she had put at an earlier meeting, that the Bill should incorporate something along the lines of the Australian cost disclosure requirements. Dr Motshekga had given his view that Australian practices were not relevant. However, there was great merit in what was being done there as all Australian lawyers were required to disclose costs up front, and keep clients advised. There were also provisions around assessment. She pleaded that this Committee must at least do that for South Africans. The matter of legal costs was urgent and undermined access to justice.

She asked that the drafters be furnished with copies of the memorandum on the Australian position.

Mr Raj Daya, Acting Deputy Director General, Department referred to the Further Option for subclause 35(4) and asked if she was suggesting that it be added here.

Ms Schäfer said that the Committee had not agreed to the Further Option as yet.

Ms Smuts added that she did not want to add that into clause 35, but have a separate provision requiring that legal practitioners disclose costs, and this must take effect immediately.

The Chairperson noted that no disclosure was happening at present, and such disclosure requirements would give the client an exact indication of what to expect.

Mr Swart said that in many litigation cases, clients would be required to place a deposit. He did not think that there should be any objection to this clause. It would be difficult to determine the exact amount, particularly for litigation, but he agreed that this would be a good idea.

The Chairperson thought that at least the hourly rate must be disclosed.

Mr Swart agreed with that, but said that this would go further so that a global amount could be calculated.

The Chairperson agreed, and said that he client, in order to be able to give informed consent, should also know how much an advocate would charge for dealing with the matter in court. This might be happening in a few cases, but certainly not many.

Ms Louw said that this was usually done with conveyancing matters. She noted, in paragraph  (f) the obligation by the practitioner to include a mandatory fee arrangement.

Ms Schäfer also took note of that but commented that she was not in favour of this clause as worded presented. It started from the premise that the fees were already too high and she would prefer more neutral wording of “whether” they were too high.

Ms Smuts said that the inquiry might conclude that the problem of access was only a costs problem, but that was not necessarily the foregone conclusion. The Constitutional Court had said that legal fees were “skyrocketing”, and the Supreme Court of Appeal had said that most South Africans could not afford legal services. Whether it was simply a matter of fees being too high was something that had to be considered properly. This investigation would, however, take time, not least because the Council would not be set up immediately. She wanted some immediate relief.

Ms Schäfer thought that a combination of the two alternatives for clause 35 might be preferable.

Ms Smuts added that the Ministry of Justice had already indicated that it was considering the option that the Rules Board would deal with fees. Irrespective of who dealt with them, she still believed that the Australian practice was worthwhile.

Mr Swart noted that there were other outstanding matters also to be discussed. These included the regulations, whether “in” or “after” consultation must be used.

Mr Swart asked why, in view of the fact that the Transitional Consultative Forum would have parity of representation from both branches, the ANC had decided not to have parity in the LPC. He repeated his concerns about getting buy-in from the profession, which he believed was important despite the fact that Parliament would make the law.

Mr Swart repeated the concerns of former Chief Justice, Judge Chaskalson, that the Bill as framed posed a risk of possible abuse in the future. He asked how one could be assured of sufficient check and balances. The ACDP was still opposed to Ministerial power over the Council, but would be participating to finalisation of the Bill to try to ensure the best possible outcomes. He was particularly concerned that the Minister could, subjectively, make the decision that there was not enough being done for transformation and dissolve the Council. Although the present Minister had said that he was not intending to intervene and try to run the profession, the Bill was also intended for the future.

The Chairperson asked Members to bear in mind that the legal profession has not exactly been cooperative in bringing this legislation before Parliament as it had take 20 years to get this far. He noted the fear about the Minister’s possible abuse of power. However, the ANC had believed that perhaps there had been abuse of power by the profession since it had taken so long to address crucial issues that affected the people of South Africa. He said that all perspectives must be considered.

In relation to the dissolution of the Council, he conceded that there was a risk that the Minister might abuse that power. However, he had earlier raised a question what would happen if the Council failed to meet. One option, as Ms Schafer suggested, was to approach the Court. However, the ANC believed that the better option would be to allow the Minister to dissolve and replace the Council.

Ms Smuts thought the suggestion that the legal profession was “abusing power” was “outrageous”. The problem with all previous versions of the Legal Practice Bill was that they had tried to effect fusion, directly or by stealth. To suggest that the professions should happily participate in their own destruction did not make sense. Only with this Bill, when the Committee had been adamant that none of the voluntary bodies would be disallowed, was there progress. The DA was not in favour of fusion and would persist in defending the right of the profession to exercise their independence, as was correct for officers of the court. She reiterated that it was unfair to suggest that a profession had been abusing power when it had, correctly, been defending its rights.

Mr Holomisa agreed with the Chairperson. The legal profession had been dragging its feet. Even when there was engagement with the profession, differences of opinion emerged within the ranks of attorneys and of advocates. At the end of the day, Parliament had to look to the interest of the people – the consumers of the legal services. It was fine for the Parliament to look also at interests of practitioners, who were bringing the services to the nation. However, it must be remembered that the need for access to justice was paramount. There had to be an adjustment to the way in which the profession had been operating in the past. A practical manifestation of transformation was needed. The Minister therefore had to have the power, especially in the initial stages, to determine whether the Council was acting in a manner that would achieve the goals of the Bill. Hopefully, over the course of time, it would not be necessary for the Minister to get involved.

Mr Swart repeated Judge Chaskalson’s concerns about the executive power to control; although he noted that there was no reason to believe that these powers would be abused, it was unknown what could happen in the future. This opened the door to a structure in which  important aspects could be controlled by the executive, and that was inconsistent with independence. The legal profession was unlike the medical profession, because of the very important aspect of independence of the judiciary and of the profession.

Mr Swart noted that the dissolution clause was inserted only at a very late stage and he was not sure whether it was included before the Bill went to Cabinet. If the ANC was insistent upon having the dissolution clause as originally formulated in clause 14, then he urged that it should accept the need for judicial oversight. As formulated, there was no requirement that the Minister should abide by the recommendation of the Ombud, and he believed that the Minister should be obliged to accept the recommendations of that individual on the possible dysfunction of the Council. He believed that it should not be possible for the Minister to simply ignore the recommendations of the judge and install his own Council. He urged that the Committee must debate this matter, and other points, seriously, and ensure that the concerns of Chaskalson were properly considered.

Ms Schäfer also said that the dissolution clause was of particular concern to the DA. Whilst she agreed in principle that the Minister should have some power if the professions failed to cooperate, she also pointed out that the wording in respect of obligations on the council and time limits had been tightened. If the Council did not comply, the Minister would be able to approach the Court for an order compelling compliance. She did not find a provision allowing the Minister to dissolve the Council – even with safeguards – acceptable, as it paved the way for the Minister to put in his chosen representatives to decide on the future of the profession. She urged the ANC to reconsider that point, in particular.

The Chairperson agreed that these issues were flagged for further deliberation.

The meeting was adjourned. Deliberations on the Legal Practice Bill would continue on 3 October.
 

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