Legal Practice Bill: Draft 5: ANC position, possible new clause 35

Meeting report

Legal Practice Bill: Draft 5
Mr Lawrence Bassett, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development, noted that the Committee would still be using the Draft 5 of the Legal Practice Bill (the Bill) but noted that he had sent through also a proposal for possible inclusion in clause 35, relating to fees, which was based on the Australian model, and another amendment to clause 23.

Definition
Ms Wilma Louw, State Law Adviser, Department of Justice and Constitutional Development, said that the Department of Justice and Constitutional Development (DOJ&CD or the Department) had recently been approached with a request about the definition of conveyancer. All notaries and conveyancers who were covered by the Bill must be practising attorneys, so the word “practising” must be  inserted into the definitions for both “conveyancer” and “notary”

Mr S Swart (ACDP) noted that a person could be on the non-practising roll

Ms Schäfer (DA) reminded him that, in the context of the Bill, any person would remain a conveyancer, once admitted as such, but there was no separate non-practising roll for conveyancers or notaries; they were reflected on the non-practising attorneys roll.

Dr M Motshekga (ANC) asked if those admitted as notaries or conveyancers would also be practising as attorneys.

Ms Louw explained that they would have to opt to appear on the practicing or non-practising roll. Their practicing status had implications for the issuing of Fidelity Fund certificates.

Mr Raj Daya, Secretary to the Rules Board, DOJ&CD, reminded the Committee that the Bill was applicable to practising attorneys, for the purpose of their Fidelity Fund cover, and this was the context in which all the clauses must be seen.

Proposed rewording of clause 24(3)
Mr Swart noted that use of the phrase “after consultation” would have an impact on the international relations of South Africa, and said that in this one instance, he believed that “in consultation“ was appropriate, but quipped that that concession of his was not to be read as applying to any other clause.

Ms Smuts still thought that there was a problem with the former subclause (4). There had never been a proper explanation for that power.

Mr Bassett said that what was listed under (c) had been deleted, and it had been the same as subclause (4). The DOJ&CD drafters, when consulting with their counterparts from the Department of Trade and Industry (dti) had noted the concerns of the latter about the impact on the General Agreement on Tariff and Trade (GATT) agreement.

Ms Smuts asked if then it could be deleted now.

The Chairperson said that this was jumping ahead, and suggested it be properly discussed at the appropriate time as the Committee worked through the Bill.

Indication of ANC position on options and alternatives
The Chairperson said that the Committee would now need to go through the Bill. The ANC was ready to present its view on the options and alternatives to the clauses, which would narrow down the issues and assist the drafters in presenting the next clean draft, for the following Tuesday, when the Bill would be formally considered.

Ms Smuts said that she did not think that agreement would be reached on the Bill, which was regrettable. The DA would, however,  listen with interest to every option. She was not proposing to argue in every case why the DA had a different opinion or preferred another option, nor the merits of the approach, and would not repeat her arguments why she believed her choices to be better. The DA position was known very well and the DA would end up opposing the Bill.

Mr Swart asked for clarity on the point, and said that there were still some complex issues, especially whether regulations should be “in” or “after” consultation, and asked if there was still avenue for argument.

The Chairperson said that the ANC had now taken a position.

Mr Swart understood that, but wondered if there as still scope for persuasion. He agreed that in the interests of finalising the Bill, he would also not argue every point. The ACDP, as Members well knew, had a position on having two chambers at national level, with a fallback position of proposing those at regional level, but he would not repeat all the arguments on that.

Mr J Sibanyoni (ANC) suggested that Members should listen carefully to the ANC position. The ANC was not simply sticking to its original viewpoints – it had given consideration to the opinions of other parties. The purpose of today’s meeting was to engage and try to meet each other on areas of difference, although there may still be some areas where the Committee must agree to differ. He would go through the clauses where alternatives were proposed.

Mr J van der Merwe (IFP) went along with the views expressed by Ms Smuts and Mr Swart. However, he was worried about the implication that the ANC Had taken a stance that was cast in stone, and that no amendments would be entertained. If that was so, he wondered why the Committee was continuing.

The Chairperson said that this was not what Mr Sibanyoni had said. The ANC had sat down and considered the arguments very seriously. The Chairperson had asked Ms Smuts to focus on persuading the ANC, and he did not think it was fair to suggest that the ANC was adopting a hard and fast position. If the ANC chose to accept a particular option, it was after careful thought.

Mr van der Merwe thanked the Chairperson for clarifying the point and said he was pleased to hear that.

Mr Swart said that the Bill had come far. Everyone was concerned about the issues of access to justice and the independence of the profession. He had heard Mr Sibanyoni say that he was open to negotiation and he was trying to limit the areas of difference. The opposition parties would listen carefully and would agree to limit areas of contention wherever possible.

He noted that he would have to leave early to attend a commitment in the Finance Standing Committee but would give input as long as possible.

Mr van der Merwe also said he must be excused for the Chief Whip’s Forum at 10:00.
 
Ms Smuts noted that this was really the first time in this Committee that the Members had not managed to agree. The only way this could be concluded was by getting the Bill through the House. This Bill, ideally, should have been far longer in the making, but she accepted that it would be passed in the NA, by majority, to get it to the NCOP for the provincial process. It was not, regrettably, the Bill that she thought it should be.

Mr Sibanyoni repeated that the ANC had sometimes moved from its original positions and he pleaded that the other parties also consider whether they wanted to have a process of “give and take””

Ms Smuts said that her party would be doing the right thing.

Long Title
Mr Sibanyoni said that the ANC preferred the original, not the option, but with the removal of the words “broadly” and ”broad”. This would be removed throughout the Bill, wherever this phrase appeared.

Ms Smuts argued that this would make it unconstitutional

Ms Schäfer asked why this was done.

Mr Sibanyoni said that the effect of the use of the words was “to change the Bill as a whole”.

Mr van der Merwe said that “broadly” was also used in section 184(2) of the Constitution, which stated that appointment of judicial officers must “broadly” reflect diversity.

Ms Smuts added that it was also in section 193.

Mr van der Merwe said that this was used because it was impossible to do mathematic calculations, and get exact representivity.

Ms Schäfer asked what objectives were being changed by using “broadly”.

Dr Motshekga suggested that the Committee really needed to be satisfied that whatever term was used was not inconsistent with the Constitution. He asked the drafters to comment whether it would be a problem to leave out “broad” and if there was an alternative.

The Chairperson said that, in fairness to the drafters, it was the Committee itself who had introduced the words ‘broad” and “broadly“. It was therefore for the Committee, not the drafters, to justify their inclusion or removal.

Dr Motshekga said that he was asking for advice whether it was correct to use a term not consistent with the Constitution.

Ms Smuts said that she was the person who asked for the words to be included, and this was based on the public submissions. Since then, it had been part of the bill, and she was very surprised to see it removed now. With respect, she suggested that this would make the Bill be taken to the Constitutional Court, and not by her party.

Mr Sibanyoni suggested that it be noted that no consensus was reached on this point.

Mr Swart noted Dr Motshekga’s earlier comment, and wondered if there was any avenue to reconsider the pint. He could take the matter no further than to say that the law should be in line with the Constitution.

Dr Motshekga said that it was desirable that the Bill, once passed, should not be challenged. He had thought perhaps this could be cleared now, but accepted Mr Sibanyoni’s suggestion on the wording.

Preamble
Mr Sibanyoni said the ANC preferred the Alternative Option, which related to one bullet point. However, the fourth and fifth bullet points would be deleted.

Ms Smuts said she was pleased on this point, and said there were consequences for the Bill. However, when it was pointed out that this was the alternative for the Preamble, she retracted that; she had thought Mr Sibanyoni was still referring to the Long Title.

The drafters confirmed that the rest of the parts underlined must be retained.

Clause 6
Mr Sibanyoni noted that the ANC wanted to propose the Further Alternative for clause 6(1), on page 14. The Alternative would be removed.

Clause 7
Mr Sibanyoni said that the original composition of the Legal Practitioners Council (the Council), comprising of ten practicing attorneys and six practicing advocates would be accepted by the ANC.

Ms Smuts asked Dr Motshekga whether he did not remember agreeing to nine attorneys and nine advocates, and suggested that the ANC had “sneaked” the 10:6 ratio back.

The Chairperson took issue with that and reminded her that that had only been a discussion before.

Mr Sibanyoni confirmed that the ANC, in subclause (e) preferred to have one person who may not be a legal practitioner.

Ms Schäfer agreed that the principle was acceptable, but the wording was ambiguous. The Council wanted to include one person who might, or might not be, a legal practitioner; it wanted to be able to choose someone with the necessary expertise.

Mr Swart suggested replacing this with the phrase “one person, who need not necessarily be a legal practitioner”.

Members agreed.

Ms Louw asked for clarification on whether the Committee wanted one or two teachers of law, and by whom they should be designated.

Ms Smuts said that there was only one body, and suggested that the reference to the “Society of Law Teachers” should be deleted.

The Chairperson clarified that the ANC wanted to have two teachers of law on the Council.
He confirmed, to answer an enquiry from Ms Schäfer, that the Alternative and Further Alternative options were rejected.

Ms Louw pointed out that on page 20 there was a new subclause (3) of clause 7.

The Chairperson said that this would remain _  

Clause 8
Mr Sibanyoni said that the ANC preferred the Alternative Option for paragraph (c), in relation to the membership, and wanted the Further Alternative deleted.

Ms Smuts did not understand why the Committee was suggesting that people convicted of a criminal offence could be on the Council.

Mr Sibanyoni wanted to add to what he had said. At the end of the Alterative  the phrase “lapses five years after the sentence has been completed” should be removed. The lapsing of the conviction was no longer included.

Clause 9
Mr Sibanyoni noted that in the Further Alternative option, (b) should be removed, but the ANC would accept the remainder of the Further Alternative.

Ms Smuts expressed her horror at the Minister’s involvement in the appointment of office bearers on the council..

Clause 12
Mr Sibanyoni said that the Alternative to clause 12(d) was not accepted.

Clause 14
Mr Sibanyoni said that the ANC accepted the Alternative Option for clause 14. This meant that the Minister must approach the Ombud to conduct the investigation, and approach the Court if s/he wished to dissolve the Council

Ms Bongiwe Lufundo, State Law Adviser, Office of the Chief State Law Adviser, said that she had some concerns about this. If there was not resolution on an issue, then the Minister was being asked to approach the Court for an Order to dissolve the Council. She thought that it was problematic if the Courts told the Minister what to do, as this was not in line with the separation of powers principles.  She thought that the wording “for an Order that empowers the Minister to dissolve” should be reconsidered.

The Chairperson said that the wording was actually trying to keep the Minister out of the Council matters.

Mr Sibanyoni confirmed that the order from the Court would result from an application by the Minister to dissolve the Council, so it was not that the Court was intervening; other than by granting the order sought. This was to apply only where the Council may be dysfunctional and it allowed the Minister to ensure that something was put in its place. The ANC felt that the Minister should not be making a final decision on that point, but the Court.

Ms Schäfer said that the whole point was to provide a check and balance so that the Minister could not, of his/her own accord, decide to dissolve the Council. This was an acceptable safeguard. The Court would have to be satisfied on the reasons, and the fact that the decision was not arbitrary or constituted undue interference in the profession.

The Chairperson said that the main concern here, as expressed in this Committee, was that the Minister would not simply be able to decide to dissolve the Council, but must give reasons why the Council should be dissolved. He agreed that it was appropriate the Court be the final arbiter.

Clause 18
The ANC preferred the original wording so the Alternatives were rejected.

Ms Smuts was sorry to hear this, although even the Alternative option was not sufficient.

Clause 19
The ANC wanted to accept the Alternative Option for subclause (5), but with the exclusion of the words “broad” and “broadly”.

Clause 20
Mr Sibanyoni said that the Alternative to (3) was accepted, with deletion of the words “broad”  and “broadly”.

Clause 22
Mr Bassett pointed out that in clause 22(1)(b) there was an option for “in” or “after” consultation.

The Chairperson noted that it should be after”

Clause 23: Establishment of provincial / regional councils
Mr Sibanyoni noted that the first change was to the heading: the ANC preferred to name the sub-structures as “provincial councils” (not regional councils). He added that the Alternative Option for (1) and (2) were preferred.  Under (5)(a), the wording would be altered and would reflect “ so as reflect the proportion of attorneys and advocate in the province”.

The Chairperson clarified that there were some provinces where there were relatively few advocates and this was inserted to make sure that the provincial councils could still function.

Mr Sibanyoni cited the example that, for instance, in Gauteng, there may be sufficient advocates on whom to draw, but in Nelspruit, there may be no advocates who had offices, although there were likely to be attorneys’ firms.

Ms Smuts was happy with the change to “provincial” and said that the reflection of the practitioner proportions was preferable, although of course this still did not address the problems with representation on the main Council.

The Chairperson noted that throughout the Bill, the reference to regional councils would change. This would also affect the transitional provisions.

The rest of the clause remained the same.

Clause 24
The Chairperson noted that the new draft must be considered, which was on a separate sheet (see attached documents). This noted that the decision by the Minister would be taken “in consultation” with the Minister of Trade and Industry and “after consultation” with the Council

Mr Swart asked Members to consider the original subclause (4) and the categories, and reminded them that Ms Smuts had wanted this deleted.

Ms Louw said that the dti technical advisers had met with the DOJ&CD drafters, to discuss any deeper technical questions raised by the Bill. The dti noted that the GATT applied the principle of “most favoured nation”. If the practitioners of Country A, a signatory to GATT, were allowed a special dispensation by the Minister, then the most favoured nation principle also required that this same dispensation must be applied to all other signatory countries, and to all local lawyers. This had intricate knock-on effects, and the dti was worried about the wide implications.

Mr Bassett also noted that the Law Society of South Africa, as reported in the New Age, also had indicated that it had a problem with this provision.

Ms Smuts said that there was general confusion also about the meaning of the provision and for that reason alone it was objectionable.

The Chairperson said that “greater wisdom” dictated that this subclause (4) be removed.

Dr Motshekga agreed. The Minister, when taking decisions, would anyway have to have regard to the views of Ministers in other portfolios.

Members confirmed the unanimous deletion of (4).

Ms Smuts questioned the inclusion of “including World Trade Organisation (WTO)  agreements” which was suggested for subclause (b). She thought the reference to “ mutual recognition agreements” would cover this.

Mr Bassett confirmed that the dti had said that no specific reference was needed to the WTO.

Ms Louw added that dti had actually asked that no specific agreement should be named. The requirement for consultation between the Ministers seemed to be sufficient.

Clause 25
Mr Sibanyoni said that a legal practitioner had the right to appear before any board, tribunal or similar institution. He asked if that would include the Commission for Conciliation, Mediation and Arbitration (CCMA), as the ANC had not wanted to complicate the issue.

Mr Swart and Ms Schäfer were happy that the CCMA provisions adequately limited the appearance of attorneys.

Mr Bassett understood that this wording came from the current Attorneys Act, and noted that the words “subject to any other law or legislation” could be inserted to clarify the point.

Mr Sibanyoni agreed that this would resolve any confusion. He noted that the remainder of clause 25 remained as originally drafted.

Clause 29
Mr Sibanyoni noted that the ANC preferred the words “after consultation”.

The Chairperson confirmed what the ANC was proposing on this clause. The ANC preferred the Alternative Option. However, it wanted to exclude the words “not exceeding two or three months” under (a). Subclauses (3) to (5) in the Alternative Option were included. However, in subclause (3)(b) the reference to “an institution supporting Constitutional Democracy” would be changed by referring directly to “the South African Human Rights Commission” which was the only Chapter 9 institution with the applicable dispensation that empowered it to litigate.

The same would also be done, for consistency, in other clauses in which “an institution supporting Constitutional Democracy” appeared.

Subclause (3)(c) was to be  removed. Subclause (3)(d) would remain, but the words “without remuneration” must be added.

Mr Bassett confirmed, in answer to an enquiry on this point, that “remuneration” would not usually include “salary”.

Subclause (e) would remain, and (f) must be deleted. In (g) the word “Council” was removed.

Subclause (4) was being deleted.

In (5) there was provision that the Council may exempt practitioners from having to do community service. The concern was that practitioners in small towns, in particular, who had to travel far, might be unduly prejudiced by having to take on extra unpaid work as well. It was Council’s prerogative to exempt, according to the circumstances.

Ms Smuts expressed her disappointment that recurring community service by practitioners would be required before they would be permitted to continue practicing.

Ms Louw pointed out that the Committee needed to decide whether “register” or “enrolled” was the right word.

The Chairperson said that he thought “registration” was the correct term. A consistent term must be applied.

Clause 34: Forms of legal practice
Mr Sibanyoni noted that in clause 34(2)(b) there were no changes. The ANC wanted (c) to be included.

The Chairperson added that in this clause there must be a specific reference to the South African Human Rights Commission, instead of “institution supporting democracy”.

Mr Sibanyoni further noted that the ANC proposed that the time period in clause 23(11) should be two years.

Clause 35
Mr Sibanyoni said that, in relation to the Further Option on subclause(4), instead of the Council investigating and reporting, the ANC preferred that the South African Law Reform Commission (SALRC) should be investigating.

Ms Smuts said that the SALRC had no economic expertise.

The Chairperson pointed out that the Council would not, either.

Mr Bassett explained that there had in fact been a concerted effort to bring expertise and experience on to the new SALRC.

Ms Pilane-Majake asked where the Report would be sent.

Members agreed it should be to the Minster, for tabling in Parliament, and this would be added in. 

There were some possible insertions into (5), where the Minister might prescribe tariffs.

Mr Bassett asked whether the Rules Board option was to fall way.

Ms Smuts said that it was intended that the Rules Board must start to get involved in non-litigious tariffs, as indicated by Mr JB Skosana from the DOJ&CD and that was the “blunt instrument” but she enquired what the relationship would be between that and the SALRC.

The Chairperson pointed out that the Rules Board option would begin immediately, with the report enquiry taking two years.

Ms Smuts recognised that, but said that if the Rules Board Act was amended and that Board was able to start implementing non-litigious tariffs, she wanted to know what the difference would be between the mechanisms.

The Chairperson suggested that the Ministry may need to rethink that option.

Mr Raj Daya said that the Commission would do the investigation, and the Rules Board would not do an investigation, but a determination of fees and tariffs. They were complementary, but different.

Ms Smuts thought that one was pre-empting the other.

Ms Schäfer still thought it was problematic to say “legal fees are too high”. Some were, but others not. She would prefer wording such as “ways to address the ways why legal fees appear to be unaffordable to the majority of the population.

Ms Smuts suggested that her own drafting was better.

Dr Motshekga wondered what had happened to the proposal of the costs estimates. He thought that perhaps it would be useful to deal with those together.

Mr Daya suggested that the investigation must be holistic and therefore all aspects of investigations must be covered.

Mr Bassett said that the original clause (which was to become (1)) referred to “as may be prescribed”, and this meant by way of regulations. He thought the alternative was for this to become the main method, with the Rules Board as a stopgap pending investigation.

The Chairperson said this was correct. The ANC wanted to delete the original clause and remain with the options for clauses 35(1) (2) and (3).

Ms Smuts urged that if the Rules Board was to be used in the interim, then (3) must be retained to get the market mechanism working.

Mr Swart said that he had suggested inserting that clause. The expression was inserted in particular to cover the instances cited by the large Intellectual Property firms, who had suggested that, because of the value of the work being done, their clients were prepared to pay in excess of the fees suggested. The phrase “despite any law to the contrary” was needed because of the Contingency Fee Act. It must be remembered, however, that the clauses were intended for clients, not practitioners.

Dr Motshekga asked for clarity and the Chairperson explained that it was intended that clients should be able to negotiate a fee. The Competition Commission had decided that fixed tariffs with no ability to negotiate were incorrect.

Ms Smuts added that the new clause on cost assessment and negotiations, based on the Australian model, encapsulated the idea of negotiations.

Ms Pilane-Majake said that whatever outcome was finally decided, it must be able to address access to justice. There should be a Gazette talking to how the public was to be charged. The same wording as appeared in the Bill, around the charges in relation to the state departments, should also apply to the ordinary citizens.

The Chairperson commended the drafters on this work, but said this new insertion into clause 35 was rather lengthy. It was necessary to deal with the problem now; the Commission would conduct its investigations later.

Mr Bassett said that he was going to comment that this was a very long document, but he wanted to put ideas on the table, from which it may be possible to extract certain salient points. The other option was to put in an empowering provision, so that the Minister could make regulations on this.

Ms Smuts said that it was very important to legislate right now that there should be fees disclosure, with cost estimates, and that this was separate from the whole idea of investigations. The LSSA was not thrilled with this; it believed that it would incur policing difficulties and an extra burden for the lawyers, but her answer to that was that the legal consumers deserved it. It was the least that could be done, now, by law, to address the problems immediately. She was the first one to ask for the costs enquiry, and that would take time. That was why she believed that it should not be encapsulated in regulations.

Dr Motsheka thought that this was legislating for the First World. In smaller towns and rural areas, cases were postponed several times, and took a long time to be concluded, and so estimates could quickly become outdated. Current arrangements might suffice if the attorney indicate how much the Bill was likely to be, with taxations to follow.

Mr Daya then noted that he had whittled down the draft clause, and read out the amended version, which noted simply that when an attorney was first instructed, s/he must, as soon as practical, provide the client with a cost estimate, noting in writing, in a manner likely to be easily understood, the likely financial implications of the matter, including fees charged for discussions and other hourly fee rate. There must be an explanation to the client of the client’s right to negotiate, an outline of the work to be done at each stage, and the likelihood of engaging an advocate, plus an explanation of the different fees for a litigious matter, including court costs and cost recovery. That should deal with most aspects.

Ms Pilane-Majake supported Mr Daya’s suggestions but she still believed that there was a need for more specific rules and regulations. The phrase referring to a manner easy to understand” was immediately a problem, as an interpreter may be required. She thought the Council should perhaps come up with the rules.

Ms Schäfer asked if the explanation should not be amplified with “in writing, and in clear and simple language”, instead of “that is likely to be easily understood”.

Dr Motshekga made the point that what was clear English may still not be clear to a Pedi-speaking client.

Ms Smuts said that this concern actually applied to everything in South Africa, which was why three languages were being used in the provinces. This Bill could not grapple with linguistic issues.

The Chairperson said t that if the attorney was challenged then s/he must be able to explain.

Ms Smuts said that there would be a need for further rules and it was self-evident that the Council must make them, as the regulatory body for lawyers. She had no doubt that it would be an unpopular clause, but if this was put in the Bill, then Council would have to gazette rules on how to give effect to this. Each provincial law society could draft forms in the 11 languages to assist the client, but that was their problem, for this Bill must protect consumers.

Dr Motshekga agreed with Ms Pilane-Majake that, however nicely formulated, there should not be a specific clause to this effect in the Bill. Its application would create complications and difficulties. He thought there was nothing wrong in making sure that there was an empowering clause, to note that the Minister, as custodian of the public interest, would make regulations. He disagreed that the Council should do so, as it was an interested party. This was a diverse society and laws should not be made that were too complex.

Ms Smuts said that this was the first time she had heard multi-lingualism being used as an excuse.

Mr Daya referred to clause 35(3) and said that whilst Mr Swart had explained the intention, he was not sure that it would be confined to large and wealthy clients only, but to every single non litigious fee arrangement violation couched on the excuse that the client agreed.

Ms Smuts stressed that this was the reason for having a signed agreement.

Dr Motshekga was not sure that norms and standards were needed around how foreigners might dictate matters, and thought that another way must be found to deal with this.

The Chairperson said that subclause (3) may need to be taken out.

Mr Daya said that he would consider whether it might not be possible to link it elsewhere.

The Chairperson said that this was the “loophole that every lawyers would dream about”.

Mr Daya repeated that the rationale for setting tariffs was that the client should know what he was applying for.

The Chairperson summarised that the Bill, as presently worded, envisaged that fees would be determined by the Rules Board, but that the SALRC would be conducting an investigation, and tabling a report in Parliament, whereafter the Minister would draft regulations based on that Report.

Ms Schäfer wondered if the Rules Board would be determining everything until the investigation.

Mr Bassett said that in relation to subclause (3) there had been no decision.

Ms Smuts argued that this should be further discussion of the new “shortened” clause. Subclause (5) said that the maximum would be set. The first option was preferred.

Ms Lufundo asked for clarity on (4), and wondered if the Council must refer the matter to SALRC.

The Chairperson responded that the clause was actually empowering the SALRC directly to do the investigation.

Clause 36
There were no changes.

Clause 37
Mr Sibanyoni summarised that the ANC wanted the original wording to remain and the alternative to be removed. The word “regional council” would be deleted from subclause (1A)(c)(ii).

Ms Schäfer asked whether “appoint or “designate” would be used in subclause (1).

Ms Louw also noted that there was another option: to have three persons, or designate one.

Dr Motshekga pointed out that the difference was that “appoint” was the process of giving effect to something “designated”.

Mr Bassett agreed on that point.

The Chairperson said that the question related to whether one, or more than one person, had to be appointed or designated.

Ms Smuts referred Members to the footnote.

Ms Schäfer pointed out that if there were many complaints, then “a person or persons” should be used, which would allow the Council to appoint more than one, although she thought “at least three persons” could be deleted.

Mr Sibanyoni pointed out that the ANC supported the Alternative Option to paragraph (b). It did not like the Alternative Option for subclause (2), and the original wording should remain. The same applied to subclause (3), where the original wording was preferred and the Alternative Option rejected.

Clause 38:
Mr Sibanyoni said that the alternative option was not accepted for subclause (4) and the rest would remain.

Clause 39
There were no changes.

Clause 40(3)
The bold words “on application by the Council” were accepted by the ANC, in relation to clause 40(3)(b)(i).

Clause 41
This clause was rejected altogether.

Clauses 42, 43, 44, 45,
There were no changes

Clause 46 (2)
Dr Motshekga thought that if the word “must” was used, no determination need to be mentioned.

Ms Smuts said that someone must determine the seat, and she would suggest the Chief Justice

The Chairperson pointed out that the wording was “in consultation with the Minister and the Council”

Ms Smuts riposted that it was worth a try. She wondered why it was necessary to include the Council.

Members agreed that the wording would be “must”, and that the reference to the Council would be removed.

Ms Lufundo wondered if the same should not apply to (b) and Members agreed, and thanked her for pointing this out.

Clause 47
There were no changes.

Clause 48
Mr Sibanyoni said that the Second Alternative Option was preferred by the ANC.

The Chairperson stressed that judges discharged did not fall under the Chief Justice.

Clause 49
Mr Sibanyoni said that the ANC accepted the Alternative Option on subclause (1)

Clause 50
Mr Sibanyoni said that subclauses (1) to )3 should be deleted, but the original wording of (4) would remain.

Clause 51
Mr Sibanyoni said that there would be a change to the heading: “Acting Ombud and filling of vacancy” was the preferred wording. He noted that subclause (1) was being deleted.

Clause 52, 53, 54, 55, 56, 58, 59, 60 to 62
There were no changes to these clauses.

Clause 57
Although there were no changes proposed, Ms Schäfer referred to clause 57(1)(a), which set out circumstances in which the Fund would not be liable, and asked on what basis a decision would be made if the word “convicted” was not used.

Ms Smuts wondered if the misconduct finding was the first in chronological order.

Mr Bassett said that the Law Society of South Africa (LSSA) said that the words were as worded in the present Attorneys Act, and had specifically asked for their inclusion. The Bill raised the problem of certainty with the conviction. The principles were the same. He thought that “found guilty” was sufficient.

Ms Schäfer thought that “found guilty of” could encompass a disciplinary matter also, which was acceptable although a disciplinary matter was concluded on the balance of probability.

Dr Motshekga thought that theft was another charge.

The Chairperson clarified that the clients of attorneys who were found to have misappropriated money claimed from the Fidelity Fund. This clause sought to suggest that they should not simply go there first.

Dr Motshekga said that this should not be done and said that clients may be uneducated.

Mr Daya said that this was being limited to damages claims.

Dr Motshekga thought that there should be something specific on how the matter must be handled, to protect clients; he believed the Fidelity Fund must pay up front, then pursue recovery from the attorney.

Ms Louw clarified that this clause was only referring to family members and partners of the dishonest attorney – the Fidelity Fund had a completely separate process to consider the clients.

Ms Pilane-Majake said that it was trying to address the gaps.

Ms Schäfer agreed that family members should not seek to benefit from a theft committed by their own family.

Ms Louw said that this was already in the current Attorneys Act – if Attorney Mr X stole money, Mrs X should not be able to claim because she had already benefited.

Ms Pilane-Majake asked who would given the warning contemplated in (d).

Mr Daya said that the right of rebuttal was on the Fund, so this was effectively the Fund’s defence against being sued for this amount, if the client had been cautioned not to invest with a particular attorney.

Ms Schäfer suggested that “in writing, from the Council or Board” should be included in this subclause.

Clause 63
Mr Sibanyoni said that the Alternative to Option 2 should remain but without the words “broad” and “broadly”.

Members debated whether the words “established” or “constituted” were preferable, and Mr Basset suggested that  “constituted” was better.

Clause 64
Mr Sibanyoni said that the ANC preferred the Alternative Option to subclause (5) and the Further Option on paragraph (c).

Mr Bassett noted that the alternative option was used earlier on in the Bill, but without the proviso.

The Chairperson compared the two. Clause 8 referred to the Council, and he asked Members  if they wanted the same provisions as applied to the Council, also to apply to the Board.

Ms Smuts did not see why this was being included at all. Although the Constitution contemplated that Members of Parliament may be elected despite having committed a criminal offence, which was a fruit of time, she did not agree that the same should apply here. The people serving on the Board were supposed to be scrupulously honest.

The Chairperson said that Parliament was not legislating not for the scrupulous honest sector.

Ms Smuts said that she felt this was wrong. Anyone found guilty of anything should not be serving on the Fidelity Fund Board, and she felt very strongly about this.

The Chairperson, in answer to a question from Ms Louw, thought that “may” should be used.

Ms Pilane-Majake thought that the Further Alternative Option, without (c), was better than the Alternative Option but asked that Members check for consistency.

Ms Schäfer note that this allowed for a suspension from the Council. That was not included in clause 8.

The Chairperson pointed out that clause 8 related to appointments.

Ms Smuts stressed that a person could equally be convicted after he was appointed and then he could remain until he had exhausted all appeal options. She was completely opposed to this clause.

Ms Pilane-Majake said that clause 8 dealt with who was a member, and certain people were disqualified. It would be appropriate to have consistency on who was disqualified and who may be removed.

Ms Schäfer said that the words “from becoming or remaining” contemplated both the past and current happenings.

Dr Motshekga believed that a person should not be appointed, or continue in a position if there was a shadow hanging over his head.

The Chairperson noted that clause 8(2) referred to “becoming or remaining” and clause 65(2) used the same wording.

Ms Schäfer said that the problem was with subclause (c) and again urged consistency.

Mr Bassett confirmed that the Third Alternative Option would be used, which allowed for suspension.

Dr Motshekga had no doubt that the suspension would be contested, and said that an outright disqualification would remove any doubt.

Clauses 66, 67, 68, 68A
There were no changes

Clause 69
Mr Sibanyoni suggested that the word “may” should be used in clause in 69(1). The ANC rejected the Alternative Option for (d).

Clauses 70, 71, Clause 72, 73, 74 , 75, 76, 77, 78, 79, 80 – 83
The ANC said that there were no changes to these clauses. It was indicated, under clause 71(2)(b) that the words in bold would be included.

Clause 84
Mr Sibanyoni noted that again, the SAHRC would be named, instead of the reference to institutions supporting Constitutional democracy.

He said the ANC wanted to proviso to  clause 84(1)(b) removed, and the bold words included.

Clauses 86 – 93
There were no changes

Clause 94
Mr Sibanyoni noted that the subparagraphs (i) to (l) were to be removed. The (o) (in brackets – there were two paragraphs so numbered) would remain, as well as the underlined wording.

Ms Smuts asked if the Legal Services Charter was being given the status of law, even though it dealt with matters such as paralegals and vague requirements around black economic empowerment that actually had nothing to do with this Bill, and had not been discussed. If there was to be any reference to it, she thought that it must at least be qualified with something like “to the extent of its existence” or “to the extent consistent with this Act”.

Ms Smuts also noted that the question of ranking of advocates (as senior counsel) was awaiting a decision by the Constitutional Court. Judge Cameron had asked whether counsel thought that a similar ranking of “senior attorney” was not then needed. She wondered if the NA had to await the ruling, or if this was something that could be dealt with during the NCOP process.

Mr Bassett agreed that this could be always be brought in during the NCOP process.

Ms Louw noted that the Legal Services Charter was mentioned in clause 5(1).

Ms Smuts reiterated her concerns that it had never been discussed.

The Chairperson thought that, to be on the safe side, all references to the Charter should be removed from all clauses.

Mr Bassett noted that there were complaints that some legal firms had failed to address transformation at all, and wondered how this might be addressed in the Bill, and whether, perhaps, the Council should be asked to come up with mechanisms or rules.

Ms Smuts said that the Council was a regulator but asked what it would look into. The Charter could say any number of vague and embarrassing things, there was doubt as to exactly what aspects of BEE were to be considered, and she pointed out that the Charter had also dealt with ownership, and felt that the very most that the Council could do was to look into the subject. This clause was really to do with the Minister’s regulations.

The Chairperson said that there was definitely the impression that legal firms were not transformed.

Ms Smuts said that fronting was a crime, but it was very difficult. Advocates rented whole buildings, but practised as sole practitioners, so they could not be told to give ownership to some individuals.

Dr Motshekga said it was degrading for young people employed as a “front” who were not given the work they wanted to do. The concerns of the Minister were important and a way should be found to address them.

The Chairperson said that the safeguard was that any regulation would have to be approved by Parliament, as opposed to merely being tabled. All that was mentioned was a mechanism to monitor and evaluate the Charter.

Ms Smuts urged that the legislation must be written properly with only the extra details to be covered in regulations. She did not feel that the substance of the problem was addressed in the law, and did not think that the Minister would be making regulations. The government was also a signatory to the Charter and it needed to monitor itself, because nothing had been done so far.

The Chairperson pointed out that this was merely a mechanism that was mentioned.

Ms Smuts thought that the mechanism was the Council

Mr Bassett agreed that the status of the Charter had been hanging in the air. Some aspects of the Charter may well be obsolete and not up to date, and he questioned whether it should be given any statutory recognition. If not, then there should be something else, such as the Minister or the Council developing mechanisms, or the Council addressing what might be needed to promote transformation.

Ms Smuts thought that the Council would have to look at the matter from scratch. The Charters were never created by way of subordinate legislation, but were arbitrary, differed widely, and there was lack of uniformity on the scorecards. Their status was problematic and rested on deal –making. All that could be done was to ask the Council to look at this, through the provinces.

Dr Motshekga said that this would make the Council judges in their own cause.

Ms Pilane-Majake thought it would be useful to exclude the bold (o), which would leave the fact that rules were being put together. She suggested that the second (o) be deleted if it was attempting to pre-empt the Constitutional Court decision.

Mr Sibanyoni said that the ANC was suggesting that perhaps the Council should be given the opportunity to develop a Charter.

Members agreed that this was better wording.

Dr Motshekga pointed out that there were still two positions – one where the Minister would deal with matters and the other where the Council would do so. The majority of legal practitioners were previously advantaged persons and it would take too long to leave that to evolve naturally whilst the injustice continued.

The Chairperson believed that retaining (o) might well be pre-empting the court decisions. There had been a complaint that the procedure for awarding silk was unconstitutional, and he suggested it would be irresponsible of the Committee to keep this paragraph.

Ms Pilane-Majake asked if there was legislation dealing with the issue.

Ms Smuts interjected that it was in the common law.

Ms Pilane-Majake continued that if there were any legal provisions, the (o) should remain.

The Chairperson explained that the Constitution said that the President may award the rank, but this clause was essentially looking at procedures and criteria. Given the Constitutional Court challenge, it would not be proper, in his opinion, to include the wording before a finding was made. He asked the drafters to consider a new draft.

Clause 95
There were no changes.

Heading for Chapter 10
Mr Sibanyoni said that the heading would now refer to the “National Forum on the Legal Profession and Transitional Provisions”. The wording “National Forum on the Legal Profession” (or a shorter version) would be substituted in the relevant places throughout the Bill.

Clause 96
Mr Sibanyoni noted that the change in title would be reflected here, and the phrase, in clause 96(1)(a)(v) referring to “ designated by Advocates for Transformation” should be brought back. The Alternative Option was accepted for subclause (2).

Mr Bassett noted that when (v) had originally been taken out, this had meant that the General Council of the Bar designated six advocates, rather than five.

The Chairperson confirmed that then there may have to be a reallocation, with five designated by the General Council of the Bar and one by Advocates for Transformation.

Mr Bassett referred to clause 96(1)(b) and asked if there would be one or two teachers of law.

Ms Smuts, with the concurrence of other Members, thought one was sufficient.

Clause 97
Mr Sibanyoni said the ANC wanted the Alternative Option for (i) to be removed.

Clause 98
Mr Sibanyoni noted that the new name for the body must be substituted, and the words ín bold would be included under (3)

Ms Schäfer asked where the recommendations must be tabled.

The Chairperson confirmed it would be to the Minister.

Clause 99
Mr Sibanyoni said that the Further Alternative to clause 99(2)(c) was accepted by the ANC

Clause 100
Mr Sibanyoni confirmed that the Further Alternative to clause 100 would be accepted, with the words “after consultation”. Where there were choices noted between “may” and “must”, he confirmed that “must” was preferred. The Alternative to subclause (6) was accepted, using the words “after consultation”.

Clauses 100A and 101
There were no changes to these clauses.

Clause 102
Mr Sibanyoni noted that the Alternative Option under subclause (d) was preferred.

Clauses 103 to end
These clauses were accepted.

The Chairperson asked that the drafters e-mail a corrected version to Members as soon as possible, for discussion on Tuesday 29 October.

Mr Bassett said that he would use the Bill as introduced, and the new version on that day.

Judicial Matters Amendment Bill
The Chairperson told Members that the Committee was making sure that it complied with all procedural matters, and was also ensuring that the Minister of Social Development was aware of what was being done to excise some clauses from the Bill. It would be emphasised that these were not being rejected, but would be transferred to another bill.

Sexual Offences Amendment Bill
The Chairperson said that the Parliamentary Legal Advisers had been asked to look into the name and printing process for this Bill, as well as the tagging.

The Committee Secretary noted that the tagging had not yet been confirmed.

South African Human Rights Commission nominations
The Chairperson asked the Committee to deal with the nomination on 29 October.

The meeting was adjourned.