Legal Practice Bill: Draft dated 23 October 2013

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Justice and Correctional Services

28 October 2013
Chairperson: Mr L Landers (ANC)
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Meeting Summary

Ms M Smuts (DA) expressed concern, at the start of the meeting, that the Committee had not yet discussed her Private Member’s proposal for 18th and 19th Constitutional Amendment Bills, despite the fact that the Programme Committee had indicated that they would be discussed on Friday 25 and Wednesday 30 October. She had been hoping for the opportunity to brief the Committee on the bills, so that it could then call for public submissions, so that early in 2014 the bills could be considered. The Chairperson pointed out that the Committee still had substantial other work to get through and expressed the view that government business came first, a point challenged by opposition parties, who referred the Committee to Constitutional Court decisions that reiterated the right of members to bring such bills. It was agreed that the Committee would look again at its schedule. 

The drafters from the Department of Justice and Constitutional Development took the Committee through the latest version (Draft 6) of the Legal Practice Bill, which now reflected the options indicated as preferable by the majority party, at the last meeting, and pointed out that they would also indicate some technical matters that they had taken the liberty of altering, either to ensure consistency with other provisions or for correctness of grammar. Opposition Members raised a query whether the deletion of “broad” and “broadly” (when referring to transformation considerations) would not have unintended consequences and asked that the drafters consider this point again, in relation specifically to clauses 5(i) and (l), read with clause 3. Some changes in definitions were indicated, but Members would still need to decide finally whether there should be any references in the Bill at all to the Legal Services Sector Charter, given concerns that its inclusion might confer on it a legal status. The drafters said it might be possible to re-state some of the content under clause 6(1). Members would reconsider clause 3 on the Purpose once they had decided on clause 35, in relation to fees. Members initially held the view that the references in clauses 7 and 96, to the law teacher representatives on the Council and Transitional Forum, should perhaps follow the wording used in the Magistrates Commission Act, but it later was confirmed that this Act referred to a body no longer in existence, and they would need to consider, perhaps, making a reference to the current body or its successor in title. Members agreed that the First Alternative Option was more consistent with other provisions, and decided to revert to that wording for clause 7. The DA reiterated concerns with clause 8. The drafters sought clarity, in clause 13, whether the replacement members to fill vacancies on the Council would serve only for the unexpired portion of the term, and also were instructed by the Committee that no further explanation was needed on validity of decisions, which would depend only on whether there was a quorum. In clause 14, the State Law Adviser’s concerns about separation of powers would be addressed by removing the reference to “an order that empowers the Minister” so that the clause would read “ for an order to dissolve the Council”. The DA reiterated its concerns with this clause. The State Law Advisers suggested some wording, for extra clarity, in clause 23, and it was confirmed that the Minister must act “in consultation” with the Council when setting up provincial councils. In clause 24(3), Members agreed to re-insert the word “relevant” and said it was not necessary to define a mutual recognition agreement. A requirement of citizenship or permanent residence, in the case of those relying on a foreign qualification, would be included. In clause 34, it was agreed to merge subclauses (8) and (9) and follow the wording used for the Legal Resources Centre, where legal practitioners were in a majority. Clause 35 had been substantially amended but the inclusion of new subclauses (7) to (12) setting out the Australian model, and a condensed alternative version, and there was another Alternative that set out the Minister making regulations. Subclause (3) relating to greater or lesser charges than those recommended, still had to be debated. Members also deliberated whether anything more was needed than a reference to a written disclosure “in simple terms” and the majority expressed the view that no charge could be made for this agreement, which would be a pro forma. It was suggested that subclause (4)(c) refer to “the desirability of a mechanism” to be consistent with (4)(a). Members confirmed the roles of Ombud and Council in clause 37, and debated whether clauses 37 and 38 were consistent with each other. Clause 41 should reflect similar wording abut transparency as clause 38. Penalty provisions would be move from clause 48 to the penalty clause. Clause 56 would limit the liability of the Fidelity Fund in respect of the family members of practitioners who had “committed theft” (so that the wording around a guilty finding had been removed). It was suggested, and Members agreed, that given the fact that the Fidelity Fund Board dealt with money, a person convicted of any offence including dishonesty would not be eligible to be or remain a Board member. The reference to the Master in clause 73 would be amplified, and the definition of “Master” removed from clause 1.

The drafters pointed out several instances where changes in the Bill now required changes to clauses 94 (Regulations made by the Minister) and 95 (Rules made by the Council) and, having obtained agreement from Members, would now redraft the clauses. Members would also discuss the Charter again, in relation to paragraph (o) in clause 94. Several technical amendments were pointed out for other clauses.

 

Meeting report

Committee Programme
Ms M Smuts (DA) wanted to raise a programming matter in relation to her two Private Member’s bills, which she said were brought with sincerity and care and into which a great deal of work had gone. These were the 18th and 19th Constitutional Amendment Bill. They had been referred by the Speaker to the Committee, and she had hoped that this Committee would have given her the opportunity to brief the Committee on the bills, so that they could be advertised for public submissions, in order that the bills be dealt with early next year.

The Chairperson said that there were certain other bills still before the Committee and the principle had always been that government business came first. He was unable to give a clear indication of the date on which those two bills could be debated.

Ms Smuts countered that, with respect, she could not agree that the government business too priority. The dates had been approved already by the Programme Committee as Friday 25 and Wednesday 30 October. She was worried that if not dealt with soon, there would be no chance to get public submissions. Everyone giving her oral input also wanted to make public submissions, and there was huge interest in these.

Mr Vhonani Ramaano, Committee Secretary, said that he had actually proposed these dates.

Ms Smuts responded that, wherever they emanated, they were approved by the Programme Committee on 24 October.

Mr Ramaano said that he had been going to discuss the dates with the Chairperson, but he was also bound by what his manager decided. The Special Investigating Unit (SIU) Amendment Bill also had to be dealt with.

Ms Smuts asked the Chairperson for a chance to give her briefing, which should not take long, and for the Committee to briefly deliberate, before advertising. Next year, once the public submissions had been received, the bulk of the work could be done.

Ms D Schäfer (DA) said that the SIU Bill was supposed to be on the programme on the previous Friday, and also asked what had happened to the Budgetary Review and Recommendation Report (BRRR), given that many other committees had already dealt with theirs.

The Chairperson confirmed that he had requested an extension for submission of the BRRR; the Committee had only finished the hearings with the entities on a Friday and the Report was due the following Tuesday, which simply did not give sufficient time for preparation.

Ms Smuts asked if she must then go and see Mr Frolick and pursue the matter of her private bills on her own.

Mr J van der Merwe (IFP) said that if the view was held that government policy had priority, then Parliament ran a serious risk. He reminded the Committee that Mr Alf Whitman, an MP about thirty years ago, had proposed a “smoke bill” and the Nationalist Party had kept it under wraps until he had left, and he feared that this government seemed to be doing the same and would always keep private Member’s Bills back. This was a serious principle that needed to be debated.

Mr S Swart (ACDP) appreciated that his Committee had a great deal of legislative work. Ms Smuts had said that her briefing would not take too much time. It was then merely a matter on inviting the public submissions.

Ms Smuts reminded the Committee that these were Constitutional amendments.

Ms C Pilane-Majake (ANC) asked that the Chairperson should investigate and come up with a suitable date.

Ms Smuts said that she did not want to become confrontational. She reminded the Committee that both bills were based on the ideas of previous ANC-Ministers, and supported the National Development Plan. She asked that the judgment be perused; and she also asked that the copy of the Constitutional Court judgment, which she had lent to the Chairperson, be returned to her. She urged that MPs respect the points made in that judgment, about the process, and give effect to them by allowing her the chance to present.

Ms Schäfer reminded the Committee, on the point that certain work took precedence, that the Constitutional Court had reiterated that all members must be given the opportunity to bring private bills. She was not aware of any precedent requiring “government business” to be given greater weight, and she also urged Members to study the judgment.

The Chairperson confirmed that he would try to assign suitable dates, and would revert to the Committee.

Legal Practice Bill Draft 6
Mr Bassett noted that the “clean” document (titled as such) reflected everything that was in the larger document, but without the deletions and insertions marked. When going through the larger document (the document entitled “Draft 6” which reflected proposals up to 23 October and which still contained footnotes and tracked the changes) the drafters had come across a few issues, which were now highlighted and shaded in Draft 6. There were some areas where the drafters were not absolutely sure what they were required to do, and there had been a few other discrepancies that they had picked up, mostly technical, although some were more substantive. There were no major inconsistencies. He would, with permission, highlight these as Members went through the Bill.

He indicated that Draft 5 had included 550 footnotes. There were only 30 in this draft.

He suggested, and the Chairperson agreed, that Members work from the longer “Draft 6” document. He would take Members in detail only through clauses requiring comment.

Long Title and Preamble
Mr Bassett indicated that the Long Title and Preamble did not need to be discussed; the changes reflected the ANC view expressed at the last meeting.

”Broad” and “broadly” debate
Mr van der Merwe asked what the Committee had decided about the words “broad” and “broadly”. As the Bill read at the moment, there would have to be calculations done on demographic ratios and then appoint exactly in line with that. The inclusion of the word “broadly” left scope for appointments that may not be exactly in line with the demographics, but where there might be very competent people. He reminded the Committee that this wording appeared in section 174(2) of the Constitution, in respect of the appointment of judicial officers, and he strongly suggested that the word be retained, and that the phrase “ in order to” also be kept in.

The Chairperson said that the debate had already been held. It was not normal practice to repeat the debates in this Committee.

Ms Schäfer said that she had raised a point privately with the Chairperson on this point, and was intending to raise it under clause 5, but would do so now. By removing these words, it was also possible, for instance, for the Council to say that there were too many men in the legal profession and that no more men would be allowed to be registered. That would be of huge concern, but it may well be the unintended consequence of what was suggested.

Ms Smuts and Mr Swart asked if the Chairperson was re-opening the debate.

The Chairperson said that Ms Schäfer had approached him privately and he had said that he would ask the drafters to consider that point. The question of “broad” and “broadly” being removed remained, but he did want the drafters to look at clause 5(i) and (l), read with clause 3.

Mr Swart said that he had raised another point, when discussing the powers of dissolution, that the version of the clause which the ANC wanted included allowed the Minister, if he was not satisfied that the objects of the Council had been fulfilled, (as read with clause 3) to dissolve the Council. If the words ‘”broad” and “broadly” were removed, it could be argued that the Council was not reflecting a strict mathematical calculation and therefore the Council had to be dissolved.

Clause 1: Definitions
Mr Bassett said that there had been a question whether “Constitution” needed to be defined, as it was used a number of times.

The Committee still needed to give final instructions on the Legal Services Sector Charter (the Charter).

There was a proposed new definition of ”Provincial Council" and the “Regional Council” definition could then be removed.

There was another question whether the South African Human Rights Commission (SAHRC) had to be defined.

Members agreed that it should.

Mr Bassett also said that a question had been raised whether the “Master” definition could be removed. There was originally reference to the Master in clause 90, but this had been changed to “court”.  There was another reference in clause 77(3), and it would be possible to define “Master” in the clause itself.

Members agreed that the definition of “Master” be removed from the Definitions clause and amplified on instead in clause 77(3).

The Chairperson noted that the footnotes 3 to 5 could also come out.

Clause 3: Purpose of Act
Mr Swart read out clause 3(b)(i) and wondered if the wording was actually reflective of what the Bill was about. He wondered if words similar to those noted in square brackets as deleted, should not be inserted again. Something seemed to have been lost.

Ms Smuts said that the last remaining point was the discussion on the fees. What was inserted here would depend on what was discussed under fees. She suggested that the Committee revert to this clause once it had settled the fee discussion under clause 35.

Mr van der Merwe started to comment on this.

The Chairperson reminded him that the Committee would revert to this clause when it discussed clause 35.

Clause 5: Objects
Mr Bassett reminded the Committee that it must consider this clause in relation to the Charter.

Clause 6: Powers and functions of Council
Mr Bassett said that under clause 6(1), there was a possibility of including some of the matters included in the content of the Charter. This clause dealt with powers and functions, and (b) provided that the Council must do certain things to develop programmes. There were also provisions that could be used in clause 94.

Mr Raj Daya, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development, said that there was a need perhaps also to clarify who the “disadvantaged” were – to specify that they were practitioners, or to clarify that “aspirant practitioners” were “candidate attorneys”.

Mr Bassett added that in clause 6(5)(f) the drafters also suggested that the wording should be “appropriate” rather than “proper”.

Members agreed on that change of wording.

Clause 7: Composition of Council
Mr Bassett asked whether it was correct to cite a non-statutory body like the South African Law Deans Association, in a Bill. He reminded Members that when they had previously discussed the law teachers representatives, they had wanted one Dean, and one person who was actually teaching law; he wondered if the clause gave effect to that.

Ms Smuts thought that perhaps “designated by representative bodies of legal academics” might be sufficient, alternatively to refer to the South African Law Deans Association (SALDA) with the addition of the words “or its successor in title”.

Mr Swart asked how the teacher of law representative on the Magistrates Commission was described.

Mr Bassett added that the drafters had also thought that it might be possible to refer to “one Dean and one non-Dean”.

Ms Smuts answered that that discussion was held in the context of there being two possible representative bodies.

Mr Swart thought that there had been agreement on one representative, but then it was changed to two. He believed that the associations should designate who they wanted, and there did not necessarily have to be a Dean.

The Chairperson said that the wording was “two teachers of law” and the question was then who did the designation.

Ms Pilane-Majake concurred that this Committee should take its cue from the Magistrates Commission.

Mr Bassett also wanted to raise a point on clause 7(2). The Committee had been asked to remove the Alternative and Further Alternative Option. However, if this was done, the clause would no longer be in line with other similar clauses in the Bill, which reflected the phrase “as far as practicable” when listing matters to be taken into consideration.

The Chairperson agreed that this phrase should apply throughout.

Mr Bassett said that the First Alternative Option was more in line with other provisions.

Members approved a reversion to that First Alternative Option.

Clause 8: Membership of Council
Mr Bassett said that there was some doubt whether the drafters had noted the correct instruction. He had understood that the Committee preferred the option where the suspension provision was included. This was set out in clause 8(2)(c).

Members agreed.

Ms Smuts stressed that she had objected to the idea that any person convicted of an offence without the option of a fine should be allowed to be included on any professional body. She would have preferred the sentence to end at “27 April 1994”. However, the majority had decided to change this, so that the members convicted could be suspended and their designating bodies should re-designate.

Mr Swart pointed out that the original wording about the disqualification lapsing had been removed.

The Chairperson said that whilst he personally agreed with Ms Smuts in principle, that was the decision of the Committee.

Ms Smuts said that she was very unhappy with this Bill, but the whole idea, she thought, was to get the Bill into the NCOP cycle. She felt that the Committee was today proceeding at a rather desultory pace. She asked when it was intended to get it to the NCOP, so that it could “take its miserable path” through that House.

The Chairperson said that the debate would take place before the NA rose.

Ms Smuts asked if this meant that the NCOP would sit over the Christmas break, in the provinces.

Ms Pilane-Majake pointed out that the speed with which this Committee could proceed depended entirely on the Members present.

The Chairperson agreed, but pointed out that, in fairness to the drafters, this Committee must be allowed to give clarity to them.

Clause 13: Vacancies in Council
Mr Bassett said that he Committee had not discussed this before, but he raised the question whether this Bill should, as other legislation did, a statement that any vacancy on the Council would not affect the validity of any decisions taken by that Council. This could be inserted under subclause (3). Another question was whether the vacancies would be filled only for the unexpired portion of the term, or for a new three-year period as provided for in clause 10.

Ms Schäfer said that a vacancy would arise only if someone fell off the Council and suggested that the replacement be appointed for the unexpired portion.

Ms Smuts agreed; this Council did not need continuity because the representatives were designated by other bodies. She felt that the point about validity was that the Council should be properly quorated.

The Chairperson tended to agree and suggested that only a quorum was necessary for decisions to be valid, not the full Council.

Clause 14: Dissolution of Council
Mr Bassett pointed out that the provision had been altered, in line with the discussions. The shaded areas in subclause (3) to (5) were inserted for consideration by the Council. These basically added in “together with any terms or conditions that the court deems appropriate”.

Mr Swart asked if the concerns about the separation of powers, raised by the State Law Advisers, had been settled.

Ms Bongiwe Lufundo, State Law Adviser, Office of the Chief State Law Adviser, said that her main concern was with the phrase “an order that empowers the Minister”. This made it appear that the Court could order a Minister what to do.

Mr Swart said that changing that “empower” to “allow” might be better.

Ms Smuts said that it was still fundamentally incompatible with the independence of the profession, that the Minister be allowed to dissolve the body. Whatever safeguards were put in would not change that.

Mr J Sibanyoni (ANC) suggested that the word “empower” was removed, so that the clause read “for an order to dissolve…”

Members agreed.

Mr Basset raised another query in relation to clause 14(8), whether the correct reference was to clause 19, or whether this should be a reference to clause 21, which allowed the Council to delegate. There seemed no reason why the interim Council should be appointing employees.

Ms Smuts said that this still seemed offensive.

Ms Pilane-Majake agreed that the interim Council should not appoint an accounting officer. The accounting officer had to be accountable to the Council.

Clause 23: Establishment of provincial Councils
Mr Bassett pointed out that subclause (2)(a) made reference to the Attorneys Act, but this was not in fact specified, and he asked that this reference be discarded.

The Chairperson agreed that it appeared to be inconsistent.

Ms Lufundo reminded Members that during their earlier deliberations, it emerged that the intention was for the Council to establish provincial councils in all provinces, but that could come later, provided that there were at least four to begin with. To remove any confusion between (1) and (2), she suggested that the words “and progressively” be inserted after the references to subsection (2). She also suggested that the reference to the Attorneys Act be removed, because it would by then have been repealed, and the remaining words changed to “in such areas as the Council may determine, taking into account the following:”

Members agreed.

Mr Bassett continued that the Committee suggested that in subclause (2)(b) the option in capital letters should be retained. The question was whether the Minister should prescribe areas in or after consultation.

Ms Schäfer said that it must be “in consultation”. The Council was to fund these structures.

Mr Bassett indicated that the second (b) would then be renumbered.

Mr Basset indicated that in subclause (3) there was a technical change, by the addition of the phrase “and perform any functions”. 

In subclause (5) he suggested that the wording “area of jurisdiction of the provincial council“ be used, because the provincial councils may go over the provincial boundaries.

Clause 24: Admission and Enrolment
Mr Bassett noted that there had been a suggestion to remove the word “relevant” and he had some doubts about that.

Ms Wilma Louw, State Law Adviser, Department of Justice and Constitutional Development,  suggested that the word ”relevant” should be kept in subclause 24(3). There was another question whether it was necessary to define “mutual recognition agreement” but she thought that it had an accepted and understood meaning.

Members agreed to both points.

Clause 25: Right of appearance of legal practitioner and candidate legal practitioner
Mr Bassett said that “any other relevant law” had been added in clause 25(2) to clarify the position around appearance.

Clause 26
Mr Bassett suggested, and Members agreed, that there should be a requirement of citizenship or permanent residence, in the case of those relying on a foreign qualification, under clause 26(1)(b).

Clause 30:  Enrolment of legal practitioners
Mr Bassett suggested that there should also be similar wording to that raised earlier, relating to the advocates practising with Fidelity Fund certificates.

Clause 33: Authority to render legal services
Mr Bassett said he had left the footnote in because the Committee wanted to include something in its Report about the comments of the Competition Commission.

Under clause 33(1)(a) he noted that there had been discussion also around the Commission for Conciliation, Mediation and Arbitration (CCMA) and a reference to “before any board .. or similar institution” had been inserted.

Clause 34: Forms of legal practice
Mr Bassett said that there was still some confusion about law clinics, and the question was whether (8) and (9) should not be combined. Some of the criteria applicable to both were the same.

Ms Smuts said that she would agree to this, if the Committee wanted to follow the proposal of the Legal Resources Centre (LRC). However, its requirement was that the majority of its members should be legal practitioners, and that was not mirrored in the law clinic at a university.

Members agreed to follow the LRC model and combine the clauses.

Clause 35: Fees
Mr Basset said that clause 35(1) was in the original Bill, as well as subclause (2). The Committee still needed to discuss subclause (3), reflecting that legal practitioners may charge more or less, at the instigation of the client. The original wording appeared in subclause (4). A specific reference was now included to the South African Law Reform Commission (SALRC) undertaking an investigation, rather than the Council. Subclauses (7) to (12) set out the Australian model around fee disclosure to the client. The Alternatives set out the less detailed version that Mr Daya had proposed. There was another Option also, which referred to the Minister making regulations, which was an alternative to subclauses (7) to (12).

Ms Smuts said that there was some new drafting in the proposal that the SALRC would do the job of investigating the matter. However, (a) and (c) did not seem to be in line since (c) said that the SALRC should “look at the establishment of a mechanism”, which was different from “the manner in which to address” – which might not come up with any recommendation on a mechanism. She suggested that, to be consistent, (c) should perhaps refer to “the desirability of establishing a mechanism”.

In relation to the clauses on cost disclosure, she favoured clause (7), but was also not opposed to the shorter version set out in the Alternative. She was definitely not in favour of Ministerial regulations to cover the issue. Under (7) the practitioners would have to a cost estimate and, should this not be done, the clients would not have to pay.

Ms Pilane-Majake agreed that the SALRC requirements were important. She still had some problems with the wording of (7). She was in favour of the practitioner having to provide the client with an estimate in writing, and in simple terms, but said that this was not defined, and she was not sure what exactly it meant. She wondered if this could be tightened up. She was still concerned that there was room for abuse. She requested the drafters to look at this again.

Ms Smuts referred to Ms Pilane-Majake’s suggestion but said that the drafters had brought the three options, so they had already looked at the matter. The Committee must now decide which option it preferred.

Ms Pilane-Majake agreed that a decision was needed. However, she was concerned about the loopholes. Her main concern was how to decide what “in simple terms” meant. There might still be agreements that worked contrary to the intention, although it was worded in simple terms.

Ms Schäfer felt that “in simple terms” could not be defined, but people must have a fairly good understanding of whether a document was deliberately complex or not.

The Chairperson suggested that perhaps subclause (4)(a) could be removed, because (c) dealt with that effectively. Members also agreed to the removal of “the possibility and” in (e).

Mr Swart asked about the implications of following the second alternative, which had no reference to the Contingency Fees Act.

Mr Bassett explained that the “Alternative to Subclause (7)” would only replace (7); the subclauses (8) to (12) would still follow.

Ms Smuts answered the Chairperson and clarified that she was not suggesting that (4)(a) be deleted, but rather that the phrase “the desirability of a mechanism” must be used under (4)(c).

Mr Daya confirmed that the two subclauses were dealing with two separate issues.

The Chairperson confirmed that the subclause (4)(a) would stay.

Mr Swart asked if a client coming to an attorney to have a will drafted should pay for the cost quotation.

Mr van der Merwe said that attorneys should have pro-forma agreements on their computer, which should be completed free of charge.

Ms Pilane-Majake thought that this point would be covered by the SALRC investigation.

Mr Swart said that in practice, an attorney involved in litigation would ask the client for a deposit, so they were giving an estimate anyway. This was merely taking it further for non-litigious matters.

The Chairperson quipped that he hoped the SALRC would reach the conclusion that the client would definitely not be charged for quotations.

Mr van der Merwe asked to be excused at this point.

Mr Bassett reminded the Committee that if it decided to follow the condensed version of (7), as set out in the Alternative, it must also consider subclauses (8) to (12).

Clause 37(5): Establishment of disciplinary bodies.
Mr Bassett indicated that on page 35 there were some options around the list of lay persons to be maintained by the Office of the Ombud, or the Council. The Ombud was essentially intended to oversee disciplinary matters and it might be preferable, to avoid any perception of a conflict of interest, to use the Council”. 

Ms Smuts said that the Ombud was creating the list, and this clause merely required that a person be drawn from the list. This was based on the Judicial Service Commission (JSC) practice.

The Chairperson pointed out that the Council was to establish the disciplinary body, and for that reason he preferred that the Council should make the choice.

Mr Bassett said that (e)(ii) contained two options – who would make the list, and who would choose the person.

Ms Schäfer suggested the following wording: “at least one person drawn by the Council from a list of persons established and maintained by the Ombud…” with the words “which has been approved by the office of the Ombud…” then following.

The Chairperson asked for clarity on footnote 18. He asked what Act was being repealed.

Mr Bassett said that this referred to the Road Accident Fund Act, and the footnote was included merely to alert the Committee to that. The drafters would be re-drafting the provision along the lines of the LRC model, and it may be that no reference to this needed to be included.

Members confirmed that in the last line, the allowance must be “determined by the Council”.

Clause 38: Disciplinary matters
Mr Bassett said that the implication of clause 37(3)(a) was that complaints must be lodged with the Council, who then would put steps in motion to set up the process. He wondered if there was any contradiction between clauses 37 and 38.

Ms Smuts said that the DA did not support what was being done in this Bill, which was building a totally centralised body at national level that did not devolve any powers. She felt it was unrealistic that all disciplinary matters be investigated at the national level, for that would also require all cases to be lodged there, and she did not see how the Council would be able to deal with the thousands of matters.

The Chairperson said that if it was desired to involve the provincial councils, then clause 37(3)(a) which would have to say “refer the matter to the provincial council having jurisdiction over the matter”

Ms Smuts said that the whole Bill was written for the national level, including the investigation of complaints. She thought that if there was a disciplinary matter, the Council would actually send it to the provincial level, but if this was the way that matters were to be done, from a centralized point, then there was no point in requiring people to lodge their matters at provincial level.

Mr Bassett reminded the Committee said that one of the decisions was that the National Council could delegate, in terms of clause 23.

The Chairperson asked the drafters to consider new wording for clause 37, along the lines of “refer to the provincial council having jurisdiction on the matter, for adjudication by a disciplinary committee.” This would then require provincial councils to have disciplinary committees as well.

Ms Louw said that the original idea was to give the regions only delegated powers. The Council could however delegate everything relating to discipline. For that reason, it might be easier to refer to “the Council” (the national body) throughout and simply leave it to it to delegate. If this was done, then the reference to “provincial” in clause 38(1) must come out.

The Chairperson said that the Members would discuss the revised wording.

Clause 41: Appeal against conduct or finding of disciplinary committee
Mr Basset said that the changes proposed by the drafters would ensure that, in relation to the lay persons, there would be consistency with previous clauses. He also said that, for consistency, the wording of clause 38(3) relating to transparency, should apply also to the appeal tribunal.

Clause 44: Powers of High Court.
Mr Bassett pointed out that there was a merely technical change, in the use of the word “juristic” instead of “legal” (person).

Clause 48(6): Powers and function of Ombud
Mr Bassett directed attention to the footnote, and said that this clause contained some penalty provisions that the drafters suggested should be moved to the penalty clause.

Members agreed.

Clause 56: Limitation of liability of Fund
Mr Bassett suggested that clause 56(1)(a) should read “committed the theft”, not “found guilty of the theft”

Clause 64(2)(c): Membership of Board
Ms Louw pointed out that the wording in relation to a person disqualified by reason of having a criminal conviction had been changed, for consistency, to read the same as clause 8.

Mr Bassett added that the Fidelity Fund Board was one charged with money. At the moment, the clause referred to a person convicted of an offence and sentenced to a certain period, but he wondered if this did not need to be tightened, to avoid anyone being appointed who had been convicted of any offence involving dishonesty.

Members agreed and asked that this be done.

Clause 71: Committees of Board
Mr Bassett indicated a technical replacement, where “performance of”  was replaced with “performance”.

Clause 73 and 79(3)
Mr Bassett pointed out purely technical replacements again in both clauses. He noted that the reference to the Master would now also be amplified by referring to the full title.

Clause 84: Obligations of Legal Practitioner
Mr Bassett note that “person”  was being replaced with “entity” on page 61.

Clause 92: Recovery of costs
Mr Bassett indicated that the phrase “legal practitioner, law clinic or practice” was being substituted for “attorney”.

Clauses 94: Regulations and 95: Rules
The Committee had not gone through these clauses in any detail, but Mr Bassett indicated that the drafters had picked up some inconsistencies across the two clauses, as a result of the changes to the Bill, and would like to point them out.

Ms Louw reminded the Committee that clause 94 tried to reflect everything that related to regulations, which were regulations to be made by the Minister. In clause 94(1)(d) there was reference to a framework on limited liability, but this was something to be decided upon by the Council, so it should be moved to clause 95, which dealt with the Rules to be made by the Council. The same comment applied to paragraphs (j), (k) and (l), relating to the right of appearance of candidate attorneys, the fee structure and the Ombud respectively. The reference to the Charter was still flagged. The manner of instructing advocates was also something that the Council must decide upon by way of Rules.

Mr Bassett added that in earlier discussions, around the powers and functions of the Council it had been debated whether regulations might not be needed to ensure that previously disadvantaged practitioners were being incorporated into a transformed profession.

Ms Pilane-Majake noted that paragraph (c) was still flagged, and asked what the status of that Charter was.

Ms Louw said that there were several references to the Charter in the Bill.

Ms Smuts said that she wanted to re-state her concerns about this. The Charter dated back to 2007, and was outdated, and was not even in line with the latest amendments to the Broad Based Black Economic Empowerment legislation. It could not, retrospectively, be given the status of law by being incorporated into another statute. The Committee had not read the Charter, and the only reason it had come up for discussion was the reference to it in this Bill. The Committee itself had not taken the decision to include it. She reiterated that it should not be built into the law, as it had not been considered and contemplated in full and asked that all references to it should be removed.

Mr Swart agreed with Ms Smuts. There was one sentence expressing a sentiment, which was quoted out of the Charter. He personally had not studied the Charter, and did not support including any reference to it, because it would give it a legal status that did not exist.

The Chairperson asked that this remain flagged.

Ms Louw then moved on to clause 95, and reminded the Council that this referred to Rules to be made by the Council. Some amendments were again needed. There would have to be a change from “regional” to “provincial” councils. Clause 95(1)(k) should be amended to provide for payment of remuneration, allowances or stipend. The community service must be regulated for by the Minister, but the Council had the power to exempt practitioners from doing community service, so paragraph (p) would have to be changed, to read “the exemption of a legal practitioner”. Paragraph (q) would be amended to provide for instruction of advocates by attorneys as well as direct instructions to advocates by the public. Paragraph (s) should provide for the time periods.

Mr Bassett said that there was also a reference to disciplinary matters going to provincial councils, under (s) and that would also have to be changed.

Ms Louw continued that paragraph (z) was actually a duplication of (e), as it related to the manner of conversion, and could be removed.

She continued that (zA) referred to the certification, which would be provided by the Registrar, but the Council would have to provide that information to the Registrar.

Members agreed in principle with those changes.

Ms Smuts asked about the provision for exemption.

Ms Pilane-Majake asked under what circumstances the Council could exempt a person from having to do community service.

Ms Louw said that it would be up to the Council to decide upon that.

Ms Smuts commented that she “never saw anything like this” anywhere else, and she could not support the idea, in principle, that practising attorneys would have to go to the Council to ask to be excused from community service, because their practices would fall apart otherwise. That was the reason that the Council would be exempting them.

Ms Louw continued that (zE) must also make reference to an advocate. She note that the drafters were also suggesting that these rules should be made “ in consultation” with the Board of the Fidelity Fund

She further pointed out the insertion in the new draft (zH), setting out the requirement that the Council specify the procedures to be followed before a member of the Council was removed from office.

Finally, she pointed out that in clause 95(3)(b) the words “less than 30 days” appeared.

Mr Bassett confirmed that, Members having agreed in principle, the drafters would now revise clauses 94 and 95 and present a new draft for approval at the next meeting.

Clause 96 National Transitional Forum of Legal Profession
Ms Louw pointed out the technical replacement of “nominated” with “designated”.

Mr Daya said that clause 96(1)(b) should to be consistent with the earlier clause on the Council, as it related to legal academics.

Ms Smuts did not see why, pointing out that there was not consistency on the composition of the Forum and the Council. This body had parity, with eight attorneys and eight advocates.

Ms Pilane-Majake agreed that there should be consistency, that there be two law teacher members, and the wording should be aligned with whatever wording was used in the Magistrates Commission legislation.

Ms Christine Silkstone, Committee Content Adviser, said that she had now managed to check the wording in other statutes. The South African Judicial Education Institute Act referred to the SALDA as the designating body, although the Magistrates Commission Act referred to the Society of University Teachers of Law, and the Constitution referred to “teachers of law designated by the teachers of law at South African universities”.

Mr Bassett said that the Society of University Teachers of Law did not exist any longer, and the body originally discussed by this Committee was one that applied to the SADC, and was not limited to South Africa.

Ms Schäfer confirmed that there was still a law teacher representative on the Magistrates Commission, and said that she would check with the Commission who had nominated. 

Clause 99
Ms Louw noted a technical change referring to the replacement of a person suspended, which was in line with the wording used for clause 8.

Clause 108: Income, expenditure and accountability of National Forum
Ms Louw pointed out the technical amendments in relation to the powers and functions, which was consistent with other clauses.

Clause 109(2)(a)(vi): Provincial Council or Councils
Ms Louw said that this clause related to the manner and form, and to be consistent, there should be a reference only to “the Council”.

Clause 112(2): Transitional provisions in relation to qualifications
Ms Louw said that a technical revision appeared on page 79, clarifying the position and making the use of “admitted” and “enrolled” consistent.

The Chairperson thanked the drafters for a job well done and said that deliberations would continue on the following day.

The meeting was adjourned.
 

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