The Magistrates Commission briefed the Committee on the proposal to uplift the provisional suspension of Magistrate Ntuli. He had been criminally charged with driving under the influence of alcohol, and he was suspended provisionally, pending a misconduct enquiry. The enquiry commenced in May 2013 but the two witnesses testifying on behalf of the Commission contradicted each other to such an extent that the Presiding Officer called for a dismissal of the case, and Mr Ntuli was therefore found not guilty on charges of misconduct. In the circumstances, his provisional suspension was no longer justified. The Committee agreed to the upliftment. The Magistrates Commission then tabled progress reports on the pending misconduct inquiries of P Hole, (whose provisional suspension had been lifted to allow him to finalise some part-heard matters), Mr Masinga, Mr Morake, Mr Rambau and Ms van Schalkwyk, setting out, for each matter, how far, and on what dates, the disciplinary matters had progressed. Members noted the Reports. They inquired, in particular, into whether Mr Hole was proceeding to finalise the part-heard cases, and was being monitored. They were concerned about the long delays, but noted that the presiding officers were very cautious in allowing postponements, and questioned if there would come a point at which a hard line was taken and no more postponements would be allowed. The Magistrates Commission indicated that in some cases the magistrates were suspended without pay already and that it tried to expedite matters, but delays were inevitable.
The Department of Justice and Constitutional Development took Members through the latest draft of the Legal Practice Bill (draft 7). The drafters confirmed that there could be unintended consequences if the words “broad” and “broadly” were removed from the Preamble and Short Title and the ANC said it would agree to these words being re-inserted. New definitions for law clinic and provincial council were noted, and, once the ANC indicated its agreement that references to the Legal Services Sector Charter be removed, that definition was also taken out. The DA questioned whether clause 6(1)(b)(v) was necessary, noting that there were allegations that the largest firms were not transformed, but no proof had been adduced, and asked that Parliament receive reports on this also. Members confirmed that there would be two teachers of law on the Legal Practice Council (although only one on the transitional Forum) and again discussed the wording for the nominating body, finally settling on “as prescribed” to cover the situation should the present representative bodies change. It was noted that requirements on representivity were now qualified throughout the Bill was “as far as practicable”. The provisions on disqualification for membership for the Council, Board and transitional Forum would be brought in conformity with each other, and a person convicted of an offence involving dishonesty was disqualified. Clauses 13, 66(3) and 99 would state specifically that vacancies would be filled for the unexpired portion of the term, and that the validity of decisions would not be affected by any vacancies, provided that the quorum requirements were met. The ambiguity in wording of clause 14(3) would be corrected. Clause 34’s wording had been tightened, with the original subclauses (7) and (8) being combined, with the new wording reflecting the proposals of the Legal Resources Centre, on membership, assets, types of work undertaken, transfer of work, sharing of fees, recovery of costs and taking of candidate attorneys. Clause 35 was now settled, with the Rules Board to determine fees initially, but the South African Law Reform Commission was asked to undertaken an inquiry, and to report to the Minister, and the Minister would then draft regulations based on that report. The DA was still not happy on the Minister on this point, but the ANC believed this to be a logical step. The shorter alternative for the Australian model around agreements on fees was included as (7), and subclauses (8) to (12) were also included. The ANC had been persuaded to retain the provision, in subclause (3) about the clients’ rights to negotiate fees up or down from the recommended figure. New wording was provided for clause 37, dealing with disciplinary bodies. The drafters presented some options for the wording of clauses 94 and 95, should Members still wish to list the matters on which rules and regulations must be made, but said that the final version would take a little more time to prepare. Any changes needed to the Memorandum on the Objects would be highlighted in the next draft.
Magistrates Commission Report: Lifting of provisional suspension Magistrate Ntuli
Mr Johannes Meijer, Magistrate, Magistrates Commission, noted that Mr Ntuli was charged criminally with driving a vehicle whilst intoxicated. The Commission had recommended that he be suspended and that was done, pending a misconduct inquiry. However, at that inquiry, in May 2013, the two witnesses who testified on behalf of the Commission contradicted each other to such an extent that the Presiding Officer called for a dismissal of the case, and Mr Ntuli was therefore found not guilty on charges of misconduct. The Commission believed that these circumstances did not justify the continuation of the provisional suspension, and thus requested that it be lifted. He requested confirmation by this Committee of that proposal.
Ms D Schäfer (DA) proposed that the Committee agree to that, and other Members indicated their agreement
Progress report on provisional suspensions:
Mr P Hole: Regional Magistrate, Kimberley
Mr Andre Louw, Magistrate, Magistrates Commission, noted that Mr Hole was charged with ten charges of misconduct, including failing to comply with lawful orders from the Regional Court President, causing that President to appear in his court, and causing him to be ridiculed in the Court. He had been provisionally suspended in November 2011. The misconduct hearings commenced on 15 April 2012, but were postponed to enable him to obtain legal representation and the chance to study the documents. The matter was later postponed to 19 October for hearing. He had requested the Department of Justice and Constitutional Development (the Department) to foot his legal bill and this was turned down. Mr Louw noted an error in paragraph 3.2 on page 3 of the report, which, in the third line, should read that “the application was turned down”.
Mr Hole then approached the Presiding Officer for a postponement, while he took the question of the refusal to fund him to the High Court and certain points were raised in limine. When the application was turned down there, the matter was again set down. However, by then he had appointed Counsel to act for him pro bono, but this gentleman was only available during court recess. A number of postponements continued. The enquiry had now been finally postponed to 6 December 2013, the only date on which his legal representative would be available, and Mr Hole was told that it would proceed, even if he was not represented, as the Presiding Officer had ruled that no further postponements were allowed. The Department was still not prepared to pay his legal costs so he was reliant on his pro bono legal representative.
Mr Louw reminded the Committee Mr Hole had been provisionally suspended, but the provisional suspension had to be lifted later, to enable him to complete his part-heard matters. He was busy dealing with those at the moment and was receiving a salary.
Ms Schäfer asked if he was complying with the conditions for uplifting the suspension. She hoped that another postponement would not be entertained.
Mr Louw said that the Presiding Officer had ruled that even if he had no representative, the hearings must continue. In relation to the criminal and Children’s Court matters, they were being checked continuously. Mr Hole was present at court, and was attending to the matters. He had been placed in one of the outside courts so he was not working through the Regional Court President, to avoid conflict.
Ms C Pilane-Majake (ANC) asked if there were time frames on the lifting of the suspension.
The Chairperson said that it was lifted to allow him to complete the matters. He was not sure that it was possible to put a time frame.
Mr Louw agreed, and said he was simply required to complete the cases as soon as possible. He had no new cases, so he had a shorter time to comply and complete the matters.
Mr Meijer added that the Secretary of the Commission, Mr Schoeman, had told him that arrangements had been made for all parties to have a pre-trial conference and set certain dates and weeks to finalise the matters. That was as far as the Commission could go.
Ms Pilane-Majake asked that the position be monitored, to avoid it dragging out for years.
Mr Louw assured Members that Mr Hole was being very closely monitored.
Members noted that report.
Mr M Masinga, Umlazi
Mr Louw said Mr Masinga was convicted in the Regional Court Durban and sentenced to 10 years for attempted murder of his wife, and other charges. He was sentenced to 10 years imprisonment. He had appealed and that appeal was still pending. The misconduct proceedings, on three counts, commenced in 2011 and all the witnesses for the Commission had been led and cross-examined at length by Mr Masinga. He had applied for numerous postponements along the way, for a variety of reasons ranging from alleged illness, to losing his spectacles which prevented him from reading the documents, and raised numerous points in limine. He had cross-examined every witness of the Magistrates Commission in detail, using transcripts of the court hearings, as well as of the disciplinary hearing. After the Magistrates Commission closed his case, his attorney had withdrawn. He had testified and been cross-examined. However, now he said he wanted to call another witness as well. The matter had been postponed to 8 November. The Commission was trying to finalise this by the end of the year. He was not currently receiving a salary.
The Chairperson noted that all of this came from a magistrate, who was a lawyer.
Mr Swart asked whether the appeal had been finalised.
Mr Louw responded that it had not. The appeal was apparently sent on review.
Mr Meijer said that two judges heard the arguments on appeal, did not make a ruling, and ordered that the matter be sent for review. He had had until the end of April to do that. The Magistrates Commission had been unable to establish exactly what had happened, and he agreed with the Committee’s concerns that this was a very strange situation.
The Chairperson asked if the Magistrates Commission had asked the judges to explain this ruling.
Mr Meijer said that perhaps the Chairperson of the Commission should take it up with the Judge President.
The Committee noted that report.
Mr Morake, Lichtenburg
Mr Meijer pointed out that Mr Morake had been found guilty of two counts of theft, and had taken the matter on appeal. He was charged with six counts of misconduct, the Commission having added further charges, and had been provisionally suspended from office, with his remuneration also withheld. The enquiry had commenced some time ago. A long history was set out of the postponements. Firstly, his legal representative had withdrawn and he requested a date of postponement to brief counsel. On the set date he said that he was ”frantically looking for an attorney”. On 18 June 2012, dates were set in consultation with counsel, and Mr Morake was given the opportunity to brief counsel. In August 2012 he requested further postponements, saying he had not been able to fund counsel, and asked for disclosure of criminal investigation reports. On 28 August he had requested another postponement, and requested the Commission to disclose the content of the preliminary reports. The Commission objected to that and the matter was set down for argument in October 2012. Mr Morake then abandoned that application. On 22 October no attorney was present and the witnesses for the Commission were present to testify, but Mr Morake again placed on record that he had not been able to pay his attorney or brief Counsel and another postponement was requested. The Presiding Officer ordered that his attorney be present on the date set for trial in 21 January 2013 and he was informed that even if his legal representative had not been placed in funds, the inquiry would proceed.
On 7 and 8 January 2013 the evidence of three witnesses was led. In consultation with the Senior Counsel whom Mr Morake had appointed, a further date was agreed upon, for 3 and 4 April, to proceed. More evidence was led on those dates. The matter was then postponed to 22 and 23 July for trial. However, the Presiding Officer had by then had been appointed as an Acting Judge, and the trial dates were amended to 4 and 5 November 2013. Due to a misunderstanding with the Presiding Officer, it had been postponed again to 26 and 27 November. The Magistrates Commission was engaging with Mr Morake to attempt to limit the issues in dispute.
Ms Schäfer asked about the appeal and whether the tapes and docket had been located.
Mr Meijer responded that the docket was a copy only, but the tapes and original were not yet located. The Court was still busy reconstructing the record and he believed that the Commission had given everything to the Presiding Officer that was needed.
Ms Pilane-Majake asked if Mr Morake had been convicted of any criminal charges.
Mr Meijer said that the one matter on which he had been convicted had been taken on appeal, but the Magistrates Commission wanted to proceed with that charge. There was case law to say that it was not necessary to lead the same evidence as in the criminal trial; the Presiding Officer may make a ruling. If necessary, the Magistrates Commission could summon the witnesses to the criminal trial to give evidence before the Commission. However, three of the witnesses had already passed away.
Members noted that report.
Provisional Suspension Chief Magistrate J van Schalkwyk
Mr Meijer confirmed that Ms van Schalkwyk had been charged with 24 charges of misconduct and her attorneys had confirmed that. However, the attorneys then withdrew, and on 6 October her newly-instructed attorney had been appointed. The Magistrates Commission had in any event been intending to object to her previous representative, who was an Acting Magistrate at the time. The request for further particulars, received on 2 October 2013, set out about 240 questions, relating to details on each of the charges and the Commission was busy answering that. He said that no doubt the misconduct hearing would be lengthy.
Mr J van der Merwe (IFP) noted that he had to attend a Chief Whips Forum and was excused.
Ms Schäfer asked at what point the Magistrates Commission would consider withholding remuneration if the process was abused through several requests for suspension.
Mr Meijer responded that this was a difficult point. If there were unreasonable delays, the Commission had to consider that point. In this case, the hearing had not commenced. Normally, if a Magistrate had been found guilty in a criminal case, his remuneration would be withheld, in line with the Constitutional Court decision in the van Rooyen matter but it was done in exceptional circumstances only.
Ms Schäfer asked if a person was automatically excluded from being a magistrate once convicted of a crime.
Ms Pilane-Majake wondered if automatic termination should not apply in these circumstances.
Mr Meijer responded that the Minister appointed magistrates, and could only terminate their services, once the majority of Parliament had confirmed. A similar situation applied with impeachment of judges, where two thirds of Parliament had to agree. A magistrate “may” be charged with misconduct if found guilty of an offence. The Magistrates Commission would be unlikely to do this for a traffic fine, but there was a need to ensure a fair trial in the misconduct enquiry. It must be remembered that presiding officers in a criminal case may also make mistakes.
Ms Pilane-Majake asked, and received confirmation that there was therefore still a parallel process.
Ms Schäfer said that this was at least preferable to waiting for the criminal cases to be concluded.
The Chairperson noted that there was a draft Report on Magistrate van Schalkwyk’s suspension, but it had not been adopted.
Ms Christine Silkstone, Content Adviser to the Committee, pointed out a typographical error under paragraph 4.
The Committee’s report on the provisional suspension of Ms van Schalkwyk was adopted, and Members also noted the update report.
Mr T Rambau, Limpopo
Mr Meijer said that there was still a criminal case pending against Mr Rambau, and the full and lengthy history was set out in detail in the attached documents. Mr Rambau had firstly requested the Presiding Officer to recuse himself. The State had closed its case. He and his co-accused (attorney and prosecutor) were now to lead evidence. In this case, it was alleged that the three of them had taken a bribe to determine a sentence in advance, if the accused pleaded guilty. The Commission had commenced with the enquiry but Mr Rambau had requested a postponement whilst the criminal trial was still pending. He made numerous requests for postponement. Paragraph 2.5 set out the position as at April 2008. In June of that year, Counsel appeared for Mr Rambau, and further particulars were requested, about a postponement pending finalisation of the criminal case, which the Commission was informed was likely to be concluded in October 2011. A postponement date was given to September 2011. Counsel requested disclosure of all documents, and a list of witnesses, which was done. Various postponements again followed. On one occasion, neither Mr Rambau nor his representative were present, and Mr Rambau had submitted a medical certificate. The Magistrates Commission had really gone the extra mile to try to contact him. On 2 February 2013 the Commission was told that his attorney had withdrawn and was also told that instructions to counsel had been cancelled. A new date for the inquiry was set for 25 March. Mr Rambau maintained, at that stage, that he still had the same attorney and advocate, whom he had placed in funds and he was ordered to make sure that they were present on 13 May. He then instructed another attorney to act on his behalf. On the new date, the presiding officer had been appointed as an Acting Judge in the High Court and the matter was postponed to 15 July. On this date, another new attorney said that he had been instructed and asked for documents, claiming that none had been handed over by the previous attorneys, to allow the matter to proceed. The matter was now set down for 4 and 5 November.
Ms Schäfer said that this was really unacceptable; surely there had to be a point at which the magistrates were told the matter must proceed.
Mr Meijer said the Commission was in a difficult position, and could not refuse to hand documents again.
Prof L Ndabandaba (ANC) said hopefully he would not bring yet another attorney on the next date.
Ms Schäfer suggested that the termination of remuneration be considered, as this seemed to be a clear case of Mr Rambau abusing the process.
Mr Meijer noted that when he was appearing in court on the criminal charge, he was asked to show cause why his remuneration should not be withheld. At the beginning of this year, the same request was made again, because the Magistrates Commission felt he was deliberately delaying. He maintained that it was not him who was delaying the court matter, but his co-accused.
Ms Pilane-Majake indicated that each of the matters showed similar problems. This seemed to set out a pattern of problems in the process. She wondered whether the Committee needed perhaps to give guidance on what should be happening. She was concerned that there seemed to be little progress on the cases since the Magistrates Commission had last appeared before the Committee.
Mr Meijer responded that there had been some progress in some matters, with the leading of evidence. It was very difficult for the presiding officer, who was a judicial officer, to decide whether or not to grant postponements. The misconduct enquiries were to be finalised as soon as possible, but there was a need to follow proper procedure, lest the Magistrates Commission be taken to court. He pointed out that this had happened in the past.
Mr Louw said that whenever a postponement was not granted, the magistrates under enquiry tended to approach the High Court and that delayed it even further.
Members noted the progress report.
The Magistrates Commission was released.
South African Human Rights Commission: appointment of candidate
Mr J Sibanyoni (ANC) stated that the ANC had looked at all candidates who appeared and were interviewed, and wished to propose the name of Adv M Ameermia. He explained that the South African Human Rights Commission (SAHRC) was the only Chapter 9 institution with the right to litigate, and Adv Ameermia’s CV indicated that he had been a practitioner, and had exposure to litigation. He had mentioned some cases in which he had assisted – such as re-opening of farm schools. Some other candidates had a track record of being activist.
Ms M Smuts (DA) wanted to state that the DA’s preference would have been for Prof Jaichand, notwithstanding the fact that he had taken up a position at Wits. Its second choice would have been Dr Gumede, the Developmental Economist, as the DA felt that both had the quality of independent-mindedness. However, once the ANC had indicated its preference for Mr Ameermia, the DA had then continued the background checks on Mr Ameermia, by contacting his referees and himself. She had been concerned at his assertion that he was a card-carrying ANC member, which raised the question of whether he would be sufficiently independent of mind. When she had phoned him, he had immediately asked her whether she had cleared this request with the Chairperson of the Committee – something she had not encountered before and she wanted to put this on record. The DA believed he was a good candidate, with a good CV and interview. The DA would be abstaining on his acceptance, until she had taken the matter to the caucus tomorrow, although the DA may end up supporting it. She thought that it was unusual for him to challenge Ms Smuts’ authority, but she had told him that as an MP she was entitled to question him.
Mr S Swart (ACDP) said that his party’s sentiments were similar and it had supported the other candidates. Whilst Adv Ameermia was a good candidate, the ACDP shared concerns about his carrying an ANC card, but did not want to cast any aspersions on his character. Mr Swart would also be consulting his party, and would abstain from voting, although he was not opposed to it.
Ms L Adams (COPE) said that she would be abstaining, because she had not been present on the day of the interviews.
Ms Smuts wondered if COPE should vote at all, because no COPE representative had been present at the interviews.
The Chairperson asked if that would suggest that the whole NA should not vote.
Ms Smuts noted the distinction that this Committee was mandated by the House.
The Chairperson said he would check up on that position. He asked Mr Sibanyoni if the final decision should be held in abeyance until early in the next week. He commented that the fact that Adv Ameermia had said he was a card-carrying member should not be held against him, as some judges being interviewed were in a similar position. It was unusual that, after interviews, some members of the panel should continue to contact him outside the interview.
Ms Smuts wanted to clarify that she was not suggesting that his membership of the ANC was automatically a problem; the matter of freedom of association and party-political membership was dealt with in the Code of Judicial Conduct, although she personally believed that judges should, once elevated to the Bench, drop their membership of political parties. She had contacted him in order to explore further how independent-minded he was. She reiterated that she would not necessarily be opposing his appointment.
The Chairperson said that he was a little worried at the principle that, having held the public interviews, there were further follow-ups done.
Ms Smuts asserted that she considered that to be within her rights. She had done some background enquiries, and it was precisely because of her conversations with referees that she felt a need to check further, and she considered that her duty.
The Chairperson could understand the background checks. However, proceeding to phone the candidates was another matter.
Ms Smuts confirmed that she had not phoned him several times; she had tried several times before she had got him on the phone. She said that her conversations with referees left her with doubts, which was why she had phoned.
The Chairperson understood this, but still thought that there must be a cut-off point on the interview process. He had no problem with talking to the issues. If she was not satisfied, then it should be left there.
Ms Smuts said that she was happy that the Chairperson continue to investigate. She maintained that she considered this within her rights and duty to satisfy herself before voting on a matter.
Legal Practice Bill: Draft 7
A new version of the Legal Practice Bill, Draft 7, reflecting discussions up to 29 October, was tabled.
Ms Smuts asked why there was a note on the tagging, and if there had been a change.
Mr Lawrence Bassett, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development, noted that the Bill was presently tagged as a section 75 Bill. On the front page of draft 7, the wording would probably have to be changed to reflect ‘as agreed to by the Portfolio Committee. This latest draft, Draft 7, reflected discussions up to yesterday. The document was cleaned up, with the shading being removed from clauses that had been agreed to.
The Chairperson asked Mr Bassett to deal only with the outstanding issues.
Long Title and Preamble
Mr Bassett noted that the drafters were asked to look into the issue of “broad” and “broadly” which related to the creation of all the structures in the Bill, as they should, when established, be constituted, as far as practically possible, taking various issues into account. The “broad” and “broadly” references had an impact on the Long Title and introductory provisions. He quoted that “broad” meant generally, largely, or roughly, and he agreed with the concerns expressed on the previous day that not including these qualifying words might lead to unintended consequences, because they did give some flexibility.
Mr Sibanyoni said that the ANC was amenable to the re-insertion of this word.
Ms Smuts said that she considered this only correct. She pointed out that she had been arguing on this from the start, and believed it was right that it should come back. It was just a pity that other matters, on which the Committee had reached agreement, were thrown out of “this unhappy piece of legislation”. The inclusion of these words was in the spirit of the Constitution.
Mr Bassett confirmed that the words would be brought back into the Long Title, and similarly in the Preamble. All the relevant issues would then revert to the wording as recorded in Draft 5.
Ms Smuts said that whilst she agreed, she still maintained that the correct phraseology was “broadly reflects”.
The drafters agreed that they would make the necessary changes.
Mr Bassett pointed out the new definition for law clinic. A law clinic would be one “as defined in section 34(8)”, but he would deal with those points under clause 34. The rest of the definition would fall away.
The Committee had indicated that it wanted to consider further the question of the Legal Services Sector Charter (the Charter), and he said that it would be possible to take the relevant points and make replacements in clauses 6 and 94.
Mr Sibanyoni said that the ANC had agreed to exclude all direct references to the Charter.
Ms Smuts expressed her delight at this announcement.
Mr S Swart (ACDP) asked about the definition of provincial council. The provincial councils were not referred to only in section 23 and he asked if that was a standard way of citing them
Mr Bassett said that “established in terms of section 23” would be better, and Members agreed to that.
Members questioned if “in terms of” or “in” were to be used, and Mr Bassett confirmed that it was usually stated as “in terms of”.
Clause 3(b)(i) footnote 2
Mr Bassett reminded the Committee that it had decided to deal with this when finalising clause 35.
Footnote page 12 and clause 6(1)(b)(v): Powers and functions of Council
The Chairperson said that this referred to the Charter, but that reference could come out.
Mr Bassett said that clause 6(1)(b)(v) had been changed; the new wording was “disadvantaged legal practitioners as well as candidate legal practitioners”
Ms Smuts thought that this was some way to “sneak” into the law a way to give the Minister regulatory powers. The Bill was replete with obligations on the legal profession. She wondered if, now that the references to the Charter had been removed, this could now simply also be removed. The Legal Practice Council (the Council) would have to carry costs of doing something about poor education and qualifications – perhaps as a result of the failed four-year LLB. She wondered if, over and above that, it was necessary to state this too.
The Chairperson thought that it was.
Mr Bassett pointed out that there was another provision linked to this – in clause 94(1)(l). He had mentioned the Deputy Minister’s recent presentation, and it was accepted that at senior partnership level there had been very little transformation.
Ms Smuts said that these were Ministerial regulations, not rules made by the Council. She asked what the mechanism would be. She wondered if the Council could have a requirement imposed to advise Parliament on the progress. She had never seen a breakdown of the composition of partnership at the bigger law firms. There were very few very big firms. There was an assertion that they had not transformed – but she did not know what the numbers were.
Mr Bassett said that on page 14, in clause 6(5)(h) there was a requirement for reporting to the Minister. It might be possible to add in “and Parliament”.
The Chairperson reverted to clause 6(1)(b)(v) and asked Members which of the words they preferred.
Ms Smuts noted that “advance” was used in section 9 of the Constitution.
Other Members agreed that “empower” was preferable.
Clause 7(1)b): Composition of Council
Mr Bassett noted that the Magistrates Commission, in section 3(1)(a), set out that the Commission would include “one teacher of law designated after consultation with teachers of law at South African universities” The same wording was used in the Constitution. The South African Judicial Education Institute (SAJEI) Act, in section 7(1)(k), referred to the South African Law Deans Association (SALDA).
Mr Raj Daya, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development, said that the university authorities had said that there was a Society of Law Teachers of Southern Africa representing law teachers, but that incorporated non-South African law teachers. It was possible to simply say “South African law teacher”, since implicit in membership of the Council was the fact of South African citizenship, and refer still to that body. SALDA represented the law deans.
Ms Schäfer asked if this was now a reversion to the earlier wording debated by the Committee. She agreed that the clause did specify that Council members be South African citizens.
Mr Bassett reminded Members that they had earlier expressed a preference for having a Dean and also a teacher.
The Chairperson asked what would happen if these organisations were to fold, split or reconstitute.
Ms Schäfer understood that point but wanted to confirm that the Minister would not appoint the Dean or law teacher.
The Chairperson agreed that this was not the intention.
Ms Schäfer said it was then merely a question of how to describe those bodies. She suggested that this might be done by regulation, in consultation with the Council. However, when other Members pointed out that the Council would not exist yet, was to mention the bodies’ successors in title.
The Chairperson suggested that 7(1)(b) could be left as “two teachers of law, one being a Dean of a Faculty of Law at a university in the RSA, and the other being a teacher of law, designated in the prescribed manner”.
Members agreed to this formulation.
Mr Bassett said that on the previous day, the Alternative Option (as now set out on page 15) was used for clause 7(2). This was the first example of using “as far as practicable”.
Clause 8(2): Membership of Council
Mr Bassett said that the Committee agreed on the previous day to use similar wording for the membership, across all the bodies of the Council, the Board of the Legal Practitioners Fidelity Fund (the Board), and the transitional Forum. The Board members could not include a person who was convicted of any offence of dishonesty, as set out in the new wording of clause 64(2) read. He wondered if this should be included under clause 8 also.
The Chairperson agreed that it should be included under clause 8. Members had been vehement that any hint of impropriety in the membership of these bodies was undesirable.
Clause 13(3): Vacancies
Mr Bassett confirmed that this now reflected that the vacancy would be filled for the unexpired portion of the term.
The Chairperson also confirmed that the ANC wanted to add in a provision that any decisions taken in the absence of full membership would be valid.
Mr Bassett said that this was not presently in the Bill, but could be added in and he quoted one example from the Legal Aid Act.
The Chairperson said that another example was the wording for the Independent Electoral Commission; he reminded Members that in this case, a judge had to be recalled to re-appoint another judge, because Parliament wanted to ensure that the validity of the decisions could not be challenged.
Ms Schäfer felt that this was a good cautionary step to take.
Ms Smuts stressed that this was not disturbing the general provision around a quorum. Such a change was not to be lightly done and she personally thought that it was not necessary. A body elected by this procedure could end up being very finely balanced. She did not want to discourage replacements.
Mr Bassett said that this could be worded as “subject to the provisions of section 16 and 17” (which dealt with the quorum).
Members agreed that no decision of the Council would be regarded as invalid merely by reason of any vacancy, subject to sections 16 and 17.
Mr Sibanyoni also believed that it was a wise inclusion, to avoid challenges.
Clause 14: Dissolution
Mr Bassett confirmed the wording of clause 14(3)
Ms L Adams (COPE) (later in the meeting) asked if the Minister would have a choice of approaching the High Court directly, or whether the intention was that only after receiving the recommendations of the Ombud, s/he should then approach the Court. She asked also if this clause was intending to cast an obligation, for the phrase “may approach the High Court” was used. This seemed to imply that a Minister may, but did not have to, approach the High Court before making that decision.
The drafters replied that any ambiguity must be fixed. The word “must” could not be used in this clause but they would think of wording that conveyed the sense more clearly..
Ms Schäfer suggested that something could be added in along the lines of “and wishes to dissolve it, he may approach the High Court”, under clause 14(3)
Clause 23: Provincial Councils
Mt Basset said that the new wording reflected the decisions of the Committee on clauses 23 and 24.
Clause 30: Enrolment with Council
Mr Bassett indicated that under clause 30(3)(i), there was a requirement for a list of advocates practicing with Fidelity Fund Certificates to be drawn.
Clause 34: Forms of Legal Practice
Mr Bassett said that he had mentioned the possibility of tightening up the wording. The drafting had been improved, but had not changed the import of the clause. He reminded Members that the new definition of a law clinic simply cited a clinic as referred to in section 34(8). Clauses 34(7) and (8) in the Bill, as introduced, had now been collapsed into the new (8) which he read out (see attached document, page 29) and this was based largely on the sentiments expressed by the Legal Resources Centre at the public hearings. The clause referred to a non-profit juristic entity founded to conduct a practice, and referred to the majority of members being legal practitioners, and whose assets, on winding up would be transferred to another non-profit entity with similar objectives. It was very similar to the old clauses.
Paragraph (b) continued that the law clinic may only render attorneys services, may not share professional fees, or distribute income to members, except as reasonable compensation, and may only engage candidate legal practitioners if compliant with the Council’s rules in this regard. Paragraph (c) noted that the services would be free of charge to the recipient, but that disbursements may be recovered, subject to clause 92 (which dealt with recovery of costs).
He suggested that all of this was in line with the LRC’s proposals. If accepted, this would require consequential amendments to subclasses (5) and (6). There would be deletion of reference to non-profit juristic entities and similar changes in regard to advocates.
Ms Schäfer asked about clause 8(b)(i). She asked if these law clinics could only be under the supervision of attorneys.
Mr Bassett said that subclause (5) did not preclude advocates from rendering these services. In practice, it was mostly attorneys who ran the services.
Clause 35: Fees in respect of legal services
The Chairperson said that the Second Alternative to subclause (7) (as set out on page 34) was preferred by the ANC. Subclauses (8), (9), (10) (11) and (12) would stay in.
Ms Smuts asked if the Members would not consider letting the Council (which was supposed to be a regulator) make the regulations. That was actually its function, rather than the Minister. She was worried about putting all these requirements with the Minister. She wanted the costs estimates, but asked Members to consider if he was the ideal person.
The Chairperson felt he was. The South African Law Reform Commission (SALRC) would be investigating and making a report, to be presented to the Minister, and tabled by the Minister in Parliament. Members had not really discussed what would happen after that, but he thought that after the Minister received the report, he would draft regulations based on it.
Ms Smuts noted that the SALRC was chosen to do the investigation, because it would comprise economists. There was a question about whether legal fees were too high and the question whether a mechanism was needed to determine fees. The job being given to the SALRC did not encompass exactly the cost disclosure and estimate regime, unless it was simply assumed that SALRC should investigate all of that. The mandatory fee arrangement was not quite the same. The whole thinking behind this was to create an obligation on lawyers by statute, and that was different from the Minister doing it by regulation, which was a more indirect route.
The Chairperson did not agree with her. He pointed out that the Second Alternative to subclause (7) was taken.
Ms Smuts said that this was something separate. The fee agreement was being imposed in the Bill. The only question was whether the Minister could make regulations on costs.
The Chairperson said that a positive was that the fee difficulties would be dealt with immediately, using the Australian model.
Mr Bassett pointed out that the “condensed” version of the Australian model was being used, and that the Minister actually did not play any part in that
Ms Smuts sought confirmation which clauses were accepted. She said that this was “second prize”, although she preferred the longer version.
Mr Basset said Members still needed to make a decision on subclause (3) on page 32 – the desirability of allowing clients to pay more or less than recommended fees.
The Chairperson said that Mr Swart had persuaded the Committee that multi-billionaire clients could agree to pay more.
Mr Bassett said that part of the SALRC mandate was to look into the option of whether clients may pay more than, or less than the recommendations. He wondered if that should be left in the Bill, as it did seem to be a duplication.
Members agreed that there was no harm in leaving it in.
Ms Schäfer asked about footnote 8 on page 33 and Mr Bassett confirmed it would be removed.
Clause 37: Establishment of Disciplinary bodies
Mr Bassett confirmed that under clause 37(5)(e)(ii) there was a question as to who would prepare the list of lay members to participate in disciplinary hearings. He read out the new wording (see page 35), and Members agreed to it.
Clause 64(2): Membership of Board
Mr Basset reminded Members that he had presented the new wording earlier, for subclause (2).
Clause 66 – Vacancies in Board : new subclause (3)
The Chairperson noted that a new subclause (3) would be inserted here, and under the Transitional Forum provisions, noting that the validity of decisions would not be affected by the fact that there may be vacancies on the structure.
Ms Schäfer said that this must also be made subject to the quorum provisions for the Forum as well.
Clauses 94 and 95: Rules and Regulations
Mr Bassett said that the drafters had been through the “audit” list of what regulations should be worded as “in” or “after” consultation. He wondered whether listing the requirements in this way was the best way to reflect them. He had checked the Sexual Offences Act, which had made provision for a whole range of regulations, and noted that it used a more concise format, which Members may wish also to consider as an example. He read out section 67 of the Sexual Offences Act, which contained the empowering provisions. This stated that the Minister may, after consultation with the Cabinet members responsible, make regulations for any regional or inter-sectoral and any other matter “which is necessary or expedient to achieve the objects of the Act”. This was an approach that avoided everything having to be listed in detail.
If Members preferred to abide by the current approach of listing matters, then it would be necessary to make changes. The Bill had been changing as Members discussed it. This latest draft indicated that some things might come out, and others be inserted. At the moment not everything was listed where clauses required regulations to be made. There were 13 clauses that referred to regulations. Clause 94 did not list everything, but there was a catch-all, under paragraph (f) that referred to “any other matters in respect of which regulations may be made”.
The other concern on clause 94, as currently worded, was that there was a reference to the Minister “may”, and where circumstances require, “must”, and also not consistency as to whether the regulations were to be made “in consultation” or “after consultation”, and there was a further category that said “as prescribed”. One way to overcome this was to word the introductory wording as: “The Minister may, and where required in the circumstances must, after consultation with the Council, unless otherwise provided for in this Act, make regulations relating to..” and then to list the matters.
A similar approach could be followed for clause 95, although that was clearer than the regulations, and there was no provision for “in or “after” consultation. The matters would be listed chronologically.
If Members wanted to specify the various matters, instead of using a general catch-all, then he noted that the drafters would need some time to finalise these clauses. He was aware of the time constraints but could have this ready for the following Tuesday.
He wanted to raise a further point in relation to clause 95(1)(e), and suggested that provision should be made for circumstances decided to convert an advocate’s practice to that of an attorney, and the reverse should also apply, where an advocate might opt to move from holding a Fidelity Fund certificate to no longer accepting direct instructions from the public.
Mr Bassett pointed out that this clause made provision for one teacher of law, designated by SALDA. This was a once-off, as the Forum would not be a permanent structure, and for that reason Members seemed to think that one teacher of law, rather than two, would be sufficient.
Members agreed on that point, and confirmed that one teacher of law was required.
Clause 99: Membership of National Forum
Mr Bassett asked if the wording around the offence with an element of dishonesty should be included here too, in clause 99(2)(c).
The Chairperson confirmed that it should.
Memorandum on the Objects of the Bill
Mr Bassett said that he would go through this; some changes might be needed which would be highlighted when the drafters brought the revised version to the Committee.
The Chairperson said that on the following Tuesday, the briefing from Ms Smuts and Ms Schäfer, on the Private Member’s bills, would take place. The Minister would be invited to attend. There were also Table Staff who should be present.
Ms Smuts said that she had invited someone from the Table Staff.
The Chairperson reminded her that the invitation should come from the Chairperson. He would then formally invite that person, with the permission of the Committee.
Ms Smuts thanked him and said she would be delighted.
She added that there were two Parliamentary Legal Advisers as well with whom she had communicated. The Chairperson confirmed that they may be invited as well.
International Covenant on Economic, Social and Cultural Rights
The Chairperson confirmed that the matter had been dealt with, but the Committee still needed formally to adopt the Report, which would be circulated to Members, and adopted on the following Wednesday.
The meeting was adjourned.
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