Constitution 18th and 19th Amendment Bills, Special Investigating Unit and Special Tribunals Amendment Bill (Private Members' Bills); Budgetary Review & Recommendations Report; Legal Practice Bill Draft 7 deliberations

Meeting report

Private members’ bills
Parliamentary Procedural Officer’s briefing
The Chairperson noted that the three Private Members’ bills now before the Committee were the first to be introduced into this Committee since the Constitutional Court judgment on the issues.

Mr Perran Hahndiek, Procedural Officer, Parliament, outlined the process for private members’ bills to the Committee. In 2012 the Constitutional Court ruled that private members were permitted to introduce Bills directly to the National Assembly (NA) and the NA had then agreed to interim procedures to facilitate the passage of those bills, as set out in section 73(2) of the Constitution. A few private members’ bills had been processed before the House. Rules 237 and 241 applied, and Constitutional amendments would have to comply with Rule 258. The requirements included a specific notice period for the public to comment, as well as a notifications period. Ms Smuts told him these had been adhered to in the case of the two Constitution Amendment Bills that she was proposing. He noted that a Member would have to publish the bill, or a summary, in the Government Gazette, and it may contain an invitation for the public to comment to the Secretary of Parliament. Once the time period had elapsed. the Member submitted particular details to the Speaker, with a Memorandum on the Objects of the Bill, the bill itself, the proposed classification, and the financial implications - similar to what must happen with other bills. When the bill was introduced, that was regarded as the first reading, and the bill must then be referred to the relevant portfolio committee.

However, the procedures thereafter differed slightly. The portfolio committee to whom the bill was referred must, after due deliberation, consider a motion of desirability on the subject matter of the bill. If it was rejected, the Committee must table its report on the bill. The stage at which the Committee considered the motion of desirability was not well understood. “After due deliberation” was a question of practice. The Member must be given a fair opportunity to explain the details and the subject matter, and provide an account of the public and stakeholders consulted. It would be fair to give the relevant department(s) concerned also the opportunity to comment on the bill and the constitutionality and legal implications. Once those arguments were considered, the portfolio committee would be in a position to consider the motion of desirability. This would effectively be a deliberation on the Long Title and the general political feasibility of the Bill. If it agreed to that, it could then move on to a clause by clause deliberation, similar to other bills.

Constitution 18^th Amendment Bill: proposal by Ms M Smuts
Ms M Smuts (DA) said that this briefing represented the stage where she would be given the opportunity to explain her bill. She confirmed that she had fulfilled every requirement of the Constitution and the Rules. She wanted to thank Mr Hahndiek, the Table Staff and the Secretary for Parliament, and Mr Michael Prince, from the Parliamentary Legal Advisers. She noted that the presentation of this Bill was the culmination of a long and demanding process. She also thanked the Chairperson for assigning a date and giving her the opportunity to explain her bills. She liked the idea that the Department of Justice and Constitutional Development would comment and due deliberations would be conducted. She hoped that the public would be invited to make submissions to the Committee. She also noted that there had been much interest in both her Constitutional Amendment bills.

The object of the Constitution 18^th Amendment BiIl was to amend the Constitution so that the President would appoint the National Director of Public Prosecutions (NDPP) on the recommendation of the National Assembly (NA), and provide also for the involvement of civil society. The NDPP may only be removed following a finding of misconduct, incapacity or incompetence, after a resolution of the NA. She believed that the current lack of provisions in the Constitution around removal of the NDPP was a lacuna. Her proposal also was to remove the final responsibility from the Cabinet member responsible for the administration of justice. This would render the whole NPA, and the NDPP, accountable to the National Assembly.

She set out the current wording of section 179 of the Constitution (see attached presentation) and compared the present situation in South Africa to that in other countries. There were basically two models of public prosecution (PP) authority in common law countries. Some had complete independence of the PP, but another model, as used in England, Australia and New Zealand, was one where there was an independent DPP but the Attorney-General had the ultimate responsibility for decision whether or not to refuse requests for prosecution. The Attorney-General was a member of the government who sat in one or other house.

Section 179 of the SA Constitution established a prosecuting authority headed by a NDPP, who, by national legislation, must exercise the public prosecution functions. This seemed to indicate a model of prosecutorial independence, but section 179(6) still noted that the Cabinet Members responsible for the administration of justice must exercise final responsibility over the prosecuting authority. It seemed, therefore, that South Africa had opted for a hybrid of the two models, and she quoted Prof Phillip Stenning, of Keele University, who was cited by Frene Ginwala in her Report of Enquiry into the Vusi Pikoli matter.

The ANC Members of Parliament who had sat on the ad hoc Committee in the Vusi Pikoli enquiry had suggested that there was a need to review the Constitution and legislation. In 2008, Mr Enver Surty referred to the imperatives to collaborate and the principle of prosecutorial independence and said, at the time, that because the Minister’s responsibility was not defined, the Committee may want to look at this when making its report. The ANC Members felt that it was unfortunate that matters had reached that stage, because of the lack of clarity on aspects of the legal framework and suggested that the executive and Parliament needed to clarity the relationship between the NDPP and Parliament.

More international guidance was now available since the time that the Constitution was negotiated, including the Venice Commission, which advised the former Soviet Union on how to move away from the party-run “Prokuratur” model. In January 2013 a new Code was set up in England and there was a trend to the common law approach. The principle of independent prosecution was asserted by the Constitutional Court, and this, to her mind, gave the “full trumpet blast” for pure independence; it was said that there was a constitutional guarantee of independence, and any legislation or executive action inconsistent with that would be subject to constitutional control by the Courts. That was why she proposed outright omission of section 179(6), allowing the Minister to exercise control. Whilst the present Minister did not abuse that provision, the previous Minister had, not only asking Adv Pikoli for information, but also telling him that he should not pursue a prosecution against the then-National Commissioner of the Police Service at the time. Section 33 of the National Prosecuting Authority (NPA) Act was based on the 1992 Prosecutions Act, which intended that there should not be interference.

If, however, other Members felt that complete deletion was not acceptable, then she also put an alternative. She had been advancing the need for constitutional changes for several years. In answer to one of her past questions, the Minister of Justice and Constitutional Development had replied that the Supreme Court of Appeal, in the Nicholson matter, found that although the prosecutorial responsibility appeared to conflict with final responsibility, they were not in fact incompatible. In Namibia, the Minister may not instruct the NPA to prosecute or decline to prosecute, but the Minister was entitled to be kept informed. If the Portfolio Committee, after debating the issue, decided that it wanted to keep section 179(6), then as a compromise she would suggest that it be retained, but with the rider added that the Minster may not instruct the NPA to prosecute, decline to prosecute, or terminate a pending prosecution.

This was not intending to change section 179(5) of the Constitution, which said that broad prosecution policy must be determined in concurrence with the Minster, which seemed the right way in which a democratically elected government could influence priorities. It was interference with specific cases that was unacceptable and improper.

The implications of independence for appointment and removal formed part of the degree of independence of an institution, as held by the Constitutional Court. Because the NPA and NDPP must have prosecutorial independence she was also proposing that the power of appointment should not lie with the President. Multi-party mechanisms similar to those in section 194 for the Chapter 9 institutions should be used, with a 60% majority needed for appointment, similar to what was done for the Public Protector and Auditor-General.

She added that the present system had also not worked of late; one inappropriate appointment was set aside by the Courts, followed by no appointment at all made for far too long, and the new NDPP was completely unknown to the broader public. The ad hoc Committee looking into the Vusi Pikoli matter had recommended following Minister Enver Surty’s advice that Parliament should look into its role in appointment. Legislative amendments were also needed for the appointment of The Deputy National Director and Directors of Public Prosecutions, who were also appointed by the President.

There was another concern that her private member’s bill sought to address, namely, security of tenure. The present arrangements for suspensions and removal were contained in the NPA Act. Frene Ginwala had found that Adv Pikoli was a fit and proper person to remain in position, yet that had not stopped the then-President proposing his removal for extraneous reasons, nor did it prevent the ad hoc Committee from confirming that removal. An NDPP would not have security of tenure until the Constitution was amended, to provide that he could be removed only upon a finding of misconduct.

Ms Smuts noted that the Minister was presently preparing legislation giving the NPA administrative and financial independence. Therefore, it seemed appropriate to make the NPA accountable to the NA. The Constitutional Court said that the office of the NDPP must be non-partisan and non political, and the same must surely then apply to the NDPP as an individual.

She noted that the NPA was not conceived as being an independent and non partisan authority. She quoted former Deputy Minister Johnny de Lange, addressing the Ginwala Enquiry, who had said that the model guaranteed a measure of autonomy but did not afford the same independence that was guaranteed to the judiciary. The Constitutional scheme envisaged that the NPA and executive would work hand in hand, similar to the English model. She added that although that was the model at the time, not even the English was conducting prosecutions along this line, and that subsequent to Mr de Lange’s statements; the Constitutional Court’s interpretation had been in contrast to these views.

More recently, in the Glenister case, the Constitutional Court suggested that a body outside executive control must be set up to deal effectively with corruption – and if that applied to the Hawks, then it was even more true of the prosecuting authority.

The wording of the proposed amendments was set out in the last slide. Since first publishing the Bill, she had been persuaded to make one change, and that was the need to provide for suspension, as there were examples of those fired and suspended.

Discussion
Mr S Swart (ACDP) noted that he had served on the ad hoc committee on the Vusi Pikoli matter. He referred to the broad prosecution policy, under section 179(5), and the alternative suggestion, which he thought was quite useful, but questioned if this might not also result in political interference if the Minister could determine that policy.

Ms Smuts replied that she had an open mind on the point of section 179(5). The alternatives for consideration were whether to create an NPA that was a hundred percent independent, or to create a hybrid model, for which there were also precedents. The alternative was to set out Judge Harmse’s formulation, in the Nicholson case. The government of the day did have a legitimate interest in being involved in prosecution policy. The government was in charge of the policing function (and, under the English model, for the prosecuting function) but she would prefer it to move away from the latter. Mr Swart’s question raised whether there was potential for interference by allowing for broad policy, but she would tend to think not, because this was “broad” policy, and she pointed out that only two promulgations of prosecution policy had been made since 1994.

The Chairperson said this raised the question of what “prosecution policy” comprised. Where there were crimes being committed, they must be prosecuted.

Ms Smuts agreed that it would be necessary to look at the policy. In some civil law countries, the prosecuting authority was obliged to prosecute everything, but the same did not apply in the common law countries, where there was a discretion, allowing the prosecution authority to look at the public interest and the background. For instance, England had relied upon “public morale” when declining to prosecute. Prosecution policy would probably include such matters as evidentiary tests, the public interest dimension and the prospects of success, to avoid wasting public money, and perhaps other considerations. One of the mistakes that the NPA made was that when it first published the policy, not many people were made aware of it, and when the changes were published a year or two ago, many people thought that this was happening for the first time.  A year or so ago, when they advised of changes, many people thought it was happening for the first time.

Mr J van der Merwe (IFP) said that if a crime was committed and the prosecuting authority felt that there was a prima facie case, it would be expected that a public prosecution would follow, but Bulelani Ngcuka had not prosecuted, despite admitting that there was a prima facie case. That raised questions on what would be the instigation to open a prosecution.

The Chairperson said he had always found that comment strange – he had thought that the Court should decide. However, this had been the head of the organisation, who was supposed to be independent and take the final decision, and he would assume – although he hastened to add that he had never spoken to Mr Ngcuka about the matter – that he was asserting that right to take the final decision. The case in point was of course in the public eye, but there were probably others similar.

Ms Smuts thought that perhaps it was useful to look at the difficult cases, although they may make bad law.

Mr Michael Prince, Parliamentary Legal Adviser, said that the Bill was referred to the Parliamentary Legal Office, and that office believed that none of the clauses went against the spirit, purport of the object of the Constitution. It was not a money bill. The Parliamentary Legal Advisers were not aware of any legislation awaiting consideration by the National Assembly or National Council of Provinces that dealt with the substance of this Private Member’s Bill. The Parliamentary Legal Advisers had considered the Constitution and the NPA Act and were of the opinion that this Bill did not conflict with them, but that there might be the need to amend the NPA Act as a result of these amendments.

The Chairperson asked why the Parliamentary Legal Office would be made aware of any pending amendments, and wondered if the legislative division of the Department of Justice and Constitutional Development had given that indication to Parliament.

Mr Prince clarified that he had meant that his office was not aware of anything that had come through Parliament to date on this point.

The Chairperson and Ms Smuts agreed that, given the length of the agenda, it might be appropriate to hold deliberations on another day. It was noted that 13 November was still a Committee day.

Constitution 19^th Amendment Bill: Proposal by Ms M Smuts
Ms Smuts noted that she had distributed the Judicial Service Commission (JSC) summary of criteria, and would take Members swiftly through the slides. The object of the Constitution 19^th Amendment Bill was to amend the Constitution to further regulate the appointment of judges, and address the composition of the JSC. She stressed that this Bill tried to give effect to Cabinet policy, as encapsulated in the National Development Plan (NDP), which called for clear criteria for judicial appointment, (although there were other aspects that she regarded as problematic), for impartial selection processes, and for a change in the composition of the JSC to reduce its size and address the perception that political influence affected its decisions.

She tabled, but did not take Members through, aspects covered on pages 447 and 453 of the NDP (see slides 3 to 7 for full details), but said that there were some problematic statements on page 453 of the NP. The NDP said that there should be a progressive judiciary. Unfortunately, there was little or no consensus in the JSC or the legal fraternity about the qualifications and attributes needed for appointment to the Bench. The JSC should elaborate further guiding principles. The JSC had published a broad list of criteria in September 2010 but they required further development. Her first problem with the NDP was that it understood “progressive” to mean “judicial deference” and she would return to that point. There was a need also, as set out in the NDP, to consider whether the JSC was optimally structured to fulfil its responsibility.

Dealing firstly with the question of structure, she believed that there was general agreement that it should include politicians alongside judges and representatives of the legal profession. However, she submitted that the balance that had been found in the Interim Constitution was lost in the Final Constitution. In the Certification process, there was an objection to the preponderance of politicians on the JSC, but that was rejected, in the absence of any constitutional principles that either demanded or governed the creation of a JSC. The Constitutional Court said that its composition was a “political choice” and the Court could not interfere. That position still remained. In her view, the JSC was too large and hamstrung by political interest.

She set out the composition of the JSC under the Interim Constitution – when it comprised ten members from the legal sector and seven from the political sector. Under the Final Constitution, it comprised eight from the legal sector and 15 from the political sector (or nine and 16 when considering appointments to a provincial high court). One possible way to reduce the political sector would be to bring down the legal representation to eight, and then to have nine politicians.

She explained how this arose; under the Interim Constitution, the Senate and four Presidential designees were appropriate because the upper House was one of “wise persons”, and the Cabinet represented a government of national unity. However, in the Final Constitution, the Upper House became a House of Provinces, following the German model, and the Cabinet structure fell away. However, the four NCOP MPs were retained, and six NA MPs were added. Justice was a national competence, so it was right that the NA must be represented. However, this had swelled the Parliamentary representation numbers to ten, and the four Presidential nominees were retained also, although in terms of the Final Constitution they did not need to include two lawyers, which was a pity.

Her suggestion was to keep the existing categories, but to reduce the numbers, so that there were four nominees from the NA, two from the NCOP, and two from Cabinet, of whom one must be a lawyer, to keep the balance between legal and political representation. Half of those from each House must be opposition members. The NA representatives should not include any members of the executive. Currently, two Deputy Ministers served with Mr van der Merwe and Mr Sibanyoni, the NA representatives, but she said that surely the intention was to represent legislators. The General Council of the Bar, interestingly enough, had no problem with the inclusion of the Deputy Ministers, nor with the Presidential nominees – which was interesting. She also thought that each category should have equal numbers of female and male members, as this was currently out of balance. The Presidential nominees should keep their role in advising government, but should play no role in appointments where the President had a discretion.

Ms Smuts noted that Prof Richard Calland from the University of Cape Town had also suggested the involvement of retired Constitutional Court judges– perhaps as part of the Presidential nominees, and she thought this was interesting. Revised wording for section 178 of the Constitution was then included.

The criteria for appointment were slightly more difficult. The NDP had proposed that the JSC should elaborate further guiding principles to build consensus on the qualifications and attributes of the ideal South African judge. She, however, believed that it should not. The JSC criteria, developed firstly several years ago, were re-adopted in September 2010 and they were problematic. These criteria named integrity as one of the supplementary criteria, separate from those in the Constitution. In her view, integrity was intrinsic to whether a person was fit and proper, and it should not be the JSC who developed further criteria. This view was also shared by the Minister and former Deputy Minister, who had both made it clear that they were opposed to the approach of the NDP to the ideal judge. The NDP wanted a judiciary that was progressive, which included “judicial deference”, and that was unacceptable. She suspected that those within the NDP making this suggestion were economists. She doubted whether the suggestion was correctly attributed to Adv Susannah Cowen, whose own work on judicial selection was excellent, and had been re-issued by the Democratic Governance and Rights Unit at UCT. Other academics were keen to make submissions on the point.

The other consideration was that of judicial independence. After preparing the gazetted Bill, something else had occurred to her. Many of those submitting comments on the gazetted Bill had made some very useful suggestions and even those who were opposed to it had asked for the opportunity for further debate. Some comments suggested that the Constitution was written for the long term and it may be more appropriate to rewrite part of the JSC Act. Some alternative wording was suggested by the General Council of the Bar and others. The Black Lawyers Association had asked for the opportunity to engage. For her part, she was even more convinced that criteria should be included in section 174. She believed that all judges, not only the Constitutional Court judges, must be South African, although she understood the possible context of including others at transition, and there was a suggestion, in some submissions, of the need for inter-operability in the SADC region.

Constitution Principle VII said that the judiciary must be appropriately qualified, independent and impartial. The Interim Constitution said that the judiciary shall be independent and impartial. The Final Constitution stated, in section 165, that the court must be independent, but it was silent on judges’ independence. The reason why section 174(1) was so broad and undefined, was because of the negotiating process. It had not been possible, at the time, to appoint only Silks to the Court, especially the Constitutional Court. Appropriately qualified, and fit and proper, were thus the only requirements. Nobody appeared to have thought of bringing in the concepts of independence or independent-mindedness, during the certification process. She was now suggesting that “independence” and “impartiality” must be added into the requirements for judges, particularly given the interpretation mentioned earlier of the NDP. She did not believe that the President would have any objections, as he had said, at the Second Judicial Conference, that the transformation of the judiciary should be advanced and undertaken without interfering with the principle of judicial independence.

She quoted Adv Cowen, who said that it was axiomatic that South African judicial officers must have the courage and disposition to act with an independent mind. She had also quoted Judge Chaskalson’s correspondence with her, to the effect that “tenure is an essential component of independence, but it is not a sufficient guarantee of independence. Tenure of compliant judges would be a disaster.” She asserted that independence was seen in the state of mind, and that it should be an essential part of the JSC’s work, and in the fore of its consideration of all judicial appointments, to assess the independence and integrity of candidates. For this reason, the words “independence and impartiality” must be added to section 174(1)(c).

Ms Smuts further believed that the question of appropriate qualifications could not be left in such loose wording. The JSC drew a distinction between competence and experience and that was possibly the source of the unforgivable assumption that competence and colour were two different things. She would prefer a reference to “demonstrable capability to perform judicial functions”. She had received many objections and counter-proposals, and one of the objections was that this limited appointees to those who had acted as judges. Almost everyone had objected to her suggestion on the requirement for equal assessment during the interviews and suggested that “impartial” assessment would be better, given the need to achieve transformation. However, she remained convinced that sections 174(1) and (2) were facets of a two-stage process. The requirement to consider broad representivity in relation to race and gender must come in only after it had been established that the candidate could do the job. This was the process adopted when the NA considered appointment of Chapter 9 institution commissioners. She saw no reason why the JSC should not do the same.

Ms Smuts summarised that her last slide (see attached document) set out the proposed new wording. She reiterated that there was huge interest in the subject and she believed that the alternative suggestions made were also good. She reiterated that she wanted to add requirements of independence and impartiality to section 174(1)(c), and said that the objections to including a reference to constitutional values, as expressed to her, would require further discussion.

Discussion
Mr van der Merwe said he had served on the JSC for 17 years, and it was not an easy task to decide who would be appointed as a judge. He asked why the number of 23 should be brought down to 19; he believed that the larger number meant greater collective wisdom. He agreed to much of the other comment, but thought that there was scope for discussion.

Ms Smuts said that there was an interesting view, although there was a point at which a large structure may not be effective. UCT’s Law and Governance Unit had also suggested that, rather than reducing, “re-composing” might work.

Special Investigating Unit and Special Tribunals Amendment Bill: Proposal by Ms D Schäfer 
Ms D Schäfer (DA) presented her Private Members’ Bill to amend the Special Investigating Unit (SIU) and Special Tribunals Act, in relation to the appointment and removal of the Head of the SIU.

Ms Schäfer pointed out that the SIU was established for the purpose of investigating serious malpractices. In recent years, there had been a decline in the number of cases handled, mainly because of the removal of the former Head of the SIU, without reason, and the failure by the President to then appoint a permanent replacement Head. There was a need to prevent this from recurring in the future. The efficient functioning of the SIU was crucial for effectively combating corruption. She said that the amendments she was intending to propose would avoid the situation that had arisen in the past, or would enable interested parties to approach the Court in the case of problems. She asserted that there was no need to see this as a political issue as all the amendments were proposed for the good of South Africa, and to ensure confidence of investors, which could only lead to growth and employment in the country, and enhancement of the SIU work.

In summary, the changes that she was proposing would ensure:
- that the Head of the SIU may only be appointed by the President, on the recommendation of the National Assembly
- that the Head of the SIU may only be removed with the agreement of the National Assembly
- that no person should be allowed to act as head of the SIU for longer than six months
- that the SIU must table reports to Parliament, on every investigation, every six months.

She summarised that the involvement of the NA was being introduced as a check and balance. The six-months period for the filling of the vacancy was specifically mentioned because of the past experience, when the position was not permanently filled for a period of 22 months, which had had serious detrimental consequences for the SIU and the morale of the staff. The six-month period for reporting to Parliament was to allow the NA to play a greater role in checking and monitoring the progress of investigations.

Ms Schäfer then tabled the exact wording of her proposals, to amend section 3 by the substitution of the existing subsections (a), (b) and (c) (see attached presentation for full details). Section 4 amendments included the reporting at six-monthly intervals.

Ms Schäfer stressed that the fact that the President issued the proclamation appointing the Head did not mean that he alone would be able to choose the head of the Unit. It would promote more credibility in the process if there was also other input. The appointment should be seen as free of political influence, and this provision would ensure that there was at least some check and balance mechanism in the appointment and removal.

Ms Schäfer finally concluded that she had complied with all the provisions around advertising and publishing, but had not received any comment.

The Chairperson noted that the person from the Parliamentary Legal Office with whom Ms Schäfer had worked was absent because of illness, but Mr Prince would take notes on any queries and report back.

The Chairperson noted that no Members wanted to ask questions of clarity. He asked if the Department of Justice and Constitutional Development (the Department) wanted to comment.

Mr Lawrence Bassett, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development, indicated that he had no comments at the moment, but would appreciate it if he could be furnished with copies of the public comments.

The Chairperson confirmed that this would be done, and they would be made available also to the Parliamentary Legal Advisers.

Budgetary Review and Recommendation Report of the Portfolio Committee
The Chairperson noted that the Budgetary Review and Recommendation Report (BRRR) of this Committee must be placed on the ATC today.

Ms Christine Silkstone, Content Advisor to the Committee, took Members through the BRRR, following their suggestion that she proceed page by page to allow Members to note any amendments, additions or technical corrections. She noted that the document, tracking the latest changes, was dated 5 November 2013.

During the process, Members made various technical amendments to spelling or grammar, which it was confirmed would be amended before the document went for the ATC publication.

Ms Silkstone noted that the introduction set out the core functions, and pages 2 and 3 set out the process of monitoring followed by the Committee throughout the year.  Paragraph 1.11 explained the structure of the Report. Parts 1 to 4 dealt with administration, Part 5 dealt with the additional information and Part 6 contained a summary of the recommendations. Key policy focus areas were raised in Part 1. On page 6, paragraph 3 set out the overview of the vote.

Ms Schäfer noted the reference to a R2.5 million allocation for the assessment of the impact of the decisions of the Constitutional Court. The Committee had been told that this had now been raised to R10 million.

Ms Smuts said that the Director-General of the Department had been asked to send something in writing.

Ms Schäfer felt this needed to be clarified.

Ms Silkstone said that this was a historical statement of the position, so she suggested that the raising of the amount could be mentioned under the observations. Members agreed to this (and it was raised later).

Ms Silkstone continued that paragraph 3.3 set out the adjusted appropriations. Paragraph 4 set out the spending trends for 2012/13 and the first quarter of 2013/14, which covered pages 9 and 10. Paragraph 5 on page 11 dealt with the responses to the 2011 and 2012 BRRR recommendations. Paragraph 6 dealt with the audit outcomes, and this was limited to the institutions where there were substantial comments from the Auditor-General (AG). Paragraph 7 dealt with the spending pressures and priorities for the 2014 Medium Term Economic Framework, and this was linked to the observations and recommendations for additional funds.

The table format for the Public Protector, on page 18, was not reflected properly in this version, but she would insert the gridlines so that the formatting was consistent throughout the document.

She noted that the SIU had made no requests for additional funding for the medium term, and this was merely stated.

Part 2, from pages 18 to 20, set out the overview of the revised Strategic Plan. Page 20 commenced the description of selected objectives and achievements, or non-achievements, summarised under the institutions concerned, and specific programmes.

Mr Swart asked that the drafters check the consistency: sometimes the word “number” was used, and at other times the abbreviation “no.” appeared.

Ms Silkstone continued that Part 3, paragraph 10, dealt with the National Prosecuting Authority (NPA). Part 4, from page 28, set out the Auxiliary and Associated Services, such as Legal Aid, the Special Investigating Unit (SIU), the South African Human Rights Commission (SAHRC) and Public Protector (PPSA)

Ms Schäfer noted that the large number of vacancies and acting appointments were not mentioned , and she thought that it should be.

Ms Silkstone responded that it was under the observations, but could be moved to here.

Members questioned why the word “handles” appeared in inverted commas, in respect of the cases of the PPSA, noted that this was the word used by the PPSA, but decided that “dealt with” was a better wording.

Ms Silkstone continued that Part 6 set out the Committee observations. Under 15.3, Ms Silkstone had used the words “formal engagement with National Treasury” because although at the moment there was engagement, it was not formalised. She suggested that perhaps this could be done at Cluster level.

The Chairperson particularly liked that wording.

Ms Silkstone said that 15.4 dealt with technical issues, and 15.5 dealt with funding proposals, and noted that the Committee was sensitive to the broader fiscal context. This was a continuation of the argument from previous years about how the budget reductions had impacted on operations. The Department of Justice and Constitutional Development and the NPA had both commented on this, and noted that they were unable to attend to everything because they had to prioritise according to the budgets allocated.

The unfunded mandates were set out in 15.9, and reflected the suggestion that there should be a process found to deal with commissions of enquiry, without requiring the Department to use funds from its operational budget. Paragraph 15.10 dealt with the audit outcomes. Paragraph 15.12 commented on the initiatives in regard to the Third Party Funds, and the point was made that the reports must be tabled urgently. The legal status of the Third Party Funds also needed to be resolved.

Governance and operational issues were set out in paragraph 15.13, and included the priorities of addressing fraud and corruption, vacancies, security at courts, and integration of IT systems. Under 15.5 the Department had made the point that security costs were growing hugely, and the Committee had questioned whether these costs were containable. The Department would be asked to brief the Committee on its plan to address this in the longer term, but she asked whether Members wanted to add to what was already stated.

Ms Schäfer said that clearly more money was needed, to cover the need for more courts and security.

Ms Silkstone continued that performance and service delivery were set out from paragraph 15.17. These paragraphs covered the case backlog and court performance, the Truth and Reconciliation Commission (TRC) progress, building on what had been said in previous years. The following paragraphs dealt with the Constitutional Development portfolio, vulnerable groups (with the suggestion that there might be a specific programme for those), and maintenance matters. 15.23 was a general observation on the new Service Delivery Charter and Service Standards.

Mr Swart asked if paragraph 15.24 was correctly worded. The Committee was not questioning the desirability of designation of One-Stop Child Justice Centres because it supported them in principle, but it was rather questioning the affordability of setting them up. Under 15.25, he questioned if “appalled” was too strong.

Ms Silkstone said that the conviction rate for these offences was low, in comparison to other types of cases, but of even greater concern perhaps was how few cases reached the Court. She thought that this was a very serious issue.

Other Members were not opposed to the use of “appalled”, and suggested that it remain

Ms Silkstone indicated that paragraph 15.26 dealt with the Master’s Office and 15.27 highlighted a general reference to “legislative amendments” because no Bill was available as yet. Paragraph 16 dealt with the Office of the Chief Justice. Paragraph 17 dealt with the National Prosecuting Authority, paragraph 18 with Legal Aid South Africa, and paragraph 19 with the Special Investigating Unit.

Ms Schäfer noted that in the last paragraph there was a remark that the Annual Report was unclear about the vacancies at senior management, but wanted to add in also that the Committee was particularly concerned about the number of Acting appointments.

Ms Silkstone continued that paragraph 20 dealt with the SAHRC. Paragraph 21 dealt with the Public Protector. Under 21.4 she had removed the sentence in earlier versions about the organisational structure; she did not recall that the Committee had actually approved that, nor was she sure that the Committee had to formally approve it.

Ms C Pilane-Majake (ANC) commented that paragraphs 21.1 and 21.5 could be combined.

Ms Smuts said that the Committee had made the point strongly that the fiscus should be picking up the bill for the Marikana Commission, for Legal Aid SA. National Treasury should be paying, not sending excuses.

Ms Silkstone suggested adding “The Committee supports the allocation of R17 million needed” under 18.5.

Part 5 set out a summary of the reporting requests. Part 6 set out the funding requests.

Mr Swart pointed out an error in the Public Protector amounts, and suggested a total for the NPA.

Ms Silkstone said that she would total the Department and NPA together.

Ms Schäfer reiterated her point about the R2.5 million initial allocation then being raised to R10 million, and suggested that it be inserted here.

Mr Swart said that similar suggestions about raised allocations were made in the last year, and National Treasury had asked the Committee where the money should come from. He suggested that perhaps there were other departments or entities from whom funding could be shifted, to boost the funding for this Department.

Ms Smuts agreed. It was not illogical for National Treasury to ask where the money should come from, and she had several suggestions.

The Chairperson said that the problem was that substantial time was needed to discuss this. It was impossible to complete the hearings with the Department and entities on a Thursday or Friday, and have the full report ready for the following Tuesday.

Ms Silkstone pointed out that the adjusted appropriation had been made and that it had taken money from the justice modernization programme, and from SAPS, at the beginning of the year.

Ms Smuts reiterated her point and said that many departments were wasting money. She indicated that the Department of Basic Education, as one example, was spending a lot of money that was actually not going to improving the education of children.

Ms Schäfer did not completely agree on that point. There was R16 billion set aside for the whole Cluster, including salaries. It was completely disproportionate to other allocations, and not only that, but there was no proper costing and re-allocation to take account of new legislation being passed. The budget allocation, for instance, for the new Sexual Offences Courts was not nearly sufficient, as R20 million had been allocated, but R60 million was needed for staffing alone. The problem was that National Treasury was always working from the same baseline, simply expecting departments to absorb the extra functions and offer extra services somehow, but there was no way that this was viable.

The Chairperson said that there must an opportunity given to go into this point further. Unfortunately the Department and Committee were hugely constrained by time at this point.

Ms Smuts agreed that there was little that the Committee could do at this point, but thought a serious re-thinking of the allocations was needed at some stage.

Ms Silkstone suggested that something could perhaps be put into the Committee’s exit report at the end of the term.

Ms Pilane-Majake wondered where there had been a correct balance achieved in the funding for the Office of the Chief Justice (OCJ), taking into account how many of the functions had been moved from the Department. There was not a proper realignment as yet.

The Chairperson heard her concerns but said that there was an attempt to ensure that, from the outset, this new Office would be able to work properly. The OCJ was engaging in a difficult process and trying to ensure that there was sufficient capacity.

Ms Smuts added that when Court Services moved across, a hefty portion of the R6 billion for salaries would go across to the OCJ.

The Chairperson agreed that it was a difficult balance in the meantime. The Constitutional and Supreme Court of Appeal had moved, and so had the High Court administration.

Ms Pilane-Majake wondered if the Members wanted to put something to this effect in the BRRR, but other Members did not think it necessary.

Members adopted the BRRR, as amended, and expressed their thanks to the Content Advisor and Committee staff.

The Chairperson reiterated that there was a need for another engagement on the whole budgetary process.

Legal Practice Bill: Draft 7: Department of Justice and Constitutional Development briefing
Mr Lawrence Bassett, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development, asked how Members wanted him to proceed. If there was an A-list prepared, it would be extremely long, and he suggested that perhaps it would be easier for Members to work from a completely re-drafted Bill.

Mr Swart and Ms Smuts made the point that “as presented” should be used; in fact the Bill had made very few substantial amendments to the initial version.

Mr Bassett then took Members through Draft 7, working from the document which still included brackets, underlining and highlights.

Clause 1: Definitions
Mr Bassett said that the definition of “rules” needed to be amended, because the Legal Services Ombud could now also make rules, in addition to the Council, and the Board may also make some. The new definition specified that the rules could be made by the Council, the Legal Services Ombud and the Board.

Members were in agreement.

Clause 6
Mr Bassett said that he had prepared a possible amendment for this clause. The question had been raised in relation to what kind of recommendations about education in law and legal practice generally were envisaged in clause 6(5)(g). This now stated that the Legal Practice Council (the Council), with regard to education in law and legal practice generally, must report annually to the Minister on the number of candidate attorneys registering, and candidates then being admitted and enrolled, which would enable recommendations then to be made as to what interventions might be needed to address the need for transformation. New wording in (iv) had been added. The reports must be tabled in Parliament also. The practical question was that the wording at the start of paragraph (h) had required the Council to report annual to the Minister, who must then report to Parliament on legislative and other interventions. The wording, that the Committee had earlier questioned, of “new law graduates” was now clarified by a reference instead to the number of new candidate legal practitioners registered in terms of section 27, and the number of attorneys enrolled in terms of section 30. That would allow for an assessment of the numbers of graduates leaving university with law degrees, the numbers being articled, and then admitted.

Ms Schäfer added that this would give an indication of the number of law graduates not entering the profession.

Clauses 14(3) and (4)
Mr Bassett noted that these had been re-drafted to address the possible ambiguity that Ms L Adams (COPE) had raised about when and whether the Minister had to approach the Court. Subclause (3) now included the phrase “he or she must, in order to do so, approach the High Court with an application…” and (4) included the phrase “pursuant to a court order contemplated in subsection (3)…”.

Clause 25(3)(a)
Mr Bassett said that, in order to avoid including any reference to the current provisions of the Attorneys Act, the Department proposed new wording and numbering for the content of the original subclauses (a) to (c). Essentially, the registrar would issue a certificate for the right to appear in the High Court if s/he was satisfied that the attorney had been practising for a continuous period of not less than three years, was in possession of an LLB degree, and had not had his or her name struck off the Roll. The transitional provisions would deal with the provisions of the Attorneys Act.

He also noted that, as originally worded, the word “and” was inserted before each of subparagraphs (b) and (c), but “or” before subparagraph (d). The drafters thought it better to renumber subclauses (a), (b) and (c) as, respectively, (a)(i), (ii) and (iii) – separated out by “and” and then to put the content of the original subclause (d) into a new clause (b), which would read “or: has gained appropriate relevant experience, as prescribed”.

Mr Bassett also noted that a query was raised whether the phrase “on behalf of any person” was needed. He said it would not make much difference to exclude these words” and suggested that they be deleted.

Members agreed to the changes proposed.

Clause 32(1)(b)
Mr Bassett said that he had mentioned these changes at the last meeting. He received confirmation that the Committee had no objections to the new wording now set out.

Clause 34(5)
Mr Bassett noted that clause 35 set out the forms of legal practice in which attorneys may practice. Subclause (e) now specified the South African Human Rights Commission, as it was the only Chapter 9 institution to whom these provisions applied. The former wording referred to a person “in the full time employ of the State”. However, in effect, a person could only “practice” in the sense covered in this Bill at the State Attorney, as a state attorney, or at the National Prosecuting Authority, as a State Advocate. He suggested that the reference to “state” should therefore be amplified as “full time employment of the State, as a State Attorney”  and the reference to advocate be amplified as “as an advocate in the full time employment of the State, as a State Advocate”.  The reference to the SAHRC would then follow as a separate category

Clause 35(3)
Mr Bassett reminded Members that this clause dealt with fees in respect of legal services. He noted that the reference to “non-litigious” should be deleted, to refer to “any user of legal services”.

Mr Raj Daya, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development, wanted to query whether Members were sure of what they wanted, under clause 35(3). From the Rules Board perspective, if clients were permitted to negotiate fees up or down, then the question might well be raised of the point of having any tariffs. He knew that there was some urgency in voting on the Bill, but wanted to raise these concerns. He was not sure whether the Committee wanted him to speak to the Rules Board on the issue.

Mr Swart recalled that Mr Daya had raised this point before, but wanted to understand whether his concern was whether the fee arrangements between attorney and client could apply to litigious matters also. The mention of the Contingency Fees Act was also one that would be done by negotiation. He would have no objection if Members wanted to look at the matter again. However, he stressed that a party who won a case and was awarded costs would, of course, only be able to recover party and party costs, according to the litigious tariff set by the Rules Board. However, the attorney and client costs could be higher, and he confirmed that at the moment there was no specification by tariff of attorney and client costs, and the arrangement would apply only to those kinds of costs. He did not see that there was anything in conflict with the position of the Rules Board on this point. 

Ms Bongiwe Lufundo, State Law Adviser, Office of the Chief State Law Adviser, suggested that the words “by making regulations after consultation with the Council” should be removed from clause 35(1). The clause dealing with regulations already required the Minister to consult, so it was unnecessary here, and did not read well.

Members and Mr Bassett agreed.

Mr Holomisa pointed out the need for an insertion of  “or her’” before “own initiative”.

For clause 35(6), Mr Bassett also noted that “prescribe” was the incorrect word, as it implied the making of regulations. This would actually be done by notice in the Gazette, so the word “determine” was more appropriate.

Clause 37(2)(c)
Mr Bassett pointed out that this clause dealt with the establishment of disciplinary bodies and their right to get information. Such information should not be disclosed to third parties, except in listed circumstances. Paragraph (vi) referred to the written request of the National Prosecuting Authority (NPA) for the purposes of a prosecution. However, he pointed out that if the NPA required information, it should rather do this by approaching the court for an order that the information be submitted, and so (vi) should be left out as it would erode the power of the Court were it to remain.

He also noted that subclause (5), on composition of the disciplinary committee, said that as far as practicable, the committee should include an attorney or advocate. This might prove difficult, in view of the number of matters, although “as far as practicable” could cover that situation. Alternatively, he suggested that it could be specified that where an attorney or candidate attorney was the subject of investigation, at least one attorney member should sit on the committee, and where an advocate or pupil was the subject of investigation, at least one advocate must sit on the committee.

Members asked that this wording be included.
 
Clause 40(3)(a) to (c): Proceedings after disciplinary enquiry
Mr Bassett noted that the drafters, when finalising the rules and regulations clauses, had noted some inconsistencies in other clauses. He pointed out that the Minister would determine the maximum fines payable, by notice in the Gazette, and suggested that the correct wording would then be “determined” rather than “prescribed” in all three subclauses.

Clause 42: Monitoring by Legal Services Ombud
Mr Bassett said that an Ombud could monitor the conduct of disciplinary committees, but there was no mention of appeal tribunals and he suggested that (c) should include “the conduct of appeal tribunals, during appeal proceedings”.

Members agreed to this change.

Clause 84: Obligations relating to handling of trust money
Mr Bassett noted that this clause used similar wording as clause 34. Therefore, the wording “(in the full time employ of) the state, as a State Attorney or State Advocate”  would be used, and the phrases “legal adviser” and to “state law adviser or in any other professional capacity” must also be deleted.

Members agreed.

Clauses 94 and 95: Regulations and Rules 
Mr Bassett noted that the drafters had identified every place in the Bill where regulations were needed, chronologically, and now proposed that the existing clause 94 be deleted, and replaced with the new wording set out in this draft. He asked for confirmation also of the introductory wording for clause 94(1) (see attached document, page 71). This allowed the Minister to make regulations where there was a discretion, although it also specified that in certain circumstances the Minister “must” make regulations. It was stated that this would be done “after consultation” unless the provision itself in the Bill specifically provided for “in consultation”. However, when the drafters were checking the Bill again, it was noted that, in respect of the circumstances set out in (xiii) and (xiv), the Board of the Fidelity Fund should be involved, as they dealt with government securities in which the Board may invest surplus funds, and the matters to be included in the Annual Report of the Ombud submitted to the Council and Minister. He queried whether the Minister should not therefore be obliged to consult “with the Council and with the Board” on those two issues.

Ms Smuts agreed that there was no harm in putting this in, and other Members concurred.

Mr Bassett noted that the rules clause 95 now also set out the provisions, in chronological order.

There were sixteen matters in respect of Ministerial regulations, and 41 instances where the Council must make rules.

Mr Bassett pointed out some consequential amendments to subclauses 95(4) and (5), because of the ability also of the Board and Ombud to make rules.  and there were 6 issues for the matters on which regulations must be made. A similar approach was following in clause 95, dealing with the rules; there were 41 areas where the Council must make rules.

Clause 96(5)
Mr Bassett indicated that, for consistency, all references to the Transitional Council had to be corrected to the Transitional National Forum.

Clause 103: Removal from office of Transitional National Forum
Mr Bassett noted that the words “contemplated in section 109” were now included. The rules that the Transitional National Forum would make were not included in the overall definition of the rules, because of their transitional nature.

Memorandum on the Objects of the Bill
Mr Bassett noted that the changes reflected by underlining and square brackets were consequences of the entire deliberations.

The Chairperson suggested that Members should read this for themselves. He confirmed that the Bill had been tagged, by the Joint Tagging Mechanism, as a section 76 Bill. He told Members that a clean document would be prepared for the following day, and that Members would be voting on the adoption of the Bill and the Committee Report.

The meeting was adjourned.