The Department of Justice and Constitutional Development (DOJ&CD) presented Draft 8 of the Legal Practice Bill, incorporating the changes agreed to by the Committee to date, in clauses 6, 25, 34(4) and (6), 35, 37, 39, 42, 84, 94 and 95. Members held some discussion on the effect of the changes requiring that candidate attorneys and pupils be paid, and whether this might be regarded as sharing of fees, contrary to clause 34 of the Bill, but the majority of the Committee concluded, firstly, that this was a Bar Rule, and not written into any statute, secondly, that practice may differ from the Bar Rule, but that was not something that could be addressed through this Bill, and thirdly, that it was really too late for the Committee to start trying to effect changes of this nature. Members were in agreement that the latest changes to the wording in fact reflected what the Committee had requested. The draft Report of the Committee was then tabled, and some grammatical and typographical changes were suggested. Members agreed to extra wording in paragraph 1.8 that would emphasise the need to achieve affordability of legal fees so that the public would be able to access justice. The ANC Members adopted the Report, with the DA and ACDP voting against it. The same happened with the Bill, which was passed with a vote of four Members for, and three (DA and ACDP) against, whilst the IFP and COPE were not present. Two ANC Members expressed their surprise and disappointment at the DA’s opposition to the Bill and said that the ANC would never would have made the concessions that it did, had it been aware that the opposition parties would vote against the Bill. The DA countered that its position had been made abundantly clear throughout the deliberations, and that it had not insisted on having the minority views encompassed in the Committee Report because this would have been as long as the majority Report itself. The DA regretted that it had no option other than to oppose the Bill, although this was the first time the Committee had been divided in this way. The ACDP Member appreciated the concessions made that had improved the Bill, but still felt that it, as a whole, was not acceptable.
Members considered the Judicial Matters (first) Amendment Bill. The Chairperson reported that he had, as instructed by this Committee, reported back to the Presiding Officers that the Committee had agreed to split the Bill, to remove the clauses that had caused the Joint Tagging Mechanism (JTM) to tag it as a section 76 matter. However, he was then informed that splitting was no longer done, and that the Committee would have to reject those clauses, then seek permission from the House to introduce a Committee Bill (which would have to be tagged and advertised for public comment) to re-introduce those six clauses. Members debated at some length, with input from the Parliamentary Legal Adviser, the Department of Justice and Constitutional Development and the Office of the Chief State Law Adviser, whether it was only clauses 17 and 36 that affected the tagging, or whether clauses 39, 42, 43 and 46 really needed to be removed. There was some difference of opinion amongst the advisers as to the import and effect of the Tongwana judgment on tagging, but eventually it was decided to err on the side of caution and reject the six clauses. The Parliamentary Legal Advisers would then convey that decision to the JTM and request a re-tagging as a section 75 Bill, under Rule 163, to at least allow the remainder of the Bill to be passed expeditiously. Members agreed that another mechanism had to be found whereby committee chairpersons were informed of tagging meetings well in advance, to enable them to be involved, that three days allowed for objection was far too short, and that perhaps consideration should be given to having an independent third party to rule where there was disagreement on tagging. The Chairperson stressed that he could not agree with the Speaker that “no harm” was done in a section 76 tagging; this had substantial cost implications, and the DOJ&CD pointed out that it ran the risk of being unconstitutional. Members voted to reject the six clauses, agreed to the consequential changes to the A-list, clause 49(3), and the Memorandum on the Objects. The Committee Report would stand over until the new tagging was confirmed.
Members then unanimously adopted the Judicial Matters Second Amendment Bill (formerly Sexual Offences Amendment Act Amendment Bill) and Report, as amended.
Members voted on the nomination for the filling of the vacancy on the South African Human Rights Commission (SAHRC); with four votes noted in favour of Adv Ameermia and three for Prof Jaichand. The Committee Report, noting the nomination of Adv Ameermia was adopted.
The Committee unanimously adopted its report agreeing to the lifting of the provisional suspension of Magistrate Ntuli. It also agreed to the ratification of the UN International Covenant on Economic, Social and Cultural Rights.
The DOJ&CD started to present the remainder of the clauses of the South African Human Rights Commission Bill, from clause 9, but Members asked why the latest draft was not before them, reflecting the changes to date, and why the Department seemed to be delaying the matter, pending the Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill. In view of the shortage of time, the Bill was not debated further and the Committee would meet on Friday 8 November to continue with it.
Legal Practice Bill: Adoption and Committee Report
Mr Lawrence Bassett, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development, reported back on the latest draft of the Legal Practice Bill (draft 8), effecting the latest changes as requested by the Committee.
Mr Bassett noted that the change now reflected that the Council must report annually to the Minister on the number of new candidates and legal practitioners registered and enrolled, and the Council may make recommendations on legislative interventions that may be needed.
Mr Bassett noted that the new wording for this clause noted that an attorney who wished to appear in court (the wording “on behalf of another person” had been removed) must apply for enrolment. Further down, the former (a) to (c) had been collapsed into (a)(i) to (iii), since the three options were linked by “and”. The last paragraph, specifying an “or” option was now in a new subclause (b).
Ms D Schäfer noted that the consultation must be “with” (not “after”) the Council.
Mr S Holomisa (ANC) noted a typographical error in clause 25(1)(a)(ii).
Mr Bassett noted that this dealt with who may practice as an attorney, and noted the changes by insertion of the reference to “an attorney in the full time employ of the State, as a State attorney”. The wording for advocates also now reflected advocates practicing in the full-time employ of the State, as a State Advocate. There was also an inclusion specifically of a reference, as pointed out in the last meeting, to the South African Human Rights Commission.
Mr Holomisa wondered if definitions were needed of the State Attorney and State Advocate.
Mr Bassett said that the state attorney was defined in the State Attorneys Act. A State Advocate was one of the officers in the Directorate of Public Prosecutions, and he could look at whether this needed to be defined. He was not sure if the term was used in the National Prosecuting Authority Act – he could check on that and revert.
Mr Holomisa suggested that if it was, the wording “as defined in…” (the relevant Act) could be used.
Mr Bassett noted the change suggested by the Committee at the last meeting, to remove the reference, in relation to the Minister, of the words “by making regulations after consultation with the Council”.
In clause 35(6), the word “determine” (for maximum tariffs) had been used instead of “prescribe”, because this would be done by notice in the Gazette rather than through regulations.
Mr Holomisa questioned, in clause 35(1), the inclusion of the bracketed words referring to litigious and non-litigious matters.
Mr Bassett said that this was to put beyond doubt that this subclause applied to both litigious and non-litigious services. Using the brackets was unusual, but not unknown. The emphasis was that the Rules Board would have to set the tariffs, but not only as it did currently for litigious work only, but also in future for non-litigious matters.
Dr L Ndabandaba (ANC) wondered if the phrase “namely: litigious and non-ligitious” could be used.
Members did not think that wording was used in statutes, and preferred to exclude the brackets, and separate the wording by commas.
The necessary change would be effected by the drafters.
Mr J van der Merwe (IFP) noted that many senior advocates had advised the Judicial Service Commission that they tended to help young advocates, especially black ones, by sharing fees with them. He therefore questioned if the prohibition on sharing fees was justified.
Mr Bassett said that this prohibition against sharing fees had always been a rule of the Bar Council, and was nothing new. It was not written into any statutes. The only statute that regulated advocates was the Admission of Advocates Act, which did not have the same kind of detail as the Attorneys Act.
The Chairperson asked if payment of a portion of the fee was regarded as sharing.
Mr van der Merwe noted that many junior advocates were unable to continue in their practices, and there was a feeling that they should be assisted. Many seniors were taking part of their fee and handing it over to the juniors assisting them.
Ms M Smuts (DA) noted that the Bar rule dealing with “devils” was a way of addressing that. The Committee could not make a fundamental change to the Bill at this stage. The advocates’ profession would probably welcome a perpetuation of what the present situation was, as essentially she had the impression that advocates wanted to retain the basis on which they functioned at present. Their main concern was the ability to take instructions directly from the public, although in other jurisdictions it had not actually changed the position of the advocates’ profession, in practice.
Dr M Motshekga (ANC) pointed out that advocates, both senior and junior, were instructed by attorneys, who paid both the junior and senior.
Ms Smuts agreed; she thought that the split of the fees was pre-arranged.
Mr Holomisa heard those points and asked what effect this was likely to have on the clause relating to the allowances for pupils.
The Chairperson said there was a need to draw a distinction between those in pupillage and those practising on their own, who were struggling to survive as sole practitioners.
Mr Holomisa confirmed that he was referring to pupillage. He thought that the other point was adequately addressed by advocates being instructed by attorneys, as outlined by Dr Motshekga.
Mr Bassett said that the question of payment to candidate practitioners – both attorneys and advocates – would be covered by the rules that the Council must make. There were discussions on where the money would come from to pay, but that was still an open question.
Dr Motshekga was worried that candidate attorneys were already invariably being paid, but candidates who wanted to enter the advocates’ profession would have to wait until the Council was set up. Unless people were supported in doing pupilage, there would be a crisis in the court system; very few people, especially black people, would be coming through the ranks to qualify for later appointment as judges.
Ms C Pilane-Majake (ANC) supported Ms Smuts’ view that it was too late to open up this point.
Ms D Schäfer (DA) said that advocates could not be forced to take on candidates, and then pay them. If there was no mechanism to finance the pupillage, the advocates would simply not take on any pupils, and they would not be trained, and there was nothing that could be done about that, as it was essentially a question of choice. She reminded Members that attorneys tended to work in larger practices, and could charge fees for work done by candidate attorneys, whereas fees for pupils could not be charged. She did not think that the Committee had adequately considered the financial implications of this Bill, and the Council may not be able to come up with a mechanism to make the payments.
Mr S Swart (ACDP) also emphasised that the taking on of candidate attorneys and pupils was voluntary. It was far easier for a firm consisting of twenty partners to take on candidates, than for a single advocate practitioner. He agreed that the Committee should not be seeking to change things at this stage. It might be possible to deal with this in the Committee Report. It may well be that advocates had a separate arrangement on their fees, but the Committee was not adding anything new.
Mr Bassett confirmed that this was a Bar Rule, and not written into any statute.
Mr Holomisa was a little worried about some of the comments about leaving matters as they were; the Bill was supposed to be about transforming the profession. He noted that clause 95(xv) did allow for the Council to make rules about minimum rules and procedures for candidates, and payment during training. He had been concerned that this provision could be used for an unscrupulous advocate to escape paying allowances or stipends to a candidate.
Mr Basset noted that candidate attorneys had to enter contracts of articles, although the same did not apply to pupils. He heard the point that it would take time to change matters, but perhaps the Council would have to think about whether there should be contracts for pupillage – the Council may need to come up with something quite different.
The Chairperson emphasised that this had always been the difficulty with the Bill. The Committee had been tempted to make substantial changes; it had done so in clause 35, with some dramatic changes in relation to fees. However, if this Committee was to change everything, it would be doing the work of the Council.
Ms Smuts wanted to speak to the point raised by Ms Schäfer. There were few financial implications for the Bill, as the state would be paying only for the Transitional Forum and for the Ombud, whilst the profession must pick up the rest of the structure effectively being imposed upon it. That was why no costing had been necessary.
Ms Schäfer was aware of that, but said that the Committee was not sure whether the profession would be able to afford the costs of implementing the Bill.
Ms Smuts asked if there anything to allow the Council to approach Parliament for funding – although even if it did, she was sure that nothing would be given -. She suggested that, because of the time pressures, the Committee should continue.
Mr Holomisa argued that the Committee must address all issues properly and not use shortage of time as a reason for not examining all the concerns in full.
Dr Motshekga had great respect for the approach of the Committee, but stressed that he was not raising issues to take the Committee back. However, Members must raise issues to be honest to their constituencies; he pointed out that there were many young advocates with whom he was interacting who asked him to explain the issues. He suggested that it should be pointed out to the Council that the question of paying pupils was considered a problem by this Committee.
Mr Bassett noted, in answer to Ms Smuts, that Clause 98(3) dealt with the functions of the National Forum, and this allowed for some investigation into various aspects. The National Forum would be reporting back to Parliament to tell it how it was to deal with the various points examined. He added that government had never funded the profession, so there was nothing new in having the profession work out how it was to cover the costs of the structures. The legal profession effectively funded the existing structures.
Mr Bassett noted that paragraph 37(2)(c) had been removed. A person performing a function on a disciplinary body may not disclose information, unless in circumstances as set out in the clause.
He noted that clause 37(5) dealt with the disciplinary committee composition. It was now specified that wherever possible, an advocate and attorney should be included. However, it was also specified that where the person being disciplined was an attorney, at least one attorney must sit on the disciplinary committee. Where the person being disciplined was an advocate, at least one advocate must sit.
Mr Bassett noted that some small technical matters were picked up by the State Law Advisers – for instance, the replacement of “the” with “a” in subclause (4)
Mr Bassett noted the addition of paragraph (c), because the Ombud must also monitor.
This clause now used wording similar to that in clause 34. There was a reference to an attorney and advocate practicing as referred to in section 34(2)(b). The references to “legal adviser” and “state law adviser” were removed.
Clauses 94 and 95
Mr Bassett said that the wording of these clauses, dealing respectively with regulations made by the Minister, and Rules made by the Council, had changed, but the substance had not. He read out the introduction to clause 94. Subclause (2) was new, and was a neater drafting style, which specified that certain of the regulations were to be made after consultation with the Council, and some after consultation with the Council and the Board.
He concluded that this was a summary of the latest changes. He would attend to the typographical changes needed in the clean copy.
Committee’s draft report
The Chairperson tabled the Report, which some Members indicated that they had read, whilst others requested to be taken through it.
Ms Christine Silkstone, Content Adviser, took the Committee through the Report. She noted that the Report was quite detailed, and Members may wish to delete some points. Clause 1.1 outlined the fact that the Committee was aware of the lack of unity that characterised the regulation of the legal profession at present. It was specified that the Bill sought to address all of the concerns, and the hope was also expressed that the legal profession would draw together to ensure meaningful and proper implementation.
Paragraph 1.2 outlined that there was to be a Council, but the independence of the profession was recognised. Paragraph 1.3 spoke to the establishment of provincial councils, and the point that four must be established at the outset, with more being added progressively later. The existing four statutory law societies would be incorporated, but the voluntary associations would not be affected.
There were 23 members of the Council, and the ratio of attorneys and advocates was explained. The Minster’s power to dissolve, and the checks and balances, were described, in paragraph 1.5.
Paragraph 1.6 addressed legal services and accessibility. Paragraph 1.7 dealt with community service and 1.8 with the problems around fees. Paragraph 1.9 spoke of the system of direct briefing and the need for Fidelity Fund certificates for members who chose to use this system.
Paragraph 1.10 spoke to forms of legal practice. The need for the Council to look into certain matters, including the situation with paralegals, was stressed. Transparency provisions were set out in 1.11. Paragraph 1.12 described the Office of Legal Services Ombud. Paragraph 1.13 dealt with the Fidelity Fund and capping of liability.
Ms Smuts said that the wording of paragraph 1.9 was erroneous, in relation to the cab rank rule. She suggested that the reference to this rule be deleted, so that the report simply said that the Committee was aware that there were advocates taking instructions directly from the public. There was in fact no final position taken on the cab rank rule.
Other Members agreed to remove that wording.
Ms Schäfer noted some technical amendments in paragraph 1.5.
Ms Pilane-Majake noted that paragraph 1.8 should emphasise affordability concerns, and the intention of the Bill to promote access to justice, in the spirit of the democratic Constitution, for realisation of democratic freedom for the people of South Africa. Other Members agreed with this wording.
Mr Swart noted a grammatical change in paragraph 1.8, in line 3.
Mr Holomisa noted a grammatical change in paragraph 1.13. He wondered if there was a need to cite the example of New Zealand specifically.
The Chairperson believed that it was necessary; this point had been made by the Chief Executive Officer of the Attorneys Fidelity Fund, when he had appeared before the Committee. This was merely stressing the point that this country should be careful to avoid problems in other jurisdictions with the fidelity funding and insurance.
The majority of Members adopted the Report, but the opposition of the DA and ACDP was noted
Adoption of Bill
Ms Smuts noted that the DA was opposing the Bill. She was regretful that the DA found it necessary to do so; it was the first time in the life of this Committee that Members had not managed to reach agreement, and she believed that, had the Committee had more time to consider and debate the points fully, the Committee could have been able to produce a better Bill, and achieve consensus by Members
Mr Holomisa did not think it necessary for the Committee to go through, clause by clause, to vote. He said he now felt “ambushed” by the opposition party, and expressed his surprise that the DA was opposing the whole Bill, because the ANC had made certain concessions along the way, and he was expecting, in light of these, that there would be total support for the Bill.
Dr Motshekga wanted to place on record that he did not think a clause-by-clause adoption was necessary. This was a compromise Bill and he was surprised that other parties did not support it. Some Members thought that the Bill was falling short of transformation in substance, although the structures were transformed. It was regrettable that they had taken this position and he too was quite upset by the announcement.
Mr Swart noted the objections of the ACDP as well to the Bill. He wanted to conceded that there were some improvements and he appreciated the concessions made on some points, but still had to vote against the whole Bill because of some fundamental points of departure.
The Chairperson summarised that the views of Mr Holomisa and Dr Motshekga were essentially expressing that, had the ANC been made aware that opposition parties were going to oppose the Bill, it would not have made concessions. He called for Members to adopt the Bill.
Dr Motshekga moved for the adoption of the Bill.
There was no seconder at this point, as Ms Smuts and Mr Holomisa engaged in discussion about the making of concessions, and whether these had not been made for the purpose of producing better legislation.
Dr Motshekga said that if the purpose of the Bill was to push transformation in the legal profession, then the ANC would have insisted upon strong clauses that would have ensured that this was done, all the way through the Bill. However, as a democratic organisation, the ANC believed it should take into account other views and be persuaded into a compromise. He believed that this was in the spirit of nation-building. He accused the DA of “playing along” with the ANC to this point.
Ms Smuts took the strongest objection to this. She made it quite clear that on recent occasions previously, she had indicated that she would be opposing and she had raised fundamental objections to the Bill, from the start.
Ms C Pilane-Majake (ANC) noted that the Committee Report was the conclusion of the discussions and process. She wondered if perhaps comment from the opposition parties should be included setting out the contentious points. As this Committee had proceeded with the process, it might have been useful to have a list of what the opposition parties regarded as contentious.
Ms Smuts asked her colleagues to read through the PMG minutes; the position had been stated several times, very clearly, throughout the discussions. She would be within her rights to ask for a minority Report, but was not doing so, because it would be equally as long as the Committee Report already adopted by the majority. She noted that the Committee had been sitting since April, and Members ought to be familiar with the position.
Ms Pilane-Majake said that it was not fair to say that things were not said before.
The Chairperson asked the Committee to continue.
Ms Smuts interjected that if the Chairperson wanted her to (he said it was not necessary, but she continued anyway) she could set out that the essence of her argument was that there should have been two chambers, delegated powers to disciplinary bodies, the ratios - but she did not want to go through all the rest of the objections.
Dr Motshekga moved again for the adoption for the Bill, even with the compromises, which were made in good faith.
Ms Pilane-Majake seconded the adoption of the Bill.
When a quorum was established, the majority of Members (4 – 3) voted in favour of the Bill, with the DA and ACDP voting against it. The IFP and COPE were not represented in the meeting
Ms Schäfer noted that there was no tagging on the Draft 8 of the Legal Practice Bill.
Mr Bassett confirmed that it was tagged as a section 76 Bill.
Judicial Matters Amendment Bill
Mr Bassett tabled the (first) Judicial Matters Amendment Bill, noting that the Judicial Matters Second Amendment Bill contained the content of the Sexual Offences amendments.
The Chairperson reminded the Committee that there had been an agreement, after problems with the tagging of the Bill were identified, to remove six clauses from the Judicial Matters Amendment Bill (the Bill) and put them into a separate Bill. The Chairperson had to inform the Presiding Officers formally of the decision. He had met with senior Table Staff Members and Parliamentary Legal Advisers, who then told him that the process of splitting bills, which had been decided upon by the Committee, was in fact no longer followed. They had suggested that the Committee must reject the six relevant clauses, and then pass the Bill, as amended. Then the Table would present the Committee with a memo requesting that the six clauses go into a separate Bill and there would have to be a new round of tagging. The Bill as it stood would then, as he understood it, be tagged as a section 75 Bill. Whether there was enough time to process it was, in his view, doubtful, and he had been told also that the Committee would now have to go through the whole advertisement process for the new six-clause bill, despite the fact that there had been comment called for when they were still included in the Bill. However, Parliament took the view that, technically speaking, there would be a whole new bill that had to go through the process again.
Mr Bassett asked if there must be another A-list prepared to note that clauses were rejected, and the Chairperson agreed that this would be necessary.
Ms Schäfer raised a query at this point about the opinion provided by the Parliamentary Legal Advisers. She did not think that it was clear enough to allow Members to pass the Bill without these clauses as it referred to “amongst others” and she asked exactly which clauses were problematic.
The Chairperson noted that the Parliamentary Legal Advisers were not present, but asked the Committee Researcher, who had been in the meeting when the problems were first outlined, to summarise the position.
Ms Gillian Nesbitt, Parliamentary Researcher, said that the clauses causing concerns for the tagging were clauses 17 and 36, 39, 42, 43 and 46. However, the main focus had been on clauses 17 and 36.
Ms Schäfer thought that more information was needed as she felt that the opinion was too vague.
The Chairperson recalled that there had been no queries raised when the legal opinion was first discussed.
Ms Schäfer argued that this was no basis to ask the Committee to proceed now; if vagueness was identified now, it should be clarified.
Mr Swart and the Chairperson were concerned about the delay, and the Chairperson pointed out that if the Committee did not remove the clauses in contention, it would not be able to proceed with the rest of the Bill. He asked Ms Schäfer why she had not raised her concerns before
Ms Schäfer said that she felt rushed, and questioned again why, if something had not been raised earlier, it was being suggested that it could not be raised now.
Dr Motshekga thought that the bulk of the work had been done and the Committee merely had to get approval of the advice received. He wondered if the Committee should really be revisiting these clauses.
The Members agreed to call the Parliamentary Legal Adviser, Ms Phumelele Ngema, to the meeting. When she arrived, the Chairperson summarised the six clause in contention, and said that his recollection was that the Committee should approach the presiding officers to split the Bill, and what he had then been advised to do, by the Table Staff. However, Members wanted to question the wording of her opinion, which they believed was vague.
Ms Schäfer summarised the paragraph in question and said that if only a few clauses were mentioned, there might also be others that should be taken out. She wondered also why the clauses in question were said to affect provincial competence.
Ms Ngema, Parliamentary Legal Adviser, said that this was really a choice of words. Perhaps she should have said that, in addition to clauses 17 and 39, where there were substantial and glaring problems, it was necessary also to look at the other four. She confirmed that she was “definitely not” of the opinion that there were other clauses that were problematic.
Ms Schäfer thought that perhaps the Committee did not actually have to remove the other four clauses, apart from clauses 17 and 39, because she was not sure if the child welfare provisions did necessarily cause the Bill to become a section 76 Bill.
The Chairperson pointed out that other Members had agreed to err on the side of caution.
Ms Ngema said that the other four clauses related to the Children’s Act, and spoke to child welfare, which was a Schedule 4 subject matter. It was for this reason, not necessarily on the basis of the provincial competencies, that the clauses would cause the Bill to be tagged as a section 76 Bill.
Mr Sarel Robbertse, State Law Adviser, Department of Justice and Constitutional Development, noted that the judgment referred to in Ms Ngema’s opinion had stressed that “procedures in section 75 remained relevant to all bills that did not in substantial measure (his emphasis) affect the provinces.” The Court then went on to list the legislative pointers, and also noted that where there was concurrent jurisdiction, it must be assessed whether the provisions “in substantial measure” fell within provincial competencies. The Court had noted that concurrent legislative competence would not be, on its own, a reason for tagging the Bill under section 76 – there would have to be substantial effects.
Broadly, he agreed that clause 17 could affect consumers, but it also regulated a profession, and he wondered how it could “substantially affect” the province. The province had no say over attorneys. It was his opinion that clause 17 should not be excised as one that fell under section 76 of the Constitution. In relation to clause 39, he agreed that it did affect the provinces in a substantial matter, as it was amending section 36 of the Child Justice Act, providing for delegation of powers to provinces. However, in relation to the other clauses, he argued that they would not affect the provinces, as they related to the administration of justice. Clause 39 imposed obligations on a magistrate to take certain conditions into account, and he did not believe this affected provinces. The same applied to clauses 42 and 43, because they provided for the types of punishments that could be imposed on minors. Clause 46 related to regulations and this was, again, not something affecting provinces. The Minister must also determine tariffs and allowances. That was outside “government” on a strict reading. He did not believe that this affected the provinces either. Subordinate legislation was made on the basis of consultation and only then could it be determined whether it might affect provinces. In summary, therefore, for all practical purposes, he agreed that clause 17 may be regarded as a section 76 tagging matter, and clause 39 should. For the rest, he believed they should remain as part of the section 75 Bill.
The Chairperson said that if there was any hint of reference to provinces or local government, he would prefer to regard this a section 76 Bill. The Committee was pressed by time. It had initially agreed with the approach suggested by Ms Ngema.
Ms Ngema thought that she and Mr Roberts were not quite speaking to the same matters. She quoted the same passage from the judgment, but said that it was legislative competence, and not the substantial effect on the province, that was of greater persuasive weight. There was therefore a slight difference. She also noted that the other concern was whether it would impact on the provinces.
Ms Bongiwe Lufundo, State Law Adviser, Office of the Chief State Law Adviser, said that she had not dealt with the Bill. However, the Office of the Chief State Law Adviser (OCSLA) had tagged this as a section 75 matter, having considered the Tongwana judgment, and on a reading of section 76, which set out how bills must be dealt with under Schedule 4. When making its recommendations on the tagging, OCSLA would firstly ask if the Bill dealt with matters in Schedule 4 – and if so, it would be recommended for a section 76 tagging. The second question was whether these matters would deal with, in a substantive way, or affect, the provinces. Mr Robbertse’s advice, with which she tended to agree, was that the clauses were not properly regarded as Schedule 4 matters. However, it was up to the Committee to decide what procedure to follow; whether to play safe, and follow a section 76 route. However, it must be remembered that there were consequences. The issues had nothing to do with the rights of children. She thought there was some misinterpretation of the judgment.
Mr Robbertse responded that paragraph 3 of the Tongwana judgment said that concurrent provincial competence was not a conclusive guideline. It was only an indication. He repeated that the adjective “substantial” was important. The fact of legislative competency also would not, by itself, make a Bill into a section 76 – so he had rejected the original test applied on that point. The Parliamentary Legal Advisers opinion quoted the judgment, but had not quoted the portion that said that if the other two conditions kicked in, the Bill would be regarded as a section 76 bill. He reiterated his agreement that whilst clauses 17 and 39 may affect the provinces, he was doubtful of this effect in the other four.
Dr Motshekga had difficulty seeing exactly where the problem lay. The Parliamentary Legal Advisers and Ms Lufundo were right, in his opinion, on the tests laid down in the Constitution and the judgment. However, the Committee was at the stage of applying those tests to determine the tagging. Mr Robbertse reached a conclusion which he thought was defensible, having interpreted the law and applied it to reach his conclusion. The Committee would have to decide, through the process set out by Mr Robbertse, whether there was “substantial” effect.
The Chairperson said that he still had a problem with the procedure. The Bill was received, as tabled, and the back of the Bill stated how it had been tagged. However, only after being received would it be referred to the Joint Tagging Mechanism (JTM), where the Parliamentary Legal Advisers would advise on what the tagging should be. The Committee had identified an anomaly, which would have to be addressed via the rules. When the JTM met, the Committee was expected to present its views. However, it was not known how this must be done.
He illustrated the point by referring to the Legal Practice Bill, which was tagged as a section 76 Bill, and the Committee had written to the Parliamentary Legal Officer to object, on the basis that the legal profession was not a provincial competence, only to be told that he had missed the deadline date for objection, that the decision was made, and could not be changed. The Committee, however, had not known when the JTM would be meeting to discuss the tagging. In this case, the second rule of Parliament would come into play, which called for mediation. The Committee really did not have a role to play, and was essentially “stuck” with the issue. This was an anomaly that at some stage Parliament must address.
Dr Motshekga did not think that such anomalies should created this kind of situation. Any decisions made should be properly informed, so the JTM should surely be advised by what the Committee felt, and should not be making its decisions in isolation. There should be some nexus established between the portfolio committees and the JTM. The Parliamentary Legal Advisers should be in contact with the office of the Chairperson. He thought that it was the wrong interpretation of the procedure that had led to the problem. Perhaps the rules did not have to be changed.
The Chairperson said that he was not in agreement that the rules did not need to be changed.
Dr Motshekga said he was not opposed to them being changed, if the mechanism provided was not working.
Ms Schäfer thought that a phone call from the JTM to the relevant Chairperson of the portfolio committee should suffice. In this case, she proposed that the Committee follow Mr Robbertse’s advice, and adopt the Bill, without clauses 17 and 39.
The Chairperson said that the problem was that the JTM had identified the six clauses, and it would be problematic if the Committee only rejected two. That was why clarity was needed in the Parliamentary Rules. He firmly believed that the legal opinions on tagging should be provided to portfolio committees, with reasons, in advance of the tagging. A reference to the Tongwana judgment was not enough, and the Chairperson of a committee should be able to attend the JTM meeting and state the committee’s case. He did not think a phone call would suffice; the Chairperson would need to be able to respond to the committee on what was said what reasons were put forward, so formal written communication was needed. If the JTM then disagreed, despite the advice of the committee and legal advisers, the next stage of the process, mediation, could follow.
Dr Motshekga fully agreed with that summary. This Committee was the responsible body and the legal opinion was to assist the JTM, but Parliamentary Legal Advisers were not part of the political process.
Ms Pilane-Majake asked if the JTM was open to changing the tagging, and if the Committee could continue to engage with it. If the JTM would agree that only two sections could be removed to allow the Bill still to be regarded as a section 75 bill, then perhaps only those two should be removed. She was disappointed to hear that the Chairperson had not been involved in the processes. The tagging should take place right at the beginning.
Ms Schäfer said that the JTM had indicated that it was also regarding the other four clauses as rendering the bill as one to be dealt with under section 76.
Ms Ngema said that in terms of the Parliamentary Rules, when an executive Bill was introduced, it was introduced with a proposal from OCSLA on the tagging. However, it was the decision of JTM that was binding, and this would be published in the ATC, or in one of the Order Papers, to alert the Committee. After considering the opinions, the JTM had still tagged this Bill as a section 76 Bill.
Dr Motshekga indicated that whilst Members were not challenging the right of the JTM to take decisions in terms of the Rules, “others” who may make inputs should include committee Chairpersons, who must be made aware of the JTM sittings. He did not disagree with Ms Ngema, but stressed that the Chairperson must be made aware of the JTM meetings.
The Chairperson noted that the problem was that all of this happened via the ATC, but he, like other Members, certainly did not have time to read it. The relevant Rule, at the moment, was that from the time the Bill was tabled, Members were given only three days to comment on tagging.
Dr Motshekga agreed that in that case, the Rules must be changed.
Mr Holomisa quipped that Members also had to read the ATC to know what committees they were assigned to. He heard the comment that the Rules must be amended, but this did not address the current problem. The reason for rejecting the provisions was to allow the Bill to be passed, and he suggested that this just be done, to get the Bill through. Perhaps the Committee, in its Report, could call for expeditious handling of the remaining clauses that would now be moved to another bill. He also commented that the Department of Social Development did not appear to have been consulted, and that was possibly another reason for the problems. He proposed, formally, that the Committee should now go through the Bill and reject the six clauses.
Ms Schäfer asked if there was a guarantee that then the Bill would be tagged again as a section 75 Bill.
Mr Swart confirmed that the impression seemed to be that if the six clauses were taken out, the Bill would be re-tagged as a section 75 Bill, and passed. However, he asked what would happen should the Committee only take out clauses 17 and 39. The Committee would like to pass as much of the Bill as possible.
Ms Ngema said that only the JTM was able to re-classify a Bill, so that was within its mandate.
The Chairperson asked if the JTM had re-classified.
Ms Ngema said that earlier this morning, she had been working on an opinion that the JTM should reclassify if the Committee took out the six clauses, as that had been the instruction that she had received from the Committee earlier. However, the tagging had not been done as yet. The procedure was that if she prepared confirmation that the Committee agreed to reject the clauses, she could recommend that it be re-tagged as a section 75 bill. In order to ensure that the other provisions could be passed, the six provisions should be rejected, then incorporated into a new Committee Bill.
The Chairperson stressed that the question was which came first – the Committee rejecting, or re-tagging, and whether it would be possible to bypass the re-tagging.
Ms Ngema responded that there were attempts to fast-track the process. Rules 251(2) provided that the Committee may report to the NA only after the JTM had classified. If the Committee now wanted to report a section 75 bill, that must be coupled with a reclassification of the Bill under Joint Rule 163. The two processes must be done in tandem. In practice, the Committee would have revise the Bill, and report on what it had done, which would then be submitted to the JTM with a request for reclassification under Joint Rule 163. The reclassification would be done only after the Committee had agreed to the revisions. It could take out the two clauses only and attach a report with a request for reclassification.
Mr Swart said that there was still a difference of opinion on the other four clauses, which might well affect the process. He reiterated that the cautious approach was to reject all six, but obviously the Committee wanted to pass as much of the original Bill as possible.
Ms Ngema said that she must be guided by the decision of the Committee. The decision lay solely with the JTM; the Parliamentary Legal Advisers would prepare the necessary recommendation from the Committee, but could not influence the decision.
Ms Pilane-Majake suggested that, to make progress, all six clauses be rejected, so that the remainder of the Bill could be finalised before Parliament rose.
Ms Ngema said that the six clauses would then be included in a Committee Bill, but that would require confirmation by the House, to be finalised in that way rather than through the executive route.
The Chairperson wanted to emphasise, to Ms Lufundo and Mr Robbertse, that the Committee was certainly not rejecting their views, as it tended to agree with them, but there was a technical difficulty in that this Bill must be dealt with before Parliament rose. The Deputy Minister had been at pains to stress that even if it meant rejection of the six clauses, there was urgency to getting the remainder of the provisions passed.
Ms Lufundo thought that the Committee was correct in this case, as a matter of caution, but that was not to say that it was right in principle. She reiterated her concerns about the tagging.
The Chairperson said that, when meeting with the Speaker on the tagging of the Legal practice Bill, the Speaker had advanced the argument was that there could not be any harm done in a section 76 tagging. That, however, was not quite correct, in his own opinion, for the matter being taken to the provinces cost money, and had other implications. In fact, the Chairperson had threatened to refer the matter to the Auditor-General, for a debate on who would be responsible for expenditure incurred by the National Council of Provinces (NCOP) if in fact the Bill was incorrectly tagged as a section 76 matter.
Mr Robbertse pointed out that the effect of wrongful classification was also unconstitutional
Judicial Matters Amendment BiIl, as amended: Adoption
The Chairperson noted that the six clauses would be incorporated into a new Committee bill but this would also have to go through a tagging process and a call for written submissions, as it would be regarded as a new Bill. In answer to Members querying this, he assured them that this was what he had been specifically informed.
Mr Bassett asked if, in practice, the Department of Justice and Constitutional Development must now remove the six clauses and refer them on elsewhere.
Mr Vhonani Ramaano, Committee Secretary, confirmed that the rejection of the six clauses must be added to the A-list. They would be removed from the main Bill.
Mr Bassett added that the Memorandum on the Objects would need to be amended.
The Chairperson added that clause 49(3) must be amended, to remove the reference to commencement dates for the relevant clauses that were now removed.
The Committee unanimously agreed to reject six clauses – clauses 17, 36, 39, 42, 43 and 46 – from the Judicial Matters Amendment Bill (B-version), and to effect the other necessary consequential amendments.
The Chairperson noted that the Committee would have to wait for the new tagging to be confirmed, before publishing the Committee Report. He added that he had thought of perhaps suggesting that some mechanism being found whereby a neutral third opinion would be sought, on tagging, where there was disagreement between the JTM and legal advisers.
Judicial Matters Second Amendment Bill (formerly Sexual Offences Amendment Act Amendment Bill): Adoption of Bill and Report
Mr Bassett noted that this was a Committee Bill. The Committee had been through it on 22 October. He noted that the Bill still needed to get a number, from Mr Neil Bell.
Members unanimously adopted the Bill.
Mr Bassett confirmed that the translation was receiving attention.
The Chairperson pointed out that other portfolio committees should make this also a standard enquiry when passing legislation.
Mr Bassett said that the Legal Practice Bill translation had been done, in isi-Xhosa.
A draft Report was handed out to Members only, and it was pointed out that, this being a Committee Bill, it would be tagged after adoption of the Report.
Mr Holomisa suggested some wording changed in paragraph 5, and then moved for the adoption of the Report, as amended.
Members adopted the Report
South African Human Rights Commission (SAHRC) vacancy: finalisation of nomination and adoption of Committee Report
Ms Smuts noted that the DA would like to nominate Prof Jaichand to fill the vacancy on the South African Human Rights Commission (SAHRC).
Mr J Sibanyoni (ANC) noted that the ANC would like to nominate Adv Ameermia to fill the vacancy.
Dr Motshekga asked if a motivation was necessary.
The Chairperson said that this had been done.
Three votes (two from the DA and one from the ACDP) were noted in favour of Prof Jaichand, and four votes against.
Four votes were noted in favour of Adv Ameermia, and three (DA and ACDP) against.
Members then adopted, with no objections, the Report of the Committee, with the insertion of the name of Adv Ameermia.
Committee Report on Magistrate Ntuli
Members unanimously adopted the report to lift the provisional suspension of Mr Ntuli.
UN International Covenant on Economic, Social and Cultural Rights
Ms Schäfer indicated that the SAHRC had asked to brief the Committee on the UN International Covenant on Economic, Social and Cultural Rights, and seemed to have a different view from the Department of Justice and Constitutional Development, claiming that it was not specifically consulted in relation to the Covenant and did not necessarily agree that it should be ratified.
Ms Smuts pointed out that this was an international instrument and it had taken a long time already to ratify. The Covenant was already signed. The Committee had concluded its briefing and discussion on the Covenant. She did not think it necessary for the SAHRC to be consulted, and held the view that there was not much that could be done to change the position that the Covenant had already been signed. The Committee had already taken a view to recommend ratification.
South African Human Rights Commission Bill: Further Deliberations
Mr Johan Labuschagne, Principal State Law Adviser, noted that he had briefed the Committee, who had made proposals, followed by the South African Human Rights Commission (SAHRC) appearing before the Committee. The Committee had started to work through the revised Bill, Draft 1 (see attached document), up to clause 7, at the beginning of October and he proposed that he now take Members through the remainder of the clauses.
Ms Smuts asked why there was no reflection of the eight commissioners under this clause. She recalled that this decision had been made by the Committee already.
Mr Labuschagne agreed that this was the decision taken on 1 October. There were other examples also – for instance on the seat of the Commission – that were still reflected as options in this draft, because he was in the process of preparing a new draft. Whatever resulted from discussions today on clauses 8 to 26 would also be carried over into the new draft.
The Chairperson asked why the draft had not been amended yet.
Mr Labuschagne said that he had thought that he would put everything into the new draft, rather than doing piecemeal changes.
Mr Holomisa commented that this was not the way that this was normally done in this Committee, when new drafts were presented at each meeting, as the clauses were amended. He asked that this be done in the future.
Mr Labuschagne confirmed that he had captured everything that Members wanted, in his notes. He reported back that he had done research on disclosure of interests, including the position internationally. He was not sure whether a clear decision had been taken to include such a provision. The SAHRC had also addressed the Committee on the search and seizure issue.
Ms Smuts said that a decision had been taken in principle on this, but it was not discussed in front of the SAHRC delegation.
Clause 9: Remuneration and allowances of members
Ms Smuts asked if this clause was included because the Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill (the Determination Bill) was not yet in place.
Mr Labuschagne said that there was some difficulty around this; he was not sure which Bill would be passed first, and whether any submissions had been received on the Determination Bill. He had only given a briefing on the Determination Bill to the Committee but, as far as he knew, the Committee had not gone through it in detail.
Ms Smuts noted that the SAHRC had made a submission on this Bill but she was not aware of any others.
Mr Holomisa asked if the Remuneration of Public Office Bearers Act did not have a provision such as “anything that may be determined by any other law.”
Mr Labuschagne was not sure whether there was such a provision.
The Chairperson answered that the Determination Bill was supposed to address all those issues.
Mr Holomisa said that if the Determination Bill was passed later, then this would seem to mean that the SAHRC Act would have to be amended.
The Chairperson said that, with respect, the Department appeared to be holding this back. There was no problem in bringing the SAHRC Act (once passed) back for further amendment. He had been under huge pressure from people asking why there was such a long delay in having this Bill passed.
Mr Labuschagne said that the Determination Bill provided already for the repeal of the relevant provision in the existing SAHRC Act.
The Chairperson asked why there were so many options.
Mr Labuschagne answered that this was because the Committee needed to go through the remainder of the Bill. Some proposals had been made by Members during earlier briefings. On 1 October, the Committee had only worked through clauses 1 to 7 of the Bill, and the changes then effected would be brought into the new draft, whilst these options should be reduced as the Committee continued to go through the clauses today.
The Chairperson noted that it was already 13:00 and Members had to attend other meetings. It seemed that there was little point in proceeding further and he doubted whether the Bill could be finalised. However, later, it was agreed to meet on Friday 8 November.
The meeting was adjourned.
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