Judicial Matters Amd Bills [B7-2013] & [B51-2013]: adoption, Judicial Matters Third Amd Bill, Legal Practice Bill, SA Human Rights Commission Bill: briefing

NCOP Security and Justice

18 November 2013
Chairperson: Mr TM Mofokeng (ANC, Free State)
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Meeting Summary

The Committee was briefed, by the Department of Justice and Constitutional Development (the Department) on the Judicial Matters (first) Amendment Bill, Judicial Matters Third Amendment Bill, on the key principles behind the Legal Practice Bill and the South African Human Rights Commission Bill.

The Department firstly presented on the key changes being effected to the legal profession by the Legal Practice bill. It aimed to rationalise the fragmented legislative framework for the advocates and attorneys professions, which was still in operation, and aimed to repeal the Attorneys Act and other outdated pieces of legislation with a single statute regulating the practising profession in its entirely. The current regulatory bodies for the legal professions would be transformed and restructured through the establishment of a single national statutory body. Access to justice would be broadened and it was hoped that legal services would be more affordable for everyone. The Department made it clear that the Bill did not bring about the fusion of the attorneys and advocates professions, but did make changes.

The Bill called for the establishment of a single South African Legal Practice Council, which had numerous objectives, including the regulation of and jurisdiction over all legal practitioners, and this Council would be responsible for upholding the independence of the legal profession. The Council was to be tasked with a number of matters set out in clause 6. It would consist of 16 legal practitioners, of whom ten were attorneys and six were advocates (matching the proportions of these practitioners in the country). Clause 23 required the establishment of nine Provincial Councils, beginning with an initial commitment of establishing Councils in at least four provinces. Representation here was in proportion to the number of attorneys and advocates practising in each of the provinces in question. The powers of the Provincial Councils derived from the National Council who delegated regulatory powers.

Anyone who wished to practise as a “legal practitioner” was required to be admitted by the High Court and had to adhere to the admission criteria. In future, the Bill would allow those doing traditional “advocates” work to take briefs directly from members of the public, in the public interest, but only if they were in possession of a Fidelity Fund certificate, if they operated their practices with trust accounts, and in respect of areas of work that advocates had always attended to – in other words, excluding matters such as wills, conveyancing or estates. The Portfolio Committee had been swayed by public comment to ensure the addition of this clause. Chapter 4 of the Bill required the Council to compile a code of conduct for all legal practitioners and candidate legal practitioners, in which the differences between those doing traditional attorneys work and traditional advocates work were recognised.

Chapter 5 of the Bill provided for the establishment of an Office of Legal Service Ombud. The Ombud was required to be a judge discharged from active service and the Ombud would hold office for a seven year terms, which was renewable once. The objectives of the Ombud were to protect and promote the public interest in regards to the rendering of legal services and to ensure the proper investigation and disposal of complaints against legal practitioners. Furthermore the Ombud was required to promote high standards and integrity in the professions as well as to ensure the independence of the profession. The Ombud did not have decision-making powers but instead had recommendation powers, similar to those of the Public Protector. The Ombud could also mediate, advise and assist complainants in getting matters resolved.

Some Members felt that the Bill gave too much power to the Minister and asked what kind of conditions and regulations were placed on the powers of the Minister. Members were concerned about the use of the term “advocate” remaining in the Bill, as many other countries had gotten rid of the terms advocate and attorney and created a fusion of the two. They commented that the cost of obtaining legal representation was still unattainable to the average citizen.

The Department then presented the Judicial Matters (first) Amendment Bill and noted that the issues addressed were primarily practical and technical issues of a non contentious nature. The Bill would amend numerous Acts administered by the Department. The Bill was initially tagged as a Section 75 Bill but was later retagged a Section 76 bill. The Chairperson of the Portfolio Committee on Justice and Constitutional Development noted that this tagging process had given rise to certain complications, as many of the clauses needed urgent implementation. For this reason, after consultation with Parliament, it had been decided that the Portfolio Committee would reject certain clauses with section 76 implications from the Judicial Matters (first) Amendment Bill, allowing that Bill to be re-tagged as a section 75 matter.

It was reported that these clauses were then moved to a Judicial Matters Third Amendment Bill, a Committee Bill, which was tagged as a section 76 bill. The clauses now amended the Attorneys Act and the Child Justice Act to address practical and technical issues of implementation that had been noted. Clause 2 sought to amend section 11(3) of the Child Justice Act (CJA) to state that an inquiry magistrate or child justice court may, on its own accord or at the request of the prosecutor or the child’s legal representative, order an evaluation of the child’s criminal capacity. This evaluation was to be done by a “suitably qualified person”, which the Minister had defined as a psychiatrist or a clinical psychologist. Further changes were made in clauses 4 and 5 in regard to sentencing, after the Constitutional Court had declared that the inclusion of provisions under to the Minimum Sentencing Act were inconsistent with the Constitution and invalid, when applied to those under 18. Members agreed that South Africa was facing a big problem with the way youths were treated in the legal system, and adopted the Judicial Matters Third Amendment Bill was of great importance. They also confirmed the adoption of the Judicial Matters First Amendment Bill.

The Department then presenting detailed briefing notes on the South African Human Rights Commission (SAHRC) Bill, which would repeal and replace the current SAHRC Act (although many of the provisions were similar), which was outdated, and would streamline with other legislation. It was explained that many of the changes were technical in nature, or clarified the powers of the SAHRC and its Commissioners, also changing the number of commissioners to eight, of whom six were to be full-time. No temporary appointments were to be made. The SAHRC was required to report to the President on its activities, and full reports would be tabled to the NA.

The Commission was required to report to the President on its activities and the President was then required to table those report in the National Assembly and NCOP.

Members sought clarity on the definition of staff and the dispersal of responsibility. Furthermore some Members were concerned with the amount of involvement the President had and felt that it would be more appropriate for the relevant Minister to have more involvement.

The Committee was concerned that they were rushing through the Bill in order to pass it before their fast approaching deadline. The Committee needed to take an informed and cautious approach and they still had issues that needed clarity with the Bill, thus it was decided to hold off on adopting it until they had a chance to meet with the Parliamentary Legal Advisors the following day.
 

Meeting report

Legal Practice Bill 2012: Briefing on key principles by Department of Justice and Constitutional Development
Mr Lawrence Basset, Deputy Chief State Law Advisor, Department of Justice and Constitutional Development, noted that a long and detailed document had been sent to the Committee, in order to ensure that Members had all the proper information about the Legal Practice Bill (the Bill). This Bill was introduced to Parliament in May 2012, and was passed by the National Assembly on 12 November 2013. It was then referenced to the NCOP, for in-depth deliberation by all Provincial Legislatures in terms of Section 76 of the Constitution.

The purpose of the Bill was to rationalise the fragmented legislative framework stemming from the former four provincial statutory structures, which was still in operation in various parts of the country. These outdated laws would be repealed and replaced by a single statute regulating the practising legal profession in its entirety. The regulatory bodies of the legal profession would be transformed and restructured through the establishment of a single national body. Access to justice would be broadened and legal services would be more affordable for everyone. Mr Bassett was clear in stating that the Bill did not bring about the fusion of attorneys and advocates.

Chapter 2 of the Bill established a single national South African Legal Practice Council (the Council) which had numerous objectives, including the regulation of, and jurisdiction over all legal practitioners. It would be  responsible for upholding the independence of the legal profession and promoting high standards of legal education and training. The Council further sought to promote access to the legal profession and ensure accessible and sustainable training for law graduates. The powers and functions of the Council were set out in clause 6. This, amongst others, stated that the Council may provide financial support to organisations providing legal education and training to non-profit organisations and to institutions promoting access to justice for poor people. The Council was to report to the Minister on its activities with particular reference to measures taken to enhance access to justice and furthermore the Council was to advise the Minister on multi-disciplinary legal practices.

The Council would consist of 16 legal practitioners, 10 practising attorneys and 6 practising advocates, elected by the profession. The Minister had the power to dissolve the Council if it became dysfunctional, but only with the authority of an order of the High Court and after the Ombud had investigated the circumstances giving rise to the dysfunctionality and had suggested that the Council be dissolved.

Clause 23 required the establishment of nine Provincial Councils, beginning with an initial commitment of establishing Councils in at least four provinces. Establishment in the rest of the provinces would occur as funds and capacity became available. Representation of legal practitioners on these Provincial Councils was in proportion to the number of attorneys and advocates practising in each of the provinces in question. The powers of the Provincial Councils derived from the National Council who delegated regulatory powers based on which were best performed in each province.

Mr Basset noted that Chapter 3 called for all persons who wished to practise as legal practitioners to be admitted by the High Court. He then presented the admission criteria for aspiring legal practitioners including that applicants must be South African citizens or permanent residents and hold at least an LLB degree obtained from a South African university. Community service as part of vocational training was noted as an admission criteria, the details and extent of community service to be spelt out by the Minister. Practising legal practitioners were required to perform community service each year, but there was a provision through which they could apply for an exemption for good cause.

Advocates would no longer be able to be admitted purely on the strength of having an LLB degree, but would now also have to undergo practical training. Clause 32 dealt with the conversion of enrolment and stated that a legal practitioner who had been enrolled as an attorney or advocate may convert from one branch of the profession to another. This provision would provide for an easier mechanism for legal practitioners to change direction in their careers.

The Bill allowed advocates to take briefs directly from members of the public, but in the public interest, and only if they were in possession of a Fidelity Fund certificate and if they operated their practices with trust accounts as was required of an attorney. The Portfolio Committee had been swayed by public comment to ensure the addition of this section.

Mr Basset then moved onto the fees for legal services and noted that they would be determined on an interim basis by the Rules Board for Courts of Law, and were subject to approval by the Minister. The Rules Board took a number of factors into account including the complexity of the matter, the seniority and experience of the legal practitioner involved, the amount of work involved, and the financial implications. An emphasis was placed on the fact that the Minister was to set a cap in respect of fees payable by the State for legal services rendered at all three levels of Government. The State was the biggest client of legal services. Legal practitioners were required to give their clients an upfront cost estimate and the estimate was to include all the processes involved and had to mention the client’s right to negotiate fees. Mr Basset noted that failure to comply with this clause on the part of the legal practitioner constituted misconduct and allowed the client to refuse to pay until the matter had been resolved by the Council. He hailed this as a revolutionary provision.

Chapter 4 required the Council to compile a code of conduct for all legal practitioners and candidate legal practitioners, in which the differences between attorneys and advocates were recognised. Three different structures were to be established by the Council, of investigating committees, disciplinary committees, and appeal tribunals. These structures did not preclude the intervention of the High Court in serious allegations.

Chapter 5 of the Bill provided for the establishment of an Office of Legal Service Ombud. The Ombud was required to be a judge discharged from active service and would hold office for a seven year term, renewable once. The objectives of the Ombud were to protect and promote the public interest in regards to the rendering of legal services and ensuring the proper investigation and disposal of complaints against legal practitioners. Furthermore the Ombud was required to promote high standards and integrity in the professions as well as to ensure the independence of the profession. The Ombud did not have decision-making powers but instead had recommendatory powers similar to those of the Public Protector. The Ombud could also mediate, advise and assist complainants in getting matters resolved.

Mr Basset noted that Chapter 6 provided for the continuation of the current Attorneys Fidelity Fund, under the new name of the Legal Practitioners Fidelity Fund. The name change was necessary in order to include advocates in the process, as they were able to obtain Fidelity Fund certificates if they took briefs directly from members of the public. The Fund was designed to reimburse members of the public who suffered pecuniary loss as a result of theft of their money by legal practitioners. The Fund was controlled by a Board of Control, which consisted of five legal practitioners elected in accordance with the procedure determined by the Council, two persons designated by the Council and two persons, who had relevant experience, designated by the Minister,.

Chapter 10 provided for the establishment of a National Transitional Forum on the Legal Profession which had the mandate of deliberating and making recommendations on a number of aspects that required resolving. The National Forum had a lifespan of three years and during that time the Forum was required to make recommendations to the Minister on things such as election procedures for the purposes of constituting the first Council. The recommendations made by the Forum would then be turned into regulations by the Minister. The National Forum would consist of 16 legal practitioners, 8 attorneys and 8 advocates, one teacher of law, two persons designated by the Minister who were not public servants or politically affiliated, one person designated by Legal Aid SA and one person designated by the Board of the Fidelity Fund serving at the time.

The National Forum had the purpose of negotiating and reaching an agreement with the existing provincial and homeland statutory law societies in respect of the transfer of assets, liabilities, rights, obligations and staff to either the Council or the Provincial Councils. The National Forum was to report on the activities it carried out to the Minister on a six monthly basis. The Minister designated the Chairperson and Deputy chairperson. The Department of Justice and Constitutional Development would be responsible for the expenses arising from the operation of the National Forum.

To conclude, Mr Basset noted that the Bill reflected the fact that there was not total consensus in the branches of the legal profession in some respects and that was why the Department had taken incremental steps in approaching some issues. The National Forum was designed to fill a key role in the first phase of implementation and would pave the way for a permanent South African Legal Practice Council. The Bill ensured that the fate of the legal profession lay in the hands of the professionals themselves.

Discussion
Mr L Nzimande (KwaZulu-Natal, ANC) noted that since the Bill was tagged as a Section 76 Bill, it would need to go to the Provinces for consultation. He asked for clarity on the powers the Bill gave the Minister in terms of appointing people to the Council, what conditions applied, and what the capacity was. He wondered if the goal of a appointing someone to the Council without political affiliations was attainable.

Mr J Gunda (Northern Cape, ID) asked what the level of engagement was on the provincial stage. He asked what support was available from the Department once the Bill was passed.

Mr A Matila (ANC, Gauteng) stated that there was always a great deal of difficulty around appointment of advocates, and was worried that problems would persist. He expressed concern about the challenges that would arise from implementation at a provincial level.

Mr D Bloem (COPE, Free State) did not fully understand the rationality behind keeping the terms “advocate” and “attorney” as many other countries had abandoned this in their legal systems.

Mr Gunda asked what relationship these new provisions had with the system of Traditional Courts. There was a widespread notion of parallel justice systems in the country.

Mr V Manzini (DA, Mpumalanga) asked if these provisions, and the ability for advocates to take briefs directly from citizens would ease the financial burden on citizens who required legal assistance.

Mr J Bekker (DA, Western Cape) stated that he did not believe that legal costs would be lowered, and he felt it was impossible for the average citizen to take a matter to court, unless it was heavily subsidised by the government.

Mr Raj Daya, Deputy Chief State Law Advisor, and Secretary to the Rules Board, Department of Justice and Constitutional Development, said that there had been a two year period of investigation into issues of cost. The Department wanted to ensure that justice was accessible to all. There needed to be an informed basis on how the Rules Board was going to draft a fee structure, and before making its decisions, it would take into account the research done by an independent entity. The Bill intended to ensure the protection of the public, in that users of legal services would, in future, know exactly how much they would be paying for legal service. He confirmed that to a large extent this Bill represented a compromise, and that extended to continued use of the terminology around “advocate” and “attorney” but over time all practitioners would probably move to using the term “legal practitioner” in practice.

Mr Basset stated that the Department was cautious to ensure that the Bill did not impede on the rights of the legal profession, especially in terms of the appointment of people to serve on the Council. Many debates centred on the Minister’s powers to designate people to the Council. The Bill was initially a section 75 bill, but was later changed to a section 76 bill, due to the fact that it dealt with concurrent provincial and national issues. The final decision to make the Bill a section 76 bill was taken in Parliament, thus it was out of the Department’s hands. The Department would try to have representatives at each province as briefings took place.

The issue of how this Bill would relate to the traditional courts was addressed. This Bill dealt with the practising legal professionals. The role of the legal profession in traditional courts was still up for debate.

Mr Bassett believed that the Bill would make legal services much more affordable to the average citizen, because it recognised that a citizen could hire an advocate directly, instead of going through an attorney as well.

Mr Daya stated that despite the new roles, many current advocates would still choose to continue working as they did prior to the Bill, receiving their briefs from attorneys. The status quo may be maintained and in many cases nothing would be certain until the Bill was fully implemented.

Mr L Landers (ANC), Chairperson of the Portfolio Committee on Justice and Constitutional Development noted that there were many countries that had done away with the two tier system (advocates and attorneys) such as the United States and Indonesia, and the advocates and attorneys of South Africa must begin engaging on possible the fusion between the two branches for the future.  

Judicial Matters (first) Amendment Bill, 2013: Department of Justice and Constitutional Development briefing
Mr Daya briefly ran through a presentation on the Judicial Matters Amendment Bill. The primary purpose of this Bill was to address practical and technical issues, which were of a non contentious nature. The Bill would amend numerous Acts administered by the Department. The Bill as introduced consisted of 49 clauses and was initially tagged as a section 75 Bill, but at a very late stage but was retagged as a section 76 Bill, due to the nature of six clauses. In order to expedite the processing of the Bill, and to have it re-tagged as a section 75 Bill, the Portfolio Committee had decided to reject six clauses which involved provinces, which were then removed from this version before the Select Committee. However, those were then moved to a separate Committee Bill (the Judicial Matters Third Amendment Bill), which would be dealt with later.

Mr Daya provided a technical breakdown of the changes and amalgamation of Bills (see attached presentation for full details) and explained that the majority of the changes related to the Criminal Procedure Act, the Child Justice Act and the Attorneys Act.

Judicial Matters Third Amendment Bill (B53 – 2013)
Mr Landers presented a document prepared by the Portfolio Committee. He commented that the primary aim of the Judicial Matters Third Amendment Bill [B53-2013] was to deal with the amendments to the Attorneys Act and Child Justice Act, which had been removed from the Judicial Matters First Amendment Bill, as outlined earlier. The amendments, as with the first Judicial Matters Amendment Bill, were intended to address practical and technical problems.

He noted that the clauses related to the Child Justice Act (CJA) were set out in clauses 2 and 6 of the Bill, which, respectively sought to amend sections 11 and 97 of the CJA. Section 11(3) stated that an inquiry magistrate or child justice court may on its own accord, or at the request of the prosecutor or the child’s legal representative, order an evaluation of the child’s criminal capacity. This evaluation was to be done by a suitably qualified person, which the Minister had defined as a psychiatrist or a clinical psychologist.

The changes set out in clauses 4 and 5 were necessary, since the Constitutional Court had declared that certain provisions of Section 51 of the Minimum Sentences Act were inconsistent with the Constitution and invalid to the extent that they applied to any persons under the age of 18. Full details on the amendments were contained in the presentation document.

The clauses amending the Attorneys Act were largely technical (see attached presentation).

Discussion
Mr Bloem stated that there was a problem in the country with children committing crimes, and also a problem around how they were dealt with in the justice system. He noted that it was important for the Committee to deal with the problem head-on.

Mr Matila concurred with Mr Bloem and stated that he did not have a problem adopting the Bill that day.

The Chairperson agreed with the Members.

Members then adopted the Judicial Matters First and Third Amendment Bills.

South African Human Rights Commission Bill: Department of Justice and Constitutional Development briefing
Mr Johan Labuschagne, Principal State Law Advisor, Department of Justice and Constitutional Development, began by stating that the purpose of the South African Human Rights Commission (SAHRC) Bill (the Bill) was to repeal the current SAHRC Act and replace it with this new Bill. The goal was to streamline the existing legislation and to enhance the functioning of the Commission. He then read through the briefing document, verbatim (see attached presentation). He highlighted where the major changes had occurred.

Clause 1 contained definitions, including the substitution of the definition of “fundamental rights” with a definition of “human rights”, in order to provide clarity and to maintain cohesion with the Constitution.

Clause 4 provided an outline as to how the powers of the Commissioners or those of SAHRC staff members were to be used, and included provisions to ensure that powers were not used for private gains.

Clause 5 regulated the establishment and appointment of new members of the Commission. Clause 5 further provided the composition of the Commission, which would consist of eight Commissioners, and regulated their qualifications, appointment, suspension, and removal from office, and terms of office.

Clause 6 called for the mandatory appointment of a Chairperson and Deputy Chairperson by the President, based on the recommendation of the National Assembly. Clause 7 regulated the powers and functions of the Chairperson and Deputy Chairperson.

Clause 12 allowed the Commission, subject to certain conditions and directions, to assign powers to a member of staff, a committee of the SAHRC, or the Commissioners themselves. Clause 16 regulated the powers of the Commissioner, members of staff and authorised police officers in regard to entering and searching premises, and the attachment and removal of articles by virtue of a search warrant or an entry and search warrant issued by a magistrate or a judge of a High Court.

Clause 18 called for the SAHRC to report to the President on its activities and the President must subsequently table those reports in the National Assembly and the NCOP. This occurred at least once a year.

A full clause by clause breakdown of the technical aspects of the Bill was contained in the detailed document.

Discussion
Mr Nzimande asked for clarity in regard to the Clause about regulation of “staff” and asked whether that was defined, and whether, for instance, regulations around staff would cover a security guard or a cleaner.

Mr M Mokgobi (ANC, Limpopo) asked for clarity on Clause 6, which related to the increase in the number of full-time Commissioners.

Mr Bloem asked why the President was heavily involved in some of the processes, and questioned whether the Minister or CEO might be more appropriate.

Mr Labuschagne said that it was desirable for the Minister to deal with matters involving primarily day to day business regulation, and although the President was mentioned, that person had limited capacity, mainly to do with appointments. The SAHRC, although a Chapter 9 institution, was still accountable to the National Assembly.

Mr Bekker stated that he was not a legal expert and was struggling to sort out all the new clauses and their implications. He requested that the Committee should not rush ahead with passing this Bill; he felt that too little time had been given for a proper review.

Mr Matila agreed with Mr Bekker’s assessment and also felt that Members needed more time to read over the Bill in detail. He did not foresee any major problems with it, and noted that it had been found acceptable by the National Assembly, but the NCOP Committee still needed to take an informed approach.

Mr Bassett noted that there had been a recent Constitutional Court judgment on the powers of search and seizure without a warrant, as related to another body. He noted that clause 16.6 gave the SAHRC the power to enter premises without a warrant, and he feared that the Constitutional Court judgment had implications on that clause.

Mr Landers noted that Members of the Portfolio Committee had also had concern with this Clause, although it was in the current version of the Act.

Mr Matila stated that it was a serious matter, and enforced the earlier concerns that this Committee could not rush through Bills. Although a date had been set for the following day, for the finalisation of the Bills, he nonetheless noted again that Members needed to be given sufficient time to look again at some sections, and suggested that the Committee meet on the following day to discuss the Bill.

The Chairperson agreed with caution expressed by Members, and asked the Parliamentary Legal Advisers also to provide the Committee with an opinion before it adopted the Bill.

The meeting was adjourned.
 

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