Judicial Matters Third Amendment Bill [B53-2013] & Legal Practice Bill [B20-2012]: negotiating mandates

Meeting report

Judicial Matters Third Amendment Bill
NOTE: The meeting started 40 minutes ahead of schedule and the PMG monitors arrived after about ten minutes into the meeting. It appeared that the Department of Justice and Constitutional Development (the Department) had tabled and taken members through a summary of the main comments and queries raised by the provinces in respect of the Judicial Matters Third Amendment Bill (see attached document). Members asked questions for clarity on the categories under the Child Justice Act, and the reasons why the amendments were being made to the Attorneys Act.

Discussion on Judicial Matters Third Amendment Bill
Mr M Mokgobi (ANC, Limpopo) said that the document submitted by the Department seemed to show that common concerns had been raised by some provinces.

Mr Lawrence Bassett, Deputy Chief State Law Advisor, Department of Justice responded that he had specifically mentioned these points in his summary because they had been raised in some of the provincial public submissions. There were comments about the classes of people competent to conduct evaluations, in relation to the Child Justice Act, and those had been determined by the Minister after much consultation. The categories designated were essentially psychologists and psychiatrists.

The Chairperson agreed that similar issues had all been raised by Mpumalanga, Free State and Western Cape, and they were categorised in the document prepared by the Department.  However, for the rest of the Bill, the provinces had agreed to support the Bill. They could perhaps be discussed during the final mandate process.

He asked representatives from those three provinces to indicate whether they were satisfied with the explanations on the amendments.

Ms M Boroto (ANC, Mpumalanga) said that she had not attended the pre-meetings but had read the Bill and had understood and was satisfied with the explanation.

Mr D Joseph (DA, Western Cape) asked if the Department had been present at the Standing Committee meeting in his province. When the officials nodded to indicate that they had been, he said that he accepted the explanation given here.

The Chairperson indicated that he, representing the Free State, was happy with the explanations.

The Chairperson noted that it could thus be reported back that the provinces had presented their negotiating mandates and agreed that the final mandates would need to be prepared and presented.

Mr A Matila (ANC, Gauteng) said that he wanted the particular issues of the provinces to be reflected, and that when the provinces had submitted their final mandates, the Committee could proceed to a clause-by-clause deliberation.

Mr B Nesi (ANC, Eastern Cape) agreed on that point.

The Chairperson asked the Department of Justice and Constitutional Development to clarify whether the amendments came from the Department.

Mr Bassett said that he did not quite understand what amendments were referred to, as the Bill was being presented now in the form that it was originally tabled to the NCOP.

Mr Gurshwyn Dixon, Committee Secretary, advised Members that there had been no changes effected to this Bill since the provinces had indicated that their negotiating mandates were to accept the Bill, and now the Bill would go back to the provinces, who would have to give final mandates.

Mr Matila said that when they gave the final mandate he would like this Committee to agree to the Bill as swiftly as possible.

Legal Practice Bill: Presentation of Negotiating Mandates
Eastern Cape mandate
A representative for the Eastern Cape Provincial Legislature said that his province was broadly in favour of the Bill but there were several comments that it wished to make for consideration (see attached document) which were summarised as follows:
- Although the Bill clearly did not seek to fuse the professions, there were several definitions that, inadvertently perhaps, seemed to result in fusion and it was suggested, therefore, that the definitions of “advocate”, “attorney” and “conveyancer” should be reviewed.
- Clause 5 stated that the Bill sought to promote public interest, but the Bill also seemed to promote the interests of the legal profession, and so it was suggested that wording to this effect should be added in under this clause also. The interests of the public were integrally bound to those of the profession. The promotion of the interests of the profession would create a profession with integrity, and high standards of service delivery. All these were not only beneficial to the profession but would promote public interest.
- Clause 7(1)(b) provided for the appointment of two teachers of law to serve on the Legal Practice Council (the Council) - one being a Dean of a Faculty of Law, and the other a teacher of law “designated in the prescribed manner”. This clause was vague because there was no clarity on who may nominate or designate these teachers of law. The provincial legislature suggested that the wording should rather read: “Two teachers of law, one being the Dean of a Faculty… and the other being a teacher designated by teachers of law at South African universities”. It was pointed out that this wording reflected the wording, in the Constitution, as used for the nomination of persons to serve on the Judicial Service Commission.
- Clause 17(1) provided that the majority of Members of the Council should constitute a quorum. However, this provincial legislature suggested that better wording would be: “a majority view of members present at a meeting”. This would also be in line with clause 29(d).
-Clause 40 related to proceedings after disciplinary hearings but this legislature felt that the power of the Council to pay compensation to a complainant was misplaced, and must be removed. Reimbursement of pecuniary loss was covered under clause 55. Disciplinary proceedings were sui generis by nature. The hearing to determine whether the legal practitioner was involved in an act of misconduct was not concerned with payment of damages. If any compensation was to be paid, this decision must be sanctioned by a court.
- In respect of clause 40(3)(a)(iii), it was suggested that the disciplinary committee should not be given power or authority to suspend a legal practitioner but it should rather recommend this to the Council, which must then take action as contemplated in clause 40. Similar considerations must apply when the Committee wanted to make recommendations in relation to trust funds
- In respect of clause 52, the provincial legislature suggested that any Acting Ombud must also be a former judge and possess the same attributes and qualifications as the Ombud, as they would exercise the same functions
- Clause 56(1)(a) said that the Legal Practitioners’ Fidelity Fund (FF) should not be liable for any loss suffered by a family member of the legal practitioner committing the theft. The term “family member” was not defined in the Bill and the statement was rather vague. It was proposed that this term be defined, for clarity and completeness.
- The transitional provisions were of concern, and it was suggested that the fact that the existing law societies would continue to perform their functions until the commencement f Chapter 2 implied that “such voluntary associations” would be automatically dissolved, and this dissolution implied a violation of the rights of association under the Constitution.
- The Preamble referred to ”national territory” and this should be replaced by “Republic”, with the term “Republic” then also being defined
- This provincial legislature wanted the whole of the penalty clause, from clause 93(1) to (9) to be reviewed. All of these subclauses used the expression “is guilty of an offence” and it was suggested that this wording should be replaced with “commits an offence and is liable on conviction to a fine or imprisonment not exceeding….” The current use of “is guilty of an offence” was seen “placing the cart before the horse” as only upon conviction would the person no longer be presumed innocent. Section 35 of the Constitution said that every accused person had the right to a fair trial, which included the right to a presumption of innocence.
- Submissions had been made on clause 4 in relation to the creation of the new Council, and various views were expressed on the importance of an independent Bar and advocates’ profession remaining, quoting views expressed by Sydney Kentridge, George Bizos and Malcolm Wallis, and it was considered important to take heed of their advice regarding the need for an independent legal profession and creation of independent regulatory boards. Clause 4 seemed to tamper with the independence of the legal profession by creating the Council.

Further comments were included in the document on the position in England and Wales, which seemed to have led to an increase in costs.

He reiterated that the Eastern Cape would support the Bill, with those amendments.

Free State mandate
The Chairperson, presenting the Free State Legislature’s negotiating mandate, said that the following amendments were being proposed by his province:
- The FF should not be a juristic or legal person, but merely a Fund which would be held in trust and administered by a Board of Control
- Te State should not be involved in the government and management of the profession
- Te definition of “advocate” should read: “a legal practitioner practising as a sole practitioner on a referral basis, and without a Fidelity Fund certificate”
- Cause 3 should have a subclause reading “to protect and promote the independence of the legal profession”
- Cause 5(g) should be amended by the substitution of the word “determine”  by “monitor”
- In clause 29, the words “community service” must be clearly defined
- It was considered impractical to regulate attorneys’ costs by allowing for any variation from prescribed fees
- Attorneys running an estate agents practice are exempted from the Fidelity Fund provisions and provision should be made for the protection of their clients
- The submissions from the Law Society of South Africa (LSSA) were noted, that a committee member should also be allowed to be a member of the Board of the FF
- Clause 100 should specify that the Chairperson and Deputy Chairperson of the National Transitional Forum (the Forum) should be legal practitioners.

The Free State had mandated its delegates to vote in support of the Bill

Gauteng mandate
Mr Matila said that the Bill was regarded as consistent with the values and freedoms enshrined in the Constitution. His provincial legislature had requested that the Department should take into account all the proposals made in the document that he had circulated, and should ensure that the Bill would be implemented without challenges. The provincial legislature welcomed the proposals for a progressive consultative process building to the full implementation of the Bill. This province supported, subject to the amendments it had proposed, the principles and detail of the Bill as it sought to transform the legal profession to ensure that if accorded with the democratic dispensation and ensured access to legal services by most South African citizens.

Mr Matila noted that he would not raise the issues now, but asked that the matters that were fully outlined in the document attached to the negotiating mandate should be taken into account.

KwaZulu Natal mandate
Mr L Nzimande (ANC, Kwa Zulu Natal) quipped that his provincial legislature had possibly submitted the thickest batch of documentation and if he were to go through every point, the Committee could be sitting for the whole night. He noted that there were intense public hearings in his province, and several amendments had been proposed which were fully set out in the annexure (see attached document), which touched on the majority of the clauses in the Bill. He would not go through them now, but suggested that the Department be given a chance to deal with and respond to those issues. In general, as set out in the Negotiating Mandate, the provincial legislature was not averse to the Bill but had mandated the delegation to abstain from voting on the Bill at this negotiating stage. He indicated that the mandate might well change, depending on what might be done in the following stages, and how the C and D versions of the Bill appeared.

Mr Bassett said that there was a long document submitted to the Department, but the Department had already dealt with the issues in the document that he had prepared and circulated, and that might help the Committee when it studied the issues raised.

Limpopo mandate
Mr Mokgobi (ANC) said that his province’s Committee had held public hearings and almost very clause was discussed as a wide range of issues was tabled. One of the major points of emphasis had been that the Bill must promote points was that this Bill must promote the interests of the profession, and achieve high standards of service delivery. The other major issue was that the decision of the Minister should be made “in consultation” with the Legal Practice Council, in clause 6(5)(i), and with due regard to the views of the Competition Commission and the professional bodies of other professions if the multi-disciplinary practice was to involve another profession.

In respect of clauses 14(4) to 17, it was important that any interim Council appointed by the Minister must have a majority of legal practitioners and the time span should be limited, whilst it was also important that the independence of the profession be maintained.

In respect of clause 24(3), his province thought that the Minister must again act “in consultation with”  the Council, and must take into account the reciprocity arrangements between South Africa and the country whose legal practitioners may be allowed to practice in South Africa, the current over-saturation of the market in South Africa and the need to protect South African practitioners, and the need to protect the interest of the public. The regulations should be published in the Government Gazette.

In relation to disqualifications of members of the Board of the FF, this province suggested that there was no rational basis to exclude committee members, as suggested by the LSSA.

In regard to clause 40(3), the province felt that temporary suspension, withdrawal of a FF certificates and suspension of vocational training were drastic steps and they should not fall to the disciplinary committee, but should be reserved for the Council.

A general comment was also made about consultation; the province noted that in a number of instance the Minister may take action “after consultation” with the Council – such as section 94, where the Minister had the power to make regulations and rules that would be of great consequence to the profession. It was felt that the Minister should rather take actions “in consultation” with the Council – including clauses 22(1)(b), 87(2) and 87(5), and 89.

In terms of consultation there was a general feeling that the Minister, in making determinations, should not do so “after” but “in consultation”.

The province suggested that in clause 39(9) there should not be reference to the “superior courts” since this was not in line with current legislation, but a reference to the “high court”.

Mr Mokgobi summarised that the Limpopo legislature had mandated its representatives to negotiate in favour of the Bill.

Mpumalanga mandate
Ms Boroto said that she had a mandate to vote in favour of the Bill, but taking into account the observations of the Committee as contained in the report attached to the Bill, and the amendments that were proposed. She said that she would not take the Committee through the whole document, as it had been forwarded to the Department, and most of the departments proposed were of a technical nature.

Northern Cape mandate
Mr J Gunda (ID, Northern Cape) said that a few inputs had been included, by stakeholders and the Committee. They related, in summary to the following clauses:
- Clause 7(1)(b), where it was suggested that the Bill should include a statement that the teachers of law should have appropriate qualifications
- In clause 7, there should be a new sub-clause to state specifically that female legal practitioners must be proportionally represented to effect transformation
- Clause 26(1)(c) should state that the Minister, in consultation with the Council, should prescribe the practical vocational training requirements for a candidate legal practitioner
- Clause 29(1) should read that the Minister, in consultation with the Council, should prescribe the requirements for community service
- Clauses 37 t0 40 should be deleted and substituted with the following wording:
” 37(1) The Council must, in consultation with the South African Law Reform Commission, develop a uniform disciplinary code to deal with all complaints of misconduct against legal practitioners, candidate legal practitioners or juristic entities” and there should be a further statement that this Code must be published in the Gazette
- Clause 47(1) should provide that the President should appoint the Legal Services Ombud “in consultation” with the Chief Justice
- Clauses 50(1) and (2) should state that the President, in consultation with the Chief Justice, should make the appointment also of the acting Ombud
- Clause 96(1)(c) should be substituted with wording stating “subject to subsection (3), two fit and proper persons with relevant knowledge of the legal profession, designated by the Minister”

Mr Gunda stated that the provincial legislature of Northern Cape supported the Bill, but urged this Committee to take note of the comments and recommendations raised.

North West mandate
Mr H Groenewald (DA, North West) said that a number of recommendations had been set out in the negotiating mandate circulated and he would not go through them in detail. He referred the Committee to page 9 of his document, and said his province had expressed its support of the Bill. However, he recommended that the comments set out in the other pages be studied.

Western Cape mandate
Mr D Joseph (DA, Western Cape) said that the document submitted by the Western Cape highlighted a number of issues. After a long explanation it pointed to the fact that the Western Cape government was not in support of the bill. There were a number of pages that he suggested that Members needed to go through, but he would highlight the most important.

The points that he made were as follow:
- He noted that several comments had been made by commentators, and proposals were also included in line with the legal advice that the Western Cape government had received. Some focused on the position of the advocates as it was feared that the current Bill would in fact result in a decrease in the numbers of advocates, because of the training and regulation of the profession that the Bill provided for.
- The governance structure was seen as problematic, and would entail a significant increase in subscriptions to be paid to the Council by the profession, which would cause upward pressure of costs on services.
- The clauses which presently allowed for the Council to be dissolved were not accepted. It was suggested that the Council could not be dissolved on the Minister’s opinion alone an that judicial intervention must be written in to the clause
- There were concerns that the Minister was being given extensive powers and this would pose a treat to the independence of the profession, and public confidence could also be threatened
- There were questions around the provisions relating to transformation and what the forms and periods would be in relation to community service. The Bill provided no clear answers on these, and it was impossible to know what ultimately might be the result. This was a risk to the independence of the profession, although the clear intention of the Bill was in fact to draw more people into the profession, not lose them
- It was suggested that the Bill should separate out the vocational training and the examinations for candidate attorneys, and he referred Members to comments as set out in points 5 and 7
- The Bill should contain sufficient detail on admission and vocational training
- Comments were made by the Cape Bar Council that although there were several positive aspects of the Bill, the Bar Council could not support the Bill as a whole in its present form
- The clauses relating to the determination of fees for the Fidelity Fund certificates, where the FF was to make rules on the costs of the certificates seemed to relate to the Council’s ability to make a determination on the quantum of fees, and the Department should reconsider the wording to ensure that clarity was given. There may be an actuarial determination to inform the Board’s determination of these terms.
- Some comments had been direct proposals for annual appropriations to the Fidelity Fund – for instance to ensure long term sustainability of the Fund.
- There was a suggestion, and proposed wording, for clause 72
- There was a further indication that the actuarial opinion on the FF’s ability to make money should be made available to the Council
- There were comments on clause 34(2)(b), that any legal practitioners practising with a FF certificate should complete a legal practice management course
- It was felt that the clause relating to reimbursement by the FF to those who had suffered loss through theft of trust funds was not sufficiently clear, for it referred to the course of practice of an advocate, or an attorney in the course of practice, and this needed to be redrafted for better clarity
- The LSSA had suggested that there should be extension of liability in regard to attorneys or those employed by attorneys, who acted as an estate agent in the course and scope of his/her practice
- Clause 56 said that the claim for reimbursement was limited to the amount actually handed over, without interest, unless the Board of the FF decided to allow for payment of interest. There were several comments on this clause, and it was hoped that the Department would have taken note of these. The FF was given an overall discretion regarding the payment of this interest, and this was questioned.
- In relation to clause 64(2)(e), there was reference to the disqualification for members of the Council or its committees from becoming members of the FF Board, and it was proposed that the disqualification apply to members of governance committees or the Council only.
- Clause 86 said that 5% of the interest accruing on a trust account should be paid over to the FF, but it was suggested that this clause read “5% or such percentage as may be determined by the Minister”.
- Clause 82 contained a statement that no action for damages may be instituted against the FF, or Council, and comments were made on that clause
- The South African Attorneys Association had raised comments on what other commentators had said, but it was not quite clear from their submission why certain provisions referred to were considered undesirable
- Comments were also made about the regulatory powers of the Minister, in relation to the determination of fees and legal services, issuing of community service regulations and appointment of an interim Council, should the Council be dissolved. It was pointed out that the fees issue would be handled by the Rules Board of the Courts of Law, and in terms of regulations made by the South Africa Law Reform Commission
- Comments were made on the appointment of a retired judge and the independence of the Ombud as set out in clause 47 and it was suggested that the Ombud should be appointed by the Chief Justice
- There had been concerns raised that the Bill was attempting to legislate retrospectively, in respect of admissions, because of the new meaning now ascribed to a “legal practitioner” whereas at the moment there were only attorneys and advocates. It was suggested that this might be unconstitutional
- There were concerns that the Bill might be in violation of the Competition Commission’s rulings

Mr Joseph said that this had been a summary of the most important comments from various role-players. He reiterated that the mandate of the Western Cape was not to support of the Bill

The Chairperson said that the Department of Justice drafters had received the mandates from the Western Cape and Gauteng only at a very late stage and had thus not had a chance to prepare a response to the various points raised prior to this meeting. They had requested an opportunity to go through these mandates in more depth. The meeting would therefore continue on the following morning, at 10:00 am.

The meeting was adjourned.