Legal Practice Bill [B20-2012]: deliberations on amendments proposed by negotiating mandates

Meeting report

Legal Practice Bill: Department of Justice summary of amendments suggested by the provincial Negotiating Mandates, and Department’s responses.
The Chairperson noted that at this meeting the Department of Justice and Constitutional Development (the Department) was to present its responses to the proposals made by the provincial legislatures, in their Provincial Negotiating Mandates which had been briefly summarised in a previous meeting.
.
Mr Lawrence Bassett, Deputy Chief State Law Advisor, Department of Justice and Constitutional Development, then presented the responses of the Department, referring to the attached summary document.
.
Preamble.
The Eastern Cape Province had proposed that, in the Preamble, the term “national territory” be replaced by the term “Republic”.
.
The Department responded that it would have no objection to this proposal.
.
Clause 1.
Mr Basset summarised that in relation to the definitions, the Free State and KwaZulu Natal proposed that the definition of “advocate” read “sole practitioner practising on a referral basis without a Fidelity Fund Certificate”.
.
The Department responded that clause 34, which dealt with forms of legal practice, already provided that advocates should be practising alone. clause 34(2)(b) provided for a choice by an advocate whether to receive briefs directly from the public, and if this was done, then the advocate would have to be in possession of a fidelity fund certificate. The extension of an advocate’s practice to direct briefing by the public was envisaged to enhance access to legal services and lower costs. .
.
The Eastern Cape, in relation to the definition of “advocate” had proposed the following “ a legal practitioner admitted and enrolled as advocate in terms of the Admission of Advocates Act, 1964 and who was admitted, enrolled and registered as such under the Act. .
.
The Department responded that clause 114 provided a transitional arrangement for advocates who were admitted before the commencement of this Bill, as they would be deemed to be admitted and enrolled as legal practitioners under the Bill. The Admission of Advocates Act would be repealed once this Bill became law. From a legislative drafting point of view, it was preferable to avoid making any reference to repealed Acts. Therefore the Department did not support the suggestion by the Eastern Cape.
.
KwaZulu Natal and Eastern Cape proposed that the definition of “attorney” should include a reference to those admitted under the Attorneys Act. The Department’s response was similar. In terms of clause 114, all those who had been admitted already as attorneys would be regarded as legal practitioners under the new Legal Practice Act. Similarly, the Attorneys Act of 1979 would be repealed when this Bill became law, and again, he reiterated that it was preferable to avoid making references in the definitions or elsewhere to legislation that had been repealed and replaced. .
.
The Eastern Cape proposed that the definition of ‘conveyancer’ read “a person who practices as a conveyancer to read as defined in section 102 of the Deeds Registries Act, 1937”. The Department responded that this had been how the definition read when the Bill was introduced, but that the National Assembly had since amended the definition, firstly, to ensure that it was clear that the conveyancer would also have to be an admitted attorney, and secondly to avoid making reference to other Acts, for ease of interpretation.
.
Mpumalanga had proposed that a definition must be inserted for ‘legal advisor’, to read “a person in the full time employment of any state organ enrolled as such in terms of sections 24 and 30 of the Act”. In response to this, Mr Bassett explained that there was no motivation included. The Department was concerned that this definition could give rise to further argument and uncertainty. In some quarters in the legal profession it was argued that there were only two branches of the legal professions - namely the attorneys and advocates profession. It would therefore be expedient to rather not insert such a definition.
.
Mpumalanga also proposed that a definition of “organ of state” be inserted. In response to this, the Department indicated that the Bill was actually applicable only to legal practitioners in private practice. The reference to “organs of State” was proposed for clause 34(5)(e).
.
Eastern Cape proposed that there be a definition of “Republic”. The Department would have no objection to this proposal.
.
Mpumalanga had proposed an amendment of definitions of ‘state attorney’ and “state advocate”. The Department would have no objections to the proposals(see attached document). .
.
Clause 3.
Mr Bassett summarised that in regard to clause 3, the Free State, KwaZulu Natal, Limpopo and Gauteng had all proposed that the Bill should include a sub-clause referring to the need to “protect and promote the independence of the profession”. .
.
The Department responded that clause 3(c) already referred to the importance of the independence of the legal profession, and reference was also made to this in the Preamble and clause 5(e).
.
KwaZulu Natal, in relation to the wording of clause 3(b)(ii) had proposed that candidate legal practitioners should not do community service. .
.
The Department of Justice and Constitutional Development explained that the reason this provision was included was that the NA had believed that this would be a mechanism to develop a social conscience in candidate attorneys, as well as improve access to justice, as they would be able to assist the public. Community service would go a long way to allowing more people to access justice.
.
KwaZulu Natal had also proposed, in relation to clause 3, that a new sub-clause be inserted relating to a fee agreement.
.
The Department responded that clause 3 dealt with the purpose of the Bill in broad terms, and from a legislative drafting point of view, should not contain detailed issues. The matter of fee agreements was dealt with in clause 35.
.
Clause 4.
Mr Bassett outlined the changes proposed for clause 4.
.
Eastern Cape said that the present composition of the Legal Practice Council (the Council) was seen as tampering with the  independence of the profession and the clause must be reviewed. The Eastern Cape also proposed that separate regulatory boards must be established for the different professions; one for those carrying out the practices of advocates and one for those practising as attorneys. .
.
The Department responded that this proposal would be a perpetuation of current divisions, which the Bill was seeking to address. The two categories of legal practitioners should rather strive to work together. The Council would, when determining norms and standards, have to recognise the differences in these two areas of speciality. Moreover, clause 23(7) already allowed Provincial Councils to establish committees which may consist of only attorneys or only advocates, to deal with matters relating exclusively to the attorneys or advocates professions respectively. .
.
Gauteng and Limpopo had proposed that the Council must be subsidised by government. The Department, however, responded that this would be seen as infringing on the independence of the profession, because then it would have to be accountable to government regarding the use of public moneys. At the moment, advocates and attorneys funded their own professional bodies. There were fears that with government funding, there would be infringements on the independence of the profession.
.
Clause 5.
Eastern Cape and Limpopo proposed that clause 5 should be amended by the inclusion of a new sub-clause referring to “protect and promote the independence of the profession”. The Department responded by saying that clause 3(c) already referred to the importance of the independence of the legal profession, as did also the Preamble and clause 5(e).
.
Free State and KwaZulu Natal proposed amendments to clause 5(g), to replace the word “determine” with “monitor”. In response to this suggestion, the Department pointed out that the Council was intended to set up norms and standards. Its role would therefore be to determine the issues in question.
.
Clause 6.
Limpopo had proposed, in relation to clause 6(1)(b)(iv), that provision should be made for an honorarium payable to Council members and committee members. The Department responded by referring Members to the wording of clause 6(a)(xiv) and 2(a),(c),(d) and(e).
.
Gauteng and Limpopo, with regard to clause 6(4)(b) had proposed that the fees should be prescribed by the Fund in consultation with the Council. This clause conflicted with clause 63(1)(f)(i). The Department noted that the Council already prescribed this, in consultation with the Board.

Clause 6.
Limpopo proposed that clause 6(5)(a) should specify that visits could be conducted to, inter alia, evaluate training and the LLB curriculum. The Department felt it preferable not to attempt to delimit the reasons for any visits.

Limpopo proposed that in clause 6(5)(i) the Minister must make the decision in consultation with the Council. The Department said that it would have no objection to that.

Clause 7
Gauteng proposed that in clause 7(1)(a), there should be a reference to 20 practitioners, and equal representation between the two branches of the profession, thus being divided into ten advocates and ten attorneys. The Department responded that, firstly, the Council should not be too large. In relation to the numbers, it was explained that the current numbers were based on the ratio between attorneys and advocates in the country. At the moment, there were approximately 20 000 attorneys and 5 000 advocates in the country.
.
Limpopo, in relation to clause 7(1)(b), had proposed that there should be only one teacher of law on the Council. The Department said that this was a point that the Committee would have to decide upon. If the numbers of teachers of law were reduced, it would result in a Council of 22 members, and the even number may impact on the decision-making process.

Northern Cape had proposed the insertion of a new sub-clause which provided that female practitioners must be proportionally represented on the Council. The Department pointed out that clause 7(2) already provided for broad representation principles.
.
Gauteng proposed there must be only one or no ministerial appointees, and not the three presently mentioned in the Bill. The Department responded that three persons nominated by the Minister could never dominate a Council of 23 persons. .
.
Eastern Cape had proposed that clause 7(1)(b) should provide that one of the representatives from the academic profession must be a Dean, and one should be a teacher of law designated by teachers of law. To this, the Department pointed out that it was not clear how and by whom a teacher of law would be nominated and delegated. It was felt preferable to leave this to be dealt with in the regulations, which would also enhance fairness of the process. .
.
Northern Cape proposed that the Bill, in clause 7(1)(b) must require that teachers of law should have appropriate qualifications. The Department thought it already implicit that teachers of law appointed to the universities would have to have the appropriate legal qualifications.
.
KwaZulu Natal proposed that clauses 7(1)(b),(c),(d) and(e) should be deleted, as they infringed on the independence of the profession. The Department responded that the reason for the inclusion of these representatives was that all were regarded as having a role to play, with specific skills and knowledge in the broader areas relating to the practice of law. Mr Bassett also repeated that the three Ministerial appointees would not be able to dominate a Council consisting of 23 members.
.
KwaZulu Natal had also proposed that the representation in clause 7 should include a reference to two persons appointed by the legal expenses insurance sector. The Department cautioned again that the intention was to keep the Council as broadly representative as possible, but not to bloat the numbers. One of the Ministerial appointees could well come from that sector.

Ms Wilma Louw, State Law Adviser, Department of Justice and Constitutional Development,
.
The Department of Justice and Constitutional Development responded by saying that the intention was not to have a Council with too many members. One of the Ministers appointees could come from this sector.

Clause 14.
Ms Wilma Louw, State Law Advisor, Department of Justice and Constitutional Development, continued with the presentation of the changes proposed and the Department’s responses.

Mpumalanga and Limpopo, in relation to clause 14, had proposed a change in wording that would eliminate the role of the High Court when the Council was to be dissolved, and allow for the Minister to dissolve the Council.

They also proposed that there be a new insertion that provided that the majority of the interim Council must be legal practitioners.
.
The Department responded that the dissolution of the Council would be an extreme measure, and because of the circumstances that could give rise to this and the fact that it could have a bearing on the independence of the legal profession, it was advisable to maintain the High Court`s role. The interim Council could only exist for a maximum period of six months. The Minister should be able to appoint specialists in the fields necessary to address the specific challenges that would have given rise to the dissolution.
.
Limpopo had proposed that the interim council referred to in clause 14(4) must have a limited lifespan. The Department reiterated that in terms of clause 14(4)(b), the lifespan was already limited to a maximum of six months.

KwaZulu Natal had proposed that the whole of clause 14, which dealt with the dissolution of Council, be deleted. The Department said that this clause had been inserted as a “safety measure” because nobody could foresee what the future held, and provision should be made for all eventualities.

Clause 17
KwaZulu Natal had proposed that advocates must have a veto right in matters pertaining to advocates, being dealt with under clause 17. Ms Louw repeated the earlier comments about the representation of the two branches of the profession. There were 22 000 attorneys in the country and only 5 000 advocates, and the Bill had been crafted so that democratic principles should apply.
.
Eastern Cape and Limpopo proposed that clause 17(1) should provide that the majority of the members present must constitute a quorum. The Department stated that this was a matter that the Committee would have to consider but there was nothing wrong in law with that proposal.

Clause 20
In respect of clause 20(2), Limpopo proposed that the Council should decide the size of its executive committee. The Department responded that this point had been debated in the National Assembly, when the Portfolio Committee on Justice and Constitutional Development was dealing with the Bill. It had been suggested that the size of the Executive Committee should be determined in law, in order to ensure that the size of the committee was contained.

Clause 22.
Gauteng had proposed that clause 22(1)(b) should also make specific provision around feasibility.
The Department responded that this wording could be considered.

Clause 23
Gauteng and Limpopo had proposed that clause 23 should make provision for the setting up of nine provincial councils, right from the date of operation of the Bill as an Act. The Department pointed out that this was not actually prohibited, but only a limited number had been written into the Bill from the start, because the Council would have to decide on whether it wished to have nine provincial councils, depending on resources.

Limpopo proposed that clause 23 should provide that the Council may permit a committee to sub-delegate a power. The Department responded that this point could be considered.

KwaZulu Natal and Gauteng proposed the insertion of a new clause (23A). This would mean the creation of two chambers, one specifically for the attorneys, and one specifically for the advocates. The Department said that the objection to this, although suggestions were made to this effect at the Portfolio Committee, was that the majority saw this as a perpetuation of the current divisions which the Bill sought to address. Ms Louw repeated that the two categories of legal practitioners should strive to work together. The Council would, when determining norms and standards, have to recognise the differences in the two areas of speciality. Moreover, it was pointed out that clause 23(7) already allowed Provincial Councils to establish committees, which may consist of only attorneys or only advocates, to deal with matters relating exclusively to the attorneys’ or advocates’ professions respectively.
.
KwaZulu Natal proposed that clause 24(3)(c) should include corporate lawyers and state lawyers, so that they could appear in court. The Department, however, responded that this Bill sought to regulate those in private practice only, and not corporate lawyers or legal advisers in the public sector. Should the Bill allow rights of appearance to corporate lawyers, to appear in Court on behalf of their employers, this would offend against the specific roles of attorneys and advocates who were admitted as officers of the court, and who were required to display the utmost independence in carrying out their duties. A conflict of interest may arise where a corporate lawyer acted in Court, on behalf of his or her employer.

Clause 24.
In regard to clause 24(3), Limpopo had proposed an amendment that the Minister should act in consultation with the Council. The Minister should also take into account matters of reciprocity. The Minister should take into account the risk of over-saturation of the market and the need to protect the interests of the South African practitioners and public. In addition, it was proposed that any regulations must be published in the Gazette.
.
The Department responded by pointing out that this clause was concerned with foreign policy of government, and a private body (like the Council) should not have a final say in the matter, which was why the clause specifically referred to consultation also with the Minister of Trade and Industry. The Council would advise the Minister, as it was in a strong position to determine the issues raised. It was explained that the regulations were in any event published in the Government Gazette, as a matter of course, in terms of the Interpretation Act.
.
KwaZulu Natal had proposed an amendment for clause 24(2)(d), saying that applications for admission must be served on the Provincial Council. The Department responded that the Council could delegate certain functions to provinces, and probably would do so in this instance.

Clause 25
KwaZulu Natal, in relation to clause 25(5), had proposed the substitution of “candidate attorney” with “candidate legal practitioner”. The Department pointed out that clause 25(5) was a restatement of the existing statutory provision in the Attorneys Act, relating to candidate attorneys. There was currently no such equivalent statutory provision in respect of candidate advocates (pupils), and this was something that would have to be debated upon in the Transitional National Forum (the Forum). For this reason, it was not considered advisable to change this specific wording at this stage.

Limpopo proposed that clause 25(3) must give specific recognition to existing certificates of right of appearance in High Courts. The Department noted that this was already handled in the transitional provisions, and referred Members to clauses 114(2)(a) and (c).

Clause 26
Limpopo had proposed amendments to clause 26(1)(b), to make it clear that a South African university must certify a foreign degree as being similar to a South African LLB, in consultation with the South African Qualifications Authority (SAQA). The Department responded that this amendment could be considered.

Northern Cape, in regard to clause 26(1)(c), had proposed that the Minister must, in consultation with the Council, prescribe the practical vocational training requirements for candidate legal practitioners. The Department responded to this that clause 94(9)(2)(a) already provided that the Minister made these regulations after consultation with the Council. Moreover the regulations must be approved by Parliament before they could be promulgated. Training of practitioners was a matter in which government had a vested interest. If the regulations had to be made in consultation, the Minister could have difficulty in achieving the objectives of transformation that were envisaged by this the Bill.
.
Gauteng proposed that clause 26(1) include a reference also to the B Proc degree. The Department noted that the transitional provisions, clause 114, said that this degree was recognised, in the case of practitioners already admitted.

KwaZulu Natal proposed that clause 26(1)(b) be revisited. The Department responded that the problem as highlighted by KwaZulu Natal was essentially a practical issue, and it would have to be addressed in the application of this provision.
.
KwaZulu Natal proposed that, in relation to clause 26(1)(c), the professions must prescribe the requirements for practical vocational training. The Department responded that similar provisions were found in the existing Attorneys Act. The Minister, however, had an interest in practical vocational training. The Council would play a role in this regard in any event, and any regulations made by the Minister in this regard must also be approved by Parliament. .

Clause 29.
Northern Cape, with reference to clause 29(1), proposed that the Minister must, in consultation with the Council, prescribe the community service requirements for candidate legal practitioners. The Department responded that the matter was dealt with under clause 94(2)(a), which stated that the  Minister would be making these regulations after consultation with the Council. Community service performed by legal practitioners was a matter in which Government had a vested interest. If the regulations had to be made in consultation with the Council, the Minister could have difficulty in achieving the objectives of transformation. Once again, it was pointed out that the regulations must be approved by Parliament before they could be promulgated.
.
Limpopo proposed, in relation to clause 29(1)(b), that practising practitioners should not be obliged to do community service. The Department responded that the Council would have the power to exempt a practitioner making an application for exemption from performing community service. The detail regarding what should be recognised was as yet not determined.
.
Free State, with reference to clause 29, proposed that community service must be clearly defined. The Department’s response was similar to that expressed earlier, as it explained that due to the complexity, and the need to take input from numerous stakeholders and role players, it was impossible to define it more accurately at this stage. This one aspect should not delay the passing of the Bill. It was one of the issues that could be looked at and further deliberated on by the Forum proposed in Chapter 10 of the Bill.
.
KwaZulu Natal and Gauteng had proposed that a new clause should be inserted to deal with pro bono work as it felt that the current clause was too vague. The Department pointed out that pro bono work was distinguishable from community service. Nothing would prevents the Council from providing for pro bono work..
.
Limpopo proposed, in relation to clause 29(2)(f), that this discretion must be exercised in consultation with the Council. The Department reiterated its earlier remarks about the clauses in the Bill that specified what was to be done “in” or “after” consultation and said that it was felt that using “in consultation” in relation to matters that were directly linked to transformation aspects may unduly fetter the Minister.

Clause 32
Limpopo, with reference to clause 32, proposed that the practitioner must identify himself as a practitioner with or without a Fidelity Fund certificate, by displaying that Certificate. The Department responded that the Code of Conduct or Rules to be made by the Council could deal with this point and it was not necessary to make provision for it in the Bill. This was a day-to-day administrative matters more appropriate to a Code or Rules.

Clause 34
KwaZulu Natal proposed there should be only one profession: namely an Advocate with Fidelity Fund certificate. It had proposed that the attorneys’ profession must be abolished altogether. The Department reminded Members that the whole Bill was premised on the continuation of the two categories of legal practitioners, and this was done at the request of the legal profession itself. This was a concession made during the preparation of the Bill, before its introduction into Parliament.

Gauteng, in relation to clause 34, had proposed that the referral rule should be retained, and clause 34 therefore needed to be amended. The Department responded that this particular provision in clause 34 was intended to open up access to justice, and to reduce costs, by allowing practitioners who so wished to take instructions directly from the public.

KwaZulu Natal and Gauteng proposed, in relation to clause 34(1)(a), that a provision should be inserted to give a person the right to appoint an agent to brief an attorney. The Department responded that this was already a general right – for instance, a power of attorney might be drawn in relation to a child – but in most instances it was necessary for the attorney and client to conclude an agreement directly.

KwaZulu Natal proposed that clause 34(1)(b) must provide explicitly that communication between a legal practitioner and his/her client was privileged. The Department responded that this was a general rule and need not be in the Bill.
.
Gauteng had proposed, in relation to clause 34(2), that any mention of Legal Aid South Africa must be excluded for criminal cases. The Department referred Members to clause 34(2)(c) which covered the position.

Gauteng proposed that in relation to clause 34(2)(b), the regulation of these advocates’ trust accounts must be spelt out in the Bill. The Department explained that the provisions of Chapters 6 and 7 of the Bill would apply equally to advocates who chose to take direct instructions from the public and hold a Fidelity Fund certificate and trust account.

Mpumalanga proposed that clause 34(5)(e) must be amended to provide for all attorneys in the employ of an organ of state. The Department repeated that this Bill was applicable to practitioners in private practice only.
.
KwaZulu Natal proposed that clause 34(7) must be amended to provide for shareholders who were not lawyers. The Department, however, pointed out that this would be in conflict with the explicit provisions of clause 34(7)(a).

Clause 35
Mr Jacob Skosana, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development, took over the presentation of the proposals and the Department’s response. He noted that the Free State had proposed that any variation on fees, in terms of clause 35, was impractical. The Department was unsure what exactly the Free State meant by this.

KwaZulu Natal, with reference to clause 35, proposed that practitioners must be allowed to advertise. The Department said that this was a matter that would still have to be decided upon by the Council, when drawing the Code of Conduct.

Limpopo thought that the cost estimate notice requirements, as set out in clause 35(7), were too rigid. It suggested that the phrase “to the best of his/her ability, in the light of the available information” should be inserted. It did not feel that verbal explanations should always be necessary and these should be allowed to be waived. Mr Skosana responded, in relation to the first point, that the wording already implied that any information that was available would have to be taken into account. He also cautioned that this provision should not be watered down and that a practitioner should be compelled to give all information to the client.

Gauteng and Limpopo had proposed, in relation to clause 35(3), that the practitioner must also be allowed to negotiate fees. The Department said that the difficulty with this was that a practitioner might seek to influence an ignorant client.

Gauteng felt, in relation to clause 35(1) that the Rules Board should be allowed to prescribe only for litigious fees, and not for non-litigious. However, the Department indicated that this was a temporary measure, pending the report to be submitted on the whole question of fees by the South African Law Reform Commission (SALRC).

Limpopo had proposed that the whole of clause 35 must be revisited. In its view, the clause was watering down the Contingency Fees Act. Mr Skosana said that the Department and government as a whole were very concerned about high legal fees and the cost of justice, and the Bill was seeking to address the challenges as far as possible.

Clause 36
KwaZulu Natal had proposed some technical amendments to clause 36, which included that the two chambers should develop their own codes, one for advocates and one for attorneys. In response to this, the Department referred to the comments that it had already made in relation to the proposals for the new clause 23A.

Clauses 37 to 40
Northern Cape had proposed a deletion of clauses 37 to 40 altogether. It suggested that, instead, the South African Law Reform Commission and Council must develop a disciplinary code to deal with all the complaints of misconduct. The Minister must publish the uniform disciplinary code in the Gazette.  The Department responded that disciplinary was one of the key objectives in the Bill, and was linked to aspects of transformation. For this reason, it was considered more advisable to provide for it in the primary, rather than the secondary legislation.

Clause 37
Limpopo, with reference to clause 37, had proposed that the Council should be able to delegate the power to investigate minor complaints to legal officers. The Department responded that an “investigating committee” could consist of more than one person.

Clause 39.
Limpopo proposed, for clause 39(3)(b), that the Chairperson should be able to delegate the signing of the subpoena. The Department responded that this could be considered.

Limpopo, in clause 39(9), suggested that the reference to “superior court” should be replaced with “high court”. The Department pointed out that this clause should not be limited to making mention of the High Court only as the Supreme Court of Appeal could also be referred to.
.
Clause 40
KwaZulu Natal, with reference to clause 40(3), proposed that the provision for compensation should be rejected. It was worried that this, amongst other reasons, would usurp the court’s function. The Department stressed that the existing provision did actually already recognise the court’s function and that was why it was requiring that any compensation orders must be confirmed by the court. .
.
Limpopo proposed, in relation to clause 40(3)(a)(i), that the order for compensation must not be subject to the court’s confirmation.
.
Eastern Cape and Limpopo had proposed, in general, in regard to clause 40(3), that the disciplinary committee must not be allowed to order a practitioner to pay compensation. This was covered in clause 55. If such compensation was payable, then it should be sanctioned by the court. In addition, it was said that the disciplinary committee should not be able to suspend a practitioner, or withdraw his/her Fidelity Fund certificate. That decision must reside with the Council only.

The Department explained firstly that clause 55 referred to the Legal Practitioner’s Fidelity Fund’s liability to compensate a client for any theft by a practitioner, so it had a role similar to theft insurance. The Fidelity Fund was not able to make any compensation for damages or suffering. Clause 40 sought to provide for the latter aspects, and did provide that any such order must be subject to confirmation of the court. This was an interim measure for damage control, intended to give protection to the clients and public, pending the Council’s final decision and steps on these matters.

Clause 44
Mr Raj Daya, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development, continued to present the suggestions for amendments and responses from the Department.
.
Limpopo had suggested, in regard to clause 44(2), that no member of the public should have the right to bring applications for the suspension or striking off of legal practitioners. The Department responded that it was the right of any individual to approach the High Court on any matter with any request.

Clause 47
Northern Cape, in relation to clause 47(1), had proposed that the President should appoint the Ombud in consultation with the Chief Justice. The Department said that the wording of this clause had tried to mirror the wording of the Judges’ Remuneration and Conditions of Employment Act of 2001, which provided for all aspects relating to the appointment of judges discharged from active service.
.
KwaZulu Natal had proposed that, in relation to clause 47(1), the Council must recommend the Ombud. The Department however responded that the Legal Services Ombud was intended to be an independent functionary, who must be a fit and proper person, and if Council had any role in the appointment process, it would detract from the independence of the Ombud.

Limpopo had proposed that the Chief Justice must appoint the Ombud. The Department repeated its earlier comment about the appointment procedures for judges discharged from active service, in line with the Judges’ Remuneration and Conditions of Employment Act.

Clause 50
Northern Cape proposed that the President, in relation to clauses 50(1) and (2),  must appoint the acting Ombud in consultation with the Chief Justice. Mr Daya said that his previous comments in relation to the wording relating to the appointment of judges discharged from active service.
.
Eastern Cape and Limpopo, in reference to clause 50(2) proposed that the Acting Ombud must also be a former judge. The Department responded that since this was to be regarded as only a temporary position, the President should have some leeway in making this appointment until a suitable retired judge was found. If this provision was too strict, it could stifle the working of the office of the Acting Ombud.
.
KwaZulu Natal proposed that in clause 50(2), it was necessary to amend the word “judge” and the Department agreed.

Clause 53
The Free State had proposed, in relation to clause 53, that the Legal Practitioners’ Fidelity Fund should not be a juristic person. Mr Daya pointed out that the Fund (currently known as the Attorneys Fidelity Fund) had always been a juristic person, and that due to the nature of its functions, it should remain such.

Clause 55
Limpopo proposed that the Fund’s liability should not be limited. The Department, however, cautioned that if it was not limited, the entire Fund could be wiped out by a single claim, which had happened in New Zealand a decade ago.
.
Clause 56
Eastern Cape and Limpopo had proposed that a definition should be provided for members of “a household” in clause 56(1)(a). The Department referred Members to clause 56(9), which dealt with the issue.

Gauteng proposed that the rate of interest must be determined in relation to clause 56(2)(a). The Department said that it would like to consult with the Board of the Fund in this regard.

Clause 57
In relation to clause 57(1)(h), Gauteng proposed that the Board should not have to consult the Council. However, the Department noted that it was felt that the profession did need to be consulted and the Council was representative of the profession

Clause 58.
Limpopo, with reference to clause 58, proposed that the Fund should also reimburse a client if the attorney or person who worked for him/her as estate agent stole funds. The Department, however, pointed out that the Fund’s responsibility to reimburse related to the attorneys’ trust account, and the relevant practitioner would be responsible to ensure that the trust account remained intact, irrespective of the nature of the business being conducted.

Clause 60
Limpopo proposed that the Council should also be exempt from tax laws. The Department pointed out that the Fund was a non-profit body, with the function of protecting the public. This was distinguishable from the Council, which was a regulatory body, in a similar position to the regulatory bodies of many other professions.

Clause 62
Limpopo proposed, in relation to clause 62, that reference should be made to a body elected by the Council. However, Mr Daya responded that the Bill already provided for this.

Gauteng and Limpopo had proposed, in relation to clauses 63(1)(e) and(g), that the Board should not have to consult with the Council. Mr Daya said that the Bill was actually silent on this point.

Clause 64
Free State, referring to clause 64(2), proposed that Legal Aid South Africa must have a member on the Fidelity Fund Board. The Department responded that Legal Aid South Africa was a government institution. The attorneys working for Legal Aid were not required to be in possession of Fidelity Fund certificates, as they did not handle trust funds. Legal Aid South Africa thus had no vested interest in the Fund.
.
Limpopo proposed, for clause 64(2)(e) that a committee member should be able to become a Board member on the Fund. Mr Daya pointed out that the Board of the Fund, and the Council should be maintained as two different and independent regulatory bodies and there was no need to have cross-referencing of membership.

Clause 65.
Limpopo proposed that the Ministerial appointees should not be Chairperson or Deputy Chair as referred to in clause 65. The Department responded that this decision was left to the Board when electing these officials.

Clause 78.
Gauteng and Limpopo felt that the period set out in this clause was too short. The Department noted that clause 78(2) did allow for an extension of the period.

Clause 79
Limpopo said provisions should be made for the Fund to waive the requirements of clause 79. The Department responded that the Bill did not prohibit the Fund from waiving this.
.
Clause 80
Gauteng proposed that another provision be inserted to allow a client to institute further action against the attorney for loss in excess of that covered. The Department responded that it would have to consult with the profession on that suggestion.

Clause 84
Free State proposed that attorneys who were also estate agents should be exempted from holding Fidelity Fund certificates and that provision should be made for their clients. The Department responded that all attorneys referred to in clause 84 were obliged to hold Fidelity Fund certificates covering their attorneys’ practice, irrespective of any other business that they may be engaged in.

Clause 86
Gauteng proposed that the clause must be amended to provide for “5% or such percentage as may be determined from time to time by the Minister, on recommendations of the Board”. The Department responded that it would need to consult with and obtain the views of the Board on this proposal.
.
Clause 93
Eastern Cape proposed that clause 93 be amended, replacing the wording “guilty of an offence” with a reference to “commits an offence” as it suggested that the word “guilty” implied that a person would not be regarded as innocent until proven guilty. The Department noted that it would have no objection to the replacement of this wording.

Clause 94
Mr Skosana continued to present the suggestions for amendments and the Department’s response

KwaZulu Natal had proposed that clauses 94(1)(a)(i) and (j) should be deleted. The Department responded that Government did have an interest in the matters set out in these clauses.

KwaZulu Natal, Gauteng and Limpopo had proposed, in relation to clause 94(2), that all matters be decided upon “in consultation”. However, the Department indicated that the government clearly had an interest in all f these matters, and should not therefore be obliged to reach agreement with the Council before being able to act.
.
Clause 95
KwaZulu Natal proposed that this clause be revised, in line with the Chamber structure that it had proposed earlier. The Department responded that the Council should rather function as a whole unit.

Northern Cape proposed the rewording of clause 96(1)(c), to provide that to fit and proper persons with relevant knowledge would be appointed. The Department responded, similar to its earlier response on a similar suggestion, that it was implicit in the wording already that only fit and proper persons with the right and relevant knowledge would be appointed.

In response to questions raised as to why the Minister’s view was to be taken into account, Mr Skosana pointed out that the government would be funding the Transitional Forum, as it was a temporary institution, and therefore government  had an interest in who was appointed.

Clause 96.
KwaZulu Natal proposed again that two persons be included in the Forum who represented the interests of the legal expense insurance sector. However, it felt that it would actually be unnecessary to have the Forum at all if its proposals on the two-chamber model were accepted. It also proposed that the Forum should have equal representation of advocates and attorneys, if it were to be proceeded with. It also pointed out that Advocates for Transformation were included in the General Council of the Bar at the moment, and should thus have their own representation also on the Forum.

Mr Skosana indicated that this Forum was intended to be a temporary body that would deal with matters pending the establishment of the first Council, and that it was desirable that as many roleplayers as possible should be involved, to enable it to reach its objectives within a limited timespan.

Clause 96
KwaZulu Natal had proposed that advocates must have a veto right in matters pertaining to advocates. The Department responded that the Forum’s mandate related to matters applicable to both attorneys and advocates.

KwaZulu Natal had further proposed that the Minister should be allowed no representatives, or at most only one, on the Forum. Mr Skosana repeated that since the Forum was being funded by government, the Minister had a vested right in the Forum. must have no representatives or only one.
.
Clause 98
With reference to clause 98(2)(b), Limpopo had proposed that the Department of Justice and Constitutional Development must pay for the persons mentioned in the clause. The Department responded that this must be done “in consultation” with the Director General of the Department.

Clause 100
Free State and Limpopo had proposed that the Chairperson and Deputy Chairperson must be practising legal practitioners. The Department responded that only those persons most suitable to carry out the mandate of the National Forum should be appointed. Mr Skosana repeated that this was a temporary structure sponsored by government.

Clause 109
KwaZulu Natal proposed that the Minister should not be allowed to make the regulations referred to in the clause. However, the Department repeated that the Forum was funded by government and therefore the Minister should be permitted to intervene if the Forum was not able to achieve its mandate.

Clause 112(2)
KwaZulu Natal proposed that the four year B Juris degree must be included. Mr Skosana pointed out that the B Juris degree was not even recognised in the current Attorneys Act as qualifying a person to be admitted as an attorney so it was not necessary either to make reference to it for the future or to deal with it as part of the transitional provisions.

Clause 114
KwaZulu Natal proposed that advocates who had not passed the General Council of the Bar (GCB) examinations or fulfilled the requirements for membership of the GCB must be obliged by the Bill to do so. The Department responded that this was a matter that the Council would have to decide upon. The Bill envisaged that the Council would have to deal with determination of several issues around examinations and admission requirements of legal practitioners in the future.

Clause 117
KwaZulu Natal felt that the heading of clause 117 was incorrect, and the reference to “voluntary associations” would have to be deleted. The Department agreed on this point.

Eastern Cape was concerned that existing voluntary associations were to be abolished. The department pointed out that the heading was incorrect, and the Bill was not dealing with voluntary associations. People would still be able to form voluntary associations, as this was a constitutional right.

Discussion
Mr A Matila (Gauteng, ANC) asked about the issue of a former judge as referred to in clause 50. .
.
Mr Skosana explained that the Bill provided that the Ombud must be a judge who had been discharged from active service.

Mr Matila was concerned that there should still be provision made for voluntary associations.

Mr Daya responses that clause 117 spoke to the voluntary associations. They would, however, exist outside the Bill in the sense that the Bill did not seek to regulate them in any way.

Mr Matila said that the Bill should be accommodating all areas raised in the submissions from the provinces and he asked that the Department’s representatives should also consult with the State Law Advisers and Parliamentary Legal Advisers on the proposals.

The Chairperson noted that the amendments proposed needed to be supported by five provinces.

Mr L Nzimande (KwaZulu Natal, ANC) said that the Committee, in order to move forward, should ask each province to indicate whether it would agree on the amendments proposed and would support the Bill.

Mr M Mokgobi (Limpopo, ANC) agreed with Mr Nzimande.
.
Mr Matila said that his province, Gauteng was satisfied and supported the Bill, and was awaiting a final mandate.

Mr Nzimande said that the Committee had to take note of the major points raised, and some of the points raised by the provinces would need then to be captured in the Bill. technicalities. He emphasised that KwaZulu Natal wanted to receive a full record of the proceedings in this Committee. He was generally in support of the Bill.

Mr Mokgobi indicated that Limpopo was satisfied with the Bill.
.
Ms M Boroto (Mpumalanga, ANC) said that the responses from the Department had been satisfactory and thanked the Department’s officials for their presentation. She noted that most of the amendments proposed by Mpumalanga had been of a technical nature.  However, she said that the responses on the Ombud in the presentation were not quite clear.

Mr J Gunda (ID, Northern Cape) welcomed the explanations, and said that his province would be supporting the Bill, as would be indicated in the final mandate.

Mr H Groenewald (DA, North West) indicated that his province would be supporting the Bill.
.
Mr D Joseph (DA, Western Cape) said that the Western Cape still felt that it was not able to support the Bill as presently worded.

The Chairperson noted that the Committee would be meeting on the following Wednesday for consideration of the final mandates on the Bill.
.
The meeting was adjourned.