The Legal Aid Bill came as a post Constitution replacement of the 1969 Act. Some amendments had already been inserted into the 1969 Act particularly pertaining to the recovery of fees and the criteria determining provision of Legal Aid services as there had been many court challenges on that issue. This completely new Bill had been anxiously anticipated by Legal Aid South Africa. It was hoped that the Bill would have been passed by the previous parliament but that was not practically feasible. The Legal Aid Bill was the product of a task team comprised of representatives of the Department from the Legislative, Legal Advisory Services, Court Services and Policy Chief Directorate branches as well as representatives of Legal Aid South Africa’s current Board. Clause 19 introduced a novelty pertaining to client privilege. A private legal practitioner was to – when requested by LASA – grant access to the information and documents contained in the file relating to the person in question. This was for the sole purpose of conducting a quality assessment of the work done by the legal practitioner. Clauses 15 and 16 dealt with the appointment and functions of the Chief Executive Officer, where all the provisions were new aspects not provided for in the Act. A new aspect introduced by the Bill was a reference to certain aspects of the Prevention of Organised Crime Act (POCA).
The Attorney’s Amendment Bill is an interim measure pending the implementation of the Legal Practice Bill. It sought to terminate the continued existence of the Law Societies still operating in the former TBVC states and incorporate them into the mainstream law societies. 1998 saw the Act amended to afford attorneys practising in the former Bophuthatswana (Bop) and Venda the ability of obtaining indemnity cover under the Attorney’s Fidelity Fund as they were deemed to be members of the Law Society of the Northern Provinces (LSNP). The LSNP was granted concurrent jurisdiction with the law societies of Bop and Venda in disciplinary matters. Yet, problems have proved persistent with little cooperation from the Bop Law Society. The Supreme Court of Appeal had continually reprimanded the Bop Law Society over its reluctance to attend to the legitimate complaints by the public.
In lieu of the enactment of the Legal Practice Bill which was to rationalise the legal profession, the Department and Parliament had not been in favour of ad hoc amendments. However, the Department had continued to receive representations from the LSNP and the Law Society of South Africa (LSSA) requesting the urgent amendment of the Act in the interests of the legal profession and to protect the clients of attorneys in the former Bop. Conversely, these problems had not manifested in the former Venda.
The Attorney’s Amendment Bill can be construed as a short term Bill. The intention of the Attorney’s Amendment Bill would then be to deal with urgent matters so that of the attorneys from Bophuthatswana and Venda that are not part of the Law Society of the Northern Provinces (LSNP).The Legal Practice Bill was passed and was still with the President for assent. Yet, there were delays in the form of representations from the Democratic Alliance about concerns surrounding the processes followed in the National Council of Provinces. Thus, the Office of the President was looking into the matter. In addition, on assent, most of the provisions of the Legal Practice Bill would not be able to come into effect immediately.
The Members raised questions about the services of Legal Aid South Africa and its objects; victim support and paralegal recognition. It was noted that there had been a lacuna about legal aid for commissions of inquiry, and Member asked if this was covered sufficiently by the provisions of the Bill. On the Attorney’s Amendment Bill, clarity was sought as to what impact the Minister now appointing the Board had. Questions about the rationalisation of law societies were addressed and there was a resolute commitment to a speedy passing of a long overdue Bill.
The Chairperson commenced the meeting by requesting a political briefing on both Bills from the Deputy Minister of Justice and Constitutional Development, Mr John Jeffery.
The Deputy Minister recognised that the practice had been that officials would give the Committee briefings on Bills but felt that as the Bills emanated from the Executive branch of government, this practice should be altered and he would thus provide some insight on each Bill. He noted that there was not much controversy with either Bill. In terms of the Legal Aid Bill, it came as a post Constitution replacement of the 1969 Act. Some of the needed provisions had already been inserted into the 1969 Act particularly pertaining to the recovery of fees and the criteria determining provision of Legal Aid services as there had been many court challenges on that issue. The Bill had been anxiously anticipated by Legal Aid South Africa. It was hoped that the Bill would have been passed by the previous parliament but that was not practically feasible.
The Attorney’s Amendment Bill may be construed as a short term Bill. The Legal Practice Bill was passed and was with the President for assent. Yet, there were delays in the form of representations from the Democratic Alliance about concerns surrounding the processes followed in the National Council of Provinces. Thus, the Office of the President was looking into the matter. In addition, on assent, most of the provisions of the Legal Practice Bill would not be able to come into effect immediately. There is a requirement for a transitional council to be established to resolve standing issues between attorneys and advocates. The council would have a time frame of around three years to deal with such issues. Hence, the Legal Practice Bill would fully come into effect in four years’ time. The intention of the Attorney’s Amendment Bill would then be to deal with urgent matters such as that of the attorneys from Bophuthatswana and Venda that are not part of the Law Society of the Northern Provinces (LSNP). The latter was eager to resolve this matter such that there was talk of litigation to compel government to expedite the process.
Adv Lawrence Bassett, Chief Director : Legislation Development, Department of Justice and Constitutional Development clarified that the Bill was mainly about governance and opined that the provisions were relatively clear.
Legal Aid Bill [B8-2014]: briefing
Ms Wilma Louw, State Law Advisor, DoJCD, stated that legal aid is currently regulated by the Legal Aid Act, 1969 (Act 22 of 1969). The Act is outdated and requires revision in its entirety to replace it with a new Act to streamline its application. The Legal Aid Bill was the product of a task team comprised of representatives of the Department from the Legislative, Legal Advisory Services, Court Services and Policy Chief Directorate branches as well as representatives of Legal Aid South Africa’s current Board.
Clause 1 dealt with definitions. Currently the Act only defined Board and Minister. Several new self explanatory definitions were inserted in the Bill. Clause 2 detailed the establishment of Legal Aid South Africa as a public entity that is governed by a Board of Directors. In clause 3 the objects of Legal Aid South Africa (LASA) were set out as rendering and making legal aid and legal advice available, providing legal representation to persons at State expense as per the Constitution, the Act and any other law. Finally LASA was to provide education and information concerning legal rights and obligations. Clause 4 specified the powers and functions of the Board. These included public awareness programmes which were a new function. Clause 5 introduced a new provision that required LASA, its directors, its employees and agents must serve impartially and independently, in good faith, without fear, favour, bias or prejudice. Clause 6 entailed the composition of the Board. There would be a reduction of members from the current 18 to 14 members in keeping with King III good governance principles. All members would be appointed by the Minister. Clause 7 defined the qualifications for membership of the Board as persons collectively broadly representative of the diversity of the South African population, being fit and proper persons of South African citizenry. Further, it was required that members have skills including business management, information technology, legal services, corporate governance, accounting or auditing skills and community based knowledge relevant to legal aid. Members must not have been convicted of theft, fraud, perjury or an offence under the anti-corruption legislation of 2004. Neither should they have been convicted post Constitution of an offence referred to in Schedule 1 of the Criminal Procedure Act 1977.
Clause 8 specified the Chairperson of the Board as well as the Deputy Chairperson, the latter to be designated by the Minister. Clause 9 dealt with the term of appointment for the members and clause 10 with the termination of membership. Clause 11 holds that the Board must meet at least four times per year in accordance with the King III Report. Clause 12 provided for the quorum where clause 13 provided for the establishment of committees of which there was no similar provision in the Act. Clause 14 spoke to the delegation of powers by the Board. Subject to the Public Finance Management Act (PFMA) the Board may delegate any of its powers, duties or functions to any director, committee, employee or agent of LASA. Such delegation would not divest the Board of the responsibility for the exercise of the power or performance of the duty or function. Clauses 15 and 16 related to the appointment and functions of the Chief Executive Officer (CEO), where all the provisions were new aspects not provided for in the Act. Clause 17 shifted the appointment of employees from the Board (as under the Act) to the CEO in consultation with the Board, subject to clause 18. Subsequently, clause 18 set out the terms and conditions of employment.
Clause 19 introduced a novelty pertaining to client privilege. A private legal practitioner was to – when requested by LASA – grant access to the information and documents contained in the file relating to the person in question. This was for the sole purpose of conducting a quality assessment of the work done by the legal practitioner. The information would remain privileged against any other party as information between attorney and client, despite having been made available to LASA. The clause was necessary to enable LASA to do quality control and assess whether private practitioners conducted cases assigned to them in a proper manner. Under the Act, where there was a compliant, LASA could not access the case file due to the privilege rule to the detriment of the client and LASA.
Clause 20 resembled section 8A of the Act in dealing with cost recovery. Whenever legal aid has been rendered and costs become payable, it is deemed that the litigant has ceded her rights to those costs to LASA. Clause 21 regulated finances subject to the Public Finance Management Act (PFMA). Clause 22 was similar to section 3B of the Act and provided for the direction for legal aid by the Court in criminal matters. A new aspect introduced by the Bill was a reference to certain aspects of the Prevention of Organised Crime Act (POCA). Clause 23 provides for a manual which is currently called the Guide .Under this clause, the Board was to compile, review amend and approve the Legal Aid Manual at least every second year. The manual was to comprise of mainly administrative matters. The Manual and any amendments were to be submitted to the Minister who was to table them in Parliament and simultaneously give notice thereof in the Gazette. It was to take effect 60 working days after publication. The Manual and any amendments were to be published by LASA on its website and copies made available at all offices of LASA. Clause 24 on regulations required the Minister to make regulations after receipt of recommendations of the Board regarding types of matter for which aid is provided or not provided; requirements an applicant must comply with to qualify for aid; the policy relating to approval, refusal and termination of aid. Regulations were to be tabled in Parliament by the Minister at least 30 days before they were to be published in the Gazette. There was no provision in the Act for regulations. Clause 25 repealed the Act and legislation referring to the repealed Act was to be amended to refer to the new legislation.
Clause 26 comprised transitional provisions to the effect that the sitting Board members were deemed to have been appointed under the Bill and were to remain for 12 months after commencement of the new Act. The CEO and three persons referred to in clause 6(1)(d) were to become members of the transitional Board. The transitional Board was to facilitate the composition and appointment of the new Board within 12 months. The CEO that held office at the commencement of the Bill remained in office and was deemed to have been appointed in terms of the Bill and was eligible for re-appointment. Anything that was done in terms of a repealed law, which could have been done in terms of the new Act, was to be regarded as having been done in terms of the new Act. Measures regarding remuneration, pension, leave and any other terms and conditions of service continued in operation until amended or repealed by the new Act. All assets, rights, liabilities and obligations which, immediately prior to the commencement of the new Act, vested in the Legal Aid Board, were to pass to LASA on the date of commencement. The Legal Aid Guide in force on the date of commencement was to remain in force until it was withdrawn and replaced by regulations and the Legal Aid Manual. The first regulations and Legal Aid Manual were to be made and published within 24 months after the commencement of the new Act.
Adv Bassett concluded that the Bill was the result of a close collaboration between the Department and Legal Aid South Africa, with the latter being satisfied with the Bill to a great extent.
Attorney’s Amendment Bill [B9-2014]: briefing
Mr Dingaan Mangena, DoJCD State Law Advisor, said the Bill aimed to amend the Attorney’s Act 1979 (Act 53 of 1979) as an interim measure pending the implementation of the Legal Practice Bill. The Bill sought to terminate the continued existence of the Law Societies still operating in the former TBVC states and incorporate them into the mainstream law societies. 1998 saw the Act amended to afford attorneys practising in the former Bophuthatswana (Bop) and Venda the ability of obtaining indemnity cover under the Attorney’s Fidelity Fund as they were deemed to be members of the Law Society of the Northern Provinces (LSNP). The LSNP was granted concurrent jurisdiction with the law societies of Bop and Venda in disciplinary matters. Yet, problems have proved persistent with little cooperation from the Bop Law Society. The Supreme Court of Appeal had continually reprimanded the Bop Law Society over its reluctance to attend to the legitimate complaints by the public.
In lieu of the enactment of the Legal Practice legislation which was to rationalise the legal profession, the Department and Parliament had not been in favour of ad hoc amendments. However, the Department had continued to receive representations from the LSNP and the Law Society of South Africa (LSSA) requesting the urgent amendment of the Act in the interests of the legal profession and to protect the clients of attorneys in the former Bop. Conversely, these problems had not manifested in the former Venda.
Apart from the above objectives, the Bill proposed an amendment that entitled professional assistants to engage candidate attorneys under clause three. Clause 14 of the Bill increases the notice period for applications for readmission as an attorney to three months as the Act did not distinguish between notice periods for applications for admission and readmission. Clause 15(a) was intended to change the Act’s provision in section 20 so that attorneys admitted under the former homeland legislation could not appear in courts other than where they had been admitted. This was underpinned by the Constitutional Court case of Mabaso vs Law Society of the Northern Provinces and the Minister of Justice and Constitutional Development. Clause 16 was intended to do away with the requirement that the memorandum of incorporation of a practice registered as a company must state that all past and present directors of the company shall be jointly and severally liable. The amendment would ensure that such a practice is registered as a personal liability company. Clause 16 further vindicates the use of the name of a foreign firm as a trade name by local firms with arrangements with such firms. Clause 19 was directed at amending section 49 of the Act which required any action against the Attorneys Fidelity Fund to be instituted in the High Court. Clause 20 allowed for actions against the Attorney’s Fidelity Fund to be instituted in any court having jurisdiction. Clause 21, amending section 56 of the Act, provided that by resolution of their members, the existing four law societies could change their names and it demarcated the areas of their jurisdiction. The law societies of the former homelands would dissolve in accordance with regulations made under section 81 of the Act. The clause comprised transitional arrangements.
Clause 24 amended section 71 of the Act and provided that the council of a law society had the ability to enquire into alleged unprofessional, dishonest or unworthy conduct of an attorney irrespective of where or when the alleged conduct took place or whether it occurred before or after that attorney became a member of the society or not. Clause 26 aimed to extend the limitation of liability to agreements which were concluded under any law repealed in terms of clause 35 of the Bill.
The remaining clauses gave effect to the view that law societies were not necessarily bound to specific provinces; amended provisions which referred to outdated terminology; repealed former homeland legislation as well as legislation pertaining to interim measures relating to the former homelands.
The Chairperson expressed concern at the public’s perception that the justice system exists to protect the perpetrators of crimes whilst doing nothing to serve the victims. He feared that this would de-legitimise the system and sought answers that would deal with that situation. Further, in terms of restorative justice, where an offender upon release would seek reconciliation, one would find that because the victim felt they had no stake in the system such reconciliation attempts would be refused. He went on to identify the apparent lack of support for paralegals as it was thought that they could establish legal advice centres where victims would be able to enquire as to the available remedies. It was suggested that such paralegal run advice centres and law clinics would serve as an avenue for law students to complete community service. He was aware of the existence of an association of paralegals and required clarity on its role and support obtained from the LASA and DoJCD. The objects of the Bill dealt with education and public awareness. There was a broad assumption that the masses in the country understood and could utilise the Constitution to their benefit, which was not the reality. He asked Legal Aid South Africa what endeavours they had made toward public education and awareness and whether or not it should be regulated by the Bill. He asked the meaning of independence in constitutional terms within the context of interconnected yet independent organs comprising the organism of the state.
Deputy Minister Jeffery clarified that the Bill was intended to regulate the entity, Legal Aid South Africa, and not the broader subject matter of legal aid. There was a suggestion to rename the Bill more appropriately if the Committee saw fit to do so. Paralegals were initially meant to be covered by the legal practice Bill but as there were numerous other points of dispute it was subsequently removed. The paralegal organisations had approached the Portfolio Committee and there were undertakings made to pass legislation in that regard. The Deputy Minister urged that the paralegal issue was better placed in an amendment to the Legal Practice Act rather than in the Legal Aid Bill. Legal Aid was primarily for those in need of legal representation as there was a constitutional obligation for the provision of representation particularly in criminal matters but LASA had been extending its scope to civil matters. Such civil claim litigants could be construed as victims.
Mr Patrick Handemark, Chief Legal Executive: Legal Aid South Africa, stated that civil matters had grown to 13% of the organisation’s work. It was possible to assist victims of crime to seek compensation yet the difficulty lay in enforcement of judgment. Paralegals were employed at each of Legal Aid South Africa’s service points including satellite points in the rural areas. There they would render services in an advisory or referral capacity. Where the issue required litigation, it would be referred to a legal practitioner. Paralegals were also utilised in visiting prisons and offering assistance there. The organisation employed over 600 candidate attorneys thus enabling access to the profession and providing employment opportunities. The recognition of paralegals was an issue to be addressed by the Legal Practice Bill. LASA was also involved with community paralegal associations in a collaborative effort to provide legal representation where the paralegals had given advice or referral. Thus there were linkages but the organisation was not funding those advice centres as yet. In terms of education, LASA had an initiative that linked sport in schools with concepts such as rule of law for instance.
Mr Pieter Du Rand, DoJCD Chief Director: Court Services, added that there was a national call centre that provided callers with advice either by a paralegal or a lawyer when more substantial advice is required. Legal Aid was involved in the processes at court in trying to find an equitable solution or sentence thereby contributing to restorative justice concerns and bringing victim and community rights to the fore. Further, Legal Aid had a unit of Impact litigation that looked at assisting large numbers of victims through single cases. The silicosis matter was referred to in this instance.
Mr S Swart (ACDP) enquired what the benefit was in having the Board established as a national public entity. In terms of the new independence and impartiality clause, clarity was sought as to what impact the Minister appointing the Board had. On the composition and appointment of the Board, it was noted that the organised professions had been removed from being able to nominate members or where read with clause 6(4) could tender nominations but there was no obligation to accept such nomination. Clarity was asked for the reasons for this specific removal. It was enquired whether the smaller Board was the result of efforts to save costs. He asked about the precise meaning and implications of the word ‘collectively’ in clauses 6(1)(b) and 7(c). He questioned the specific formulation for disqualification of a person and whether one could not add the qualification of not being declared insolvent as in the Constitution for disqualification and termination of membership. There had been a lacuna about legal aid for commissions of inquiry, and he asked if this was covered sufficiently by the provisions of the Bill.
Deputy Minister Jeffery expounded on the issue of independence, stating that it was imperative as in the majority of matters the litigation is against the state. In the case of criminal matters, the community perception was that a state-provided lawyer was bound to be biased and would thus not have their best interests at heart. Similarly, in the case of an indigent who wanted to bring a civil claim against the state, independence was necessary to avoid allegations of conflict of interest or state implication in cases that were refused funding. It was opined that the view that considers political appointees as not independent should be discarded. Comparisons were drawn to the appointment process for the Public Protector as well as the processes in other jurisdictions. On the issue of representation of organised professions on the Board, it had transpired that over time, less was being done on the Board by such cohorts.
Adv Bassett added that many of these provisions had emanated from the King III Report on good governance. Thus, the proposed composition of the Board is modelled on that, in terms of size and the removal of stakeholder interests with the addition of experts to the Board.
Mr L Mpumlwana (ANC) asked for the reasons for and meaning of the independence clause. In terms of the means test in determining the provision of legal aid as detailed in the Bill, section 35 of the Constitution in comparison did not specify such test, relying rather on the prevention of a substantial injustice. Was the test thus the sole determinant of provision of aid?
Mr Handemark stated that clause 24 specified what the regulations should entail, that is, detail the types of matters either civil or criminal in which legal aid is provided or not or is limited. Regulations would also entail the qualifying requirements that applicants were to fulfil such as the means test or the policy relating to the approval or refusal of provision of aid as well as the termination of legal aid. The latter could be instructive on ending matters. These provisions are dealt with in the regulations and not the guide because regulations have the force of law.
Section 35 of the Constitution was clear on the provision of legal aid, and that was based largely on the decision of Khanyile which laid down the factors of when one was facing substantial injustice. One of the main criteria was one’s ability to afford representation. This did not render the means test the sole determinant, instead, it was an easy administrative tool that enabled the organisation to determine whether one is indigent or not. There were other processes in place to determine whether one is able to afford litigation albeit with assets greater than the means test. Ultimately, the Constitution would have to be complied with. Additionally, where Legal Aid South Africa had refused to provide representation, the court could require reasons for the refusal and conduct its own investigation as to whether representation should be provided.
Mr W Horn (DA) stated that clause 10(2) lacked a procedure to remove a director from the Board. He suggested that clauses 15 and 16 should be swapped and clause 15 explicitly establish the position of the CEO. Finally, the transitional provisions should account for the Board being bigger than specified earlier in the Bill for the first 12 months.
Mr B Bongo (ANC) welcomed the Bill but raised concerns about the potential abuse of words such as independence post promulgation. He questioned the qualified majority in clause 12 and enquired whether a simple majority would not suffice. Clause 21 was of concern in terms of the interpretation that may be given to wording stating funds may be collected from the fiscus and ‘any other source’. The same open ended interpretive concern was held with regard to the use of ‘collectively’.
Deputy Minister Jeffery clarified the issue of funding, the reality remained that resources were limited and this restrained the reach of LASA. Their primary objective is the constitutionally mandated provision of representation in criminal matters where there would otherwise be a substantial injustice. It is trying to extend its work to civil matters as indigent people would otherwise have no access to assistance in civil matters. It has also extended its services to providing legal advice through call centres. Yet, the more one extends its activities, the less money there is although it would be good to have representation in commissions, which remains the balancing act.
Mr Handemark expanded on the sources of income. The organisation had accepted donor funding but not for normal operations as that was unsustainable. Such funding was used to test new models of legal service delivery. The use of interns is one such test model. Another instance was collaboration with advice offices. The term ‘other sources of income’ would have to clarified as this could also mean cost recovery.
Ms M Mothapa (ANC) commended clause 3 but suggested that multilingualism be taken into consideration. She sought clarification on the interface between the guide, manual and regulations. What was the current success rate in recovery of costs detailed in clause 20? What types of committees were contemplated in clause 13? And in addition to the concerns shared by the Chairperson, how was the exclusion of paralegals and candidate attorneys from the definition of legal practitioner to be addressed?
Deputy Minister Jeffery stated that the Guide, which was perhaps wrongly named, had set out the criteria to be followed for when legal aid was to be provided. That guide would have to be approved by parliament. The guide was now going to be available every two years with the regulations which were to be made by the Minister after recommendations from the Board setting out the types of matters for which LASA would provide legal aid.
Mr Handemark explained that King III was instructive on the types of committees the Board would have as things developed and different needs arose. At that stage, there was the Board Executive committee, the Remuneration and Social Ethics Committee, Audit and Finance Committee as well as the Legal Services Committee.
In terms of the difference between the Legal Aid guide and the Legal Aid manual, the 2014 Guide had been split into a policy and procedures section. This was done to ensure ease of transition as the policy component would become regulations and the procedures would be contained in the Handbook upon promulgation.
Legal Aid was bound by the constitutional provisions on multilingualism and as such the organisation would have to look at how such provision could be built upon.
Ms C Pilane-Majake (ANC) was of the view that there should be a concomitant form of accountability with independence. Where clause 10 dealt with the termination of membership, there was no provision for the end of term of a Board member. This was an important issue whose procedure could be tendered in the regulations. A preference was expressed for the Board to hold quarterly meetings for monitoring purposes instead of the current provision of a nondescript four meetings. Clause 14 provided for the delegation of the Board’s powers to employees amongst others. It was thought to be within the competency of the CEO and the provision as it stood could amount to tensions and confusion. She asked for clarity on clause 20. What was the procedure for lagging cases in relation to the budget – had this been provided for?
Mr Handemark reiterated the Deputy Minister’s statements about the independence of the practitioners. One of the further requirements is that practitioners are subject to an independent disciplinary committee which goes further than other countries. This was done specifically as a means of guarantee to the public that legal aid practitioners were acting in the client’s interests. In terms of accountability the PFMA was clear on how the organisation was to account for the monies received from parliament. Quarterly meetings could be restrictive as the Board aligned its meetings according to deadlines as per the PFMA.
Clause 20 on the recovery of costs dealt particularly in civil matters and enabled the organisation to step into the shoes of the litigant to recover costs where successful in litigation thus protecting the interests of LASA and the taxpayers who funded the case. It also enabled the levying of costs where the person assisted exceeded the means test.
Mr R Ramakatsa (EFF) was of the view that independence protected the state as well as public representatives. The issue of independence should be kept in its proper context which pertained to the functions of the Board. On the issue of funding vis a vis provision of legal aid at a commission of inquiry, Mr Ramakatsa called the objectives of the Legal Aid Board into question in relation to the promotion of access to justice and victim support.
Deputy Minister Jeffery was of the view that issues such as the Marikana question would be covered in the regulations, that is, whether legal aid would be provided for commissions of inquiry. Further, issues such as Marikana were instructive in questioning whether legal aid should be provided for commissions of inquiry where there are limited resources, given that they yield no outcome. That was an instance of the Board applying its criteria and independence was imperative in preventing allegations of state intervention.
There were several unanswered questions and it was undertaken by the Department that these issues would be revisited.
Mr S Swart (ACDP) noted that the comments by the SCA and the CC against the Bop Law Society was an indictment that it had taken such a long time for such legislation to be brought to Parliament. It seemed that there was a turf war between the Bop Law Society and the LSNP and the comments of the SCA were such that the Bop Law Society’s executive ran the risk of disciplinary proceedings against themselves. He asked what the current standing was with the Bop Law Society and whether there was any cooperation on their part. Secondly, why had the Bill taken so long to reach the Portfolio Committee?
Ms Ross explained that at the time of the SCA and CC judgments, negotiations around the Legal Practice Bill were ongoing and it was thought undesirable to deal with the rationalisation of the legal profession in a piecemeal fashion, but rather in a comprehensive manner. However, the Legal Practice Bill took longer than expected.
Adv Bassett added that shortly after the SCA and CC judgments an amendment Bill was brought before parliament but it was felt that owing to the sensitive negotiations on the Legal Practice Bill at the time, the timing was inopportune. Further, there was the preference of whole scale rationalisation of the profession over piecemeal amendment.
Ms G Breytenbach (DA) was concerned that the Bop Law Society had apparently opposed the amendment. She asked if the Bop Law Society was functional and whether this opposition should be considered.
Ms Theresa Ross, DoJCD State Law Advisor, addressed the Bop Law Society’s current state. It was uncertain as to that Law Society’s standing. Correspondence was sent to that society in 2013 and no response was forthcoming. Further, it had been learnt that there was only one individual working at the Bop Law Society.
Mr L Mpumlwana (ANC) asked whether certain practices in some jurisdictions (such as attorneys practicing as conveyancers under the Transkei Act) and not necessarily with the requisite qualification, was covered by the Amendment Bill. He also asked whether the Bop had made any representations to the Department in terms of their opposition to the Bill.
Ms Ross stated that the Bill would repeal all former homelands’ legislation and thus the Act would apply uniformly to all societies.
Ms M Pilane-Majake (ANC) commented that the amendment was long overdue. She expressed a disapproval of piecemeal amendments and advocated a total rationalisation or overhaul. Clause 21 provided for the continuance of the four law societies in their current guises and she asked whether it would not be better to align them to the current provincial boundaries.
Mr Mangena clarified that clause 21 stated that the current names would remain in place until such time that the societies had amalgamated and chosen a better suited name for themselves. The clause did not impose the status quo indefinitely.
Ms M Motapho (ANC) commented that it was a mockery that previous regime terminology was still used. What was at issue was a jurisdictional matter, as jurisdiction over fidelity fund certificates and disciplinary matters were divided between LSNP and the Bop Law Society and the Act provided for concurrent jurisdiction. Thus, the Bill was welcomed despite its delay. What was the situation with the then Transkei and Ciskei?
Ms Ross explained that the 1998 amendment gave concurrent jurisdiction to the LSNP and Bop Law Society mainly because the former was better placed to deal with the control over trust funds. It was believed that the arrangement had worked well except the disciplinary component.
Adv Bassett clarified that Transkei and Ciskei existed in name only and were not functional. The attorneys in those areas were regulated by the Law Society of the Cape of Good Hope.
Mr M Maila (ANC) was satisfied with the amendment and the reasons given for its inception and the subsequent delays.
Mr R Ramakatse (EFF) agreed that the Bill was overdue and on how it should be expedited. He also emphasised the need to align the law society names with current demarcations.
The Chairperson interjected that the rate at which the Bill is passed rested with parliament.