The Attorneys Fidelity Fund submission referred to clause 16 of the Attorneys Amendment Bill which seeks to give the Law Societies the power to allow the use of a name which does not include the names of present or past members of a practice. This raised concerns regarding the exploitation of the uncapped liability of the Fund and extent of professional indemnity cover provided by the Attorneys Indemnity Insurance Fund by international firms which have been entering into arrangements with local firms.
Besides regulating the use of foreign names, the Attorneys Fidelity Fund recommended that guidelines be incorporated into either the regulations for the Bill or the uniform rules of law societies to guide how the regulator will grant permission for international arrangements:
- The targeted capping of claims against the Fund.
- Co-operation agreements amongst local regulators and with international regulators, which deal with differences in regulatory models and are specific enough to ensure that there are no gaps.
- Provision for compulsory fidelity and professional indemnity cover, preferably provided by the foreign firm, which would be confirmed annually by the regulator and the fund.
The subsequent discussion dealt with the consultative process which the Fund would embark on to determine the content of the guidelines for the granting of permission. The discussion centred on the claims which people had against the law societies of the former homelands which were to be merged with other law societies, which led to the Members being concerned that the Bill still made use of the names of the homelands.
The Department of Justice and Correctional Services then presented its responses to submissions it had received regarding the Bill. Aside from grammatical corrections and the submissions of the Attorney’s Fidelity Fund, the response of the Department had dealt with the definition of court proposed by the Law Society of South Africa which would restrict the courts capable of hearing applications for admission as attorneys to those which were part of pre-constitutional South Africa. The response also dealt with the proposed transitional arrangements to give candidate attorneys in the former homelands a grace period to apply for admission, because of the difference in the requirements for admission under the Attorneys Act 1979 and the requirements under the various pieces of homeland legislation.
Members were concerned about the onerous burden which would be placed on candidates if the courts which could hear applications for admittance were restricted in the manner proposed. The practical legal being required was also questioned, as this could also be onerous if the centres providing this training were not accessible to remotely situated candidates. The Department and representatives from the Cape Law Society attempted to clarify the nuances of the exemption and the nature of the requirement of practical legal training.
Attorney’s Fidelity Fund (AFF) submission
Mr E Horn, Vice-Chair: Attorneys Fidelity Fund, said that the AFF in general supports the Bill, except for clause 16 which seeks to amend section 23 of the Attorneys Act 53 of 1979. The AFF provides insurance to the public in the event of theft of trust monies and it is also responsible for funding the Attorneys Indemnity Insurance Fund (AIIF) which provides professional indemnity cover in the event of negligence by attorneys. The liability of the Fund in both these instances is open ended, leaving it susceptible to a major claim which would threaten the sustainability of the fund.
Mr Horn said that in terms of section 23(1)(c) of the Attorneys Act “a private company may conduct a practice if the name of the company consists solely of the name or names of any of the past or present members or of persons who conducted, either for their own account or in partnership, any practice which may reasonably be regarded as the predecessor of the practice of the company”. The purpose of section 23(1)(c) is to protect consumers, so that they may identify who is providing the legal services and who is responsible and accountable for them. Mr Horn said that the Law Society of the Northern Provinces (LSNP) has indicated that some of the largest firms in its jurisdiction have entered into arrangements with foreign firms whereby the foreign firm’s name is used as the trade name, which is in conflict with section 23(1)(c). The fund is not against legal practices crossing borders, it is merely concerned with the risks attached. Clause 16 would allow the Law Society to approve any name as a trading name, including names of international firms or anything else.
The risks identified by the AFF are the intentional structuring of legal transactions to benefit from the uncapped protection provided by the AFF and limits of indemnity provided by the AIIF. Secondly, insufficient disclaimers in arrangements with foreign firms which would fail if challenged in court. Uncertainty for consumers and the AFF where transactions run across various jurisdictions and it is unclear which regulatory body is responsible in the event of disputes. Thirdly, the possible increase in entrusted foreign currency assets in unregulated bank products. Lastly, the arrangements could be onerous on local firms leading to failure which poses a major risk for the Fund seeing as 80% of its income is derived from 20% of attorneys.
The AFF therefore recommends guidelines and rules, defined in conjunction with the AIIF, for how the regulator will provide approval for international arrangements:
- The targeted capping of claims against the Fund.
- Co-operation agreements amongst local regulators and with international regulators, which deal with differences in regulatory models and are specific enough to ensure that there are no gaps.
- Provision for compulsory fidelity and professional indemnity cover, preferably provided by the foreign firm, which would be confirmed annually by the regulator and the fund.
The next question is how the Law Society should go about regulating the use of foreign names. His opinion was that this could be covered in the rules or regulations, setting out the factors which will be considered in granting permission to use a foreign trade name. It will have to ensure that the firms take out cover on a differential basis. Issues of the nature of the transaction in question and amount of money entrusted to the local or foreign firm will need to be considered.
He then wanted to raise the issue of the Magistrates Court having jurisdiction to deal with claims against the Fund, which was not in the written submissions. Clause 19 of the Bill provides for this and seeks to amend the exclusive jurisdiction of the high court set out in section 49 of the Attorneys Act. While the Fund is conscious of access to justice, however the AFF was concerned about the extension of jurisdiction. high court precedent is important and magistrates courts as creatures of statute don’t follow the principle of precedent. Considering the technical nature of the matters involving things such as prescription and non-compliance with the Act, Mr Horn was concerned that decisions in the magistrates court could be open to appeal or review.
The Chairperson wanted to place on record that this matter is part of the transformation and regulation of the legal profession and if key role-players are not taking the process seriously and not participating, then it is worrying.
Mr S Swart (ACDP) disagreed with the Chairperson and asked to indulge the Law Society, which had indicated that it had sent representatives and allow them to explain why they are late.
The Chairperson then said that he understood that the Bill was an interim measure, he did not understand why it has to deal with the complex matter of the use of foreign trade names. He asked if there had been sufficient consultation or if only the established “white” firms wanted such a measure. It also raises the issue of reciprocity and he wanted to know if South African firms will have their names used abroad. He felt that this issue should be thoroughly debated and its implications investigated.
Mr Horn replied that the AFF had merely reacted to the LSNP which had indicated the prevalence of arrangements between South African and foreign firms in its jurisdiction. This may spill over into the debate around cross border practices, which will lead to the Department of Trade and industry needing to become involved. He was unaware that extensive consultations and debates had taken place. It is only an interim measure, pending the Legal Practice Bill becoming law, but for the time being this was submitted to address the concerns raised.
The Chairperson said that this could potentially lead to the situation where there is one law for the cities and another for the rural areas.
Mr Horn replied that there would be no differentiation in terms of law, but perhaps in terms of the principles for granting of permission to use a foreign name which guide the Law Societies. at least for the time being, guidance should be given to the Law Societies in allowing the use of foreign names, particularly to protect the AFF.
The Chairperson said that it is not only the AFF that needs protection, but also the image of the country.
Mr Swart asked about the process of consultation with the Law Society and how one is practically to deal with the problem in the rules or regulations and he said that capping claims is a good idea as was done for the Road Accident Fund. He did not understand the problem with the jurisdiction of the magistrates courts, because when the jurisdiction was increased it was ensured that magistrates are capable of dealing with the more complex matters that arise where larger sums of money are involved and further because the magistrates courts are bound by high court precedent.
Ms G Breytenbach (DA) asked what will happen to the claims against the various Law Societies who will be collapsed into the new provincial ones.
Mr Horn replied that the practical execution of regulating the international arrangements would mean various Law Societies and the AFF working out the nuances and this can be written into the uniform rules of Law Societies. The Legal Practice Council will have to be involved when it comes into being. He agreed with Mr Swart’s point on the magistrates court and had only raised it for the consideration of the Committee.
Mr Swart followed up asking whether the AFF was not seeking the amendment of the Bill at this stage and merely wanted it noted that it may be required in the future.
The Chairperson said that his concern was that the main object of the Bill was to dissolve the Law Societies of the former bantustans and it was important to ensure that the claims people had against these bodies were not neglected. He asked how the Committee could base decisions on consultations which did not include all sectors of society and emphasised the need to protect the interests of ordinary people. It seems that the issue of transformation is being neglected and transformation of the legal profession is being left up to the profession, leading to piecemeal change.
Ms M Pilane-Majake (ANC) said that as the various Law Societies are dissolved to form one unified body the process needs to be harmonised. She said it was important to deal with these issues, before making provision for the business of international firms.
Mr Horn took the points raised and turned to the Department for procedural aspects, should specifics in the Bill be looked at, should the Legal Practice Bill be waited for or through other means.
Adv Lawrence Bassett, Department Deputy Chief State Law Advisor, replied to the worry about claims against the Law Societies which are to be dissolved, saying that many of the Bantustan Law Societies are mere shells. The Attorneys and Matters Relating to Rules of Court Act, No 115 of 1998, ensured that the AFF took control of and made good any claims in the former homelands. This Act also deemed attorneys practicing in the former homelands to be part of the relevant Law Society in South Africa.
The Chairperson asked why if attorneys from the former homelands are deemed to be part of the Law Societies are they subjected to scrutiny where they have to submit proper records. Failing to do this, could even lead to their disbarment; which leaves much to be desired.
Ms Teresa Ross, Parliamentary Law Advisor, replied that there is indeed this requirement and it is intended to ensure that the Law Society has the member’s details, if they are becoming members for the first time.
The Chairperson then asked whether or not all lawyers must submit their details.
Ms Ross replied that where a lawyer is not coming from a former homeland then the Law Societies and registrar of the high court would already have their details.
The Chairperson says that he raised this because he wanted to know why Bophuthatswana Law Society was against the merger of the Law Societies, suggesting perhaps the reason was that the Law Societies remained untransformed.
Ms Ross replied the reason people are against the merger is because they do not wish to be subject to the disciplinary procedures which come with membership to these other Law Societies and the Supreme Court of Appeal has indicated that the Bophuthatswana Law Society is not prepared to deal with issues of discipline.
Adv Bassett said that the Department’s position is that the magistrates courts ought to have jurisdiction, particularly for access to justice and this outweighs the AFF’s concerns. On how to deal with the control measures the AFF is seeking, he said that engagement between the Department, AFF and the profession needs to be conducted to decide how this is done. There is still a need for reference to the control measures to be included in the legislation. This could be done in a similar fashion to the Legal Practice Bill which requires foreign lawyers to be regulated in terms of the regulations made by the Minister under clause 27.
Ms Ross said that the claims against practitioners in the former homeland is dealt with under clause 21, which transfers the rights, obligations and pending actions of any society dissolved in terms of the Act upon dissolution. For example the Law Society of Bophuthatswana will be incorporated under the LSNP. On the arrangements of law firms using foreign names, it came from the LSNP where the issue is prominent and the amendment seeks to provide for what was already happening in contravention of the Attorneys Act.
Adv Bassett said that the Department had met with the AFF to discuss the issue of capping and this had led to the identification of the need for further consultation and perhaps even legislation being proposed.
The Chairperson said that there is reference to the Law Society of the Transvaal and other former homelands in the Bill and asked why reference must be made to apartheid structures.
Ms Ross said that the Department had felt that the Bill as an interim measure need not deal with these types of details, which would be catered for in the Legal Practice Bill. Further, Law Societies have the discretion to change their names
Mr L Mpumlwana (ANC) asked whether the Bill needs to make reference to people who do not exist.
The Chairperson added that this is not a difficult problem, merely requiring alignment with the Constitution.
Mr D Mangena, State Law Advisor: Department of Justice and Correctional Services, said that this aspect was raised previously by Members and the Department had indicated that it was allowing for consultative efforts within the Law Societies which are to determine their preferred names.
The Chairperson said that the implementation of the Constitution does not depend on meetings of the Law Societies, it is an imperative.
Mr Mangena said that clause 21(3) indicates that the Law Societies with colonial names will be responsible for the collapsed Law Societies within their jurisdictions, but that this is a temporary measure pending the Legal Practice Bill coming into force and the conclusion of the consultative process.
The Chairperson said that the Department does not represent the Law Societies and the Law Society is not represented at the meeting. He asked whether the work of Parliament should stop, waiting for a meeting of Law Societies at an uncertain date.
Ms Ross said that Clause 21(2) provides for the changing of a Law Society’s name through gazetting by the Minister, following the conclusion of a consultative process.
The Chairperson said that it is out of order to subject the implementation of the Constitution to a meeting of the Law Societies.
Mr Swart asked for clarity on what clause in the Constitution was being referred to. The Law Societies are creatures of statute and as such the process for the alteration is parliamentary. Further, that the various statutes which create the Law Societies will fall away upon the coming into force of the Legal Practice Bill. Respect must be had for the consultative process as required consequent to the Doctors for Life court case.
The Chairperson said that Mr Mpumlwana had said that there is no place called the Transvaal and how can Parliament make laws for places which do not exist.
Mr Swart responded that the reason was that there was an existing statute which used that name and it was irrelevant that the province did not exist.
Mr Mpumlwana reiterated his earlier point and asked why the Department could not have used a different name and made reference to the other pieces of legislation.
Adv Bassett said that the Bill contains a mechanism for the names of Law Societies to be changed and that this will inevitably happen with the Law Societies wanting to get rid of the names in the statute. This is evidenced by the Law Society of the Transvaal now being referred to as the LSNP. If the Committee feels that the names must be changed, then this will need to be consulted upon. Also, it must be remembered that the Legal Practice Bill envisages the creation of provincial law councils as equivalents to Law Societies.
The Chairperson asked for the representative from the Law Society to introduce himself and indicate whether the consultative meetings of the Law Society has taken place.
Mr WR Mokena, Director of the Cape Law Society, first wanted to clarify that the submission had been drafted by their umbrella body, the Law Society of South Africa, and it had in line with past practice been of the opinion that where it has made a written submission, its presence at the meeting of the Committee was required only where it has indicated it wishes to make an oral submission. On the consultative meetings, he was not aware of these and there had been no need to do so up until now. The Law Societies were operating in terms of constitutions which were legislated for during apartheid, however the Law Societies were presently operating under other names as indicated earlier. In his view it was unnecessary in light of the Legal Practice Bill.
The Chairperson asked what message is being sent if Parliament makes laws which make reference to apartheid geography.
Mr Mokena said that to his knowledge no law is being made which does so; all that is happening is reference being made to existing legislation with the view to mend problems which had emanated in the past. He was unaware that the Bill was intended to deal with the re-naming of the Law Societies and he believed that if it were, there would be no problem with that.
Mr Swart said that the Committee ought to take into account that the Bill has been certified by the State Law Advisors and gone before Cabinet. If the Commission wishes to change the law then it can be done. It would be unfair to expect the Law Societies to have already met about their name change, when the Bill which empowers them to change their names, has not yet been passed.
Ms M Mathapo (ANC) was concerned that the compatibility of the present names with the Constitution is questionable and she had experienced legal practitioners still saying the Law Society of the Transvaal, rather than the LSNP. The Bill states that Law Societies may change their names.
The Chairperson said that bringing the law in line with the Constitution will not be a difficult matter seeing as the Law Societies have already begun to change the names.
Mr Swart said that this was not a constitutional issue and that he had a problem with the lack of consultation with stakeholders, because there may be cost implications and other matters which have not been dealt with.
Mr Mpumlwana asked whether the Committee is to merely “rubber stamp” the Bill, as he felt that the Bill as it stands has problems and this was the function of the Committee to deal with these.
Ms Pilane-Majake said that names are very important and there needs to be consistency in the names. For now the certification by the State Law Advisor is accepted, but if there are problems the process needs to be reversed. She was also unsure of what consultation was really required, because the names of the provinces are official and no new names are being proposed.
Ms Breytenbach agreed that consultation needs to be done.
The Chairperson said that when a name of a municipality is changed then a consultative process needs to be undertaken. Here however no changes are being made, what is being suggested is simply the alignment of the names to those which appear on a map of South Africa.
Mr W Horn (DA) said that the Law Societies have indicated that they are not in a position to have a Law Society per province and therefore it is not as simple as to say the name of the society should echo its provincial jurisdiction.
The Chairperson replied that it is the Law Societies themselves which have chosen names such as the Cape Law Society and therefore there is no dictation.
Mr Mokena asked what exactly the Committee seeks to do about the names. Is it to remove mention of all instances of Transvaal and other old names or is it suggested that the Law Societies change their names?
The Chairperson said that the Committee wants to make a law that is in line with the realities in South Africa, where there is no place called Transvaal.
Mr Mokena continued saying that the present use of the names is not an indication that the place still exists; rather it is a reference to a document which is in existence and cannot be wished away. Therefore, in order to properly refer to the constitutions of various Law Societies mention must be made of these names.
The Chairperson indicated that the Department has heard the issues and is alive to the Committee's concerns and left it to them to deal with the issue.
Mr Swart clarified that he had not intended to suggest consultation on the scale of a town’s name change, but only a limited process with the bodies involved.
The Chairperson replied that various stakeholders would have to be consulted including bodies such as the Bophuthatswana Law Society which is opposed to this process.
Ms Pilane-Majake echoed the Chairperson saying that the Department had heard the debate and become aware of the Members' concerns. Taking the matter forward should be left in the Department's hands.
The Chairperson said that he is convinced of the dysfunctionality of rural Law Societies and the need for a merger. The Committee was not dealing with an issue that was not of a substantive nature.
Adv Bassett said that there should be some form of consultation, because decisions such as whether there should be a body parallel to the LSNP for the southern provinces need to be made and said the Department would take it forward.
The Chairperson then raised his concern that community law centres and law clinics were not formally recognised at present, an example of which is their inability to engage candidate attorneys.
Ms Ross replied section 3 of the Attorneys Act lists the categories of the legal profession which can engage candidate attorneys. This list includes the State Attorneys and Legal Aid South Africa, however what the Chairperson had mentioned was correct, although there was somewhere in the Act that advice centres are recognised.
The Chairperson said that not all people with legal problems were in the position to engage an attorney and the rise of public interest legal practice needs to be recognised. This has been formally recognised in countries like Zimbabwe and Mozambique and regulation in South Africa needs to be conscious of the needs of the people.
Adv Bassett said that in the Attorneys Act at present does not cater for community advice centres; neither will they fit into the Legal Practice Bill. However, section 23 of the Attorneys Act states that juristic persons, as well as individuals, are able to practice law. The Legal Practice Bill makes this clearer in clause 44 stating that an attorney may practice, inter alia, as part of law clinic and Legal Aid South Africa. The Chairperson had mentioned advice centres and these will not fall within the Bill, because it requires all persons practicing to be admitted attorneys.
The Chairperson said that when the Department looks into the matter, broad access to justice needs to be addressed. This is because legal services need not only be provided by attorneys and advocates, as these are not accessible. Parliament is concerned with the overwhelming majority of people who cannot afford these legal services.
Mr Z Homa, Legal Officer: Cape Law Society, addressed the issues of advice centres in relation to access to justice. The issue is being dealt with in the Legal Practice Bill, but from the side of the Cape Law Society, there is a process which recognises advice centres as pro bono structures and where an issue which requires representation comes up this may be referred to any attorney on a pro bono basis. There is provision in the Legal Practice Bill that places this responsibility on the Legal Practice Council.
The Chairperson said that he was approached by an organisation of paralegals and he felt that these people should be part of the consultation process with the Law Societies. He also asked for the Cape Law Society to prepare a written document detailing its activities with advice centres.
Department of Justice and Correctional Services’ Response to Submissions
Mr Mangena said that the Department had received indications from the Cape Bar Council, Law Society of South Africa (LSSA) and Commission for Gender Equality (CGE) that they were generally in support of the Bill.
The Cape Bar Council submitted that the definition of “court” in paragraph (e) only covers four of the nine Divisions of the High Court which means that only those four Divisions will have jurisdiction to admit and enrol practitioners. Mr Mangena said that the arguments in favour of the definition were: firstly that in terms of sections 19 and 24 of the Attorneys Act any application for enrolment or admission must be served on the Law Society for consideration at least one month prior to the application being heard by a court. This requirement implies that an applicant will have to attend the office of the Law Society in whose jurisdiction the application is made, which will be situated at the seat of the Provincial Division of the High Court of the province. Secondly, all applications for admission of attorneys and advocates have always been dealt with by two Judges of a Provincial Division and the High Court Bench has indicated in the past that this procedure was the only acceptable one for admissions of attorneys. Thirdly, the Law Societies have to liaise closely with the Registrars to assist with these types of applications, which is only possible if the Courts attending to such matters are in close proximity of the Law Societies’ offices for logistical and practical reasons, which is possible only if the current provisions are retained. Letters of recommendation from the Law Society are also on occasion required by the Court and a senior official normally attends the Court hearing admission applications. A large number of applications are heard on a weekly basis and the Law Society does not have any authority to delegate its functions to peruse and process application papers.
He moved on to the counters to the above submission saying that despite the above arguments the question must be asked whether the provisions promote access to justice and are reasonable. The Legal Practice Bill does not perpetuate this position. Clause 24(2) of that Bill provides that the “High Court must admit to practise and authorise to be enrolled as a legal practitioner, conveyancer or notary or any person who, upon application, satisfies the court that he or she has served a copy of the application on the Council, containing the information as determined in the rules within the time period determined in the rules”. Further, “High Court” in section 1 of the Legal Practice Bill is defined as follows: “ ‘High Court’ means the High Court of South Africa established by section 6 of the Superior Courts Act 10 of 2013, or, if the context indicates otherwise, the Division thereof having jurisdiction”. The question is raised whether the organised attorneys’, in conjunction with the relevant authorities at the High Court, cannot facilitate a change as envisaged in the Legal Practice Bill.
The LSSA submitted that the word “council” be substituted for the word “society” on page 3, in line 1 and the Department has no objection.
The Western Cape Premier’s Office submitted that the definition of “advocate” be revised by deleting the words “of South Africa”. The Department’s responded that the words are necessary to ensure that the advocate is admitted in South Africa.
The Western Cape Premier’s Office submitted further that the words “unprofessional or dishonourable or unworthy conduct” be defined to clarify who will make the determination, how will the determination be made and which factors will be taken into account in determining whether the conduct is unprofessional or dishonourable or unworthy. The Department feels that defining the words could be unduly restrictive and inflexible, as this is interim legislation, pending the implementation of the Legal Practice Bill, which does not define this aspect.
The Western Cape Premier’s office submitted that the term “Superior Court” be define. The Department’s response was that consideration could be given to referring to a “Division of the High Court, the Supreme Court of Appeal or the Constitutional Court”
The Western Cape Premier’s office submitted that the term “professional assistant” be defined. The Department’s response was that this is acceptable, although it is not defined in the Legal Practice Bill.
The LSSA submitted that the words “of the society” be inserted after “council”, on page 4, in line 15; to which the Department has no objection.
The LSSA submitted that the words “of the society” be inserted after “council”, on page 6, in line 20; here too the Department no objection.
Mr Mangena said this was fully covered earlier by the AFF. The Department’s response was that the proposals seem prudent. It would request an opportunity to prepare appropriate provisions, in conjunction with the attorneys’ profession and the AFF if the control measures are to be inserted in the Act and not in the rules. The question is, however, raised whether the amendment should deal with the capping of claims at this stage, as suggested. The Department has suggested to the AFF that this be dealt with at a later stage.
The Western Cape Premier’s Office submitted that “magistrate’s court” be substituted for “magistrates’ court” in line 11 and the Department responded that it could be adapted.
Here LSSA made four submissions: substitute “its” for “the” on page 10 in line 39; substitute “that” for “the” on page 10 in line 40; substitute “that” for “the” on page 10 in line 43; and substitute “that” for “the” on page 10 in line 44. The Department had no objections.
LSSA submitted that “its” be substituted for “the” on page 11 in line 39 and the Department has no objection.
The Western Cape Premier’s Office submitted that the word “which” in line 53 be removed in order to make the provision clearer; and the Department agrees.
LASSA submitted that as candidate attorneys in the former Bophuthatswana are not required to attend a legal training course which is a requirement under section 15 of the Attorneys Act. The Bill needs to be revised in order to protect those candidate attorneys who might have satisfied the requirements to be admitted under the former Bophuthatswana Act by the time this Bill comes into operation.
Mr Mangena said that the Department agrees and would request an opportunity to prepare an appropriate provision in conjunction with the LSSA.
Adv Bassett added on the transitional provisions that some form of concession would have to be made for people affected, but some form of time period would have to be stipulated and asked for the Committee’s input on this aspect.
The Chairperson said he had thought that the legal training was complementary; rather than a requirement. He asked whether this was a requirement in addition to the board examination and whether he would also need to pass this training to be part of the dispensation.
Adv Bassett asked for the Committee think about clause 1 which determines the Divisions of the High Court which are able to hear applications for admittance.
The Chairperson said that this Clause would result in the only High Courts able to deal with admissions being those which formed part of the Republic of South Africa 1961.
Adv Bassett then said the Department had engaged the Law Society as to why this is so and this was set out in the response to the clause. However, the Department is concerned about the effect on access to justice and this is what it would appreciate the Committee’s view on.
Ms Mathapo asked for clarity on the Chairperson’s comment regarding the Republic of South Africa 1961.
The Chairperson said that he had meant was that the courts which are recognised for admissions now are only in “so called white South Africa” and this was not inclusive of the whole of the country and it would be problematic to not legislate for the democratic South Africa. Further, that he had said the additional training cannot be made a requirement for admission as attorneys, because if candidates are able to pass the examination then why should they not be admitted. If this requirement stands then it is disadvantaging attorneys from the former bantustans, because they did not create the circumstances which lead to them not receiving the practical legal training.
Ms Mathapho asked whether the Department had not asked whether the Committee could assist them in determining a grace period for the candidates from Bophuthatswana and elsewhere. She also said that practical legal training was a requirement under the Attorneys Act, as well as having passed the board examination. Where she still sough clarity was on the High Courts which could admit attorneys not including the High Court in the former Venda, meaning that candidates from that region will never be admitted there.
The Chairperson said that the definition of court in the Bill refers only to the High Courts which were in South Africa as defined prior to the new Constitution and this therefore excludes candidates from the former homelands who are equally South African and that this is merely for the convenience of the Law Societies is unacceptable. He added that regardless of a grace period being given he felt it unfair to exclude people from practice, because they have not undergone practical legal training when this was not available to them.
Mr Mokena said that all the intention was not to remove any person from practice who was already admitted. The object of the Bill is to bring the attorneys from the former homelands within the jurisdiction of the Attorneys Act. People who now wish to register articles will be required to complete the practical legal training.
The Chairperson said that it should be reflected in the Bill that the provision is not retrospective.
Mr Mokena replied that he was sure there was such an indication, but could not point it out having not gone through the Bill.
Ms Pilane-Majake asked for an explanation on the rationale behind having only certain courts able to hear applications for admittance as attorneys.
Mr A Khatib, Legal Officer: Cape Law Society, said that in the jurisdiction of the Cape Law Society, the Western Cape High Court is not the only court hearing applications; as the Kimberly High Court deals with applications from the Northern Cape and the Grahams Town, Bisho and Umtata High Courts hear applications from the Eastern Cape. He said, under correction, that the LSNP has a provision which has only Pretoria and Venda High Courts hearing applications. On the requirement of practical legal training he said that the candidates from the former Transkei and Ciskei would also be exempt. The six month full time practical legal training course leads to a reduction of the period of articles by one year and there is also an option of a 25 day course which has no effect on the period of articles and either of these would satisfy the requirements of section 15 of the Attorneys Act. He added that it would be very onerous to expect candidates from places outside of the Western Cape to travel to Cape Town to apply for admission as attorneys.
The Chairperson said that Mr Khatib had clarified the issue and commented that the submission of LASSA did not reflect the reality of what was happening on the ground.
Ms Ross said on the issue of defining court that the Department agrees with the expansion of the definition, to avoid onerous requirements. On the practical legal training, she said that what had brought about the need for transitional provisions was that the former Bophuthatswana Act did not have a requirement of practical legal training and in order to not prejudice candidates who have fulfilled all the other requirements the transitional procedure should be implemented. The Bill seeks to make the Attorneys Act applicable across the country and where a candidate has registered articles after the implementation of the Bill they will be required to complete the training, as it is a requirement of the Act.
The Chairperson said that the position is not disputed, but if the centres which do the practical legal training are only situated in the major cities around the country then it would be an additional burden on students who are from more remote areas.
Mr Mokena clarified that these centres are not centralised and are spread across various regions of South Africa and further that a serious effort is being made to ensure that candidates are not inconvenienced. Further, on the redefinition of court that this attempts to define it as stipulated and that the potential for candidates from remote regions being disadvantaged cannot be argued against.
The Chairperson replied that saying that there is a serious attempt being made, which the Committee does not know about, is problematic when asking Parliament to make a law binding on all candidate attorneys. perhaps the requirement of practical legal training should be made optional, for candidates who can afford it and wish to reduce their period of articles.
Mr Khatib responded that the six month option is what gives the reduction in period of articles and no candidate is exempt from the requirement, with at least the 25 day course being required. Except for the candidates from the former homelands, in terms of the Bill.
The Chairperson asked where the 25 day course is conducted.
Mr Khatib replied that it was in several places including Cape Town, Port Elizabeth and East London.
Mr Mpumlwana asked why the practical training cannot be made part of the university training.
The Chairperson concurred and said that all the various requirements merely delayed people from practicing law.
Mr Mokena said that there are known issues with trying to make an “instant attorney”, in light of people who have graduated with the LLB which was restructured consequent to discussions in 1998. This lead to the perception that these graduates are unable to conduct themselves as attorneys are supposed to. He added that there are discussions underway around restructuring the current LLB and there have been suggestions that the practical legal training form part of the LLB or whether it ought to be done away with completely.
The Chairperson asked why it has taken so long for a decision to be reached around such a simple matter.
Mr Mokena replied that the delays relating to the Legal Practice Bill have stalled many processes, because this was seen as informing the decisions which were to be taken.
The Chairperson said that law schools had been debating whether they ought to be required to have law clinics in terms of the Legal Practice Bill. This requirement could facilitate the practical training required and remove the need to have additional training after graduation and completion of articles. He added that he felt that the problem lay in the transformative effort having been left up to the Law Societies and universities; while transformation was a constitutional imperative and this should not be left up to interest groups.
Mr Homa said that in relation to the definition of the court and the submissions made by LASSA, that it was an oversight that it was not taken into account that it would be onerous on applicants from remote regions and that he had been instructed to communicate this.
The Chairperson requested that the requirement of practical legal training be reconsidered, because it is onerous if it is inaccessible and consideration should be given to attaching it to the universities.
Mr Homa replied that one of the elements of the practical legal training which was not amenable to inclusion in the university course was court experience and there is a discussion with the law faculties to consider whether the students would be allowed to appear in court for this experience, because presently students cannot appear before magistrates or judges.
The Chairperson asked if these discussions included the students, because they are affected parties. He was also concerned that bodies like the Black Lawyers Association and South African Women’s Lawyers Association were not represented.
Mr Mokena replied that the abovementioned bodies were part of the councils of the Law Societies and LASSA meaning they were represented through this presence. Further, correspondence was sent to these bodies directly for comment, giving these bodies a “double-take” at the issue. Law students do not form part of the Law Societies, however he had received a request for students at the University of Cape Town to be consulted regarding community service requirements under the Legal Practice Bill. This request has been tabled with the Cape Law Society’s council and LASSA’s council which did not object to this. There had also been engagement with associations of paralegals, which demonstrates the range of engagement the Law Societies conduct.
Mr Mpumlwana said that Mr Mokena had mentioned the University of Cape Town, but what about other universities, such as those in the former Transkei.
The Chairperson said that the Committee was concerned with the transformation of the entire legal system, having grown from a focus on the judiciary. The aim is to produce lawyers who can become judges and if the students and women are not included in the discussions, then it means that men will decide on the transformation of the legal system at the expense of women and the youth.
Mr Homa said that he was aware that there other universities which are caucused on the practical elements of the profession which are at present optional. The forum which was discussing the issues at hand could be engaged to allow for the representation of student’s views.
The Chairperson said that in his experience of the importance of students, as he had witnessed a conference organised by the Lawyers for Human Rights to discuss whether South Africa needs a bill of rights or a bill of group rights. It was the councils of students which said at the conference that a bill of rights is not the same thing as group rights, particularly that it would entrench apartheid structures. Students therefore had a part to play in the structure of the present Bill of Rights and their voice must be heard.
Mr Khatib wanted clarity on whether it was being suggested that students be involved in discussions about whether practical legal training ought to be a requirement, because they are likely to support its removal.
The Chairperson said that Mr Mokena had been engaged by students around community service and why would they do so if they were not interested.
Mr Mokena asked for clarity on the direction of the discussion, because the issue at hand is the proposed Bill and the requirement of practical legal training is already incorporated in the Attorneys Act. Nothing new is being introduced by the Bill, which only seeks to remove reference to certain provinces and make the Attorneys Act applicable nationwide.
The Chairperson responded that the Committee was concerned that this requirement could be onerous if the practical legal training centres were not decentralised.
Mr Mokena interjected that he had said that they were.
The Chairperson said that the Committee would appreciate a report of the locations of the training centres, the full requirements for admission and the costs attached.
Adv Bassett asked for an indication when the meeting to deliberate the Bill will happen.
The Chairperson replied that the Committee Secretary will communicate this and then declared the meeting adjourned.
- Western Cape Provincial Government submission
- Law Society of South Africa submission
- Commission for Gender Equality submission
- Attorneys Fidelity Fund submission
- Cape Bar Council comment on Attorneys Amendment Bill [B9-2014]
- Department Summary of Written Submissions on Attorneys Amendment Bill [B9 - 2014]