Attorneys Amendment Bill [B9-2014]: deliberations

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Justice and Correctional Services

09 September 2014
Chairperson: Mr M Motshekga (ANC)
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Meeting Summary

The Department took the Committee through its drafting of amendments proposed at the 29 July and 27 August 2014 committee meetings. These included a redefinition of ‘court ‘to indicate that all divisions of the high court and local seats thereof are included in the definition. This would allow candidate attorneys to apply for admission and enrolment as an attorney at any of these courts. Secondly, the Attorney’s Fidelity Fund’s proposal was incorporated into clause 16 resulting in the requirement that a law society must in writing and according to its rules approve the use of any name by a law firm other than the names of its past or present partners. The last major amendment was to effect the change of names of the law societies, from those reflecting the apartheid spatial organisation, to the new names such as the Cape Law Society.

It was realised that the Legal Practice Bill refers to the old names in dissolving the law societies and reconstituting them as legal practice councils. The Committee was advised to let the President sign the Bill so as not to delay its implementation and this technical amendment could be dealt with later.
 
During the page-by-page run through the Members decided that defining “professional assistant” was unnecessary. Secondly, it was decided that the time bars operating on the completion of degree requirements and period of articles for people in the former Bophuthatswana and Ciskei should be removed, as they serve no purpose and potentially prejudice such people.

Meeting report

Attorneys Amendment Bill: proposed amendments
Adv Lawrence Basset, Deputy Chief State Law Advisor: Department of Justice and Correctional Services, said the working draft of the Bill presented the drafted amendments born from discussions with the Committee over the past month.

Ms Theresa Ross, DoJ&CS State Law Advisor, proceeded to enumerate the changes page by page:

Long Title
Here an insertion has been made to indicate that the Bill also deals with changing the names of law societies.

Clause 1
“court”
This definition was revised to indicate that a court means a division of the high court referred to in section 6(1) in Superior Courts Act 10 2013, which includes any local seat thereof.

“high court”
This was redefined to refer to section 6 of Superior Courts Act.

“professional assistant”
There had been a suggestion to define this term, although it is not defined in the Legal Practice Bill, and this has been defined as “an attorney practicing the profession of attorney, not for own account or in partnership and who does not require a fidelity fund certificate”.

Ms Ross said that there was a suggestion that ‘superior court’ be defined for use in clause 7, however the Department chose to describe the courts available which are the High Court, Supreme Court of Appeal and the Constitutional Court.

Clause 3
Ms Ross said that “of the law society” was inserted after “council”.
Clause 7
Here again the superior courts are described rather than defined and “of the law society” inserted after “council”.

In reply to Mr W Horn (DA) asking if the amendments should be presented entirely before the Committee interacts or if there would be engagement after each amendment, the Chairperson said that Members ought to note what they wish to raise and engage later in the meeting. Mr S Swart (ACDP) agreed.

Clause 16
Ms Ross said that the Department had incorporated the proposal in the Attorneys Fidelity Fund submission that granting of permission for the use of a name other than that of the past or present members of a firm be in writing and in accordance with the rules of the particular law societies. This incorporation was consequent to the Department’s exchange with the Law Society of South Africa which supported that provision. Further, 16(7) still refers to “articles of association”, and needs to be changed to “memorandum of incorporation” in line with the Companies Act of 2008 and the Department would remedy this error.

Clause 21
Ms Ross said that this was where reference to the old names of law societies, such as law society of the Transvaal were substituted with new names to which the law societies had agreed. Sub-clause 1 provided for their continued existence as juristic persons, but under different names, from the commencement of clause 21. Sub-clause 2 removes reference to all old names in various statutes.

In clause 21(5), the word “action” was substituted for “legal proceedings”.

Adv Basset added that only clause 21(1) had really been changed, effecting the name changes. The sub-clauses 2, 3, 4 and 5 are the same aside from the insertion of names. This will be reflected in the A-list.

Clause 33
This amendment was designed to cater for candidate attorneys from the former Bophuthatswana, who have satisfied all the requirements for admittance and enrolment as attorneys except for the additional requirements found in section 15 of the Attorneys Act 1979. The clause allows for a grace period.

Discussion
Mr S Swart (ACDP) recalled that he had said he would not be opposed to the name changes as long as there was consultation. As there has been, he supports the change. He alerted the Committee that the Legal Practice Bill, which is before the President for signature, refers to the old names and this needs to be amended post-signing or the President could be requested to refer it back to Parliament.

Adv Basset asked if Mr Swart could indicate the clause in the Legal Practice Bill which makes the reference and that this, as well as other issues relating to the negotiating forum, will likely need to be attended to. Further, it would not have a bearing on the present Bill but the Legal Practice Bill would have to be changed.

The Chairperson said that the President has not assented as yet and asked if there will be any harm in asking him to refer it back.

Adv Basset replied that he would not propose this route, as it may delay the implementation of the Legal Practice Bill further and there may be other technical amendments in future. He suggested the Committee allow the Legal Practice Bill to run its process and deal with the amendments en masse.

Mr Swart said that as the President has not assented yet and he is reviewing petitions from various quarters, there is nothing stopping the Committee from writing to the President alerting him of the inconsistency. He added that it was clause 96(1)(a)(i) of the Legal Practice Bill which referred to the old names.

The Chairperson asked Adv Basset if there would be any problem in writing to the President to alert him, in light of Mr Swart’s contribution.

Adv Basset replied that the Department would do so. He had looked into whether it would be possible in the present Bill to amend the Legal Practice Bill and concluded that it would not be possible.

Mr Swart cautioned that there may be a problem with the Department alerting the President, because the President can only refer matters back on constitutional grounds unless he amends the Bill of his own accord.

Ms C Pilane-Majake (ANC) said that the Legal Practice Bill was to dissolve the law societies and create legal practice councils. She felt that it would be best to take the names as presented and deal with the amendment at a later stage.

Mr Rampela Mokoena, Director: Cape Law Society, said that the provisions in the Legal Practice Bill which refer to the old names of the law societies only do so with the intention to dissolve these societies when the legal practice councils come into existence. When the Legal Practice Bill does this it will be referring to bodies which strictly speaking do not exist. His suggestion was therefore to continue and effect the amendments when appropriate.

The Chairperson said he was worried that it is the same Committee which passed the Legal Practice Bill but is now making an inconsistency. Therefore, the Committee ought to write to the President to alert him of this inconsistency, so that the Committee will be covered.

Adv Basset said clause 96 of the Legal Practice Bill refers to the old names and establishes the Legal Practice Council, consisting of, inter alia, members designated from the law societies operating under the old names. He said that this is a technicality which can be fixed once the Legal Practice Bill is assented to. He believed there was a provision in the Interpretation Act 1957 which is to the effect that where names are changed in legislation, use of the old name indicates reference to the new name.

The Chairperson said that as the Legal Practice Bill has not been assented to, it would be prudent to go on record alerting the President of the situation.

Mr Swart said that clause 110 of the Legal Practice Bill dealing with the Attorneys Fidelity Fund refers to the law societies as mentioned in section 56 of the Attorneys Act; therefore this clause refers to amended names. This should be brought to attention of the President, indicating that there is already a trend of reference in this manner, forming grounds for similar reference elsewhere in the Bill.

The Chairperson said that the Committee was in agreement that a letter ought to be sent to the President, dealing with the forthcoming inconsistency.

Clause-by-clause deliberations
Adv Basset asked for the Committee’s guidance on how to proceed and whether the Committee would like to be taken through the principles underlying the amendments.

Ms Pilane-Majake said that the approach which was agreed to was that the Department would go through the amendments and then the Committee would engage it on points raised.

The Chairperson indicated that he would lead a page-by-page discussion of the Bill:

Clause 1
“professional assistant”
Ms Pilane-Majake referred to the definition of “professional assistant” in clause 1(i) and said its inclusion could create confusion, because how are these persons different from attorneys.

Mr Mokoena answered that it distinguishes the extent of authority of the attorney; specifically an attorney who does not have the authority to run a trust account, based on their not requiring a fidelity fund certificate. Further, this is a generally used and known term in practice.

Adv Basset reminded the Committee that this was a suggestion made by the Western Cape Premier’s Office and the Department had been of the opinion that it was unnecessary; because it is not defined in the principal Act or the Legal Practice Bill. He reiterated the Department’s position, asking if it is necessary in interim legislation.

Mr Horn differed from the view of Adv Basset, because the Bill enables professional assistants to act as principals for articled clerks for the first time, altering the current dispensation. Having said that, the definition itself is still problematic. In practice, a professional assistant is simply an attorney who is not a partner in a firm or a director in an incorporated firm. Further, Legal Aid South Africa employs many professional assistants and it is unclear what the position in this respect would be.

The Chairperson said that the doubt he expresses should lead to agreement with Adv Basset, because defining a term which may lead to unforeseen consequences is problematic.

Mr Horn said that if it is not defined then there will be uncertainty about the position of professional assistants, and for professional assistants in the employ of Legal Aid South Africa. As he understood the present situation, the directors of the various legal aid clinics acted as principals and the number of articled clerks they may employ differ from the number employable under a practicing attorney. In the definition, the Committee should consider all possible scenarios.

The Chairperson asked whether there are any minimum requirements for them to act as principals, such as a requisite number of years in practice.

Ms Pilane-Majake said that she was concerned about consistency in the language used throughout all legislation, because varied use could cause confusion for the legal profession.

Mr Swart referred to clause 3(c), which states that “a candidate may only be engaged by…if he or she is an attorney practicing as a professional assistant in a firm of attorneys or at a professional company for at least five years within the preceding six”. He felt that this was clear enough to warrant the removal of the definition of professional assistant, because this was the only reference to professional assistants.

Mr Horn said that in practice there are also consultants and associates, many of whom are in fact professional assistants. He therefore foresaw problems for the law society in the future if the term is not defined.

The Chairperson said that the words in the Bill speak for themselves and there is no need for an extra definition.

Mr Swart said that the definition is very cumbersome and if it were to be used, it will need to be amended. His specific concern was the repetition in “means an attorney, practicing in the profession of attorney”
The Chairperson said to make life simple, since Adv Basset suggested that the definition is unnecessary and Members in the Committee feel the definition is unnecessary, the definition should be removed.

Adv Basset replied the absence of a request for the definition from the Law Society of South Africa or the profession generally indicates its superfluity.

The Chairperson said that it should be agreed that the definition is not needed at present.

Mr Swart asked if there is reference in the Long Title that it alters the engagement of articled clerks.

The Chairperson replied that it is covered by “to further regulate the engagement of candidate attorneys” in the Long Title.

“court”
Ms Christine Silkstone, Content Advisor to the Committee, noted the reference to a “division of the high court” and a local seat of a division. She questioned whether division of the high court is wide enough.

Adv Basset replied that Ms Silkstone has a point and this ought to be altered to refer to a “high court” which would fall within the definition.

Clause 7
Adv Basset indicated that a similar amendment of “division of the high court” would be required here.

Clause 16
The Chairperson asked if requiring the approval of the law societies in terms of the rules of the law societies still serves a purpose, seeing as the law societies have already approved their name changes.

Ms Ross replied that this is a totally different matter and this provision, in line with the submission of the Attorneys Fidelity Fund, is to dictate the manner in which the use of the names of foreign firms or any other name as the trading name of a local firm is approved of by the law society in writing, according to their rules.

The Chairperson said that when the submission was heard there was a lot of debate about whether it is desirable for local firms to make use of foreign names and this is not addressed anywhere.

Mr Mokoena said that there is already a trend of local firms making use of foreign names and that the provision is to cater for a situation which already exists in practice. Recently the Cape Law Society approved such an instance.

Adv Basset confirmed the statement of Mr Mokoena, saying that the provision is to bring the law into line with what is occurring in practice. Further, this is captured in paragraph 3.6 of the Memorandum on the Objects attached to the Bill.

The Chairperson said that this had been clarified and only worried that if banks are foreign controlled and now law firms become foreign controlled, that control of the country may be lost.

Clause 21
Mr Swart indicated a typographical error in clause 21(3), which ought to read “any law society not mentioned… to”

Ms K Litchfield-Litchfield-Tshabalala (EFF) asked why the law societies’ names were not changed to mirror the provinces, because merely changing the name of the institution, without changing anything substantive will see the retention of the culture of the institution.

Adv Basset replied that this had been debated at length and in the Legal Practice Bill where clause 23 states that the national legal practice council must establish a provincial legal council. This is on a progressive scale, starting with four councils mirroring the law societies and progressively leading to the full complement of nine, based on funds and feasibility. Therefore, the final aim is to be in line with the provinces.

The Chairperson said that Ms Litchfield-Tshabalala’s concerns were addressed, that it is practical considerations which have led to it being done in this fashion and there is no intention of retaining the old culture.

Mr Mokoena said that while there may be perceptions that the old culture perpetuates in the law societies; post-1998 there have been inputs from constituencies and structures which were not represented pre-1994, such as Black Lawyers Association and National Association of Democratic Lawyers. This was an effort to transform the law societies and the Legal Practice Bill foresees further change. 

Mr Swart asked if the transfer of rights and obligations in 21(4) is in terms of the change of name, or if this is only on the dissolution. He then re-read the clause and found clarity.

Mr Swart asked, as a matter of drafting convention, in 21(6) if it is necessary to after “every practitioner who becomes a member of any society for the first time”, state “after the practitioner becomes a member”. He felt this was an unnecessary repetition.

The Chairperson asked if this was not to cater for practitioners from the former bantustans.

Adv Basset replied that this is the aim of the provision and the words may still be superfluous.

Ms Pilane-Majake agreed with Mr Swart and said that the clause should simply read “every practitioner who becomes a member of any society for the first time”.

Clause 33
Mr Swart referred to clause 33(6) asking how the period within which the degree requirements must be completed is going to be determined, because the clause indicates that the requirements will have to be completed within five years, or such period as determined by a future Act of Parliament. This is legal uncertainty, because there may be a future Act which alters the situation.

Ms Pilane-Majake said that this needs to clarified and perhaps enabling regulations would solve the problem.

Adv Basset said that 33(6) is actually referring to the Legal Practice Bill and perhaps it ought to be tailored to state that “if the Legal Practice Act or National Forum decides otherwise”.

The Chairperson asked why the requirement only applies to these universities in the former homelands, because these universities have the same status as the former white universities.

Mr Mokoena said, under correction, that in the former homelands there was a situation where a person could graduate from a three-year degree and become an articled clerk. He added that perhaps this was intended to prescribe the type of degree which would be required for admission, rather than place a time bar upon admission and perhaps this was an unfortunate choice of words.

The Chairperson said this could be read as affirmative action measure, which would give space to people who had completed the degrees in the former homelands to be incorporated in the mainstream.

Ms Litchfield-Tshabalala echoed the Chairperson, however she felt that surely the education must have changed since 1994 to standardise the requirements. Surely this Bill is not the place to address such matters. If there are indeed differences, then this is an administrative issue, better dealt with through policy, rather than a law. She said the law ought to stipulate the standard criterion and the differences be dealt with elsewhere.

Mr Horn reminded the Committee that these are transitional arrangements.

Ms Pilane-Majake said that there could be some enabling regulations or policy and thus sort it out through that avenue.

Ms Tshabalala said that she agreed with Ms Pilane-Majake; because she is not convinced that the norm was that these universities do not exist in themselves anymore. For example the University of Bophuthatswana was amalgamated with the Potchefstroom University to form North-West University. Part of this amalgamation process was an arrangement whereby students were allowed to finish the degree provided by the University of Bophuthatswana and not have to start the LLB at Potchefstroom. Therefore, there would only be a small number of exceptions and for a short period.

Ms Pilane-Majake reiterated her suggestion of enabling regulations to deal with the nuances of the process; to allow everyone who has a sufficient degree to be admitted and avoid any discrimination.

Ms Tshabalala agreed with this suggestion. She wanted to know what the grounds were for saying that the degrees from the former homelands were not sufficient. She asked this not because she believed it was necessarily false, but because she would like to be fully informed of the process, before she could comfortably support a decision either way.

The Chairperson wondered why such a requirement is being made when people, admitted in foreign countries, are allowed to practice in South Africa and do not have the merits of their degrees scrutinised.

Mr Swart said that he understands that there is a process under the Recognition of Foreign Legal Qualifications Act that does apply to foreign practitioners. The Committee should see the focus of the Bill as on Bophuthatswana and the Transkei, which is the basis for this clause. However, there is another reference to the nebulous term “Act of Parliament” that applies to candidate attorneys in clause 7(3) [inserting (2B) into Section 8 of the Act], dealing with the right of a candidate attorney to continue practicing which “lapses after five years or such time as an Act of Parliament rationalising the legal profession may determine“. He saw these clauses as being affirmative in the sense that a candidate who has not passed their board exam needs additional time and this could be done by the Legal Practice Bill. Perhaps this could be dealt with in the Memorandum on the Objects to the Bill, which specifies the Act of Parliament referred to means the Legal Practice Act. The difficulty is that the Legal Practice Bill is still a bill. This could also be dealt with in a resolution in the Committee Report on the Bill, if not in the Memorandum or Regulations as suggested.

Adv Basset said that the Memorandum to the Bill in paragraph 2.1 refers to the pending rationalisation of the legal profession by means of the Legal Practice legislation and perhaps this could help. He said that the Department will look into the clause dealing with candidate attorneys in clause 7. He will also go back to the LSSA to determine exactly what their submission had intended as being included.

The Chairperson said that it is possible to imagine a case where there may be valid reasons why a person has not completed the degree requirements within the five years, leading to their being prejudiced for life.

Ms Litchfield-Tshabalala agreed and said this is a blanket provision which does not allow for exceptions, which had led to her questioning legislating on the point. This could be dealt with in supplementary policy, because casting it in stone would negate valid reasons which people have for not complying with the clause.

The Chairperson said that the LSSA does not need to be consulted on this point, because scenarios where there is non-compliance for valid reasons would lead to a person who has completed their law degree having to look for another profession.

Mr Mokoena said that this was not the intention of the law society’s submission.

Adv Basset said the clause in question refers to a degree from a former homeland which was designated in terms of section 2(1) of the Attorneys Act 1979, as being sufficient for articles of clerkship. Section 2(1) in turn refers to the sufficiency of degrees from countries designated by the Minister, after consultation with the presidents of the law societies and certification by a university within the Republic that the standard of instruction is equivalent or greater than that within the Republic. Section 2(1) of the Attorneys Act aimed to deal with the situation of graduates from former homelands, which were considered to be foreign independent states. The provision is intended to remove the additional requirements of designation and certification. It could therefore be seen as positive, although he understands the concerns of the Committee about the time bar.

The Chairperson asked what Adv Basset intended to do with the understanding he has.

Adv Basset replied that it is for the Committee to decide what is to be done about the time bar, about which he had heard Members’ dissatisfaction.

The Chairperson said that the problem is that the time bar may prejudice potential candidate attorneys and there will be no way of curing that prejudice.

Mr B Bongo (ANC) said that he agreed with Ms Pilane-Majake that this may be dealt with through the regulations.

Ms Pilane-Majake said that it is seems regulations are decided upon, that perhaps there ought to be reference to the regulations in the Bill. This will enable the timeframes to be dealt with appropriately.

Adv Basset clarified whether the Committee is seeking a provision in this clause empowering the Minister to make regulations.

Mr Bongo said the issue of regulations is important, because there is the potential for a person to do practical legal training; thereby reducing the period of articles. This cannot be legislated and needs to be placed in regulations.

Adv Basset asked which specific sub-clauses would need to be regulated, saying that he did not see sub-clauses 4 or 5 needing regulations, while 6 and 7 do require this.

Ms Pilane-Majake said that the scope for regulations should be for all the transitional arrangements.

The Chairperson said that he had a problem with the prescription of time for the period within which you can enter into articles of clerkship. This is because law firms “discriminate, to be rude, against black law graduates” and if the playing field is not level, then it is not fair to exclude people form a profession based on a time bar.

Ms Litchfield-Tshabalala acknowledged the proposed regulation of the issue, but asked if this will be discussed in the Committee, left up to others or the time bar removed altogether. She could not see the value of the time bar, because a person may have gained valuable experience even though they had not engaged in articles of clerkship and it would be discriminatory to bar these people access to the profession.

The Chairperson said that in a normal society these requirements could be acceptable, but because the playing field is not level, then the creation of requirements could be prejudicial to some citizens.

Mr Mokoena said that he did not think this was the intention of the provision. There is reference to an Act of Parliament in future rationalising the legal profession and in his view this indicates the intention that the Legal Practice Bill will assimilate everyone under a new dispensation. The law societies did not want provisions which would potentially clash with the Legal Practice Bill.

The Chairperson asked if it would not be possible to simply state that, having attained the degree entitles one to enter into articles of clerkship, as regulated by an Act of Parliament.

A State Law Advisor said that he is of the view that the timeframe is of no value and that the requirement for articles of clerkship is simply attaining a law degree. It must also be remembered that articles are a form of employment and there is no guarantee that one will be so employed within the timeframe. He therefore submitted that it should be omitted. He added that there is a legislative drafting principle that one cannot provide for a power in the regulations, which is not spoken to in the Act. Therefore, it will be necessary to cater for this in the Bill itself.

The Chairperson confirmed the Members agreement on the points raised and the Department’s further action in terms of the Bill, which was the preparation of the A-List. Lastly, he declared the meeting adjourned.
 

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