Legal Aid South Africa Bill [B8B-2104]: voting; Attorneys Amendment Bill [B9-2104]: deliberations; Suspension of magistrates

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Justice and Correctional Services

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

The Department of Justice and Correctional Services presented the Portfolio Committee final proposed amendments to the Legal Aid Bill as per the B-Version of the Bill [B8B-2014]. The Chairperson proposed amending the short title of the Bill to the Legal Aid South Africa Bill, as it reflects the Bill’s focus which is on establishing the institution, rather than other aspects of legal aid such as paralegals and advice centres. This amendment was agreed to, provided that a separate legislative process is undertaken to cater for these issues. The Bill was adopted by the Committee.

The Committee discussed and adopted its Committee Report on the Legal Aid Bill. It included references to the context in which Legal Aid South Africa is to function and the neglect in the provision of civil legal aid, which is a constitutional imperative under section 34. The Committee felt that the report should speak more to the establishment of the institution in the first paragraph and be coordinated with the Memorandum of Objects on the Bill which was also revised and adopted.

The Magistrates Commission then presented responses to the concerns of the Committee about the provisional suspension of Magistrate R Malahlela and suspension of Magistrate Masinga. The Committee supported the Commission’s recommendations on both matters with the major undercurrent being that action needs to be taken in the interests of the administration of justice, as this is the public’s primary concern. In Ms Malahela’s case, the Committee agreed with the submission of the Commission. Regarding Mr Masinga, the Committee decided that the pending review of his criminal trial should not be a bar to his removal following the distinct disciplinary process.

Lastly, the Department presented the proposed amendments to the Attorneys Amendment Bill. These included the removal of the definition of “professional assistant” and the time limits in clauses 7 and 33(7). The Committee indicated its approval of the removal of these potentially prejudicial time limits and agreed that this removed the need for regulations. Concerns were raised about clause 33(6) about the need to specify the degree required for articles and the rationale behind the sub-clause. The Department responded that the degrees for the practice of law had varied and the exact ones required were detailed in section 2(aB) of the Attorneys Act. Further, the purpose of the sub-clause was to remove the additional requirements of designation and certification which used to be placed on the universities in the former homelands, if its graduates wished to practice in the old Republic of South Africa. As a formal  B-Version of the Bill had yet to be completed and reviewed by the parliamentary law advisors, the adoption of the Bill was postponed.

Meeting report

Legal Aid Bill: finalisation
The Chairperson said that the A-list and B-version of the Legal Aid Bill will be read through to confirm if the proposed amendments have indeed been drafted. Further, the Schedule of the Bill needs to be read as the Committee had not dealt with this before.

Ms Wilma Louw, State Law Advisor: Department of Justice and Correctional Services, identified the clauses which had been amended, without detailing the nature of the changes as instructed by the Chairperson. In sum the amended clauses as per the B-version and A-list were clauses 1, 4, 6, 10, 13, 17, 22, 26. Clauses 3 and 7 were substituted with new clauses. Clauses 23 and 24 were switched around. Lastly, amendments were made to the Long Title and Arrangement of Sections.

Ms Louw turned to the Schedule and read the statutes to be amended or repealed by the Bill. These were the Legal Aid Act, the Criminal Procedure Act, the Labour Relations Act, Promotion of Equality and Prevention of Unfair Discrimination Act, Mental Health Act and Child Justice Act. The general nature of the amendments was to update references either to the previous Legal Aid Board or Act to align with the Bill.

The Chairperson said that there is an additional amendment which the Committee should consider. Subsequent to the debate in the Committee and his consideration of the matter, he felt that the Bill’s short title should be changed to the Legal Aid South Africa Bill. This was because the Bill’s main purpose is to establish an organisation called Legal Aid South Africa (LASA), rather than deal with the intricacies of providing legal aid through paralegals and community advice centres.

Mr S Swart (ACDP) supported the Chairperson’s suggestion. This clarifies the purpose of the organisation as funding legal aid through LASA, rather than other sources of legal aid funding.

Mr B Bongo (ANC) said that the Bill establishes LASA as one of the largest law firms in South Africa and it is appropriate to acknowledge this in the Long Title.

Ms K Litchfield-Litchfield-Tshabalala (EFF) said she did not in the main have a problem with the re-titling of the Bill, thereby removing the need for references to paralegals and other forms of legal aid. If so, she asked if a separate process would be established to cater for these concerns.

The Chairperson said that Ms Litchfield-Tshabalala’s suggestion is correct and a separate process, with legislation considered, will have to be initiated. Further, the exclusion will be reflected in the Committee’s report to Parliament

Ms Litchfield-Tshabalala said she would be satisfied, provided there is a time limit for this proposed process.

The Chairperson agreed that time limits are important, however it will depend on the program of Parliament. He committed to liaising with the relevant structures in pursuit of this. He proceeded to a clause by clause run through of the Bill, asking for the Members’ concurrence on each clause:

Clauses 1 – 3, clause 4 with amendment, clause 5, clause 6 with amendments, the new clause 7, clause 8, clause 9, 10 with amendment, clause 11, clause 12, clause 13 with amendment, clauses 14-21, 22 with amended, the new clause 23, the new clause 24, clause 25, 26 with amendment, clause 27, Arrangements of Sections and Long Title with amendment.

Adv Lawrence Basset, Deputy Chief State Law Advisor, said an additional amendment to clause 27 will be needed to deal with the change in the short title.

Voting on the Legal Aid Bill
The Chairperson asked if the Committee was satisfied with the proposal and Members indicated approval.

In response to the Chairperson asking for any objections to be recorded, Ms Litchfield-Litchfield-Tshabalala said that she had no objections, as long as the legislative process dealing with paralegals and the like is taken forward.

Mr W Horn (DA) said that there was no objection, but he had to declare that in terms of party caucus rules, he is only empowered on behalf of his party to say that the Bill is a true reflection. However, he cannot give official support at this point as this is the prerogative of his party caucus, although off the record, he would be very surprised if the caucus does not support it.

The Chairperson said that the caucuses must be respected, however it is established that there are no objections from any member of the Committee.

Committee Report on the Legal Aid Bill
The Chairperson read the report of the Committee: Having considered the Legal Aid Bill [B8-2014] reports the Bill with amendments [B8A-2014] and [B8B-2014], memorandum and further as follows:

“The Committee has noted with growing concern the increased incidence of communities taking the law into their own hands in defence of victims of crime who are considered to have had their rights disregarded in favour of criminals in court accused of having perpetrated crimes against them. We are of the view that this is a consequence of the perceived uneven implementation of articles 34 and 35 of the Constitution. This imbalance appears to have skewed the scale in favour of the accused person, while seemingly disregarding the rights and needs of victims of crime.

The Committee understands that limited resources constrain the type and extent of services Legal Aid South Africa is able to provide. At present Legal Aid South Africa provides professional legal advice and representation to those who could otherwise not afford it in criminal matters and to a limited extent in legal matters. The focus has been on the constitutional imperative to provide legal representation in criminal matters, while the obligation to ensure access to courts for any dispute which can be resolved by the application of law, also a constitutional imperative, has been severely neglected. Legal Aid South Africa has in recent years embarked on a process of progressively expanding its civil work and this has been noted. The Committee, however is acutely aware of the potential hardship which the inability to afford legal services can cause those who require civil legal assistance. In order to increase access to justice for victims and vulnerable persons in particular the allocation of additional resources for the expansion of civil work must receive the necessary attention. The Committee is of the view that paralegals and community advice centres play a major role in the area of public interest law, by providing legal assistance to those who would otherwise be able to access these services. These structures often provide legal advice, particularly to rural communities, but their role is constrained by the lack of statutory recognition and the need for financial assistance. The Committee is of the view that consideration of this issue should be expedited, in order to provide access to the legal profession and access to justice generally. The promotion of legal assistance through among others: recognition and adequate resourcing of paralegal services and community advice and law centres and reaching a balance between legal aid for civil as well as criminal matters will contribute to establishing a less adversarial approach to conflict resolution. The Committee believes that such an approach is integral to the success of restorative justice efforts”

Mr Horn said that paragraph one of the report should speak about the Bill itself, such as how it will put LASA on a platform to conduct its business along modern governance requirements. He was concerned that the report does not speak to the Bill itself enough and this could perhaps be remedied by switching the first and second paragraphs, as the second speaks more to LASA. He also suggested the insertion of South Africa after Legal Aid on the headings, to reflect the name changes. The word ‘articles’ should be changed to sections, for proper reference to the Constitution.

The Chairperson agreed, saying that when the report was drafted, the Committee had not yet agreed on the name change and the input of Mr Horn is now valid.

Mr Swart asked if is established practice for the report to Parliament to contain the extra information relating to paralegals and the context for providing legal aid. He said this as the report usually only contains extra information where the basic description of the Bill in the Memorandum is insufficient. He had no objection to the additional information, but warned that it would be setting a precedent.

Ms C Pilane-Majake (ANC) agreed with Mr Swart, and perhaps there is need for a preamble to the report.

The Chairperson said that Mr Swart is correct, however this is not set in stone and it is up to the Committee to decide.

Mr Swart said he then has no problem with the proposal of Mr Horn.

Ms Pilane-Majake said that the future plans regarding paralegals and advice centres need to be fleshed out in the report, indicating the importance of consultation with these parties in the process of drafting the bill.

The Chairperson asked for Members’ agreement with this suggestion.

Mr Bongo said that it should be expressly stated that the Committee intends to legislate to cater for the needs of paralegals and public interest law. He agreed with Mr Horn’s suggestion of changing articles and sections.

Mr Swart said the Memorandum also needs to reflect the short title change to Legal Aid South Africa Bill.

These were approved by the Committee.

Magistrates Commission Reports
The Chairperson said that he hoped the representatives of the Magistrates Commission had not felt the Committee was unreasonable at the last meeting. However, as public representatives, Members are under an obligation to hear all sides to the story. He then turned over to the Magistrates Commission.

Provisional Suspension of Mrs RM Mahlalela
Mr Johannes Meijer, Magistrate, said that the Commission always tries to handle matters procedurally fairly and present the truth to the Committee. The response to the Committee’s concerns drafted on behalf of the Minister targeted three points which the Committee had raised. Ms Mahlalela’s mental health which affected the fairness of the suspension; the legal proceedings which she had instituted against the institution of disciplinary proceedings and the potential for alternative remedies.

On the mental health point, Mr Meijer said that the psychiatrist reports received by the Commission in 2010 indicated that Ms Mahlalela’s mental ill-health was not sufficient to warrant suspension due to incapacity. Further, the same psychiatrists had been contacted to inquire if she still attends treatment and the response had been negative. Lastly, the Commission had gone through Ms Mahlalela’s reasons for  absenting herself from work. The last time it had been for mental health concerns was in 2010, others reasons being for things ranging from bronchitis to back pain. The Commission therefore concluded that she does not suffer from a mental condition sufficient to bar the disciplinary process.

Mr Meijer turned to the filing of legal proceedings, saying that they were based on Ms Malahlela’s allegation that she had not been afforded an opportunity to respond during the preliminary investigation. The preliminary investigation was constrained to a limited range of complaints and Ms Mahlalela, via her attorney, had been given the opportunity to respond, which was responded to with a request for further particulars.  This was deemed premature, as the preliminary investigation is only to investigate if there are grounds for charges. The report of the preliminary investigation was subsequently submitted to the Commission, which resolved to charge Ms Mahlalela with misconduct. He added that the matter will be opposed with opposing affidavits to be filed.

On the final matter, the potential for her being allocated administrative work is barred because as a judicial officer she must do judicial work. Against relocation, he said it is not the policy of the Commission to transfer magistrates unless there are life threatening, or similar, conditions.

The Chairperson said that principally the Committee is dealing with a question of access to justice, and if the people who are to be dispensing justice become a problem, then justice will not be accessed. If the heads of courts have to deal with the social problems, then this exacerbates the problem. Further, he would ask the Committee to reconsider its decision to not support the report of the Commission. This is particularly as the services offered by the courts cannot be sacrificed due to the personal problems of the staff and there are already problems in the administration of justice.

Mr Swart said that he supported the sentiment of the Chairperson. Having served on the Commission for ten years, he understands the difficulties with magistrates who cannot perform their duties and how this exacerbates access to justice problems. He endorsed the responses of the Minister. He proposed that the Committee visit the Commission to better understand its work.

Ms Mathapo said she supported the endorsement of the Minister’s response and asked if the reports of the psychiatrists could be tabled with the Committee.

Ms Pilane-Majake said that the she agreed too, as the response had dealt with the possibility of transferring Ms Mahlalela. Although, it is not possible to conclude that she is cured because she is refusing treatment, as a precautionary measure, the provisional suspension ought to proceed.

Mr Mpumlwana said that in his understanding when a person is bi-polar, this is hereditary. Since it has to do with mental capacity, the person will not easily accept that there is something wrong with them. Therefore, is it not a question of trying to assist this person. He asked if there is a way in which this could be done.

The Chairperson said that this may be a difficult question and perhaps her family needs to deal with it. The Commission has to act and suspend; leaving her family to deal with this situation. If the Committee indicates that she should be helped, then what position does that leave the Commission in and how is it to cope with something it does not have the capacity for?

Mr Mpumlwana said that when you try a person with mental problems, then they are tried appropriately. He was concerned about ensuring an ill person is treated as such. Was the suspension not too harsh?

The Chairperson said that there is a choice. One can say suspension is too harsh, leading to the person continuing to be dysfunctional at the court, at the expense of the administration of justice. If she is suspended, then she will have time to deal with whatever problems she may have; without overburdening the administration of justice. She has recourse to the courts to challenge her suspension but the public interest needs to be protected.

Mr Meijer said that the Commission cannot compel her to take her medication, but it will be kept in mind during the disciplinary process.

Suspension of Mr Masinga
Mr Meijer said that the Committee’s concerns were that Mr Masinga had not been given an opportunity to exhaust all his remedies and therefore the disciplinary process was not complete.

Mr Meijer said that Mr Masinga was convicted in the criminal proceedings of 23 May 2013 and sentenced to ten years in prison and a notice of bar has been served on his attorney subsequent to his not filing a replying affidavit in review proceedings. Mr Masinga has taken no further action and therefore has exhausted his available remedies. Mr Meijer said the disciplinary process, which was an independent process, culminated in the recommendation for removal from office with immediate effect. This is one of the functions of the Commission to consider the disciplinary matters of magistrates. Mr Masinga has not attempted to review the disciplinary proceedings despite having received the verdict. The Commission would not like to have a magistrate who has been found guilty of serious misconduct. It is the function of the Committee in this respect to either restore the magistrate or ratify his removal.

The Chairperson said that the image of our courts and presiding officers is very important. If one is facing similar criminal matters, how can that person really dispense justice fairly. It is for the Committee to send a strong message that people who act as hooligans will not be tolerated in our courts.

Ms Mathapo said that she supports a resolution endorsing the removal from office of Mr Masinga. After having waited all this time, Mr Masinga can be said to have abandoned his remedies regarding the disciplinary process.

Ms Pilane-Majake said that she too supports these views. Mr Masinga is still out on bail and she would like to know what the delay is on the part of the National Prosecuting Authority. She echoed the Chairperson, saying that the dignity of the judiciary is important. When a matter such as this arises, the Committee needs to be seen to take action.

Mr Swart agreed with the previous speakers. The previous Committee used to express concerns about delays in the conclusion of disciplinary hearings, caused by pending protracted criminal appeals. This is an example of how distinct the two process are and this is approach is supported. Further, there is nothing preventing Mr Masinga taking the decisions of the disciplinary hearing and the Committee on review.

Mr Mpumlwana said it is difficult to give a dissenting view on a matter. He agreed the processes were distinct; however he believed the disciplinary process was, to an extent, influenced by the criminal process. A successful review of the criminal proceedings could introduce an element of prejudice or a miscarriage of justice. Therefore, he would support the extension of the suspension rather than removal, up until the point where the review proceedings are completed. 

Mr Horn said he supported removal from office. The Committee should bear in mind the reason the Commission recommended removing magistrate is ultimately based on the Commission’s disciplinary process. Regardless of whether the review of the criminal process is successful, the internal disciplinary finding will stand. The focus should thus be on the disciplinary hearing, rather than the distant review of the criminal trial.

The Chairperson said that if it is agreed that the criminal conviction is not the sole basis for the removal of the magistrate and the finding of the disciplinary hearing is sufficient, then a pending review of that process could stall the Committee’s decision. As Mr Masinga has not done so, how long should the Committee wait while the image of the judiciary suffer? The Committee has a responsibility to strengthen the hand of the Commission, avoiding the potentially more harmful consequences of inaction. The public should be placed first, rather than individuals.

Mr Maila said he is in support of the removal of the magistrate based on the internal disciplinary process.

Mr C Msimang (IFP) strongly supported the Chairperson’s view that there are two interests at play. That of the public and the Commission, which ought to be catered to first, and that of Mr Masinga’s. He therefore agreed that the Committee cannot wait any longer, lest it seem that justice is not done.

Mr Meijer wanted to emphasise that the disciplinary inquiry and the criminal hearing have two completely different standards of proof: on the balance of probabilities versus beyond reasonable doubt. Further, that there have been instances where a magistrate has been acquitted in the criminal trial, yet their disciplinary finding stood. Lastly, the delays in the matter were caused by Mr Masinga and even more witnesses had been called by the presiding officer of the disciplinary hearing, who was an acting judge, meaning that all facts were placed before him.

The Chairperson said that even law graduates who have not faced any criminal or disciplinary processes have to be fit and proper before they are allowed to practice. Further, their case has to be made out before a judge of the high court. It is the same for magistrates and the Committee cannot come to the conclusion that Mr Masinga is a fit and proper person. He therefore asked for a mover for adoption.

Mr Mathapo proposed removal and Mr Horn seconded.

Attorneys Amendment Bill: deliberations
Adv Basset asked his team to take the Committee through the B-version of the Attorneys Amendment Bill, focusing on the changes indicated by the Committee in previous interactions.

Clause 1
Ms Theresa Ross, State Law Advisor, began the run through of the B-Version of the Bill, by saying that the word ‘division’ had been deleted from the definition of “high court”. The definition of “professional assistant” had been removed, as suggested by the Committee the previous day.

Adv Basset commented on the definition of “high court” that by making reference to section 6 of the Superior Courts Act, the definition covers both divisions and local seats of the High Court.

Clause 7
Ms Ross said that clause 7(2)(b) was deleted as the Committee had felt it was potentially prejudicial. Reference to the deleted sub-clause was removed from clause 7(2)(a).

Adv Basset said that the Department had been in contact with the Law Society of South Africa (LSSA) about the removal of the provision. LSSA was in agreement that the time period restriction be removed.

Clause 16
Ms Ross said that the reference to ‘articles of association’ had been substituted by ‘memorandum of association’, to bring the Bill in line with the Companies Act 2008.

Clause 22
Ms Ross said that “after becomes a member” was deleted, following the Committee’s suggestion that it is superfluous as it already reads “becomes a member of the society for the first time”.

Clause 33
Ms Ross said that there had been a lengthy discussion of this clause the previous day, particularly the time periods which affect graduates from universities in the former homelands. Clause 33(6) was included in the Bill as a positive protection for students of universities from former homelands. In terms of the Attorneys Act 1979, these universities were subject to certification requirements, as they were not within South Africa.  It was intended to put them on par with their counterparts who graduated at South African universities. After consultation with the Committee and profession, the time bar has been removed.

Further, clause 33(7) was removed as it restricted the time within which graduates from universities in the former homelands had for taking up articles. The Committee had also suggested the need for regulations, however perhaps there is no need for these with the removal of time periods. 

Mr Dingaan Mangena, State Law Advisor, said that Ms Ross had reflected the decisions accurately. He agreed there was no need for regulations, after the removal of clause 33(7) in its entirety.

Adv Basset said that the provision was really about removing hurdles put in place under apartheid . Although the universities of the former homelands were singled out, this is an equalising provision that ensures there is no distinction between universities.

The Chairperson said the Department had done what the Committee had required and done it well.

Ms Pilane-Majake said that she was still concerned about clause 33, although she agreed with the Department’s stance on the regulations. She was worried about the definition of a degree and what will be accepted as a law degree, because these varied. One needs to be clear before the process starts to avoid problems in putting practitioners on a par.

The Chairperson said that surely it would either be a B Proc, B Juris or LLB.

Mr Mangena agreed with the Chairperson. It had first been the B Proc, then the B Juris or postgraduate study leading to an LLB. Now the system has changed into a four year comprehensive LLB. In this context it will refer to any of these.

Adv Basset said that there is no doubt that it is an LLB, because this refers to section 2(1)(aB) of the Attorneys Act which declares that an LLB degree is the requirement.

Ms Mathpo asked what the rationale was for having clause 33(6).

Ms Ross replied that under apartheid the universities in the former homelands did not fall under the territory of the Republic. The Act as it stands refers to universities within the Republic with a law faculty. In order for these universities to have accreditation, then a designation would have to be provided and a certificate from a South African university would be required indicating that the standard of instruction is sufficient. This provision therefore removes any uncertainty as well as the requirements of designation and certification.

The Chairperson said that this is a good provision, because it removes onerous requirements and explains why the discrimination is fair.

Adv Basset said he had heard the expression ‘it is difficult to unscramble the apartheid egg’ and this was part of that unscrambling.

Ms Mathapo welcomed the explanation, as on face value, the provision could be read as discriminating against the former homelands.

Mr Mangena raised a minor change to clause 16, saying that to be fully in line with the Companies Act, the reference will have to be to “memorandum of incorporation”, but this is subject to verification.

The Chairperson said that this can be left to the Department. He asked if it would be appropriate to place the Bill before the Committee for adoption.

Adv Basset said that the process followed for the Legal Aid Bill was to have the A-List scrutinised by the Committee and Parliamentary Law Advisors. However the Department had not presented a B-Version of the Attorneys Amendment Bill, in a strict sense, nor have the parliamentary law advisors gone through the A-list

The Chairperson replied that the Committee shall wait for this to happen and declared the meeting adjourned.

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