The Department of Justice and Constitutional Development presented the finalised Portfolio Committee amendments on the Courts of Law Amendment Bill. Members reflected on the Committee Report accompanying the Courts Bill. After clarifying the preamble of the Courts Bill, scope of notice to judgment debtors, use of the phrase ‘just and equitable order’ emolument attachment orders (EMOs), and the role of regulations in its implementation, the Committee overwhelmingly adopted the Courts Bill. They agreed to present the Bill to the House without debate.
The Committee adopted its Report on the Draft Regulations in terms of Section 23 of the Legal Aid South Africa Act dealing with the replacement of the Legal Aid Guide and the making of the Manual for the new Act.
The aim of the Legal Practice Amendment Bill is to address practical and technical non-contentious issues in implementing the Legal Practice Act of 2014. Only Chapter 10, which deals with the National Forum on the Legal Profession, has come into operation in February 2015.
Members observed that the National Forum on the Legal Profession should have submitted an interim report, rather than simply making a request for extension of time. A member expressed concern that the Legal Practice Act gives the Minister too much power, and suggested that Parliament should be briefed by all stakeholders on implementation of the Act. Some members queried the transformation agenda of the National Forum, while others suggested the inclusion of legal clinics, candidate attorneys, and students serving pupillage in the National Forum so they can make inputs. The Committee requested the Department provide an interim report on implementation of the Legal Practice Act.
Courts of Law Amendment Bill: finalisation
Mr Lawrence Bassett, DoJ&CD Chief Director of Legislation, explained that the Courts of Law Amendment Bill is ready for voting. He called on Ms Steyn to summarise the Portfolio Committee amendments on the Bill.
Ms Engela Steyn, State Law Adviser, noted the these as being the expansion of court days, replacement of the sufficient means test with a just and equitable order, factors the court will consider before granting this order, changes to mandatory and permissive language, procedural redress for persons affected by emolument attachment orders (EMOs), and changes in the short title and commencement date of the Courts Bill to avoid retrospectivity.
Mr W Horn (DA) asked if the use of the phrase ‘just and equitable order’ concerning EMOs is in furtherance of the Constitutional Court judgement in the Stellenbosch case. Is implementing an EMO more restrictive in the Courts Bill than the Constitutional Court envisaged? How much of the implementation of the Courts Bill will depend on regulations, and if heavily dependent on regulations, what are the measures for ensuring speedy adoption of regulations?
Responding, Ms Steyn recalled that in November 2016, the Committee decided to leave the just and equitable principle as framed in the Courts Bill, with an addition of factors the court will consider before granting an EMO. She explained that Magistrates’ Courts have sufficient capacity to handle EMOs.
Mr Bassett added that the clerks of court will no longer handle EMOs.
The Chairperson remarked that Parliament’s duty is to ensure access to justice. He added that stakeholders in the Courts Bill are aware of its key provisions.
Mr L Mpumlwana (ANC) expressed doubt over the framing of clause 9(2)(b) concerning notice to judgment debtors. Does the clause mean notice by registered mail, and does the fact of postage alone constitute sufficient notice, irrespective of whether the mail was delivered?
The Chairperson responded that the law cannot anticipate all challenges such as delayed/non-received letters.
Mr B Bongo (ANC) thanked the DoJ&CD for finalising the Courts Bill.
Mr Mpumlwana and the Chairperson also thanked the DoJ&CD.
The Chairperson asked members to reflect on the Committee Report accompanying the Courts Bill with view to adopting it.
Mr Horn suggested that the Bill’s Preamble should include a clear aim to prescribe judicial oversight over EMOs. Members agreed.
Voting on the Courts of Law Amendment Bill
Mr Mpumlwana moved for the adoption of the report, seconded by Mr Bongo. Nine out of ten members voted in favour. Mr N Matiase (EFF) abstained because he arrived late.
Ms M Pilane-Majake (ANC) asked if the Courts Bill will be debated in the National Assembly when it is presented.
Mr Mpumlwana called for the Bill to be debated because of its importance. Moreover, it will enable the public to know the work Parliament did on the Bill.
Mr S Swart (ACDP) stated that there is no need for debate where a Bill is unanimously adopted at Committee level.
The Chairperson agreed with Mr Swart, noting that the Bill should not be used for ‘grandstanding.’ Most of the members agreed to present the Bill to the National Assembly without debate.
Committee Report on Regulations of Legal Aid South Africa Act
Mr Bongo noted that other than paragraph 3, the framing of the Committee Report is acceptable.
Mr Horn called for redrafting of paragraph 2 to input immediacy into the making of the Manual. He called for its adoption, seconded by Ms G Breytenbach (DA).
The Committee Report was unanimously adopted.
Legal Practice Amendment Bill: briefing
Mr Bassett explained the purpose of the Legal Practice Amendment Bill. The Legal Practice Act of 2014 provides a framework for the transformation and restructuring of the legal profession. Only Chapter 10, which deals with the National Forum on Legal Profession and transitional provisions, has come into operation in February 2015. The aim of this Amendment Bill is to address practical and technical issues, including transitional provisions, in implementing the Legal Practice Act. He noted that the amendments are not contentious.
Ms Wilma Louw, State Law Advisor, gave a clause by clause briefing on the Amendment Bill:
Clause 1 concerns the scope of the Bill.
Clause 2 describes the powers of the Minister.
Clause 3 explains the qualification of legal practitioners.
Clause 4 allows the Legal Aid Council to request transaction histories of accounts rather than being restricted to bank balances.
Clause 5 explains the lifespan of the National Forum on the Legal Profession.
Clause 6 amends sections 94, 95, and 97 of the Act to give the National Forum a broader mandate. Clause 6(d) makes technical amendments.
Clause 7 amends section 109 to extend the mandate of the National Forum in the making of regulations.
Clause 8 amends section 117 to improve the functions of law societies.
Clause 9 concerns the short title of the Bill.
Mr Bassett noted that the National Forum on the Legal Profession will complete its mandate in August 2017.
The Chairperson observed that the National Forum should have submitted an interim report, rather than simply making a request for an extension of time. He noted that paralegal legislation has still not been adopted, despite its importance to access to justice. Paralegal legislation should have been adopted rather than using amendments to address issues concerning the legal profession. Students are allowed to sit in university councils. Given that legal practice affects students, why are students not included in law societies and the National Forum so they can make inputs on matters that concern them?
Mr Horn noted that if the Legal Practice Act gives the Minister too much power, it will defeat the purpose of the Act, which is to empower legal practitioners. He suggested that Parliament should be briefed by all stakeholders on implementation of the Act.
Ms M Mothapo (ANC) stated that candidate attorneys and students serving pupillage should be included in the National Forum. Noting that the Minister is expected to submit an interim report to Parliament every six months, she queried the transformation agenda of the National Forum and asked if there is a law society in the Free State.
The Chairperson noted that lawyers seem not to be fully aboard the transformation train. He suggested that legal aid clinics should be part of the National Forum, while issues affecting legal practitioners cannot be discussed in isolation of the larger society they serve.
The Chairperson requested the DoJ&CD provide an interim report on the implementation of the Legal Practice Act. He called for separate engagement with stakeholders to put public interest at the forefront.