The Department of Justice and Constitutional Development gave a response to the public submissions on the Legal Practice Amendment Bill. The responses were divided into three categories: proposals on the Bill, proposals beyond the scope of the Bill, and proposals that were not on the Bill but fall within the scope of the Bill. The Department was cautious of proposed amendments that go beyond the scope of the Bill as it would be necessary to approach the National Assembly for approval to extend the scope of the Bill. Members suggested that expanding the scope of the Bill would save time and money as opposed to creating a new Bill. Members decided that they would deal with the proposals that fall within the mandate, but they would also take note of the other matters.
The submission on clause 1 stated that the amendment will jeopardise the independence of the legal system council. The Department disagreed and suggested that the clause must not be amended. On clause 2, the Commission for Gender Equality suggested that the Minister review the areas of jurisdiction of Provincial Councils every five years. The Department argued that this is not necessary as reviewing Provincial Council areas should only be done when it is deemed necessary.
Members argued that the areas of jurisdiction must follow the constitutionally recognised boundaries of the provinces. Members stated that not doing so could hinder transformation. Members expressed concern that reviewing these boundaries every five years would create uncertainty for the people of South Africa. Members said that the establishment of a Provincial Council must be without any form of rationalisation. The Content Advisor stated that the National Forum on the Legal Profession reported that the decision would be to have nine Provincial Councils. The Committee decided to leave the matter until they engaged with the National Forum.
Clause 3 inserts the word ‘practising’ before ‘legal practitioner’. The National Bar Council opposed this stating that there is no definition for the term ‘practising legal practitioner’. The Department’s response was that the term is used in numerous places in the Act where it is necessary to distinguish between practising and non-practising legal practitioners.
Members discussed the distinction between practicing and non-practising legal practitioners. Members stated that the distinction would be restricting. Members said that it is necessary for practising lawyers to be registered with the Fidelity Fund for the protection of the public.
Clause 4 amends section 91 of the Act by replacing ‘statement’ with ‘transaction history. Submissions proposed that there was no need to change this, but the Department responded that this was necessary in order to see if an account is mismanaged.
Clause 5 amends section 96 of the Act, by providing that the National Forum ceases to exist on the date of the meeting with the Council or such other date as the Minister may determine.
Members asked how long the extension might be. Some Members suggested that they give the Forum a definite date by when they must comply. Members agreed to finalise the term after they have met with the National Forum.
Clause 6 amends section 97 which were the terms of reference of the National Forum. The National Forum proposed that the first set of rules and regulations for the new Council be made by the National Forum to ensure a smooth transition. The Committee agreed to flag this until they met with the National Forum.
Mr Bassett went through the proposed Committee amendments to the International Arbitration Bill:
Clause 1 changes the word ‘article’ to ‘Article’
Clause 5 inserts the words ‘International commercial’ so that it refers to International Commercial Arbitration.
Clause 9 deals with immunity of arbitrators and arbitral institutions. This has been extended to not only the employees of the arbitrator but also persons appointed by the arbitral tribunal
Clause 17 replaces ‘and’ with ‘or’ between subsection 1 and 2
Schedule 4 entails an amendment to the Carriage of Goods by Sea Act
Technical amendments were proposed for Schedule 1 and 2 of the Bill.
The Committee adopted the International Arbitration Bill.
Legal Practice Amendment Bill: Department response to public submissions
Mr Lawrence Bassett, Chief Director: Legislative Development, DOJCD, presented on the responses of the Department to the submissions on the Bill. The responses were divided into three categories: proposals on the Bill, proposals beyond the scope of the Bill, and proposals that were not on the Bill but fall within the scope of the Bill.
He said that when they started developing the Bill, the instructions were not to develop a Bill that would change the substance of the Legal Practice Act, because the South African Legal Practice Council is not yet in operation. The mandate was to promote amendments that would facilitate the handover from the old regulatory body to the new one. The mandate was to stick to the facilitation of implementation to get the new regulatory body – the South African Legal Practice Council – and the Board of the Legal Practitioners Fidelity Fund up and running. They would like to see the new regulatory body operating soon in order for real transformation to begin. The Department is sympathetic to the proposals beyond the scope of the Bill, but it recommends that they are not considered at this stage. This would be the prerogative of Parliament and the Committee.
The third category are proposals that are not exactly on the Bill, but fall within the scope of the Bill and relate to matters the Bill is intended to focus on. The Department is concerned as the National Forum has a life span of three years which expires on 1 February 2018. If they were to propose amendments that go beyond the scope of the Bill, it might be necessary in terms of the National Assembly Rules to approach the National Assembly for approval to broaden the scope of the Bill.
The Chairperson asked for guidance from the Members on the submissions that have gone beyond the scope of the Bill’s mandate.
Mr L Mpumlwana (ANC) said that DOJCD saw it fit to go a certain direction and the mandate was based on that. What does it mean if we only follow that and not consider what others have proposed as problems within the Act? If there are matters being raised by other people, it means another Bill must be made and they start from scratch. He said that if DOJCD and the Committee see these matters as an oversight, what would the next step be? He suggested it would save time to include those proposals if they made sense in this Bill despite not being within the mandate. Expanding the mandate would save time and money. He asked if it is a big deal if the mandate is expanded. He said that the alternative would be a new Bill. Matters that went beyond the scope of the Bill need to be entertained by the Committee. If they are deemed crucial matters, there would be a need to consider the comments.
The Chairperson said the Committee must be mindful that that approach does not affect the deadline.
Ms C Pilane-Majake (ANC) agreed that the Committee must consider that there are deadlines especially the three-year transition period. For implementation, it is important to consider the matters raised, especially the concerns about the National Forum on the Legal Profession. Due to the deadlines, they must proceed with the Bill but develop a way of dealing with all proposals, while sticking to the deadlines. The report of the National Forum has been submitted but the Committee has not engaged with it. They must begin with the report of the Forum to know what the Forum is doing. Is what the Forum doing managing to help implement the Legal Practice Act? Is the Forum managing to drive transformation of the legal fraternity in South Africa? What would be important would be a public hearing so lawyers can come forward and for the Committee to see what is being done by the Forum.
Mr Mpumlwana asked to hear the DOJCD responses before they can comment.
The Chairperson wanted to settle whether the Committee must go beyond the Bill’s mandate. If the answer is yes, then they must listen to the matters. If the answer is no, they must listen to the matters but not for the purpose of a decision.
Mr Mpumlwana asked if the Committee must decide on things they do not know about. He asked what issues are beyond the mandate and which are within.
Mr S Mncwabe (NFP) supported the view that they must stick to the mandate as compliance is important. When they are done with those matters, they must listen to what is regarded as exceeding the mandate which might lead them to public hearings. Both can be done.
Mr M Maila (ANC) agreed that the Committee must first focus on what DOJCD was mandated to do then later on listen to the other matters.
The Chairperson said that he is persuaded that the Committee deals with what is mandated, but they also hear the matters outside the mandate. This would enable them to say to DOJCD that having received the other recommendations, they must create a Bill and return to the Committee. He said the two are not mutually exclusive, but for the purpose of the meeting they would deal with the mandate and take note of the other matters without discussion.
Mr Mpumlwana agreed as long as no decision is made until they hear what the matters are.
Mr Bassett said that there will be more amendments when the new structures come into place. The decision of the Committee is wise as they would be doing a Bill with the backing of the new regulatory structures.
The Chairperson said that the Forum had requested to present their report on 1 November. The report will help the Committee to identify how they proceed.
Ms Wilma Louw, DOJCD State Law Advisor, presented the response to submissions:
This clause is a small insertion to provide that the new council can also help with establishment of schemes such as insurance schemes, medical schemes, pensions funds and provident funds. There were comments from one person but the representations were not motivated. The Department does not agree that this could be a problem in any manner. The Department suggests that clause 1 does not have to be amended in this respect.
This is a technical amendment which provides for a matter on the areas of jurisdiction of the Provincial Councils. There is a provision in the Act that could be construed as a contradiction. The Minister must provide for this in the regulations and allows the Minister to prescribe areas of jurisdiction from time to time. This will ensure there is a smooth transition in the establishment of the Provincial Councils. Clause 2 amends section 23(2)(b) to clarify the difference between sections 23 and 97. Section 23(2)(b) provides that the Minister must prescribe these areas and that is in the regulations. It allows the Minister to prescribe the jurisdiction. Section 97(1)(a)(ii) provides for purposes of establishing the first Provincial Councils and their areas of jurisdiction.
The comments on the clause were from the Commission for Gender Equality which suggested that the Minister must review the areas of jurisdiction of Provincial Councils every five years.
The Department response is that section 97(1) of the Act already provides that the National Forum must make recommendations on the area of jurisdiction.
Mr Bassett said that Section 97(1) is where the National Forum is intended to establish the first Provincial Councils. Those boundaries might be changed in time to come. Thus there might be a need sometime in the future to change those boundaries. The Gender Commission is saying that the Minister must review the areas of jurisdiction every five years. The Department argues that it is not necessary to have them reviewed every five years. The need for changing Provincial Council areas should only be done as and when it is deemed absolutely necessary.
Ms Pilane-Majake asked if the area of jurisdiction of the Provincial Councils should not follow the official boundaries of the provinces so that it should not be the responsibility of the Minister to review them. She asked what the reviews will be based on.
Mr Bassett said that there was a long debate about this when the Act was being deliberated. There was mention that there should be a Provincial Council for each province. At the end of the debate, it was decided that the legal profession must fund itself and not get any funding from government because of the independence of the legal profession. It might be a case of finances and it might not be viable to have a Provincial Council in all nine provinces. This is why it was deliberately left open so the profession itself can decide what it can afford, what is practical and what the needs of the profession are to do justice for the clients of lawyers.
Ms M Mothapo (ANC) said that leaving legal practitioners to decide this, might take them back to the former province colonies of the Law Society of Northern Province taking Limpopo, Mpumalanga, North West and Gauteng. She asked that they align the Provincial Councils with the official constitutionally recognised boundaries.
Mr Mpumlwana asked if the Legal Profession Board has made suggestions so far. He thought that they did comment on this matter. If they did comment, what is DOJCD saying about it?
Ms Pilane-Majake said that the Gender Commission did not give an oral submission so the Committee has not had the opportunity to engage the Commission on it. She emphasised leaving the areas of jurisdiction according to the constitutionally recognised boundaries of the country. She feared creating old structures that might hinder transformation. If transformation is taken seriously, then structures must be created that will have the ability to talk to transformation matters.
The Chairperson agreed that the Gender Commission did not appear before the Committee, but that they had made a written submission about reviewing the areas of jurisdiction every five years. He asked the Committee to settle the question on if they agree or not.
Mr Mpumlwana said that if they do not know what is to be reviewed, can they decide on whether it must be five years or not. They must start with what is in front of the Committee. Ms Pilane-Majake and Ms Mothapo are asking what there is in terms of the submissions.
The Chairperson replied that Ms Pilane-Majake and Ms Mothapo are suggesting aligning with the nine provinces. He asked Mr Bassett why it should be at the expense of the legal profession and not a state expense.
Mr Bassett said that the legal profession has not made any comments on this proposal. It was a settled question at the time that the Act was debated that the National Forum would make recommendations for the Minister to implement if he agreed. It is largely related to financial considerations. There have been no comments from the legal profession as it is something that is settled. His understanding is that the National Forum is recommending that there are nine provincial councils.
Mr Bassett said that the Gender Commission proposal is that the areas of jurisdiction are reviewed every five years. The Department states they can be amended from time to time but if there is no need for a review, it is unnecessary to amend them every five years. The review entails an investigation, time and money and this should only be revisited when a clear need is identified.
The Chairperson said that they must consider that they are not legislating for the lawyers or the Ministry, but for South Africans. Certainty is important and if they make laws which say the boundaries must be reviewed every five years, it does not become about the people. He referred to the proposal by Ms Pilane-Majake and Ms Mothapo that the provinces are aligned with the official boundaries of the provinces as it creates certainty. The law must not depend on what the lawyers and the Minister want. As the legal profession is not opposed to the alignment, he asked the Committee if they support the alignment as proposed.
Mr Maila said that reviewing every five years is a problem. He referred to the Municipal Demarcation Board. Every five years the boundaries are changed and people are confused. There must be consistency and he supports the proposal that there is alignment with the existing provincial boundaries.
Mr Mncwabe supported the alignment. Reviewing every five years would bring uncertainty to the law.
The Chairperson said that aligning the structures to the provincial boundaries gives more certainty to the people and the people will understand where they are going.
The Content Advisor said that the Act in section 23 provides for the progressive establishment of Councils in every province of the country. Already within the Act it says there must be Provincial Councils in every province.
The Chairperson said that the law supports the Committee that alignment is provided for and the implementation is progressive. The Committee accepted the position of the majority that there must be alignment with the nine provinces.
Mr Bassett said that the amendment in clause 2 is a technical amendment. DOJCD will prepare the amendments to give effect to what the Committee has decided.
Mr Mpumlwana suggested that it would be better if the Committee listened to the DOJCD presentation first and then they meet as a Committee and decide on the matters. Normally when DOJCD presents, they take note and then they sit as a Committee and consider it.
The Chairperson said that when Mr Mpumlwana was unfortunately outside, the Committee made a decision that they would look at it clause by clause. On the matter of whether boundaries should be reviewed, the Committee agreed such an approach would produce uncertainty and they agreed there must be alignment with the nine provinces. They would move to the next clause as the Committee had agreed.
Mr Bassett raised a concern that this might extend the scope of the Bill and they would need to get approval from the National Assembly. This is more a parliamentary matter than departmental matter.
The Chairperson gave the members a few minutes to consult.
Following the break, Mr Bassett asked for clarity on what the Committee wants DOJCD to do. Section 23 of the Act states the council must progressively establish a Provincial Council in every province. Section 23(2) states that the council must at the commencement of Chapter 2, establish at least four Provincial Councils. Section 23(2)(a) states that the following factors must be taken into account - there may not be more than one Provincial Council for each province; the location of the seats of the high court must be taken into account; the efficient obtainment of the council’s object; availability of resources and feasibility; the interests of legal practitioners and candidate legal practitioners; provincial needs; and the interests of the public. The Act states there must be nine but at the beginning there must be at least four with these factors taken into account. The understanding is the National Forum will recommend nine provincial councils from the beginning.
The Chairperson said that this is where the Committee must speak of overreach of law. The Committee’s position is they align with the provinces, but the Act says that there are factors which must be considered. They may be retaining the Bantustan arrangements through the back door.
The Content Advisor said that the reason for providing for a progressive establishment was that the Committee at the time was concerned that because the Provincial Council would need to be funded by the profession itself, it might prohibit the operation of advocates and attorneys in areas where there was not a big presence. She confirmed that the National Forum has reported that the decision is there will be nine Provincial Councils.
The Chairperson said that they might be moving ahead of themselves without receiving the report from the National Forum which should shed light on the matter.
Ms Pilane-Majake said that it is not their fault that they find themselves in this space as the Forum has not been engaging. She reiterated that they propose that the constitutionally recognised boundaries are followed. This goes together with what the Forum is busy with. From her understanding, the Forum must recommend to the Minister, which neutralises what they are speaking of. This must be final and the boundaries must be arranged according to those recognised by the Constitution.
The Chairperson said that the qualifications of Section 23(2)(a) are neutralising what the Committee is trying to do.
Mr Mpumlwana said that he read in the Act that the boundaries are according to the Provinces. He asked if they are saying that needs to be changed.
The Chairperson said that they need alignment with the provinces but there is a provision that the implementation may be progressive but subject to the consideration of the qualifications of Section 23(2)(a).
The Chairperson said that the Committee must be informed by what is on the ground. The members want certainty in the law and a transformative piece of legislation. He asked if they are not outsourcing to the legal profession their right to make a law that is certain. The interests of the legal profession do not coincide with the interest of the people of South Africa.
Mr Bassett asked for clarity on what DOJCD must do as it is already stated there must be nine Provincial Councils. Is the Committee asking that Section 23(2)(a) must be deleted
Mr Mpumlwana said that the word ‘progressive’ in Section 23 must also be deleted. They must be decisive and state nine Provincial Councils.
Ms Pilane-Majake said that the Councils they must be established without any form of rationalisation. In the future they may find that there is a system they do not agree with due to the reason that there is not enough money. This means that within the available resources, the structure being recommended should be established.
The Chairperson said that the Forum requested that they make a presentation on 1 November. The Committee would give them a hearing, then they can take the debate forward. The position of the Members is that they do not want conditionality.
Ms Louw said that the other comment on clause 2 was that the amendment must be consulted on by the National Council of Provinces (NCOP). This comment can be ignored as the Bill will be considered by the NCOP in the normal course. An additional comment was that the Minister must within 12 months define the jurisdiction of the Provincial Councils. Following the discussion with the Committee, the comment can be ignored. The Department noted that the National Bar Council of South Africa supports clause 2.
This clause inserts the word ‘practising’ before ‘legal practitioner’ in section 33 of the Act. The Commission for Gender Equality proposed a penalty clause to make it an offence if a person renders legal services for reward who is not a legal practitioner. The Department’s response is that this is unnecessary as there is already a penalty clause in section 33.
The National Bar Council of South Africa opposes the amendment as there is no definition for the term ‘practising legal practitioner’. They raise the concern that will this only apply to people who attend court. DOJCD’s view is that section 3 of the Act provides that the purpose is to create a single unified statutory body to regulate the affairs of all legal practitioners and all candidate legal practitioners in pursuit of the goal of an accountable, efficient and independent legal profession. Section 5 provides that the objects of the council are to regulate all legal practitioners and candidate legal practitioner. Section 1 of the Act defines ‘legal practitioner’ as an advocate or attorney who is admitted and enrolled. A legal practitioner is admitted in terms of section 23 of the High Court and then that legal practitioner becomes an officer of the court. After admission by a court, the person must enrol as a legal practitioner in terms of section 30. This is an application to the council for enrolment and this must indicate whether the legal practitioner intends to practise as an attorney or advocate. This person can elect to be in a non-practising role. There is a roll for practising and non-practising legal practitioners which is similar to the Attorneys Act where there is a roll for practising attorneys who actively practise as attorneys and are required to have a Fidelity Fund certificate, and a roll for non-practising attorneys who have been admitted by the court but are not actively practising as attorneys. They, however, remain officers of the court and legal profession. A court can strike their name in the event of misconduct unbecoming of an officer of the court and member of the legal profession. The term ‘practising legal practitioner’ is used in numerous places in the Act in order to distinguish between practising and non-practising.
The National Bar Council further commented on the position of consultants and the Banking Association of South Africa which refers to ‘corporate counsel’. The response of DOJCD is that the Act does not focus on consultants or corporate counsel in the private sector. There are instances where the Act may have a bearing on corporate counsel such as for legal advisors who are admitted and enrolled on the roll of non-practising practitioners and who are found to be guilty of misconduct, unbecoming of an officer of the court. If non-practising legal practitioners in the private sector do not wish to fall under the jurisdiction of the Act, they will have to remove their names from the roll. The Department is of the view that it is unnecessary to define ‘practising legal practitioner’. Section 33 deals with the authority to render legal services. The insertion of ‘practising’ is for the public good in that legal practitioners who carry out reserved work will do so with the backing that comes with having a Fidelity Fund certificate.
The Chairperson said that there is a difficulty in making laws for South Africans where the dominant interests dictate the direction. Where do academics and corporates fall? Do they have to have a Fidelity Fund certificate? Why are there restrictions as it becomes too complicated? They cannot make an amendment with challenges and they cannot address one law three times.
Ms Louw replied that the Legal Practice Act only pertains to practitioners. Currently they fall under the Attorneys Act and the Admission of Advocate Act. These Acts are not applicable to state law advisors or people that work at banks or private companies. They are in a normal situation where you have a normal employer-employee relationship even though you might be an admitted attorney or advocate. The deletion of the word ‘practising’ was an oversight. It is a risky situation for the public if a person who is a non-practising legal practitioner can do the reserved work. The client would not be protected. The amendment is for the protection of the public.
The Chairperson asked if the non-practicing people are subject to the authority of the new Council.
Ms Louw replied that this is in a limited sense. If someone is a law advisor for a private company and misbehaves, in theory someone could bring an application to the council to say that the person is on the non-practising roll and has acted in a manner unbecoming of the court. When one decides on a career path one must decide if one is a practising or non practising advocate. You cannot do the reserved work but can do everything else.
The Chairperson asked why members of the club should have authority over non-members of the club.
Ms Louw replied that this is in a very limited sense but if you do not want to become a member of the club you can take your name off the roll of non-practising legal practitioners.
Mr Bassett said that when you are admitted and enrolled as an attorney you become an officer of the court. When you apply for a job at the bank, you state that you are an admitted attorney but you are not practising. If you are an officer of the court, you will fall under the jurisdiction of the council in very limited circumstances.
Ms Pilane-Majake said that the public is exposed as there are no stable protection mechanisms to ensure that anyone who wants to operate in the legal fraternity is accountable. It is about accountability in terms of the Legal Practice Act. Monitoring practicing and non-practising legal practitioners will be difficult. She asked why they would put South Africans in a position where they would be exposed. The way laws are crafted should be in a way which automatically protects South Africans. Why would people want to practice law if they do not want to be accountable to the authority of the legal fraternity? Law must be practiced in a way which ensures they are compelled to have ethical conduct and if there is no ethical conduct, they must be sanctioned.
The Chairperson asked what the submissions of the corporate lawyers are.
Ms Louw replied that the Banking Association made a submission and they were unsure whether the Act applies to them or not. The Act does not pertain to corporate lawyers. When you make a career choice that you are non-practising, you are still subject to the laws of your employer-employee relationship.
Mr Bassett added that if you make a career choice that you want to practise, you must be admitted and enrolled and you must have vocational training. If you make a choice after your legal qualifications that you do not want to give legal services to the man on the street, you do not get admitted or enrolled. This is why the Act does not apply to them as they are just a person with a qualification. There is always accountability which is what the Act intends to achieve. The Act wants to ensure that you cannot be let loose on the public with an LLB but that you are admitted by the court. Once the Act is implemented, if you want to be a practising legal practitioner, you must be admitted, enrolled and do vocational training.
The Chairperson asked how paralegals are dealt with as they are practising law and do not have Fidelity Fund certificates.
Ms Louw replied that the Legal Practice Act does not pertain to paralegals.
Mr Bassett said that there is a list of things they are not allowed to do in terms of the Attorneys Act which only attorneys with Fidelity Fund certificates can do. This is why it is important to have a Paralegal Act where they can be regulated.
The Chairperson said that this is a difficult position Parliament has been put into as there are lawyers who say paralegals may not do certain things which is what the legislature must allow or disallow. There are interested parties that disallow members of the pubic to do certain things. This is why there was the initial question that paralegals must be dealt in the Legal Practice Bill. They are legislating for practicing advocates and attorneys but the term legal practitioner does not exclude paralegals.
Mr Mpumlwana said that there is no need for this distinction. It is enough to say that when a person is going to practice and take money from the public, they must have a Fidelity Fund certificate. There are consultants in the private sector who have to employ someone who is practicing. This is the problem of having this distinction. Sometimes departments employ lawyers in order to get other lawyers. Why can there not be in-house attorneys and advocates who can go to court? This is the problem of having the distinction.
The Chairperson said that he was admitted as an attorney and advocate and there are many land claimants who do not have anyone paying legal fees for them. If he says that as there is injustice done to the people, he will defend them free of charge, in terms of this law he would not be entitled to defend them, although there is no one who can defend them. He asked if this is just.
Ms Louw replied that if he is admitted as an advocate, he falls on the roll of an advocate and that Act. The requirement that a person must have a Fidelity Fund certificate in certain circumstances is for the protection of the public. She is not a practicing attorney as she does not want to do that particular work. If her employer tells her to appear in court, she would not want to do it which is the same with a corporate lawyer. An attorney works for a bank because they do not want to be a practising attorney or advocate.
Mr Mpumlwana said that the choice is not permanent. He asked if one can be registered for both practising and non-practising. He asked why this distinction is in place as it may be restricting.
The Chairperson said there are communities that claimed land in 1998 but they do not have money to pursue it as the state is not providing legal funds. If he says he is not on the roll of practicing attorneys and he wants to defend them without charging them and the law will not allow him to do so, will such a law advance access to justice?
Ms Pilane-Majake said that practising lawyers must be registered with the Fidelity Fund for the protection of the public. If someone wants to practise law in South Africa, there should be a way of monitoring if they comply with ethical codes and standards. The Committee must conclude the matter of practising and non-practising. She asked where paralegals stand as they practice semi-law?
The Content Advisor said that both practising and non-practising legal practitioners will be subject to the code of conduct. The Act does not change the situation of practising attorneys as they must have a Fidelity Fund certificate but an advocate does not need to have one as they do not accept work directly from the public. As soon as you want to take on work directly from the public, you must have the Fidelity Fund certificate. The reason is that attorneys in the past have stolen money and the public have not been able to get their money back.
The Chairperson asked if the intention is to fuse the two professions. If they are fused why should there be this distinction.
Mr Mpumlwana asked for clarification on the need to distinguish between practising and non-practising.
The Chairperson said that the problem is where transformation is dictated by dominant forces in society and the silent majority has no say. The Fidelity Fund certificate is required to protect the public, but that protection is not holistic as it leaves some people outside the net.
Mr Mncwabe said that when he was still in practise there was an Independent Bar where the advocates would talk directly to clients. There was a concern that they were charging more than what was expected of them. The Act says practising attorneys must obtain Fidelity Fund certificates. He asked if this applies to the existing Independent Bar.
Adv Bafobekhaya Momoti, National Bar Council South Africa (NBCSA) chairperson, said that when the NBCSA was established in 1994, one of the reasons it was formed was to transform the legal landscape of the country. Since they had a transformative agenda in mind, they decided to break away from the General Council of the Bar (GCB) because of principles of freedom of association. There are a number of bar associations which broke away from the GCB such as the NBCSA which is formally known as the Independent Association of Advocates, which had the term ‘independent’ in order to distinguish it from the traditional bars. There were members who would call themselves independent advocates who did not belong to any structure, which is why they changed the name. Later on, the National Forum of Advocates and the Gauteng Association of Advocates also broke away from the GCB. If you are admitted, you may practice law. The NBCSA is a member of the National Forum and a person may belong to any bar.
Adv Andre Paries, NBCSA member, said the NBCSA was formed because of the recognition that advocates do not have to belong to one authority which was the GCB. When looking at practising and non-practising, the distinction would be restrictive to legal practitioners. If you want to regulate the protection of certain legal work, then legislation must stipulate how a specific legal practitioner should work in a specific field rather than having general legislation which makes distinction between practising and non-practising.
Mr Bassett said that the Act does not prohibit the formation of a different bar council. He acknowledged that Members were saying the Act must be for a fused profession. This is what the original Legal Practice Act tried to do many years ago but the result was a compromise of a divided profession. If this needs to be changed, it cannot be done in an Amendment Bill as it is a departure from the cornerstone of the legislation. He added that the Act is in place for the protection of the public as there have been abuses.
The Chairperson said that this strengthened the position of extending the life span of the Forum as there are struggles which must take place within the Forum and the amendment of the legislation.
Ms Pilane-Majake said that freedom of association must be acknowledged but within the law.
Ms Louw replied that the Act makes the distinction between practicing and non-practicing but it does not make the distinction in section 33. Clause 3 rectifies this for the protection of the public.
Mr Mpumlwana asked if they are not amending the Act as far as this is concerned. If there is no clarity then there must not be a distinction.
Ms Louw replied that if the Committee and Parliament wishes to change the law, it goes beyond the scope of the Amendment Bill. This would entail a total change of the current Legal Practice Act.
Mr Mpumlwana said that in South Africa the problem is that there is a constitutional democracy rather than a parliamentary democracy. Anyone can go to court and say an Act is unconstitutional because it is discriminating. Having looked at some of the problems within the Act, the mandate could be extended.
The Chairperson stated that they would deal with this in the amendment of the Act, but for now they would like to extend the life span of the Act. Following the concerns raised, DOJCD must return to the Committee with an amendment.
Mr Bassett said that this would not be a small technical change as there will be so many consequential amendments.
The Chairperson told the Committee that they would not want consequential amendments as they would create problems for themselves.
This clause amends section 91 of the Act which provides for the right of banks in respect of trust accounts.
Ms Louw said that this was a small technical amendment of ‘statement’ changed to ‘transaction history’. The word ‘statement’ is limiting in what information the bank would provide. The NBCSA and the Commission for Gender Equality supported this. Another submission was that there was no reason why the words should change. The response of DOJCD was that it is easier to see if an account was mismanaged in the transaction history.
This amends section 96 of the Act which provides that the National Forum ceases to exist on the date of the meeting with the Council or such other date as the Minister may determine.
The Chairperson asked what is the duration of the extension the National Forum is asking for.
Ms Louw replied that the Minister already gave the Forum an extension of their two-year mandate until the end of October 2017.
The Chairperson said that they are going back to the times of the Transvaal Provincial Administration (TPA) where they would be governed by proclamations. Parliament does not make proclamations; it makes laws as part of transformation.
Mr Mpumlwana said that if they extend the date there is a problem of the Bar Council resisting cooperation. If they change this, they must give discretion to the Minister to extend it where necessary.
The Chairperson said if the Forum has been given three years to transform and they have not managed to do so, they must extend and put a definite date to which they must comply. Failure to transform has an impact on the delivery to justice and access to it.
The Content Advisor asked for clarity what still needs to be done for the Forum to complete its work and what the reasonable timeframe would be for the Committee to make an informed decision.
The Chairperson asked DOJCD what a reasonable period would be. Laws must be made which are certain.
Mr Bassett replied that if the Committee wants a definite date they could engage with the National Forum. As they have already gotten an extension, nine months or a year may be reasonable.
The Content Advisor said that they can flag the period while they do an investigation of what needs to be done, then they can make a decision.
The Chairperson said that they would give the Forum a hearing on 1 November before they fix the term.
Ms Pilane-Majake said they must also look at capacity within the Forum.
The Chairperson said they would meet with the Forum and Ministry before a decision is made.
This clause amends section 97 of the Act on the terms of reference of the National Forum. Clause 6(a) deletes 97(1)(a) on the manner in which Provincial Council must be elected. Clause 6(b) is a grammatical error that is being rectified. Clause 6(c) refers to section 109 that provides for the rules to be made.
Ms Louw said that the Act provides that the Council must make certain rules in the future and that the Minister must make rules on several matters. The National Forum has its limited mandate which must go into regulations made by the Minister. The National Forum requested that for the purpose of continuation and smooth transition that the first set of regulations and rules must be made by the National Forum rather than on the day the first permanent Council is established. The Forum offered to assist with getting this off the ground and the new Council and Minister can amend anything in the future. The fear is that when the Council comes in to place and the law society is dissolved, there are no rules or regulations.
The Chairperson said they are used to the Minister making regulations which are approved by Parliament. This situation is complicated
Mr Bassett replied that in terms of the current Attorneys Act, there are rules which deal with internal matters. The Council Regulatory Act makes rules and the Minister makes regulations on policy matters. It was incorrect though that the National Forum should do some preparatory work and make recommendations to the Minister on regulations made. The Act gives the National Forum the power to make certain rules to regulate internal issues within the profession. The National Forum came to DOJCD and said they have limited powers in regulations and for the sake of continuity, the mandate should be broadened to put in place what is necessary. This is in the interest of the public to ensure everything is in place when the new council begins.
The Chairperson proposed that they should not second guess the National Forum. He asked to postpone the matter until the Forum is present and can answer for itself.
The Committee agreed to postpone the matter.
Finalisation of the International Arbitration Bill [B10-2017]
Mr Bassett said that in the previous week the Committee agreed to the amendments proposed.
Clause 1 changes the word ‘article’ to ‘Article’
Clause 5 inserts ‘International commercial’ so that it refers to International Commercial Arbitration.
Clause 9 deals with immunity of arbitrators and arbitral institutions. This has been extended to not only the employees of the arbitrator but also persons appointed by the arbitral tribunal
Clause 17 replaces ‘and’ with ‘or’ between subsection 1 and 2
Schedule 4 entails an amendment to the Carriage of Goods by Sea Act.
Amendments to Schedule 1
There were technical amendments:
Article 12(1) on grounds for challenge have technical amendments with the wording
Article 31(7) the word’ arbitral’ was added to ‘tribunal’.
Amendments to Schedule 2
Article 1(1) the word ‘the’ must be removed.
The Committee adopted its Report on the Bill recommending its adoption by the National Assembly.
The Chairperson said that this was a lovely debate and thanked DOJCD for the thorough preparation.
The meeting was adjourned.