The National Forum on the Legal profession briefed the Committee on their activities. Mr Max Boqwana, Deputy Chair of the Forum, stated that the purpose of the meeting was to respond to previous questions which had been raised by the Committee and to explain their activities in the last 24 months. With the question raised by the Committee on the road to fusing the legal profession, the Forum sees unity in the profession to be important as there are divisions in terms of geography, race and gender. Training programmes for attorneys and advocates must be similar in order to facilitate access to the profession and for the benefit of the public. Although the matter of paralegals is important, it is not central to the Forum and the Legal Practice Council will address this once it is in place. The Forum has recognised the importance of consultation particularly with students on matters which affect their future. The Forum is divided into 4 working groups which are the committees of Governance; Rules and code of conduct; education accreditation and standards; and administration and human resources. On the matter of assets, the Forum has not concluded it.
The Forum has finalized the elections procedure of the Legal Practice Council and the Provincial Councils. There will be a separate voters roll for practicing attorneys and advocates. The Demographic composition will be 70:30 (Black: White) and 50:50 (Female: Male). The Forum has completed the establishment of the jurisdiction of the 9 Provincial Councils, in line with the boundaries of the 9 provinces. They have finalised the rules in relation to the criteria of institutions conducting the assessment of training. The Forum addressed the matters relating to the amendment of the Legal Practice Act. The definition of a practicing legal practitioner will be necessary in terms of distinguishing who must have a Trust account. On the Duration of the Forum, they would not be able to complete their task by February 2018 and they suggested clause 5 be amended.
The Deputy Minister expressed his disappointment that the Forum could have achieved more in the period they were given. Members asked how the Forum is implementing the matter of discipline in relation to fusion and unity. Members of the Committee expressed concern that the Legal Practice Amendment Bill is not achieving the purpose of transformation. Members suggested going back to the Legal Services Charter as they are still facing many challenges. Members suggested that if there is resistance towards change and transformation, the Committee must develop some mechanisms and methods of stick and carrot in order to compel compliance. Members proposed that there be a clear agenda towards transformation. Members asked for the Forum to state how long they would need an extension for and to provide justification on why they would need more time to complete their tasks. The Deputy Minister suggested that the Provincial Council boundaries are aligned with those of the Provincial Courts. Members suggested that a symposium with law students is created in order to give them a voice on matters which will concern them in the future.
The Committee gave the Forum a few days to establish the matters which must still be address and to state how long they would need an extension for.
The Chairperson welcomed the Committee, the Deputy Minister and the National Forum on the Legal Profession. He invited them to brief the committee on their activities thus far.
Briefing by the National Forum on the legal Profession
Mr Max Boqwana, Deputy Chair of the National Forum on the Legal Profession, introduced the team and apologised on behalf of the Chairperson, Advocate Kgomotso Moroka who was not able to attend
Mr Boqwana said that the National Forum requested the meeting in order to respond to the questions from the last presentation made on the 12th of September 2017, and to explain the work they have done in the last 24 months. They wanted to also brush up on the proposed amendments they were looking at. These amendments are to ensure there is a smooth transition and to correct mistakes which occurred in the preparation of the Legal Practice Amendment Bill.
In response to the question raised by the Committee about the road to fusion, on various occasions in the past there was an idea that the profession will be a fused. Following this, there was a movement away from the idea of fusion and it was substituted by unity of the profession. It is an extremely divided profession in terms of geography, race and gender. As the profession progressed after 1998 when the law society was put together, there has been a difficulty in women being part of the governance structure of the profession which is something which must be addressed. In addition, there are disagreements between the attorneys and the advocates. There are also distinctions between the advocates in terms of the GCB, the National Bar Association, and other advocates who are not regulated. These fragmentations are not in the interest of the public which is why the Legal Practice Act seeks to achieve unity.
The Forum has agreed that there is a common academic qualification, and training programme post university which is an outstanding issue. There are some from the attorney’s branch who argue there must be a common training. They state that the matter relating practicing as an advocate or attorney must be an administrative decision. Advocates on the other side are arguing it is a specialised profession which needs special training. The Forum believes that it was superseded by the rights of appearance in the High Court and even attorneys need that forensic training which is for the benefit of the public.
The Forum believes the training programme must be the same in respect of appearances to courts and the payment of pupils, in order to facilitate access to the profession. There is still an idea that If you are being trained as an advocate you must be trained for 12 months and you must do so without being paid. This is one of the key barriers to entry in the profession. The Legal Practice Act created hybrid advocates who practice with Fidelity Fund certificates. Time will tell to what extent the National Forum will progress towards fusion.
There was also a matter raised that the National Forum must deal with which relates to paralegals. They understand it is raised because of the recognition that many people are unable to access the legal services either geographically or financially. Paralegals have a role in providing access to justice. In terms of the Act, the matter of paralegals is not central but referred to in section 34 of the act which implores the Legal Practice Council and the Minister to investigate the matter of the regulation of paralegals. This will occur when the Council is in place.
The last matter raised by the Committee was the issue of wider consultation. The National Forum has been acting under extreme pressure in terms of delivering all they have been mandated to do so. One of the things they missed was the idea of consultations with students in particular. Most of the people at the National Forum are at the twilight of their practices and they are trying to design a future dispensation they will not be living in. They had not taken into account those that will be affected by what they are deciding. They realised this and at the point when they put together a group of university students to have a symposium, Professor (17.08) passed away and they must go back to deal with this matter.
Mr Boqwana said that It has never been the intention of the National Forum not to appraise the Committee of their work. They are unaware of when they must go to the Committee and they thought reports to the ministry were enough. The first report presented to the Ministry was on the 30th of July 2015. The report dealt with the commencement of the work, the composition and the organisation of the National Forum. The second report was on the 10th of march 2016. The report set out lists of tasks the National Forum had to undertake and mechanisms which arose. On the 28th of September 2016, they filed a third report on progress on outstanding matter and possible amendments. Today the National Forum finalised the final recommendations to the department of justice which will be due on the 31st of October. Every 6 months they had to produce a report and they have done so.
The National Forum focused on the matter of amendments. It is mainly to adjust some of the errors and to ensure smooth transition. The first amendment is section 120 of the Act which relates to the avoidance of the over lap between the existing laws society and the new Legal Council. It is not clear in the Act that the Law Societies’ should still have some authority when the Council begins to function. There must be no confusion but a smooth transition. The second amendment Deals with section 25 with respects to the equalisation of the trainees of either advocates and attorneys. The third amendment is section 34 of the act that all member of the law firm will be held responsible for the theft of one of their partners. This theft must relate to the trust funds within their offices. Section 36 a request to smooth transition with the board of control of the Attorneys Fidelity Fund until the new board comes to play.
On Section 114, the amendment is about the rights of those that have B. Proc as a law qualification who might have their situation worsened by this act. The new act speaks of the LLB and some with B. Proc may fall of the table if they are not considered.
Mr Boqwana said that the role of the National Forum is set out in terms of 97 of the act which sets out a list of the duties and that the National Forum must make a recommendation to the Minister for their implementation. The architecture of the Act is 3 dimensional. The first is that the Forum is operating in terms of chapter 10 of the Act which speaks of election procedures and it was effected immediately after the Forum was established. The second dimension is set out in chapter 2 which deals with an elected Legal Practice Council which will have a short period when it finalises the outstanding matters of the Law Society. Within a period of 6 months the entire Act will come in to operation.
The Forum has divided themselves in to 4 working groups. The first is the Governance committee which has the mandate of deal with elections and constitution of provincial councils, the funding model of the future dispensation, organisational design and costing of the future profession. The second is the committee of rules and code of conduct. The committee has worked and drafted the rules and conduct. They have drafted the rules for the future Legal Practice Council so they have rules they can utilise. The committee also handles matters relating to admissions, common role of legal practitioners, foreign practice which will be the minister’s decisions to finalise. The third committee is on education, accreditation and standards. It has the responsibility of looking at what education models are used by law societies, the GCB and other grouping. With the assistance of NSDA and other colleagues within the SADC regions, they tested the education models against other models of countries that faced a post colonial structuring of the legal profession. They almost have an agreement around the education programmes except advocates want emphasis on litigation forensic skills. The Fourth is the committee on administration and human resources. All law societies will be disbanded by October 2016. This committee must address how to they incorporate the employees in to the new society. In terms of the new dispensation, they will not need all the people in the Pretoria office and they will have to relocate. The struggle in KwaZulu-Natal is that Durban has been demarcated as the seat of the Provincial Council, but the Law Society of KZN is currently based on Pietermaritzburg and the employees state they cannot move as Pietermaritzburg is central.
In terms of the matter of assets, the Attorneys Act deals with two conceptually different issues on regulation and the members’ interests. In terms of the assets accumulated there is a discussion that the issue related to members’ interests must continue. If it doesn’t they will be the only country with no organised group of lawyers together. There are discussions the Law society must continue to focus on the interests of members. There have also been discussions on the matter of transferring assets from Law Society to the new Council. The act requires the process is done through negotiation and not appropriation. There ae different interests on the tables, some say a portion of resources have been accumulated through members’ interests matters beyond regulatory matters. Some members have concluded they would like to retain 20/25% of the assets. This matter has not been concluded but most societies will attend the AGMs and endorse their decision.
In the matter relating to the elections procedures, the Forum has completed this. They will have a separate voters’ role for advocates and attorneys. They will have a structured demographic and geographical representation in the final Council through a 70:30 representations in terms of black and white, and 50:50 in terms of gender. They have engaged with various election monitoring entities to advise on how they will actualise the process. The process will which will be under the supervision of the Ministry but they are ready to assist
The Forum has completed the establishment and determination of the jurisdiction and functions of all the nine provinces. They have completed the code of conduct which was published in government gazette on the 10th of February 2017. They have agreed on the appearance of the candidate legal practitioners in all of the courts. They have finalised the rules in relation to the criteria of institutions conducting the assessment of training. The rules relating to disciplinary procedures will be published in the government gazette as they are waiting for on the between the Forum and GCB.
The four matter left for the Forum to complete their mandate are the approval of the amendments, the agreement between the Forum and GCB in terms of training, the agreement with law societies and the modalities around the elections and the hand over.
Mr Jan Stemmett, Member of the National Forum, said that they were given a record of the discussion of the responses to the proposed submissions of the amendment Bill and the questions raised in relation to this and the Forum would respond to this.
Clause 8 of the amendment Act deals with the life of the existing law societies. When they began working with the Act, the National Forum saw there are anomalies which must be addressed before there is a smooth transition. Chapter 2 states the existing Law Society must continue their operations until the commencement of chapter 2. He said that this would not work as when chapter 2 begins the new council would not be in a position to continue the work of the existing Law Society. The Law Society cannot come to a halt while the public waits for the Council to be elected, for infrastructure, and for the establishment of the Provincial Councils. The Forum identified this problem and this was reflected in clause 8 of the Amendment Bill. The Forum supports all the provisions in the Amendments Bill. On the question of areas of jurisdiction of the Provincial Council, the Forum accepted it will be incidental with the provincial boundaries of the country in order to make it easier for identification.
On the matter of the definition of a practicing legal practitioner and why is it necessary to define it, Mr Stemmett said that if you are a practicing legal practitioner, it will be a requirement you have a trust account and comply with all the book keeping requirements. If you are a non-practicing legal practitioner this will not be of concern to you. The distinction is necessary to determine who needs to have a trust account. A provision in section 34 relates certain work to court appearances and drafting of court pleadings which can only be done by a practicing legal practitioner.
On clause 5, which speaks to the duration of the National Forum and that it ceases to exist at the commencement of Chapter 2, this would be a problem as the original 3-year period will end on 1 February 2018 and they would not be able to complete the remaining work by this day. The Forum agreed with the conclusion of the Department that the clause must be amended to say the National Forum should cease to exist on the date of meeting the Council or on a date that the Minister has agreed on after consultation with the Forum. The Forum does not want to stretch out the duration and would like to finalize their work.
On expanding the tasks of the National Forum for the rules, the bulk of the rules of the new structures are in section 95(1). The Amendment Bill states that the Forum should draft those rules so when the Council becomes operational there will be a smooth transition. The Forum must submit recommendations in terms of section 97 to the Minister by the end of the month and they are just awaiting signatures to finalize this. They amendment is seeking that the National Forum must be giving the authority to draft the regulations as they have the practicing experience to run the profession.
Mr Stemmett stated that the Amendment Bill provides that the Forum must make all the amendments in section 95. The Forum only wants the rules in 95(1) on the legal practice council and 95(3) on the fidelity fund. They do not want to make rules on 95(2) which relates to the Legal Services Ombud because it would be presumptuous for them to do so as they should make their own rules.
With the submissions from the National Forum, they have asked for certain amendments which will ensure the smooth transition.
Mr Basset stated that there are some amendments which relate to hand over and facilitation and go beyond the scope of the Bill. The amendments are not necessarily opposed but they would go beyond the scope of the Bill and in term of the National Assembly they would have to obtain approval. The Department has not addressed the Committee yet.
Mr John Jeffrey, the Deputy Minister of Justice, said that he was very involved with the crafting of the Bill. The Bill was 17 years in the making and took long as attorneys and advocates could not agree. The forum was to give them a chance to resolve issues which would be in a short period of 2 years. The disappointment with the Forum is that they have taken a lot longer. He has not had a chance to discuss with the Minister, but he is disappointment with the Forum as they have not been good with following the act that created them. People have been changed on the Forum by their organisations and in terms of the Act they are required to get a court order and he does not know why they have no done that. He asked if the Forum has received a high court order
The Deputy Minister referred to the matter of the report which must be submitted every 6 months. There has not been one this year. He asked why they have not stuck to the reporting. He said he is surprised with the issue of wanting to give some of the assets to the LSSA. He asked what other countries on the continent has attorneys and advocates. Most of the former British colonies have gone for fusion. The Act is clear in clause 97(2)(a) that there is no provision that anything can go somewhere else.
The Deputy Minister said that with the regulations there is a requirement relating to training that the Forum must advertised. He asked they have done this and if not, they must explain why. He said that what has been there for a short period is going on for longer. They did not complete in 2 years and the Minister extended their term by 9 months and they must have another extension for another 3 months. The problems that are there in the profession continue. The Bar council said it is impossible to become a member of the Bar Council in Joburg because it is more expensive and people register elsewhere. He said that there must be some extension of the application of the Act, but he does not know why there must be an extension I the life of the Forum as they are a semi-permanent body.
The Chairperson shared the disappointment of the Deputy Minister. He said the matter of the transformation of the legal profession began at the same time as the transformation of the country. 20 years after the democratic breakthrough, to find that lawyers can not deal with internal matters is disappointing. If divisions within the legal profession will affect access to justice of the majority, it would not be acceptable. There are still challenges with the matter of language. The Law society was requested to address this matter and they have no given the Committee a report.
The Chairperson said that the question of community justice and paralegals, the paralegals in the Kigali meetings made more advances than the legal profession. Moving forward, they must put the people first and not the lawyers. Despite the extension it does not seem they are nearer to the resolution of the challenges they are facing. The population is young and these young people are not involved in the laws they are making.
Mr W Horn (DA) asked a question with regards to fusion and unity. He said that he struggles to grapple with the practical implementation of governance on one hand and matters of discipline. They have heard for all purposes the Forum wants to prevent the situation where people can change forums if they are not satisfied. He asked how in practical terms will matters like discipline work if they are to maintain attorneys’ profession, and advocates profession and a hybrid profession. He asked how this will not lead to resentment and friction
The Chairperson asked how unity affects affects resolution.
Ms M Mothapo (ANC) said that they are aware there is a resistance by some of the members such as the National Bar Council of South Africa. She noted that this may be part of the issues leading to the Forum moving at a slow pace. She has observed that the Forum is gradually progressing. Transformation will lead to access to quality legal services to communities. A profession must be more representative of the country. The Committee was concerned with the fact that there might be fewer than 9 provincial councils as the Department of Justice is busy with aligning magisterial districts with provincial boundaries. Fortunately, the Forum addressed this concern.
Ms Mothapo was concerned with the matter of assets as in terms of section 56 of the Attorneys Act, there should be an agreement to that effect. If the law societies do not reach an agreement what has the forum proposed as this can derail the whole purposes. In terms of finances, she asked the Forum to explain which finances they were referring to.
Ms Mothapo said that the Committee has been concerned on the matter of non-practicing and practicing legal practitioners. Some of the members are qualified legal practitioners who give legal advice to constituencies. She asked what will be required as they would also need to advice those who are not practicing.
The Deputy Minister responded to Mr Horn by stating that the aim was to get legislation by consensus. This was achieved and many advocates were not happy about it. They did not go for fusion such as other former British Commonwealth countries. When it comes to discipline, a committee is comprised of 3 people. If it is an advocate one of the people must be an advocate, if it is an attorney one must be an attorney. There is also a requirement for a layperson. There is a problem relating to if there should be different disciplinary procedures. The Bill does provide for the same disciplinary panel.
The Chairperson said that the Forum is encroaching on their right as people’s representatives as they are outsourcing out the right to make laws to them and they are not meeting deadlines. They are accountable to the people and not to the law profession
Mr Boqwana said it is difficult as there are 25 000 attorneys and 5000 advocates, each of the attorneys and advocates have different opinions. In response to the statement of the Deputy Minister on the Forum being a disappointment, he asked that the Deputy Minister and Committee for assistance. The Forum seeks for help from the Committee and the Department. When they began they could not get the staff as it was based on volunteering. When they were unable to get staff for 6 months they could not put everything together as there were processes of government which they did not understand. Despite their difficulties they sat every Saturday to do what they were required to. They did not come to the Committee to defend themselves but to ask for guidance.
Mr Boqwana responded to the statement by the Chairperson on the Forum making laws by stating that it is not true. He said that there are other people in the Forum that have moved to other positions or who have resigned which has affected those that have left behind. When you resign you do not need a court order and there is nothing they could do about. There is a disappointing extreme form of racism this has been something they have been working on. They have steadfastly reported all of these difficulties to the Minister and he was accommodating and understanding. The Forum wad required to submit reports and when they had a conflict in the Forum, it made it difficult for them to submit the last report on time. The approached the Minister and explained that they would not want to submit a half report and the minister agreed that they would submit on the 31st of October. None of the members of the Forum want the process to continue, but it is not easy as there are so many parochial interests. They need partners to assist them in achieving the end objectives
Mr Boqwana said that he believes there is no transformation which will be made with regards to the Act. What the Act will achieve what apartheid did not as it will be to divide them in a manner they have not been divided before. As they are disbanding law societies and structures, the black lawyers will organise themselves, the AFT and progressive advocates will divide themselves and the Afrikaans lawyers will organised themselves. This is a philosophical matter which must be dealt with and he does not see a direction to unity. The Government knows the country well and they need political leadership which will guide them. In terms of postponements, they have done the best they can and they do not want to extend the time.
In terms of conversion between advocates and attorneys, he agreed with Ms Mothapo that here will be conditions. If you want to be an advocate, they must ensure there is training in terms of book keeping and other matters. If the Forum does not succeed and the minister does not agree on common training, they may require and attorney who wants to convert to attend a competency training for trial advocacy. The must ensure the person has the capability in order to protect the public. In terms of the assets, they have consulted with the law societies and their councils. They gave the Forum a mandate on the principles of negotiation over a period of 12 months which is coming to an end. The Forum is confident that non of them will resist the process. If there is no cooperation, the assets will be expropriated and there will be a justification for it and there are other methods such as arbitrations.
Mr Stemmett addressed the concern of finances. They are dealt with in the recommendations they put to the Minister. They looked at the tasks that need to be performed at national, provincial and local level in the new structures. With staffing they would need 363 members of staff which can be achieved by redeploying the existing staff of the aw societies. They would need funding of R214 million per year. They will get some of the money from the fidelity fund based on the existing funding structures, and the bulk will come from levees of the legal practitioners. They are mindful of the fact that they would not like to restrict access to the profession to afford levees, but the calculations for practicing legal practitioners would be R3 500 per year and for non practicing legal practitioners would be R800 per year which would create a surplus of R5 million. This would go towards contingencies. They are satisfied they will have sufficient finds to proceed.
Ms Makhanani Baloyi-Mere, member of National Forum, said that with the coming in to operation of chapter 2, they will have the Council in place which will assume all regulatory bodies. Six months later they will have Provincial Council in place which will proceed with all other regulatory functions. As soon as the Council is functional, the law societies and bar Council will lose the regulatory powers. All legal practitioners will fall under the jurisdiction of the Council and this will address matters of discipline. One of the amendments the Forum is addressing is the gap created when the Council is in place and is not functional and the law societies retain their jurisdiction over their attorneys and there might be practitioners seeking for where they are comfortable to be dealt with.
Mr Stemmett said that there will be a new Office of the Ombud which will be established in terms of chapter 5. They will have an oversight role on the matter of discipline.
Mr L Mpumlwana (ANC) was shocked that Mr Boqwana said that the Act will not achieve what is desired and will make things worse. He asked for him to advise on what can be done to avoid this. He said that he understands the problems the Forum is facing. He asked how long the Forum wants an extension for. He asked if they are prepared extra time to cover whatever is necessary.
The Deputy Minister said that he understands it is complicated fro the Forum, but pressure must be put on the Forum because there are overrides it can not go on indefinitely. He was surprised by the comment by Mr Boqwana that the Act would make it worse as he was involved in its crafting. From a regulatory perspective it will only be one body and no one else will be able to exert discipline. He thinks there is a need for an organisation representing historically disadvantaged people because of a lack of transformation within the profession.
The Deputy Minister said that in terms of process there will have to be some form of extension because of a period of a transitional. One of the problems if that sections that are not in the Amendment Bill and are not incidental require the permission of the house to effect those amendments which must be subject to a public participatory process. It would be better if non incidental amendments are brought in another bill.
Mr Basset asked for the Forum to address the question of practicing and non-practicing legal practitioners.
Mr Boqwana agreed with the Deputy Minister that the pressure is necessary. He said that the Forum has outlined what is outstanding. The approval of the amendments if beyond the Forum. The matter of education, the Forum has written their disagreements with advocates to the minister. On the matter of the law societies, because they are dealing with members’ assets, they cannot take them without going to an AGM of the owner of the assets to have the resolution. In relation to the matter of elections, they need a credible voters roll. In the country there are Advocates who are not registered but they are admitted by the courts which have no records. The task of a credible voter’s roll can only work if they assist each other.
Mr Boqwana said that on the matter of transformation, they spent time with the Minister working on the legal services charter which was a pointed direction in terms of practically addressing transformation. Here is no path way to changing things. He said that as soon as the act comes in to place, the Forum will disappear and there can be no conversation of transformation. On the continent, in countries such as Namibia and Zimbabwe, there will be a body of lawyers who are under one roof. There is no coordinated way in South Africa to say that this is the agenda in terms of the legal profession.
The Chairperson said that these are the countries they regard as less developed and he agreed that they need a path to transformation. He asked the legislation helping the country in that direction. The department was wise in saying they must discuss an extension and that period will be used to deal with matters which will arise.
Mr Mpumlwana asked if the Legal Services Charter is the one which would get the desired results if it was included in the Act. He also asked how long the Forum would want an extension for.
Ms C Pilane-Majake (ANC) said that they must go back to the Legal Services Charter as there are still many challenges so that they do not continue with something people are not happy with. It is important to speak of the extension of the Forum as the work is not completed. She said that fragmentation as a legal profession creates a problem. There must be solutions in order to resolve this. She suggested that they could possibly have a piece of legislation that states every legal practitioner must register one way or another.
Ms Pilane-Majake said that the boundaries matter must be sorted. When looking at the perspective of officially recognized boundaries of provinces, she asked how this will be resolved in terms of proximity. She asked what the Forum is suggesting as the boundaries must talk to the structures they will have. This will also speak to the matter of how often the boundaries must be reviewed.
Mr N Matiase (EFF) asked where they are located in terms of experience of the racism and anti Africanist challenges which are impediments to the transformation of the profession. He asked why the statement by Mr Boqwana on divisions should shock some of the Members. He asked what they anticipated when the policy was conceptualised. He said that the 12 months’ period which was prescribed should have contained clear terms and conditions which leads to no confusion. He asked if the Department has a road map in terms of the Transformation Charter. He asked that if there is a roadmap it must be presented so there is understanding. There is resistance towards change and transformation and the Committee must develop some mechanisms and methods of stick and carrot in order to compel compliance. If the resistance is about fusion between the profession, it should not be a matter which is responsible for the delay. If it is about the interest of the members and their assets, the government must find an incentive system to compel those who are willing to embrace isolation and change, and isolate those that are opposed to transformation. The approach to the democratisation of the county, transformation is about assimilation. If assimilation is about black associations, the process is bound to yield mere concrete results. The black associations can only be effective with government effectively taking place in the matter. He recommended that these are considerations the Committee must recommend.
The Chairperson said that all South Africans both black and white are generally not opposed to transformation. They have been able to create municipalities that include both black and white. For the Committee to sit and resolve the problem of educated people who developed the constitution which is a miracle, it is a self interest. They must put the interest of South Africans first. He said that the matter of a road map towards transformation is what they must create. He believes in young people and he is worried how they are not part of this process. As parliaments they are entitled to convene a symposium on transformation.
The Deputy Minister referred to Mr Boqwana’s statement on the Bill creating divisions that apartheid could not do so. He said that it is unfortunate that he would say that. He said that Mr Boqwana was involved in the crafting of the Bill and he does not remember anyone saying his statement. He said the transformation aspect is throughout the Act such as in the objects and functions of the council, access to law, and members put to advance entry to the profession. Currently there is no provision to the payment of pupils that go to the bar and the Bill provides provisions for Council to ensure pupils are paid.
The Deputy Minister said that in relation to the matter of the Legal Services Charter, the Committee did consider it. He said that the Charter is around what will happen until the Bill will take effect. He said that the Forum is creating difficulties. It is easy to get a list of admitted advocates as the high court has them. The list is publicly available on the Department of Justice website. If people are not on that list, they must prove they are an advocate and show evidence. He said that the sooner the Legal Practice Council is established, the better. On Matters of Provincial Council, he suggested the amendment links the areas of jurisdiction of the Council to the areas of the provincial boundaries of the High Court. His suggestion would be under section 2 that the Provincial Council boundaries are the same as for the High Court.
With regards to the matter of the definition of a practicing legal practitioner, he said that the Bill is trying to ensure protection of the public so a practicing attorney has insurance from the Fidelity Fund. There is nothing against giving someone legal advice unless they are paying you and you give the wrong advice.
The Deputy Minister suggested that the Forum must set out to the Committee in the next few day, what they still need to do and how long they still need.
The Chairperson said that there is no transformation agenda that is being implemented. The legislation which would facilitate this is not achieving this purpose. There is disunity within the forum and between the forum and the Department. The matters need intervention by the Committee which puts first the interests of the people of the country. The question of the extension must be settled. He agreed with the proposal by the Deputy Minister on using the Provincial Court boundaries for the Provincial Council. The Committee must accept the task is beyond Forum as there are challenges. He said that the most conservative and progressive South Africans were able to work together to establish a constitutional democracy that is working. There must be an agenda towards transformation.
Mr Stemmett said asked for the Committee to grant the amendments put forward by the Forum as it would provide them with more time. He said that despite the obstacles, a lot has been achieved. Most of the Members want to embrace change. The composition of the new Council will represent the demographics of the country.
Mr Stemmett said they have not settled the matter of the preferred vocational training vehicle. In their recommendations to the Minister, they have put forward three proposals on vocational training from the LSSA, GCB and the National Forum of Advocates. On the 14th of October they put forward a draft compromise which contains elements of those three. Once they have received consensus they will be able to finalise the rules and regulation relating to vocational training.
The Deputy Minister proposed that the Forum proposes a date based on the work that still needs to be done. He reminded the Forum that the education requirements have a requirement of publication which he is not sure is they have done. He said that if they cannot reach an agreement s, the Minister also has the ability to make the decision for them and they must consider this option. He restated that more could have been done by the Forum.
The Committee proposed that there must be symposium that will include law students that will assist in developing a transformation agenda.
Mr Boqwana urged the Committee that there must not be an impression that there is disunity. They have stuck to the task they were set to do in terms of section 97. He said that they do not want the matters to be extended to other days. The matter of transformation must be dealt with at another time. He said that the members must look at what the mandate of the Forum was and what progress they have made thus far.
The Chairperson said that the Committee does not want to outsource their responsibility to the Forum of Minister wants to do their work. They are grateful that the Forum was honest with the Committee and they have empowered them to do their work. The Deputy Minister has helped the Committee in coming up with a way forward.
Mr Boqwana said that 7 days would be enough to consult with the Chairperson of the Forum.
The Deputy Minister said that 7 days will be long and hoped the Committee could finalise the Bill next week.
The Chairperson asked that the Forum consult with the Department and respond in good time.
Mr Stemmett said that they have drafted a list of outstanding tasks which sets out what should be done and when it should be done. He said that a 3-month period would be appropriate.
Mr Basset referred to clause 5, which speaks to the duration of the National Forum, and asked the Forum to give the Committee a date.
Ms Pilane-Majake referred to her previous statement on justification in terms of time required. The Forum is ready to explain how long the extension would be through the document on the list of outstanding tasks.
The Chairperson said that he does not believe the minister or parliament must act in consultation, but rather after consultation.
The Forum thanked the Committee for the manner of engagement on the matters brought forward.
The Committee asked the Forum to inform them on how long the extension they require would be.
The Meeting was adjourned.
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