The National Forum on the Legal Profession had sent the Committee a document requesting an extension until 31 October 2018. Members proposed that the Forum should stipulate the outstanding activities and costing for the extension period. The Chairperson suggested the Committee accept this in principle subject to submission within 14 days of the programme and costing.
The Department continued presenting responses to submissions on the Legal Practice Amendment Bill:
• On Clause 5, amending section 96(4) of the Act, the Forum proposed deleting section 96(5) and inserting the date of 31 October 2018. The Department agreed. Members asked why a date was necessary.
• Clause 6(d) amends section 97(2)(a) on the transfer assets from the law societies within 24 months. Public comments included inserting a date of 1 February 2018, but the Department stated this was risky. The Department does not support this as law societies exist as entities in their own right. Their assets cannot simply be transferred to the new Council as there must be an agreement.
• Clause 8 amends section 117 and it states that the existing law societies must continue to perform their existing functions until the date of transfer contemplated in section 94(2)(a). There was a concern that there will be simultaneous functioning of the Council and law societies. It was explained that the amendment is proposed so there is certainty as to who does what at what stage. The Department did not accept the comments.
The Committee discussed the Department's responses to proposals that go beyond the scope of the Bill . Some Members saw section 34(2)(b) of the Act as being discriminatory. The Department referred to amendments proposed by the Law Society of South Africa and National Forum which would be necessary for a smooth transition. Where amendments were merely consequential and did not affect policy, the Committee approved these.
The Committee discussed and adopted its Committee Report on its oversight visits to correctional centres in Eastern Cape and Gauteng to observe the general conditions of incarceration for inmates. In June, the Committee had visited St Albans in Port Elizabeth and the East London Correctional Centre in the Eastern Cape and the Johannesburg and Kgoshi Mampuru II Correctional Centres in Gauteng. Members suggested that St Albans becomes a flagship project of the Committee. Members expressed concern that the conditions at St Albans are unacceptable and constitute human rights gross violations. Members suggested that the report state that the facility is rebuilt and overcrowding in correctional centres is addressed. Members expressed concern that St Albans is merely managing the problem of gangsterism rather than addressing it. Members suggested the Office of the Inspecting Judge visit St Albans and address the matters and make a report. Members suggested that there be a programme to monitor progress.
Responses by the Department
Mr Lawrence Bassett, State Legal Advisor, said that in a previous meeting, the National Forum on the Legal Profession, submitted a proposal to increase the duration of the Forum so that they could complete their mandate. The Forum sent a document stipulating the time they would need to complete their activities.
Ms C Pilane-Majake (ANC) said that when looking at the extension request by the Forum, the Forum should stipulate the planned activities and costing. When the Forum presented last week they had a document stating what the outstanding activities were. This would assist the Committee in knowing what they are approving.
The Chairperson said that the proposal will help the Committee monitor what the Forum wants to do during that extension period.
Mr Bassett said that the Forum did not do so in the document stipulating outstanding activities sent to the Minister. They will make that document the Forum previously sent available to the Committee.
Ms Pilane-Majake asked that the Committee approve in principle but they must understand the budgetary requirements of the Forum.
Mr M Maila (ANC) said that the costing and programme must accompany the request. The document might have been presented before the Forum knew they would need an extension.
Ms M Mothapo (ANC) agreed that they must approve in principle. She asked they give a timeframe for the Forum to bring this information.
Ms G Breytenbach (DA) stated that they must first see what they are agreeing to.
Mr L Mpumlwana (ANC) said that the Forum is doing a good job under a difficult situation. The Committee had requested they provide an extension. He agreed that the Committee must agree in principle.
Mr Bassett said that the document stipulating activities was given informally by the Forum, although it does not include costing, it would give Members a bit more indication of what is required to be done.
The Chairperson suggested the Committee accept the proposal to agree in principle subject to submission within 14 days of the programme of what they want to do.
Mr Bassett asked if the request should come from the executive or parliament.
The Chairperson said it must come from the Committee. There are challenges in the Forum and the Committee must not declare a state of emergency as they have a number of matters to attend to.
Ms Pilane-Majake said that it is the responsibility of the executive to speak to the Forum so that the information comes back to the Committee.
Mr Bassett agreed to speak to the Forum with the authority of the Committee.
Legal Practice Amendment Bill: Department response to submissions
Ms Wilma Louw, State Law Advisor, continued presenting the Department’s responses to the submissions on the Bill
This amends section 96(4) of Act so that the National Forum ceases to exist on the date of the meeting with the Council as envisaged in section 105(3), or such other date as the Minister may determine.
Ms Louw said that there were further submissions on this clause. Adv A Reinecke raised a question about the implementation. The Department’s response is currently being discussed. ClearlawSA had a problem with the matter of no date. The Department will insert a date.
A letter had been received from the chairperson of the National Forum on the Legal Profession who proposed deleting section 96(5) and inserting the date of 31 October 2018. The Department thinks it will be an appropriate deletion as section 96(5) contradicts section 101. There is a problem that the life span of the Forum will be extended. The Department also proposes that clause 5 be amended to insert the date of 31 October so that it is still connected to the meeting referred to in section 105.
Mr Mpumlwana asked why they must be tied to that particular time of the 31 October as they do not know the exact time which might be required.
Mr Bassett replied the Committee felt there must be a specific date for when the life of the Forum will come to an end. The Amendment Bill when introduced to Parliament did not have a specific date and this is why the Committee asked the Forum to evaluate what still needs to be done and how will it take place. They have established the date of 31 October.
Mr Mpumlwana said that he thought the Committee was saying subject to the Forum’s plan and looking at the plan, the Committee may feel 31 October is too soon. He asked if there is a need for yet another extension, will they have to amend the Act again. He is worried when he looks at the amount of work the Forum has and the complications.
The Chairperson said that the Committee does not require substantive issues from the Forum, but a plan of action.
Ms Louw said that this clause amends section 97 of the Act which provides for the terms of reference of the National Forum. The Forum must within a period of 24 months make certain recommendations to the Minister. This period of 24 months had already been extended by nine months by the Minister.
The first comment is that deletion of section 97(1)(a)(iv) is not well motivated. This speaks to the manner in which the provincial councils must be elected. There is duplication in the Act. Section 97 requires regulations and section 23 requires rules. Clause 6(a) therefore deletes section 97(1)(a)(iv) of the Act in order to remove the contradiction.
Ms Louw explained that once the Act was in place, it transpired that when the Council is established, they will be unable to do their work immediately as there will be no regulations and rules. The Forum suggested they do the first regulations and rules so the Council can immediately start their work.
The Chairperson asked if it is the business of the Committee to accept the making of the rules by the Forum.
Mr Bassett replied that it is only the regulations that come to the Committee. Rules are internal matters made by the legal profession and they do not come to Parliament. The Act suggests a continuation that the rules will be made by the Council and they do not have to come to Parliament for endorsement. When the Amendment Bill was being prepared, the idea was to give the Forum enough powers to set the Council up. The mandate was limited, but as the Forum has pointed out, it will not be enough and might be detrimental to the public if the Council comes into operation and there are no rules and regulations which could take six months. In that six months they will be unable to do admissions and disciplinary conduct as there will be no rules and regulations on this. The Amendment Bill wants to broaden the mandate of the Forum so it can do these additional things and to extend the life span of the Forum so they can complete their mandate
The Members agreed to this.
Ms Louw said that clause 6(d) amends section 97(2)(a) on the transfer assets from the law societies within 24 months. Comments included inserting a date of 1 February, but the Department responded that this was risky. Clause 6(d) provides the Forum must within 24 months negotiate with and reach an agreement with the law societies on the transfer of assets. The amendment is to delete the reference to the former homelands bodies as they have been disbanded. There should be clarity on which body is doing what work at a specific time as the Council and law societies should not have the same functions at the same time. It is technical and necessary for a smooth transition.
ClearlawSA proposed a fixed date of 1 February 2018, but this is risky. The Department does not support this as law societies exist as entities in their own right. Their assets cannot simply be transferred to the new Council as there must be an agreement. Adv Reinecke queried the need to delete section 97(1) on the amendment as it was not well motivated. The Department states that this section provides that the Forum must make recommendations on rules and regulations. Adv Reinecke does not want the Forum to do this first set of rules, but the Department does not agree as it would be to the advantage of the public. The Commission on Gender Equality does not support the 24 months to dissolve the existing structure. The 24 months has already passed. The National Bar Council supports clause 6.
The Chairperson said they must not put obstacles in the way of the Forum otherwise they will be sitting with the same challenges in the next two years.
The Committee agreed to the Department’s responses on Clause 6.
Ms Louw said this is a technical amendment of section 109 of the Act which is that the Forum may recommend to the Minister the first set of rules and regulations.
Adv Reinecke was not happy with the clause but she did not motivate her view so it was not accepted
The Committee agreed to the Department’s responses on Clause 7.
Ms Louw said this amends section117 of the Act and it states that the existing law societies must continue to perform their existing functions until the date of transfer contemplated in section 94(2)(a). There was a concern that there will be simultaneous functioning of the Council and law societies. The amendment is proposed so there is certainty as to who does what at what stage.
Adv Reinecke commented that there is an impression that things should have been done, that were not. She did not elaborate on her view so the Department could not respond.
The National Bar Council supported this clause.
Proposals that go beyond the scope of the Bill
Mr Bassett referred to the general comments by the Department on proposals that go beyond the scope of the Bill. He asked Members if they would like to go through them.
• Section 34(2)(b)
Mr Mpumlwana said that the problem with the proposed amendment to section 34(2)(b) is that if they wait, this can be challenged as it is discriminating. He spoke about the different types of advocates such as the National Bar Council and after 1994 there were attorneys who were super legal practitioners and would take briefs from the public and go to the high court. He asked what the Department is suggesting or if they have a problem with amending this section. He asked what the consequences would be if they put the proposed amendment in.
Ms Louw said that there is no problem as the initial idea was to have the different types of advocates. This can be considered at a later stage or if Parliament wants it to be in the Amendment Bill, National Assembly approval will have to be obtained as it goes beyond the scope of the Bill.
Mr Mpumlwana asked how soon the Department can bring another Bill that will address this. He said that the Act could be challenged successfully as being discriminatory.
Mr Bassett replied that it is a radical proposal and is in conflict with what Parliament decided when they created the Act. The intention was to make provision for a new type of advocate that could take briefs from the public but they would have to have a Fidelity Fund Certificate. When this was negotiated, it was decided that this type of advocate should only be able to do work that advocates can traditionally do such as court work and pleadings. The advocates should not be able to do conveyance or notary work. This was a very specific and intentional decision by Parliament. He said that in fairness they would have to consult widely on this proposal with the legal profession and the general public. This is why there is a Rule that if they want to extend the scope of an Amendment Bill, a Committee must get the permission of the National Assembly.
The Chairperson noted Mr Mpumlwana’s point and said that their purpose is to facilitate transition. The matter will have to be dealt with a new bill rather than extend the scope of this Amendment Bill.
Mr Mpumlwana asked how soon the Department thinks a Bill to address this matter would take. He is worried that leaving this will mean it will definitely be challenged. Traditionally, attorneys would stick to being attorneys but today they can also be advocates; yet advocates cannot do the work of attorneys according to section 34. It is unfair and discriminating. He asked what the Department means by traditionally. He asked how soon they can address this and other matters.
The Committee Content Advisor, Ms Christine Silkstone, said that when the Committee was deliberating on the Act there was discussion on the different forms of legal practice. They provided in section 34(9) that the Council within two years of being established, must investigate and make recommendations on different forms of legal practice. She pointed out that if an advocate has a Fidelity Fund certificate and can take on work from the public, what work would an advocate be excluded from doing.
The Chairperson asked that once they have agreed on the transitional matters in the Amendment Bill, the Department will work on drafting a bill on the final arrangements.
Mr Mpumlwana asked how soon they will attend to a new bill that addresses them.
The Chairperson requested that the Department act within a reasonable time on this.
Law Society of South Africa & National Forum on the Legal Profession proposed amendments
• Section 4
Ms Louw said section 4 provides that the Council is established as a body corporate and exercises jurisdiction over all legal practitioners and candidate legal practitioners. It is proposed at the end of section 4, to insert the wording that the Council only takes jurisdiction at that date. Section 120 contains the short title of the Act and the commencement date. Section 120(2) provides for the commencement of chapter 10 on 1 February 2015. Section 120(4) provides that the remaining provisions of the Act come into operation on the day after the commencement of Chapter 2 as fixed by the President. This is necessary to avoid conflicting jurisdiction between the new Council and the existing law societies. This is a smooth transition provision. The existing law societies will continue to regulate the attorneys until section 120(4) comes in to operation. In the overlapping period the new Council can become established. Section 120(4) repeals the Attorneys Act and the Admission of Advocates Act.
The Committee agreed to this amendment.
• Sections 25(3) and 33
Ms Louw said these proposals do not directly relate to transition.
• Section 62
Ms Louw said the proposed amendment is supported by the Department as it is necessary to ensure there is clarity on how the Fidelity Fund board will function and when it will start to function. This might take a few days or weeks and there might be a time when the outgoing board cannot exercise control but there would be no new board. The current wording will result in a situation when the Fund cannot be managed and will not be able to function which will be detrimental. There is a proposal that a section 62(3) be inserted which will read that the members of the Fund who hold office shall remain in office in that capacity as members of the board for a period of six months after the date or until the members referred to in subsection 1 have been, whichever occurs first.
Mr Bassett noted that this proposed amendment was requested by the Attorneys Fidelity Fund.
Mr Motlatsi Molefe, Chief Executive Officer, Attorneys Fidelity Fund, said that their biggest problem is to avoid a gap during the transitional period. There are a number of activities including the election of board members of the Fidelity Fund and the determination of the regulations and rules. If there is no board there will be no discussion as the Council will impose regulations. There must also be discussions on what is payable for the matter of a Fidelity Fund certificate. He said that they have plotted their deadlines in terms of when they would like to see the elections happening. The Forum has indicated that they are looking at a date around February 2018 for elections of members of Council. The Fidelity Fund believes they can within a period of two months have elections for board members. If they get it right the new board can be in place even before the six months.
• Section 114
Ms Louw said this proposed amendment is necessary for a smooth transition to confirm the existing right of appearance of attorneys in the high court. This is because of the Act that gives attorneys the right of appearance in certain cases. The current section 114 does not provide for that. It will be detrimental to a client’s existing rights when it is in the middle of a court case and the attorney does not have the right of appearance.
Mr Mpumlwana said that there are advocates who are taking briefs from the public and attorneys who are going to the high courts. This amendment is saying the rights relating to attorneys is immediate but the rights relating to advocates is not. It is taking away the existing rights of advocates who are taking briefs from the public.
Ms Louw explained that advocates under the current Admission of Advocates Act are not able to take direct briefs from the public. It will only be after the Legal Practice Act is in operation that they will be allowed.
Mr Mpumlwana was not convinced. Advocates in the National Bar Council do take briefs from the public. If they do not have that right he does not understand. He said that the whole system allowed solicitors who are now attorneys to go to the lower courts but not the higher courts. After 1994 they were given this right to the higher courts. The advocates said they could not wait for somebody to brief them when they can go to the high court. There was a question of Fidelity Fund certificates which was recognised. It is a practical right for them. This is unconstitutional. He asked how they make a distinction between section 114 and 34.
Mr Bassett replied that section 114 deals with transitional provisions and vested rights. Advocates do not have the right of appearance of attorneys to appear in the high court. The Act gives advocates who want Fidelity Fund certificates to continue practicing but doing the same work they have always done. He said that section 34 and 114 are seen in two different lights. Section 114 is protecting vested rights and section 34 is not giving advocates a new right.
Mr Mpumlwana said that he wishes they could have looked into these matters earlier. The sections are the same thing to him. He is prepared to leave the matter until tomorrow.
The Chairperson agreed to flag the matter until tomorrow, bearing in mind there are gaps they must deal with in this transitional period.
Ms Louw referred to a proposal by the Department that section 123 be amended to provide that Chapter 2 comes into operation on any date fixed by the President. The Act currently states that Chapter 2 comes into operation three years after the date of commencement of Chapter 10. The date of 1 February 2018 is not attainable as the Forum is asking for another extension. It is impossible to meet the three-year deadline which is due to reasons beyond the control of anyone.
The Committee agreed to this amendment.
Mr Bassett said they will draft the proposed amendments so they can table them for consideration.
Ms Pilane-Majake said that they must reemphasise working on the practicing and non-practicing attorneys and bringing them under one roof for control of the profession.
Committee Report on oversight visits to Eastern Cape and Gauteng correctional centres
The Committee went through the report page by page.
Mr W Horn (DA) referred to 2.11 on page 1 about gangsterism being a major concern at the East London correctional centre. He said that the background should state why they decided to visit specific centres. The idea was to get an overall balance in their oversight visit which is why they chose to visit the female facility.
Ms Pilane-Majake proposed an additional recommendation that this is made a flagship project and they give the Committee a full report. This is to provide for future close monitoring as various interventions are to be made.
Mr Horn agreed but suggested they be more clear that the situation at St Albans is unacceptable for a variety of reasons.
Ms Breytenbach agreed that they must pay attention to the St Albans facility. She does not believe the report sufficiently captures what they found at St Albans. They must note that the conditions constitute gross human rights abuses. They are unacceptable. No amount of renovations will turn that place into an acceptable place and it must be demolished and rebuilt. She suggested that the Office of the Inspecting Judge pay a visit and become involved in the project. The inmates told the Committee that they are locked up for 24 hours a day. They are allowed out for their meals and because the officials are afraid of mealtimes, they are given all three meals at once, then they are locked up. Another problem is that two separate gangs are in one quadrant. This must be addressed and these conditions cannot continue.
Mr Mpumlwana said that it is a pathetic situation and he agrees that the inmates are in a horrible situation. This is caused mainly by the overcrowding. There must be a manageable number of inmates. Most facilities they are not really meant for correcting. The buildings must be changed. The Committee must also address the matter of gangsterism. There is a problem with not only the inmates but members of the correctional services who take part in gangsterism which makes it difficult for some warders.
Mr Horn reminded the Committee that they asked if St Albans was overcrowded and it was confirmed that it was not. Where the maximum security is now housed was originally built as a medium security facility. The problem is a medium security is developed without a plan that there must be semi-permanent lock up. At St Albans, DCS is managing gangsterism rather than tackling it and this must be questioned. They are also perpetuating a class system at a correctional facility such as the youths and religious people who are grouped together.
Mr Horn said that they noted it seems as if the staff possibly suffers from a post-traumatic syndrome. The fact that DCS has not been able to identify and assist the staff must be questioned. St Albans seems to be a ticking time bomb.
Ms Mothapo said that there are a lot of human rights abuses but fortunately the secretariat has captured most of the matters in the Report. In paragraph 4.3.3, the Minister and Deputy Minister undertook to attend to the violation. The Committee requests they be briefed on the development by the DCS. She supported 4.3.9 that the Committee notes the centre is in need of renovation in terms of painting, toilets and showers. The matter of the delay in hiring additional staff by DCS also creates problems.
Ms Pilane-Majake thanked the Members for deliberating on this crisis.
The Chairperson said that the Committee must have a clear message that there are inhumane conditions that require intervention.
Mr N Masondo (ANC) asked if inmates engage in work. If they do not do work, how do they just sit all day? Is it not part of what is creating problems? What is being done to address the disappearance of money meant for individual inmates?
Ms Mothapo replied that the officials feel safe when the inmates are locked in as there are fear of attacks which is why there is no activity. This requires intervention on what strategy will be employed to deal with the situation.
Mr Mpumlwana said that prisoners have rights. In order to correct people you must train them to do some kind of work. If inmates do not want to work, they just sit down and this must be changed in the policy.
The Chairperson said that there is evidence there is production in the workshops such as vegetables.
Ms Breytenbach said that only prisoners in the medium section of the centre do work. People in maximum security do not do work.
The Chairperson recommended that the Inspecting Judge go there and address the matter of gross violations of human rights. He must make a comprehensive report and ensure there is a flagship project with follow up.
Ms Breytenbach asked the Office of the Inspecting Judge to go to St Albans as a matter of urgency.
Mr Mpumlwana said that the Committee must make recommendations urgently as each day is a nightmare. The matter of overcrowding must be attended to with immediate effect.
The Chairperson said that the Committee must bear in mind that the majority of the people at the centre are young people. Creating a better South Africa means that the integrated system should work because they cannot live with a situation like this for so long. He suggested they get a report on this Integrated Justice System. Are the departments talking to each other and are they aware of these matters? They are dealing with human beings and must ensure these are correctional services in both name and practice.
Mr Horn referred on paragraph 4.5.1 on page 14. He asked that they elaborate on the matter of more artisans. They established there is not a full complement of artisans. The workshop is only operating at 50% of its capacity. Social reintegration and rehabilitation is hampered in a big way
The Chairperson said that the Committee must not just file reports but have a programme of monitoring to ensure there is constant improvement until they are able to say they have established correctional services in practice.
The Chairperson asked the researchers to identify the matters raised, come up with a programme of action and ensure they are seized with it. Bearing in mind that the majority of inmates are young people who will create a better South Africa.
Ms Mothapo supported this. She referred to paragraph 4.4.7 where the matter of criminal record is a problem for many.
Ms Breytenbach asked to see the proposal before she supports it.
Ms Mothapo, Mr Mpumlwana, Ms Pilane-Majake, the Chairperson and Mr Masondo accepted the report subject to the amendments
The meeting was adjourned.