The Committee met to adopt the International Arbitration Bill and Legal Practice Amendment Bill – the Committee adopted the Bills along with their Committee Reports on the Bills. On the Legal Practice Amendment Bill, a briefing by the Department of Justice, in the presence of Deputy Minister John Jeffery, was provided to Members on the written comments received on the Bill. The Committee was told that the submissions were largely substantive in nature and therefore outside the scope of the Bill which, as an amendment Bill, was largely technical in nature.
The Committee was then briefed by Parliament’s Legal Services on the court application brought by Magistrate V Gqiba. The application challenged the sanctions of the disciplinary committee of the Magistrates Commission – the application cited only the Portfolio Committee on Justice. The Portfolio and Select Committee had both agreed to the recommendations of the Commission in the case of Ms Gqiba. The Committee was advised that it, along with the Portfolio Committee, National Assembly and NCOP, should continue with its work, according to the law, acting on recommendations and reports of the Magistrate’s Commission, until the court made its decision which Parliament would be bound to.
International Arbitration Bill and Adoption of Bill
Mr M Mohapi (ANC, Free State) felt that since the Committee did not have any concerns in this regard, he should move for adoption of the International Arbitration Bill.
This was seconded by Mr M Monakedi (ANC, Limpopo).
The Committee duly agreed to the International Arbitration Bill [B10B-2017].
Committee Report on Bill
Mr D Ximbi (ANC, Western Cape) moved for adoption of the Committee Report on the International Arbitration Bill.
This was seconded by Mr J Mthethwa (ANC, KZN).
The Report was duly adopted.
Legal Practice Amendment Bill
Mr Lawrence Bassett, Chief Director: Legislation Development, Department of Justice and Constitutional Development, outlined that comments were received from two organisations, one being the International Bar Association of SA. Both organisations made submissions on the Bill when it was before the Portfolio Committee on Justice and the submissions made to Select Committee were virtually the same. Some of the comments made went beyond the scope of the Bill. The Bill is to facilitate implementation of the Legal Practice Act and not to deal with substantive matters. Many of the submissions went beyond the scope of the Amendment Bill. The Department, noting the time constraints, objected to the submissions as they would need to be dealt with at a later stage when the SA Legal Practice Council was in place, hopefully soon. Other submissions were rejected by the Department – this was contained in the document provided to the Committee.
Mr John Jeffery, Deputy Minister of the Department of Justice and Constitutional Development, echoed this by saying the Department rejected the submissions on the basis that they were either accommodated already or went beyond the scope of the Bill. The matter of regulating attorneys and advocates was a long-standing and difficult one which has gone on for many years. The intention of the Amendment Bill is to attend to technical matters.
Ms T Wana (ANC, Eastern Cape) asked what the Bill said about the legal fraternity groups such as the Black Lawyers Association (BLA).
Deputy Minister Jeffery said such groupings were represented on the national forum and were very much part of the process. The BLA and National Association of Democratic Lawyers (Nadel) were not statutory bodies.
Mr Mohapi, aware that submissions made were more substantive in nature and for which the Bill did not cover, moved that the Bill without amendment.
Mr Monakaledi seconded the motion.
The Committee agreed to the Legal Practice Amendment Bill. The Bill will now be considered by the Council.
Committee Report on Bill
The Committee approved the Report on the Bill
Suspension of Magistrate V Gqiba
Mr Nathi Mjenxane, Legal Advisor, Parliament Legal Services, briefed Members on an application to the High Court brought by Magistrate V Gqiba against the Minister, the Magistrate’s Commission and the Portfolio Committee on Justice to challenge the recommendation of the Commission to remove her from office. There is a positive legal obligation for Parliament to act within reasonable time in considering and resolving on a report of the Commission. The application brought by Magistrate V Gqiba was not reasonable in law to prohibit Parliament to act on a report of the Commission. This is in essence the effect of the legal application brought to the High Court. The advice to the Committees was that they should act as they deem fit in terms of reports brought by the Magistrate’s Commission in terms of removing or not removing the Magistrate as recommended by the Commission. The report of the Committee was clear on the removal of Ms Gqiba as Magistrate
The Chairperson informed Members the briefing was merely given for information purposes and for Members to be aware of how the legal application affected the decision of the Committee.
Ms B Engelbrecht (DA, Gauteng) noted the Committee was previously informed that the legal knowledge of the Magistrates made it challenging to advance with their suspension or removal from office. Taking this into consideration, what would the way forward be? Would the whole suspension be put on hold?
Mr Monakaledi wanted to understand the basis for the court application brought by the Magistrate.
Mr Mthethwa noted that the matter had now been taken to court but the Committee had already taken its own decision which still stood regardless of the court application, in his opinion.
Deputy Minister Jeffery recapped that the Committee had produced reports on three magistrates which were ATC’d. The matter was going to be finalised in the National Assembly last week but Ms Gqiba then brought an application to review the sanctions of the disciplinary committee however she pleaded guilty. She waited six months after the disciplinary committee had made its decision to bring this application. She cited only the Portfolio Committee and there was no application for an urgent interdict to prevent the House from taking action. When the disciplinary committee decided on the sanction, it sought input from Ms Gqiba before the sanction was finalised. She seems to complain that the disciplinary committee did not get back to her when the committee did in fact consider her input.
Mr Mjenxane added that a court might come to a different conclusion to the one reached by Parliament – the court will be guided by its own principles. The advice was for both the Portfolio and Select Committee to proceed according to law, consider the matter, decide on it and then take it to the House for resolution. The decision of Parliament stands until challenged. Parliament will be bound to any decision of the court.
Draft Committee Minutes 8 November 2017
Mr Mthethwa moved for adoption of the minutes with no changes.
The motion was seconded by Ms G Oliphant (ANC).
The minutes were approved.
The meeting was adjourned.
- Legal Practice Amendment Bill [B11B-2017]
- Legal Practice Amendment Bill [B11A-2017]
- International Arbitration Bill [B10B-2017]
- International Arbitration Bill [B10A-2017]
- Committee Report on Legal Practice Amendment Bill
- Committee Report on International Arbitration Bill
- Summary of Written Submissions: Legal Practice Amendment Bill [B11-2017]
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