Criminal Procedure Amendment Bill; State Liability Amendment Bill; Legal Practice Regulations; Magistrates' suspension; with Deputy Minister
Justice and Constitutional Development
15 August 2018
Chairperson: Dr M Motshekga (ANC)
Meeting Summary
The Portfolio Committee met to receive briefings on two amendment bills, regulations to the Legal Practice Act and he suspension and withholding of remuneration of several of magistrates. The Deputy Minister of Justice and Constitutional Development attended the meeting.
The Department reported that the State Liability Amendment Bill was aimed at amending the principle Act so as to provide for structured settlements for the satisfaction of claims against the state as a result of wrongful medical treatments of persons by servants of state. The Bill was promoted in the interim pending the outcome of the larger investigation into medico-legal claims by the South African Law Reform Commission.
The crux of the State Amendment Bill was to address the ‘once and for all rule’. The issue around medical legal claims was that the payments both for past damages as well as respective future damages must be paid in a lump sum. The surge in medico-legal claims placed an increasing strain on the budgets of the provincial hospital.
The proposed new section 2A would exclude medico-legal claims insofar as future medical expenses were concerned from the “once and for all” rule. It would be therefore necessary to amend section 4, the savings provision, of the principal Act. Provision in section 4 to clarify that proceedings resulting from (negligent) wrongful medical treatment which have not been instituted or concluded prior to the commencement of the State Liability Amendment Bill would be continued and concluded in accordance with the new section 2A.
The Deputy Minister highlighted that the main issue was the financial strain caused by all the medical claims against the Department of Health, particularly from cerebral palsy which caused by problems at birth with the way the delivery was made. It was to try and assist the Department of Health with the problem of having to pay millions upfront.
Members asked for a situation analysis of the full extent of the problem and not just numbers. Members asked how much the Department of Health lost because of the defect in the law and how much money had the Department of Justice lost as an interested party? Members asked which cases would be covered by the amendment bill. Will it only start with cases for whom decisions have already been made or is it going to only apply to those whose cases are decided after the amendment bill has been made law? They asked for clarity on how long the structured settlements were going to occur. What the Department was doing to sensitise the health practitioners in the Department of Health. Do they have workshops to sensitise them on how difficult it is for the government to end up with the consequences of paying for their negligence? What are the remedies to rectify this? Would Parliament be protecting them in order to continue putting the lives of people in danger? Were there any people being prosecuted for negligence? Members wanted to know why the payments should be staggered at the expense of the victim.
Members asked how much understating in empirical knowledge the people in the Law Commission had about the Department of Health to be able to address these problems adequately. Is there no way of getting the people who understand the medical side so that we can then say for a ‘longer term’? Who sits in this Law Commission? Are they full time or are they part-time? Was the Law Commission efficient? What time frames were made to the Law Commission to review these laws? To who was the Law Commission was accountable?
Deputy Minister Jeffery stated that in terms of the Legal Practice Act there were issues that were not resolved between the advocates and the attorneys relating to the manner of election of the Legal Practice Council (LPC) and the powers of the provincial council. In terms of the Act the National Forum must come up with regulations and if they do not, there is provision for the Minister to make regulations. There are two sets of regulations. One is urgently required so that the elections for the new LPC can proceed. In terms of the Legal Practice Act, the Minister tables them after they have come from the National Forum and they must be approved by Parliament, by both Houses.
The first set of regulations is section 109 of the Legal Practice Act which provides that the National Forum must make recommendations to the Minister. The Minister must then make the regulations. Any regulation made under this subsection must, before publication thereof in the Gazette, be approved by Parliament.
There is a regulation that prescribes the election procedure of the Council. It provides that there will be two separate voters’ rolls: one for the advocates and the other for the attorneys. Each candidate must be nominated by two practising attorneys or advocates. The Council then will send voting papers that includes a ballot paper to all practising practitioners. The Council is also required to appoint between two and ten legal practitioners who will act as scrutinisers during the election process. They will simply examine the ballot papers places in the ballot box and count the votes. The scrutinisers are also required to report on the results of the vote to the Chairperson and the referee. After which, the referee must determine if the election was conducted fairly. In the case where elections are not conducted fairly, the voting must be redone. It specifically states that the composition is made up of ten attorneys and six advocates. Out of the 10 attorneys, four must be black women, three must be black men, one will be a white woman and two white men. This converts into a 70/30 ratio in terms of racial representation in terms of black and white. It converts into a 50/50 ration in terms of gender representation. With regards to the ballot paper for advocates the requirements are that there must be two black women, two black men, one white woman, and one white man. This converts to a 66/33 ratio with respect to racial representation between black and white and a 50/50 ratio in respect of gender representation.
The Committee emphasised that there must be a fusion of the bar and the side bar. They asked what efforts were being made to achieve this and why there was still different training for advocates and attorneys if there is a goal to fuse the two. Members discussed the allocation of the seats on the provincial and national councils with one Member saying that the race-based reservations were not constitutional. This view was countered with another Member indicating that the regulations want to promote affirmative action. The aim is to ensure that people under the black category are well represented. The Deputy Minister reminded the Committee that in terms of the Legal Practice Act, the life of the National Forum was extended to the end of October. If the regulations that have come from the statutory body are not approved by Parliament provided in terms of the Legal Practice Act, the Act would have to come into effect. There would be no law societies on the 1 November 2018. The Bar Councils stay because they are not statutory. The problems of having the lack of a regulatory body for attorneys and advocates from 1 November would be problematic.
The Committee also received a briefing on a second set of regulations: regulations in terms of Section 109(1)(bA), read with Sections 97(6) and 94(1) of Legal Practice Act 28 of 2014. Members wanted to know if regulation 6, regarding fidelity funds was going to apply to both advocates and attorneys. They also wanted to know the rationale behind regulation 4 with regards to the relevant experience an attorney should have and what would happen to the money that the law societies had accumulated over the years. The Committee was advised that the set of regulations had not been formerly referred to it and thus it must be parked.
The Department made a presentation on the Criminal Procedure Amendment Bill. On 15 June 2017 the South Gauteng High Court declared section 18 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) (‘‘the Act’’), inconsistent with the Constitution and invalid to the extent that it bars, in all circumstances, the right to institute a prosecution for all sexual offences, other than those listed in section 18(f), (h) and (i), after the lapse of a period of 20 years from the time when the offence was committed. The High Court’s declaration of invalidity was referred to and confirmed by the Constitutional Court. The Bill aims to amend the Act so as to extend the list of offences in respect of which a prosecution may be instituted after a period of 20 years has lapsed since the date of the alleged commission of an offence. Clause 1 of the Bill aims to give effect to the judgment. Clause 1 aims to amend section 18 of the Act in order to ensure that certain sexual offences, whether they have been committed under the common or statutory law, are included in section 18 of the Act
Members wanted clarity on the retrospectivity aspect: is it 20 years from the time the offence is committed and is the offence no longer an offence at 21 years?
The Magistrates Commission provided detailed reports for approval on the suspension and the withholding of remuneration of magistrates. The Commission reminded the Committee that many of the cases before it were not cases of ordinary magistrates but magistrates of high seniority. Under those circumstances the Commission needed to send a clarion call out to the judiciary and in the public eye that it was dealing with matters with a serious manner. The Committee emphasised the importance of upholding the judiciary and magistracy with integrity and honour.
Meeting report
Opening Remarks
The Chairperson welcomed the Deputy Minister and the Honourable members. He apologised for being late stating that the Secretary had communicated 10:00 am as the starting time to him while everyone else was given 9:30 am as the starting time.
The Chairperson stated that the Committee was going to receive briefings from the Department of Justice on the State Liability Amendment Bill, Criminal Procedure Amendment Bill, briefing on the Legal Practice Act Regulations, as well as briefing by the Magistrate Commission on the suspension of magistrates.
The Chairperson requested that the Deputy Minister make the presentation on the State Liability Amendment Bill.
Mr John Jeffery, Deputy Minister for Justice and Constitutional Development, greeted the Committee and requested that they start with the Legal Practice Act Regulations as it was the more urgent matter.
The Chairperson declined stating that everything would be covered.
Deputy Minister Jeffery stated that the officials had made a presentation however the screens were not working.
The Chairperson apologised for the screens not working and requested that Parliament explain why it is that technicians are being paid whereas the screens and microphones were not working while Parliament is fully aware that there are meetings taking place. He requested that the scribers take full notes as the committee wanted everything to go on record.
Briefing on the State Liability Amendment Bill
Mr Henk Du Preez, State Law Adviser, Department of Justice and Constitutional Development, stated that the Bill deals with a small aspect of the legal claims against the state. The National Department of Health and the Minister of Justice requested the South African Law Reform Commission (SALRC) to conduct an in investigation into medical legal claims against the state. The SALRC issued a paper regarding the medical legal claims which was released on 17 July 2017 for comment. The reason for the request for the investigation was the challenges faced by the health sector due to increased claims of damages based on negligence and the increase in financial implications and to address matters faced by the department with regards to claims relating to medical negligence.
The Bill aimed to address the ‘once and for all rule’. In terms of the ‘once and for all rule’, a person who suffers damages as a result of negligent medical treatment has to claim compensation or satisfaction in terms of the common law “once and for all rule”. A plaintiff must therefore claim damages once, for all damages already sustained or expected in future. The issue around medical legal claims is that the payments both for past damages as well as respective future damages must be paid in a lump sum. The SALRC proposed as an interim measure that the State Liability Act should be amended to address this issue. The surge in medico-legal claims places an increasing strain on the budgets of the provincial hospital.
The State Liability Amendment Bill therefore aims to amend the principle Act so as to provide for structured settlements for the satisfaction of claims against the State as a result of a wrongful medical treatment of persons by servants of state. The Bill is promoted in the interim pending the outcome of the larger investigation into medico-legal claims by the SALRC.
Clause 1: Introduces a new provision dealing with structured settlement of claims. New section 2A (1): Court must, in a successful claim against the State that exceeds R1 million, order that compensation be paid in terms of a structured settlement which may provide for example past expenses and damages, necessary immediate expenses, periodic payments for future costs (as referred to in new s2A(2)).
Section 2A(2)(a): Insofar as the cost of future care, future medical treatment and future loss of earnings are concerned, the court must order that compensation for those costs be paid by way of periodic payments.
S2A(2)(b) and (c): The proposed new subsection (2)(b) and (c) make provision for those instances where the State can be ordered to provide treatment to injured parties.The amount payable by way of periodic payments will increase annually in accordance with the consumer price index. Any party may apply to the court for a variation of the periodic payment order if a substantial change in the condition or the circumstances of the injured party necessitate such a variation
The proposed new section 2A will exclude medico-legal claims insofar as future medical expenses are concerned from the “once and for all” rule. It is therefore necessary to amend section 4, the savings provision, of the principal Act.
Clause 2: Inserts a provision in section 4 to clarify that proceedings resulting from (negligent) wrongful medical treatment which have not been instituted or concluded prior to the commencement of section 2A must be instituted, continued and concluded in accordance with the new section 2A.
Discussion
The Chairperson asked the Deputy Minister whether he had any comments or additions.
Deputy Minister Jeffery highlighted that the main issue was the financial strain caused by all the medical claims against the Department of Health, particularly from cerebral palsy which can be caused by problems at birth with the way the delivery is made. The Department of Health was having to pay up millions upfront and the Bill allows structured future payments of medical expenses. There should be no problems for the applicants or the plaintiff in a claim. It would also probably mean that attorneys would get less money if they were getting a commission of the claim because the actual total amount would not be determined until the person had passed away. It was to try and assist the Department of Health with the problem of having to pay millions upfront.
The Chairperson said that the Committee is made up of politicians and not technicians. The starting point should not just be to amend things. He requested that the Deputy Minister and his officials provide a situation analysis. The problem presented is not just caused by a few events; there must be a bigger problem. He asked how much money the Department of Health had lost because of the defect in the law and how much money the Department of Justice as an interested party had lost. He asked for a situation analysis on the law being improperly constructed and the amount the state had lost from the fiscus as a result. The Committee had a responsibility to account to the people on how much money was lost and how the money was lost because of a law that is defective. He also asked if the Law Commission was efficient and what the time frames were for it to review these laws. To who was the Law Commission was accountable? The transformation of the legal system means looking at the efficiency of the entire system. Parliament cannot be dealing with the after effects of things. The Committee was entitled to a situation analysis with all these details.
The Chairperson noted that the President had issued a proclamation for the SIU to probe corruption at the state attorney’s office.
The Chairperson emphasised that the problem might be much bigger than just to bring about an amendment bill. He asked why the problem could not have been foreseen years ago. In his view, the entire Act should be reviewed and not just one section amended to deal with an event. As politicians, a wholistic approach should be used when dealing with problems. Parliament should not just deal with individual problems as they arise.
Mr L Mpumlwana (ANC) appreciated the comments by the Chairperson and agreed that there was a need for the Committee to know what it was assisting and the consequences of its actions. He hoped that the information requested by the Chairperson be provided to the Committee before it came to a decision if possible.
Mr Mpulwana asked if the amendment was retrospective. Will it only start with cases that are currently in the system; those where decisions have already been made or is it going to only apply to those whose cases are decided after the amendment bill has been made law?
The Chairperson noted that there was a document distributed that stated that researchers from Parliament had conducted research. He did not know whether Parliament should do a research for the Department of Health or the Department should do its own research. The document stated an amount that was not clear.
The Chairperson requested clarity on the amounts stated in the document from the researchers. He also asked who had commissioned the report.
The Parliamentary Researcher said that the figures provided were a response from the Minister of Health to a parliamentary question. The figures came from the Department of Health.
The Chairperson stated that the request for the amendment came from the Minister of Justice. He then asked where the report from the Department of Justice was as the DoJ also had a problem.
The Parliamentary Researcher said that she did not know. The Chairperson would have to ask from the Department of Justice.
The Chairperson asked the Deputy Minister if there is a report from the Department.
Deputy Minister Jeffery said that the Department was bringing the amendment at the request of the Department of Health. The issue is relating to the health claims. The DoJ can provide a more detail response on the matter of the report coming from the Department of Health. It was not money that was lost but it was basically staggering the payment. The current situation is that the the Department of Health must pay upfront. What would happen is that the payments would be made annually. The matter was with the Law Reform Commission for a long-term evaluation. This is an interim measure.
Deputy Minister Jeffery said that the problem was the question of the claims at the DoH and why there were so many particularly relating to cerebral palsy. The delay in the delivery can cause cerebral palsy and that can be attributed to the doctor and it also is linked to the access of records and things like that.
Deputy Minister Jeffery also addressed Mr Mpumlwana’s last issue. The information was on the last page. The proceedings resulting from (negligent) wrongful medical treatment which have not been instituted or concluded prior to the commencement of section 2A must be instituted, continued and concluded in accordance with the new section 2A. The cases already before the court which have not been concluded would be in terms of the new Act and cases that have already been finalised would not.
The Chairperson said that problems in the DoH must be solved by people in the Law Commission. He asked how much understating in empirical knowledge the people in the Law Commission have about the DoH to be able to address these problems adequately. Is there no way of getting the people who understand the medical side so that we can then say for a ‘longer term’? Who sits in this Law Commission? Are they full time or are they part-time? This was a matter of urgency which could not be left to people whose competency Parliament is not sure about. He requested that this matter be looked into.
Deputy Minister Jeffery stated that as far as the Law Commission it had a task team that was specifically set up to investigate this issue of medical liability. The team compromised presumably of experts in the fields of both law and medicine. He did not have details of the people in the team and would request these details of the people on the task team for the Committee.
Mr Mpumlwana asked if the amount payable to claimants includes lost earnings or the lump sum was only for medical treatment. If you give me a lump sum are you saying I cannot use part of this to maybe start a business? He apologised that he did not read everything on the Amendment Bill and acknowledged that it was his fault.
Mr T Mulaudzi (EFF) thought that the legal component of the DoH should have been present at the meeting to give clarity on some of the questions. He asked for clarity on how long the structured settlements were going to occur. Is it 10 or 15 years?
He thought that the root cause was not about the payment but the negligence, the wrongful medical treatment. It is like the Minister of Health and his team are failing to manage the DoH and because of that Parliament must change the law to protect their laziness or to promote the wrongful medical treatment of our people. This was not fair at all. Parliament cannot protect people continuously by even amending the law. The committee does not know how deep the expenditure of these wrongful treatment were and more information was needed.
Mr Mulaudzi wanted to know what the DoJ was doing to sensitise the health practitioners in the DoH. Do they have workshops to sensitise them? How difficult it is for the government to end up with the consequences of paying for their negligence? If the DoH was present at the meeting he would ask what happens to the medical practitioners who are guilty of negligence. What are the remedies to rectify this? Are we protecting them in order to continue putting the lives of our people in danger? He asked that he get clarity on these questions.
The Chairperson emphasised that Parliament cannot have statistics thrown at it. These were just figures and the Committee wanted the story behind the figures. He agreed with Mr Mulaudzi that the people from the DoH should have been present to speak on some of the matters which may also involve criminal prosecution. He asked if there were any people being prosecuted for negligence. Are we going to use Parliament to shield people? Must Parliament be party to cover ups? He remarked that Parliament needs a full story.
Ms M Mothapo (ANC) said that she would raise three issues. The first would be the rationale behind the proposed amendment. She went through the case law emanating from different provincial departments and the one she had looked into deeply was the one relating to Wandile Zulu of the Gauteng Department of Social Development and Health. What she wanted to know was what had been learnt from all the cases especially the Wandile Zulu case. The third issue was the issue relating to what the other Members of Parliament and the Chairperson had touched on. What was the status quo in this regard? She requested that Parliament be given a full background as some documents were only distributed in the meeting even though some had been sent prior electronically. She also asked how urgent and how important the amendment was.
The Chairperson remarked that Ms Mothapo was right. He asked that Parliament gets an audit of the court cases. Ms Mothapo had mentioned the provincial Department of Social Development which meant that it is not only the DoH and the DoJ that were involved in the cases. This shows that a background story and a situation analysis are needed in order to root out the root cause; otherwise Parliament would just keep making amendments until the Committee became a Committee of amendments.
Ms Mothapo said that she had forgotten an important concept raised by the parliamentary researchers: the Africanisation of our common law. She requested that the Deputy Minister and his officials comment on the aforementioned, the issue raised by the constitutional court in some cases.
The Chairperson asked Ms Mothapo what she understood about the Africanisation of the common law.
Ms Mothapo referred to the case law document that had been distributed and noted that it had raised the matter of Africanisation of the common law. The document stated that the Constitutional Court raised that in resolving these medical legal challenges there should be Africanisation of the common law. She requested a broader picture from the DoJ as it would have dealt with these cases.
The Chairperson was happy Ms Mothapo raised the Africanisation of the common law. The Committee had been speaking about the transformation of the judiciary system all the time and a great deal had been done in that regard. The Committee said that it is not just the transformation of the judiciary system that must occur, but it is the transformation of the legal system. When Ms Mothapo mentioned the Africanisation of the common law, that related to the transformation of the legal system. South Africa was not a British colony. It is an African state in the southern tip of the continent with Africans as most of the people. The legal system must reflect that South Africans are Africans with African cultures and African traditions.
The Chairperson remarked that as the representative of the people, Parliament cannot wait for the courts to tell it that the law must be Africanised. Parliament should be the ones who start to Africanise the law. This means that there is a need to go back to the matter of transformation of the legal system. He asked the Deputy Minister for the full plan of the transformation of the legal system.
The Deputy Minister responded to the question about lost earnings and said that the bill was only about medical negligence. It makes specific provision for structured settlement orders, which would include periodic payments, in cases of medical negligence claims against the state.
On the matter of the common law, the MEC for Health in Gauteng had tried to argue that getting rid of the ‘once and for all rule’ could be done by the SCA who had a duty to develop the common law but the courts felt that they could not agree with that. This was provided in the documentation.
Mr Du Preez responded to the question about the duration of the claim in play and whether the bill includes future loses. He referred the Members to the bottom of page 2 of the Bill, from line 20 subsection 2(a). Where the State is liable to pay for the cost of future care, future medical treatment and future loss of earnings of an injured party, the court must, subject to subsection (4), order that compensation for the said costs be paid. In response to the question about how long the structured claims would be paid, the Committee was referred to subsection 2(a) (ii) which states that only during the lifetime of the injured party concerned would the claims be paid out.
One of the concerns with lump sum payments was that the court was faced with a difficult time to determine the potential life span and then determine quantum according to that. This could either work in favour of the injured party or against the injured party depending on the actual life span of the injured party. One of the advantages of the bill was that if there are substantial changes in the injured party, they could now approach the courts to ask for a reassessment relating to the periodic payments.
In response to the question about the rationale behind the bill, Mr Du Preez said that the rationale behind the bill is that most of the quantum relates to future expenses. The deduction of lump sums in the reserves of the DoH is money that is immediately unavailable for other patience and services in that department. For example, a deduction of R50 million from the budget of specific provincial hospital would be R50 million immediately unavailable for other patience. This would impact on the ability of the health establishment to treat other patience. The advantage with structured payment in a case where 80% of the quantum relates to future payments would be to place health institutions to pay less money over a specific period. This will alleviate the concerns to budget constraints.
The Chairperson found it strange that anybody could say the Supreme Court of Appeal has a duty to develop the customary law. Courts deal with matters that come before them, they do not take initiative. The question of the development of customary law is an institutional imperative. It cannot be left to the courts. He asked if the Committee was saying that government was not going to act until a dispute arises. When a dispute arises, it means some people must pay. The majority of the people affected by injustice do not even have money to go the courts.
The time has come maybe in the same manner that Parliament had a judiciary conference we must have a conference on the transformation of the legal system. It was clear that the matters were transversal. The DoJ, DoH, the Department of Social Development and the Law Commission are involved. Right now there is a Customary Initiation Bill. A lay person even is able to explain the defects and challenges in the law better than the lawyers and the lawmakers. Parliament would be failing in its duty as lawmakers not to deal with matters holistically and wait until there is a challenge.
The Chairperson addressed the Committee secretary and said that that the Committee needs to look at its budget because there was a need for a conference on the transformation of the legal system. The Committee cannot be dealing with things bit by bit while the majority of the people were not getting justice. The committee has been sitting for the past 10 years to ensure that people receive justice but there are still injustices.
Mr Mpumlwana thought that there was a slight problem. He understood that the DoJ was helping the DoH to save money but this was at the expense of those who are wrongfully treated. He made an example of a person who is treated with the wrong injection and thus suffers paralysis from the waist down. This person was going to be a runner but could no longer run and could no longer take care of themselves. In African communities is not solely responsible for themselves but also for other family members. From the point of government lump sum payments is losing money but from the point of the claimant they are being disadvantaged. A lump sum allows the patient to allocate their money accordingly. For example, maybe put some in investments to prepare for lost earnings. He thought the DoJ was only referring to medical costs. If the DoJ was now including things like lost earnings then it was disadvantaging the patients. He asked if this was correct.
The Chairperson said that Mr Mpumlwana was correct. This even means that the word structured is not the correct terminology; the correct word was staggered payments. He asked who was prejudiced when you stagger payments. The prejudiced is the person to whom the injustice has been done to protect the person who has committed the injustice. He asked if this was how justice should be read to mean. Why should you stagger the payments at the expense of the victim? The victim must suffer twice.
Mr Mulaudzi said that he wanted to know what the stance was on the inflation rates given the staggered payments as the value of money is not the same over time.
Ms Mothapo hoped that the DoJ was still going to respond to some of the questions that were raised. She said that the issue of structured or staggered payments was not clearly defined. She asked for clarity on this. The target amount is R1 million and above. She asked if this meant that if the amount is less than R1 million it would then be paid as a lump sum. She also requested a response on the three questions that she had raised.
The Chairperson agreed with Ms Mothapo. When a law is passed it must not have a hundred meanings where anyone can attach several interpretations. This makes big business for lawyers who will argue for months making money out of the misery of the poor. He requested a clear bill with one meaning and legal certainty.
Ms Mothapo remarked that the bill spoke about wrongful treatment. She asked if it was not meant to be negligent treatment. She requested clarity on this.
The Chairperson said that for a crime to be committed it must be wrongful and negligent, an intention. He added that if the DoJ only included ‘wrongful’ in the Act, then it would mean that the act committed by the medical practitioners did not disclose an offence. He requested that the correct language be used as lawyers.
Mr E Buthelezi (IFP) referred to page 3, paragraph 7: Where the State is ordered to provide future medical treatment at a public health establishment, the public health establishment concerned must be compliant with the norms and standards as determined by the Office of Health Standards Compliance established in terms of section 77 of the National Health Act, 2003 (Act No. 61 of 2003). He asked what would happen if the person no longer had faith in these public institutions. Where would the treatment be? Would there be payment if the person wants to go to a private institution?
The Deputy Minister said he would reply to the questions in no particular order. In response to the question about where treatment would be provided, he referred the members to paragraph (c) and (d) at the top of page 3 of the amendment bill. The reason being was that even the courts are very reluctant to order the public health establishments were individuals got injured to continue treating the patients. However, there are instances where the public institutions which are some of the leading public health institutions in the country do provide repeated treatment to patients that have been injured in a public institution. He said that there were instances where the only facility available that can treat the patient is a public institution. He hoped that he had answered the question.
With regards to the use of ‘wrongful treatment’ in the bill, the Deputy Minister stated that the DOJ had initially used ‘negligent treatment’. However, it realised that this might inadvertently create a gap in the bill. It would mean that cases of intent where the doctor intentionally injured the person would be excluded from the Act.
The Chairperson asked why it was not both ‘wrongful and negligent’ if the DoJ wanted to cover cases where there was an intent to injure.
The Deputy Minister said that they could look at this.
In response to the lump sum payment, he clarified that a lump sum would be paid if the claim was less than R1 million.
Deputy Minister Jeffery said that the term structured was a term the DoJ used to refer to two different components of the claim. That is the component relating to the past and the present immediate expense which would be paid out in a lump sum. The second component of the claim will relate to the future payments that must be made to the injured party.
With regards to the question on inflation rate, page 3 of the bill from line 15 onwards, section 3: the DOJ used the CPI index to ensure that the periodic payments do not decrease over time.
Responding to the question whether the bill aimed to endorse the negligence of the medical practitioners, the Deputy Minister said that this was not the case. Health practitioners who act negligent and cause financial loss for the state are always held liable to repay the state for its losses.
The Deputy Minister responded that the amendment bill was important to the extent that it will bring about the alleviation of the financial burden which the DoH has suffered because of those claims.
The Chairperson asked when a conference on the transformation of the legal system would be held as the Committee had called for such a conference10 years ago. Judiciary is just one aspect. When are we dealing with the transformation of the entire legal system because there are lots of inconsistencies?
The Chairperson remarked that the Deputy Minister was at the meeting. He repeated that the former Minister of Justice (Minister Radebe) had called for a conference on the transformation of the judicial system. The conference brought together academics and practitioners and it was helpful in helping to come with a holistic plan to transform the judiciary. Parliament was calling for the transformation of the legal system however there has never been such a conference. This forces Parliament to deal with matters piecemeal and the law is transversal. There was a need to deal with different aspects. Why are we not having such a conference so that we involve civil society, law students, paralegals, academics and everybody? There was also a talk about the transformation of the curriculum. Parliament has been harassed by students calling for transformation of the judiciary. Parliament has stated that there is a need for a plan to introduce the indigenous African Law and indigenous languages. These things are not happening. He asked if there needed to be crisis in order to set things going. What are we waiting for? Why can we not have a conference to holistically deal with these matters and find solutions? The ultimate goal is to make sure that justice is delivered to the people.
The Deputy Minister said they would look at the issue.
The Chairperson asked that the Deputy Minister look into the issue and get back to the Committee.
The Deputy Minister said they would get back to the Committee.
Ms Mothapo requested that the Deputy Minister and the DoJ respond in writing. She also asked that a time frame of four to seven days be set. If the matter is left open-handed then it might be lost.
The Chairperson requested written responses from the Deputy Minister and the DoJ. He asked that the DoH be present at the meeting. He also requested that a situation analysis be presented to the Committee.
Parliament does not think that the problem is only in the DoH. There is a problem in the state attorney’s office. Black lawyers are saying that they are not getting the briefings. It was clear that they were not getting briefings because there is corruption. The state attorney’s office must be transformed. Parliament needs a report on the transformation of the state attorney’s office. He asked who was in the office of the state attorney.
The Chairperson said the Committee had spoken about the Land Claims Court. There are no permanent judges in that body. We are running through the whole country saying that we are going to expropriate land without compensation and we are going to be taken to court. Problems will pile one on top of another. The things that the Committee raises are never followed up. He asked why the Committee should exist if what it says is not taken seriously. With some of the committee members sitting in the Judicial Service Commission (JSC), when judges are interviewed, there are no judges that are being interviewed for positions in the Land Claims Court. We do not get an explanation. He asked if they Deputy Minister could help the Committee understand why these matters are not being addressed.
The Deputy Minister replied that he would also suggest that the Chairperson raise the issue in the JSC.
The Chairperson said they were Parliament and they raised matters with the Ministry. The Commission does not account to Parliament. The Deputy Minister had to account to the Committee on why they were not appointing judges to the Land Claims Court.
The Deputy Minister responded that the JSC recommends judges to the President for appointment not the Department. He emphasised that he would suggest the Chairperson raise the issue with the JSC and the Chief Justice.
The Chairperson said the Committee recommends that the Deputy Minister advises the President because the President appointed them to be Ministers and Deputy Ministers. Therefore, the Ministry has a responsibility to advise the President on what to do because the Committee cannot run government; it does not want to run government. The Committee does not want to co-govern. He requested that the Deputy Minister come back with answers.
The Deputy Minister asked to deal with the Legal Practice Act Regulations as he had a flight to catch and had to leave at 12:30 p.m. latest
The Chairperson requested that the Deputy Minister lead the briefing on the Legal Practice Act Regulations.
Briefing on Regulations in terms of Section 109(1)(a) of the Legal Practice Act 28 of 2014
Deputy Minister Jeffery stated that in terms of the Legal Practice Act there were issues that were not resolved between the advocates and the attorneys relating to the manner of election of the Legal Practice Council (LPC) and the powers of the provincial council. In terms of the Act the National Forum must come up with regulations and if they do not, there is provision for the minister to make regulations.
There are two sets of regulations. One is urgently required so that the elections for the new LPC can proceed. In terms of the Legal Practice Act, the Minister tables them after they have come from the National Forum and they must be approved by Parliament, by both houses.
Ms Charity Nzuza, Executive officer: National Forum, stated that the first set of regulations is section 109 of the Legal Practice Act which provides that the National Forum must make recommendations to the Minister. The Minister must then make the regulations. Regulation 1 deals with the definition of the Act. She referred the Committee to the section of the document which read ‘Regulations in terms of section 109(1a) of the Legal Practice Act’. 109. (1) (a) The Minister must, within six months after receiving recommendations from the National Forum as provided for in section 97(1)(a), make regulations by publication in the Gazette, in consultation with the National Forum, in order to give effect to the recommendations of the National Forum as contemplated in section 97(1)(a). (b) If the National Forum fails to make recommendations as provided for in paragraph (a), within the timeframe provided for in section 97, the Minister must, within six months, make the regulations in question, after consultation with the National Forum. (c) Any regulation made under this subsection must, before publication thereof in the Gazette, be approved by Parliament. She said that this was the reason the National Forum was at the meeting.
Ms Nzuza explained the regulation that prescribes the election procedure of the council. It provides that there will be two separate voters’ rolls: one for the advocates and the other for the attorneys. Each candidate must be nominated by two practising attorneys or advocates. The council then will send voting papers that includes a ballot paper to all practising practitioners. The council is also required to appoint between two and ten legal practitioners who will act as scrutinisers during the election process. They will simply examine the ballot papers places in the ballot box and count the votes. The scrutinisers are also required to report on the results of the vote to the Chairperson and the referee. After which, the referee must determine if the election was conducted fairly. In the case where elections are not conducted fairly, the voting must be redone. She stated that the ballot paper is attached as annexure A on the Regulations Act.
It specifically states that the composition is made up of ten attorneys and six advocates. Out of the 10 attorneys, four must be black women, three must be black men, one will be a white woman and two white men. This converts into a 70/30 ratio in terms of racial representation in terms of black and white. It converts into a 50/50 ration in terms of gender representation.
With regards to the ballot paper for advocates which is per annexure B. The requirements are that there must be two black women, two black men, one white woman, and one white man. This converts to a 66/33 ratio with respect to racial representation between black and white and a 50/50 ratio in respect of gender representation.
It is also proposed that the following be inserted in each of the ballot papers where there is a clear definition of the term black.
The term ‘black’ must have the same meaning as section 1 of the Broad Based Black Economic Empowerment Act read with the Broad Based Black Economic Empowerment Amendment Act of 2013. It is a generic term which means that
Regulation 3 (1) lists the seats of the Provincial Councils. Every Provincial Council must also establish at least one committee of the Provincial Council at every centre within that province at which there is a seat of a Division of the High Court but no office of the Provincial Council.
The committee must consist of two attorneys and two advocates, and will assist the Provincial Council.
Regulation 4 provides for the composition of the Provincial Councils. Each must consist of ten practicing legal practitioners, except for Gauteng that must consist of 12. 50 percent of the members must be female and 50 percent male.
In the case of Gauteng it is proposed that there are four Black attorneys and four White attorneys (50%/50% racial ratio). The same ratio applies in respect of advocates: two Black advocates and two White advocates.
In the other eight provinces there will be four Black attorneys and two White attorneys (66%/33% racial ratio) and two Black advocates and two White attorneys (50%/50% racial ratio).
Regulation 5 provides for the powers and functions of the Provincial Councils. A legal practitioner who has registered a physical address within the area of jurisdiction of a Provincial Council falls within the jurisdiction of that Provincial Council.
The Provincial Council’s powers and functions are listed. These are administrative matters such as admission and enrolment that can be best done at a localised level.
Regulation 6 provides for 2 options of practical vocational training (PVT) requirements of candidate attorneys. The first option -Regulation 6(1)(a) was a degree referred to in sections 26(1)(a) or (b) of the Legal Practice Act; a PVT contract for a continuous period of 24 months; During service under the PVT contract, or within a period of no longer than 12 months after termination of the PVT contract, a training course of 150 notional hours.
The second option was Regulation 6(1)(b)- a degree referred to in sections 26(1)(a) or (b) of the Legal Practice Act; A PVT contract for a continuous period of 12 months completion of a training course of not less than 400 notional hours. This training course must be completed prior to the PVT contract. A PVT contract must be under a practising attorney. The course modules were listed in the regulations.
To broaden the base for access to the profession provision is also made that they can be engaged by attorneys employed by Legal Aid SA, legal aid institutions and other institutions that employ legal practitioners and have been approved by the Council.
An attorney may have a maximum of three candidate attorneys and an attorney at an institution a maximum of six. The reason for the difference in these numbers is that organisations have administrative and support structures available.
Regulation 7 provides for pupils' PVT. A pupil must serve under a PVT contract for a continuous period of 12 months after he or she has obtained an LLB degree.
The pupil must, in addition, prior or during the service under PVT contract, complete a programme of structured course work comprising compulsory modules, of not less than 400 notional hours duration.
The modules are listed in the regulations.
Similar to the current position, a pupil may be engaged by an advocate who is enrolled and practices as such.
In order to broaden the access base, it is proposed that pupils may also be engaged by an advocate who is in the full-time employment of Legal Aid South Africa, a legal aid institution or other institution which has been approved by the Council.
The number of pupils that may be engaged by an advocate is limited to one and in the case of legal aid organisations or other institutions it is limited to six pupils.
Regulation 8 provides for the right of appearance of pupils in the same manner as candidate attorneys, namely, that they can appear in the lower courts and before boards, tribunals or similar institutions.Pupils can appear in regional divisions after pupillage of six months.
Regulation 9 provides that every matter must be settled before dissolution of the National Forum.
Discussion
The Chairperson remarked that the democracy that we are enjoying has architects like OR Tambo, Robert Sobukwe, Steve Biko, and others. They wanted to create a non-racial South Africa and not a multi-racial South Africa. The Regulations on the Legal Practice Act show that we are nowhere near a non-racial South Africa. He suggested that these views should be made compulsory for lawyers because the Parliament relies on them to transform South Africa into a non-racial country. It appears there is no clarity on what non-racial means. The regulation was deepening the racial tensions.
The Committee had stated that there must be a fusion of the bar and the side bar. He asked how far the fusion of the bar and the side bar was. He asked why there was still different training for advocates and attorneys if there is a goal to fuse the bar and side bar.
The Chairperson stated that the youth were the future of the country. He asked to what extent law students had participated in all these things. Law students must have a say in the transformation of the legal system because they are the ones who will run the legal system in the near future. The regulation also shows that the transformation agenda is not being taken seriously and it is being done at own pace. He asked who was going to oversee all the racial and gender percentages.
It would seem that the Minister of Justice has been deprived of his power. The Legal Forum must go and agree, the Minister must just rubber stamp and Parliament is expected to do the same. He asked where the power resides. Does it reside in the Legal Forum who cannot get their act together or the Minister and Parliament who have become a rubber stamp? In his view, there was a shifting away from the main thing which is to create a non-racial South Africa.
The Deputy Minister replied that the regulations were made in terms of the Legal Practice Act. The Act does not provide for fusion. It provides for a single regulatory body for attorneys and advocates. The numbers of advocates and attorneys for the Legal Practice Council are set out in that Act.
The issue of fusion was debated when the Legal Practice Bill was considered but the view was to move to at least a single regulatory framework.
The difficulty that the Forum had was that the majority of the attorneys and advocates are white male. He pointed out that the rest of the questions from the members could be found on the document.
The procedure in the Act is that the Forum produces the recommendations, but the minister must gazette them. The Minister only has power if it is a dispute.
When the regulations were submitted last year there were two issues that were not resolved. The first issue was around the placing of the provincial officials. The National Forum wanted the head of the KwaZulu-Natal to be in Durban and the KwaZulu-Natal Law Society complained to the Ministry that they had a building that they owned in Pietermaritzburg. It was agreed that the head would stay as Pietermaritzburg and the new KZN Council could look at where to move it.
The other issue was on the question of training. Some people were arguing for one kind of training. The problem that the Ministry raised with them was that the training starts next year. Currently some candidate attorneys go to the legal practice school and advocates who are members of the bar are trained by that bar. Advocates who are not members of the bar do not get any training at all. There would have to be new provisions made for those people. The appeal was for the moment to continue with the status quo so that next year’s cohorts of candidate attorneys and advocates are trained properly. The Legal Practice Council could relook at the issue in the medium term.
The Chairperson said that the Deputy Minister was right in everything that he said but Parliament could not continue to be blatantly bound by things that are wrong. The time that the bar and side bar situation to be fused has come. If there is a problem that the whites are a majority, it is a historical fact. A law can be made which states that the Minister appoints the legal council to ensure that there is fair representation. Before October, there needs to be a conference on the transformation of the legal system.
Ms Mothapo said that the Legal Practice Act is meant to provide a legislative framework for the transformation and restructuring of the legal profession in line with constitutional imperatives so as to facilitate and enhance an independent legal profession that broadly reflects the diversity and demographics of the Republic.
As a follow up to the Deputy Minister’s remark about a single regulatory body, Ms Mothapo stated that when one looks at the pre-amble in terms of section 22 of the constitution the main intention was for the transformation of the legal transformation system.
In response to Ms Nzuza, she asked why all other provinces would have 10 attorneys while Gauteng would have 12.
She commented that there are outstanding matters from the last meeting where the National Forum appeared before the house. The attorney’s profession and the advocate’s profession were not in agreement on the issue of assets and other related issues. She asked how far these issues had been addressed.
Ms Mothapo stated that the issue of paralegals was also a concern to the Committee and requested that light be shed on that.
The Chairperson emphasised the question on the fusion of the bar and the side bar. It was the responsibility of the Parliament and the Ministry to correct the law as they are responsible for the wrongs in it.
Mr Mpumlwana asked what the basis for the 50%/50% in Gauteng was while this was not the case in other provinces in respect to regulation 4. Are there less blacks or whites in Gauteng?
He understood that regulations are based mainly on the Legal Practice Act. However, he thought that the Canadian system where just becoming a legal practitioner is better than the ‘use the same old system’ to continue. There was a need to reconsider to straighten up where there are problems.
Mr Mpulwana said that he was in agreement with the points raised by Ms Mothapo and that the Chairperson was correct on the matter of fusion. He made an example of the Canadian Legal system where there is one legal practitioner as opposed to the two South Africa has.
Mr W Horn (DA) said that the way that there is a reservation on these regulations based on race in all probability cannot meet constitutional requirements. If there was a fear that the practice itself would not embrace transformation, other ways should be found to address that issue. He remarked that there would be no going back to race-based reservations. This would take the country back to pre-1994. The only thing that is lacking is that the government must say that the black practitioners would elect the black representatives and the white practitioners would elect the whites. This would be a full swing back to apartheid.
He stated that there are sensitivities around these issues. It seems that the developments that sometimes people do not want to identify with a particular gender are overlooked. He asked what would happen to someone who does not want to identify with a particular gender in respect to somebody who wants to be a candidate for one of these positions.
Mr Horn stated from a legal point of view the regulations in terms of how the establishment of these councils are set up would lead to various challenges. There is simply no way that one can have a postal voting system in this day and age and not foresee that there will be huge credibility issues.
The Chairperson stated that the Parliament was not precluded from amending the Legal Practice Bill and bringing it in line with the constitution. The Committee must not pass laws that suggest that there is a movement back to tricameralism and Bantu philosophies. He then emphasised Mr Horn’s remarks on the issue of gender as an identity.
Mr Mpumlwana said that what the regulation wanted to do is promote affirmative action. Our history as a country is a reality. The aim is to ensure that people under the black category are well represented.
The Chairperson stated that Mr Horn had asked if there were no other ways. He also asked about people who do not identify with any gender.
Mr Mpumlwana did not agree with the Chairperson. He raised that the ANC constitution states that there must be affirmative action for previously disadvantaged groups which are blacks and females because of our historical background.
The Chairperson said he agrees that affirmative action is part of the constitution. He requested that the Committee deals with other regulations.
The Deputy Minister stated that from the Ministry side the issue of the allocation of the seats on the provincial and national councils was something they were not involved with. He thought that the National Forum had investigated the constitutionality well given the composition of its members.
With respect to the 50%/50% gender rule, we follow 50/50 in a number of other matters, including in the ANC in terms of representation in both public and organisational office. Nobody has ever raised the issue before.
The Deputy Minister said that this cannot be compared to the apartheid system. During that period there was no democracy. The majority of people, 80% Africans were not represented at all at in the Tricameral Parliament.
In response to Ms Mothapo, the Deputy Minister stated that there were two issues. There was transformation and there was fusion. The Legal Practice Act is meant to bring transformation to the legal profession, but it does not go for fusion. The issue of fusion is very seriously debated especially by the advocates. When Parliament passed the Legal Practice Act, they did not go for fusion. An effort to try and bring fusion into the Act would take a lot of time and a lot of engagement with stakeholders.
Responding to the Chairperson’s question about why the Minister cannot appoint members of the Legal Council, replied that the legal profession is meant to be independent. The difficulty that the Ministry faced was that there is a lot of people who do not want to see the Legal Practice Council work and there was a lot of people who like fusion, particularly attorneys. The expectation is for the new Legal Practice Council to take over on 1November 2018.
What Parliament does with the regulations is simply accept or reject. If rejected it would have to go back to the National Forum for discussion. The Deputy Minister said his concern was he did not know how long this would take. There is a provision in the Act for Parliament to approve the regulation. If Parliament does not approve it cannot amend which could cause a delay in the establishment of the Legal Practice Council.
The Chairperson asked whether this meant that Parliament must accept or reject what the Forum wants. Parliament does not represent the Forum but the people of South Africa who want access to justice. Lawyers are business people who were defending their interests. He asked whether Parliament would be achieving its mandate of delivering justice if it accepted the regulation.
The Chairperson said that it was time for the Committee to take a decision on whether they were representing the people or business people. He asked for the way forward.
The Deputy Minister responded that in terms of the Legal Practice Act, the life of the National Forum was extended to the end of October. If the regulations that have come from the statutory body are not approved by Parliament provided in terms of the Legal Practice Act, the Act would have to come into effect. There would be no law societies on the 1 November 2018. The Bar Councils stay because there are not statutory. The problems of having the lack of a regulatory body for attorneys and advocates from 1 November would be problematic.
Ms Mothapo said that the Deputy Minister had stated that the attorneys and advocates did not agree on certain matters on the regulation. She further stated that Parliament had a mandate to carry out transformation. Given that there are two bodies that are directly affected are not in agreement, she asked how the Deputy Minister suggests that Parliament goes about the mandate.
The Chairperson said that the Deputy Minister had also said that there a lot of people who do not want the LPC to work. So how is Parliament expected to approve the regulation?
Ms Mothapo stated if the Committee does not agree with the regulations, the attorneys will be negatively affected because the Law Societies will not be functional as of 1 November. This was an issue because Parliament needed time to apply its minds on the regulation. She asked the Deputy Minister to summarise a reply on this.
The Deputy Minister said that Legal Practice Act was passed with inputs from the various legal professions. There were a number of different views. He would not say that everybody was in agreement from the profession but it was passed. It was also passed unanimously by Parliament.
Transformation is an ongoing thing and in his view the Act promotes transformation.
Currently the National Forum lives until the end of October then it would not exist anymore. Parliament would probably have to amend the Act to delay the coming into effect of the Legal Practice Act. It would then have to go back to the National Forum to reconsider. He understood that there were a lot of meetings between the National Forum and the parties involved. He asked that Ms Nzuza comment on the debate and meetings leading to the Act.
The Chairperson asked the Deputy Minister if it was not true that the Bar Councils were predominantly white and that is why there were independent Bars of dissatisfied Blacks. These bar councils are not united. The BLA is predominantly African with a number of Indians there. The National Association of Democratic Lawyers (NADEL) is predominantly African with a sprinkling of Indians. The principle we rely on for transformation is not reliable, it cannot transform itself. Parliament is being held hostage by the Forum comprising of people who cannot get their act together whereas Parliament was elected by the people of South Africa as a whole who just want justice. He asked what Parliament should do.
The Deputy Minister said that the powers given to the National Forum were given in terms of the Legal Practice Act.
The Chairperson remarked that the Deputy Minister said that the Act would have to be amended.
The Deputy Minister stated that the problem was that Act was law. Changing laws requires quite a lot of processes including decisions by the parties that sent us here. These regulations are in terms of that act.
The Chairperson thought that the Deputy Minister and Ms Nzuza had done their best to enlighten the Committee. He said that the matter was in the Committee’s hands to take a decision.
Ms Mothapo said she would deal with the many issues raised by members. The first was about the racial quotas raised in the Act.
The Chairperson said he was not sure that the debate about racial quotas was productive as he could see that there are deep constitutional and historical factors arising from the matter. Maybe there was a need to go back to political principals to deal with these things. Although we accept that there must be affirmative action, for some of us quotas are a sickening reminder of the past.
The question was whether Parliament adopts the laws wrong as they are because it is faced with a deadline of 31 of October. If Parliament does not adopt the quota there will be no law councils. He thought the politicians should make a decision on what to do.
Ms Mothapo said if the regulations are approved they would give effect to the election of the first Legal Council which will only have a term of three years. As much as the members would be dissatisfied with these regulations, it gives the first Legal Council elected a chance to make changes and come back to this Parliament and effect the necessary changes and even request amendments to the Act.
The Chairperson remarked that after three years some members of this parliamentary committee would not be in Parliament.
Ms Mothapo indicated that she thought this was a starting point.
The Chairperson said that Ms Mothapo had made her case and he thought that the politicians should make a decision now.
Mr Mpumlwana suggested that the Committee sleep on the matter because the issues raised were important. He asked that a decision be taken the following week.
Ms Mothapo indicated that she was conflicted. Taking into consideration the negative impact of not accepting the regulation on law societies, she asked if it would be late if the decision was taken the following week after the Committee had applied its mind.
The Chairperson was persuaded by Ms Nzuza to let the regulation go on condition that Parliament would start a process of reviewing the Legal Practice Bill and holding a conference on the transformation of the legal system. Unless the legal system is in order, the constitutional democracy does not make any sense. He recommended that the regulation be accepted so as to avoid chaos in the country.
Mr Mulaudzi partly supported the Chairperson’s view. He requested that the decision be taken the following week after consultations. In principle they accept.
The Chairperson confirmed whether Mr Mulaudzi was in agreement with Ms Mothapo that the Committee sleep on the matter.
Ms Mothapo expressed that what she wanted to ask was whether there would be a negative effect on 1 November if the decision was postponed to the following week, but Parliament agreed in principle. If it will have that negative effect, then she would agree with the Chairperson that the Committee approves and sits on other matters.
The Deputy Minister stated that the requirement needed to be approved by Parliament by 31 September 2018. A postponement to the following week would be fine.
The Chairperson declared that the parties have a responsibility to go to their principals. The Committee would sleep on the matter. It must be put on record that the Committee was tired of working under duress. The regulations should have been brought before the Committee earlier. Working under duress causes wrong decisions to be made and the Committee would go down in history as being hopeless. The committee members are competent people who are made to fail by people who do not do their work elsewhere.
The Committee agreed unanimously to sleep on the matter and come back the following week. The bottom line was that it had a mandate to serve the people who elected it and not interest groups.
The Deputy Minister stated that there was another set of regulations which are less urgent that Ms Nzuza would provide a briefing on.
He asked to be excused from the meeting.
Briefing on Regulations in terms of Section 109(1)(bA), read with Sections 97(6) and 94(1) of Legal Practice Act 28 of 2014
Ms Nzuza highlighted that the second regulations came through after the amendment bill which was passed in December 2017.
Regulation 1 contained the definition of the Act.
Section 94 (1) (d) empowers the Minister to make regulations relating to the manner in which teachers of law are designated for purposes of the Council as contemplated in section 7(1) (b).
Section 7 of the Act provides for the composition of the Council and subsection (1) (b) includes two teachers of law, one being a dean of a faculty of law at a university and the other being a teacher of law.
Regulation 2 provides the process that the President of the South African Law Deans Association (SALDA) or the Society of Law Teachers of Southern Africa (SLTSA), as the case may be, must request nominations from ordinary members. The President must then oversee a voting process that will take place by email. The President must draw the attention of nominees to the provisions of section 7 (2) of the Act, which provide for retrospectivity.
Section 94(1) (g) empowers the Minister to make regulations relating to the certificate to be issued by the registrar of the High Court to the effect that an attorney has the right to appear in the high court, the Supreme Court of Appeal or the Constitutional Court as contemplated in section 25 (3).
Section 25 (3) sets out the criteria an attorney must meet when he or she wants to appear in superior courts. The attorney who wishes to appear in the aforementioned courts must apply to the registrar of the Division of the High Court in which he or she was admitted and enrolled as an attorney for a prescribed certificate.
Regulation 3 provides that the certificate which a registrar must issue must be in a form that substantially corresponds with Annexure A to the regulations. The full names and identity number of the attorney concerned must be indicated on the certificate. The full names and Division of the registrar concerned and the date on which the registrar signs it must be indicated on the certificate. The registrar must also state that he or she is satisfied that the application is in accordance with and complies with the requirements of section 25 (3).
Regulation 4, Section 94 (1) (h) empowers the Minister to make regulations relating to appropriate relevant experience as contemplated in section 25 (3) (b) of the Act.
Section 25 of the Act sets out the criteria an attorney must comply with if he or she wishes to appear in the superior courts, one of which is that he or she has gained appropriate relevant experience, as may be prescribed by the Minister.
Regulation 4 provides that the following relevant experience may be recognised
(a) Practice as an advocate for a continuous period of at least three years. This period may be reduced by the Council if the advocate has undergone a trial advocacy programme approved by the Council.
(b) service as a magistrate for a continuous period of least three years;
or (c) service as a prosecutor for a continuous period of least three years.
Regulation 5, Section 94 (1) (I) of the Act empowers the Minister to make regulations relating to the manner in which an application is made to court for purposes of section 40 (3) (a) (I) and (b) (I).
Section 40 of the Act provides for proceedings after disciplinary hearing and sanctions.
Subsection (3) provides that the disciplinary committee may order a legal practitioner or juristic entity to pay compensation to the complainant, which order is subject to confirmation by an order of any court in the circumstances in the prescribed manner, on application by the Council.
Regulation 5 provides that the application must be on notice to the legal practitioner or juristic entity concerned and must be made in accordance with the rules of the magistrates' court or of the High Court, as the case may be. The usual application procedure will therefore be followed.
Regulation 6, Section 94(1 ) (m) empowers the Minister to make regulations relating to government and other securities in which the Board can invest surplus funds as contemplated in sections 63(1 ) (a) and 72 (3).
Section 63(1) (a) provides that the Board may invest any monies which are not required for immediate use in government and other securities as may be prescribed by regulation, as provided for in section 72 (3).
Section 72 (2) provides that the Board must determine the amount required in the ensuing year for the purposes of meeting the obligations of the Fund.
Section 72 (3) provides that any amount determined in terms of subsection (2) that is not immediately required for the purposes referred to in subsection (1) in any financial year must be invested in government and other securities
Regulation 6 provides for Government and other securities in which the Board can invest surplus funds. The existing regulations for this purpose, in terms of the Attorneys Act, 1979 are re-enacted unchanged in regulation 6, except for a few technical changes.
Regulation 7 Section 94{1) (n) empowers the Minister to make regulations relating to the matters to be included in the annual report submitted to the Council and Minister as contemplated in section 75(3) (d).
Section 75 (3) provides that, within one month of receiving the audited financial statements, the Board must submit an annual report to the Council and the Minister.
Regulation 7 provides that the Board must include in its annual report changes in the composition of the Board; and details when a member of the Board has been removed.
Discussion
Ms Mothapo wanted to know if regulation 6, regarding to fidelity funds was going to apply to both advocates and attorneys. She requested that Ms Nzuza make mention of the few technical changes she mentioned in regulation 7.
Ms Nzuza noted that the Fidelity Fund was currently collecting interest which was collected by attorneys. In the Legal Practice Act there would now be an advocate who practices with the trust account. All the monies would now be with the full fund.
Mr Mpumlwana wanted to know the rationale behind regulation 4 with regards to the relevant experience an attorney should have. He also asked what would happen to the money that the law societies had accumulated over the years. Was it independent of the government?
The Chairperson said that when laws are being made knowledge about other laws was needed. If there is to be fusion of the bar and side bar but still make regulations that require someone to have practiced as an advocate or a prosecutor, there is no moving forward. He was concerned that this was casting things into stones and that the committee that came after the current committee would have to correct its wrongs when they should be focusing on their own mandates.
Mrs Wilma Louw, State Law Advisor, DoJ & CD, clarified the enquiry about the appropriate legal experience. Section 25 provides that an attorney may appear in the high court. This was similar to the current position where attorneys may appear in the high court. In former years only advocates could appear before the high court. The law now allows for an attorney to appear. It applies when he or she has been practising for three years and is in possession of an LLB or a new avenue has been opened where that attorney has gained experience. The law is only opening avenues and access to the legal profession, but it does not mean that every attorney must now first be a magistrate or an advocate or a prosecutor. This is one of the ways in which there is gently starting to be fusion. However, it will need a full legislation. This was actually an opening up and not a limiting of the possession.
Ms Nzuza responded to the matter of monies currently reserved in the law societies. There was an agreement that would be signed soon where the monies would be transferred to the LPC for the regulation of the legal practitioners. The money would be sort of taken without compensation. It would not go to the fidelity fund. In terms of the Act, the fidelity fund would continue to apportion money to the Legal Practice Council for its operations.
The Chairperson was concerned with what was the rationality of someone who is more qualified but has to have practiced for three year but someone who is less qualified who can appear immediately. One could be an attorney holding and LLB degree or a Master’s degree and then when you have an LLB you can be admitted in court tomorrow and you would not be more experienced than an attorney with a junior degree who has been practising for three years. He also stated that there was a need for radical transformation not gentle transformation.
Mr Mpumlwana agreed with the Chairperson when it came to transformation. He thought the Act had been in Parliament for more than 15 years however when it came out it did not satisfy the interests of the majority. He was concerned that the Act is doing the same thing that has always been done and protecting the same interest groups that have always been protected. There was a need for radical transformation.
Secondly, the same attorneys have to pay. There is nothing really assisting the ordinary people who are complaining. They have done nothing wrong, but they must have a fidelity certificate all the time. An attorney must make sure that they pay for practice. The idea is to pay the Fidelity Fund yearly to be able to practice. If the Act still does not protect the people from rouge attorneys, it is still doing the same old thing as the law which is not transformational.
The Chairperson addressed Ms Nzuza, Ms Louw and Mr Meijer stating that they should understand that the Committee needs radical transformation of the legal system. Any appearance before the Committee must be radical. Justice must be made accessible to the people.
He was advised that the set of regulations had not been formerly referred to the Committee and thus it must be parked.
The Chairperson failed to understand how the presenters brought things that are interconnected for approval before the Committee for approval without spontaneously referring them to the Committee. How did you get it right to do it that way?
Ms Louw explained that it was two different sets of regulations in terms of two different enabling provisions. It was not done simultaneously; the first set was submitted in June while the second set was submitted in July.
The Chairperson remarked that regulations do not submit themselves. The authors of regulations should know that regulations are interconnected and thus they ought to submit them simultaneously. Otherwise it makes the Committee approve half stories and make wrong decisions. He requested that everyone apply their minds when making submissions Parliament. A decision could not be made as the regulation had not been formerly referred to the Committee.
Ms Louw asked for permission to be excused with her team.
Briefing on the Criminal Procedure Amendment Bill
Mr Du Preez stated that Section 18 of the Act regulates the prescription of the right to institute prosecutions in the majority of offences after a period of 20 years has lapsed after the alleged commission of certain offences. A prosecution may, in terms of section 18, only be instituted after a period of 20 years has lapsed after the alleged commission of murder, treason committed when the Republic is in a state of war, robbery, if aggravating circumstances were present; kidnapping; child-stealing; rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007), respectively; the crime of genocide, crimes against humanity and war crimes, as contemplated in section 4 of the Implementation of the Rome Statute of the International Criminal Court Act, 2002 (Act No. 27 of 2002); offences as provided for in sections 4, 5 and 7, and involvement in these offences as provided for in section 10, of the Prevention and Combating of Trafficking in Persons Act, 2013 (Act No. 7 of 2013); or using a child or person who is mentally disabled for pornographic purposes as contemplated in sections 20(1) and 26(1) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
With regards to the rape and compelled rape it was important to note that these were penetrative offences. There are other sexual offences as well such as sexual offences.
The Committee was referred to the Levingstein case that involved allegations of sexual assault that was committed more than 20 years ago. The NPA indicated that it could not institute a prosecution because the right to institute prosecution had prescribed. The High Court declared the distinction between penetrative and non-penetrative sexual offences as irrational and unconstitutional. The case was referred to the Constitutional Court. At this point the Minister had requested the Department to prepare the Bill because he conceded in the Constitutional Court that Section 18 was unconstitutional in so far as drawing distinction between penetrative and non-penetrative sexual offences.
There was a concern about time and there was a request about parliamentary time at the Constitutional Court. The DoJ usually gets about 18 months to effect the necessary amendments. In the case the Department was able to receive 24 months.
On 15 June 2017 the South Gauteng High Court declared section 18 of the Criminal Procedure Act, 1977, inconsistent with the Constitution and invalid to the extent that it bars, in all circumstances, the right to institute a prosecution for all sexual offences, other than those listed in section 18(f), (h) and (i), after the lapse of a period of 20 years from the time when the offence was committed.
On 14 June 2018 the Constitutional Court confirmed the declaration of constitutional invalidity of section 18. The Court suspended its order for 24 months and determined that the “declaration of invalidity is retrospective to 27 April 1994.”
Clause 1 of the Bill aims to amend section 18 of the Act in order to ensure that the listed sexual offences, whether they were committed under the common or statutory law, are included in section 18 of the Act.
Discussion
Ms Mothapo requested clarity on the retrospectivity aspect. She asked if it meant that all the cases that had happened since 27 April 1994 may be opened in terms of the declaration of section 18 of the Criminal Procedure Amendment Act.
She noted the consequential amendment and had no problem with it.
Mr Mulaudzi wanted clarity about the 20 years. Is it 20 years from the time the offence is committed? Is the offence no longer an offence at 21 years? Secondly, it would be very hard to prove beyond reasonable doubt some of the offences that happened around 27 April 1994. He wanted to know the rationale behind the specified period.
Mr Mpumlwana had reservations about the Constitutional Court having powers over Parliament. He could not see how one can prove that they were raped 50 years or 20 years ago.
He was concerned that the Committee had to accept a law subject to the ruling of the Constitutional Court because the Constitutional Court could make mistakes.
To make the Act retrospective is to target the cases that could have come to court or were described that they had prescribed. He was not sure if that was justice.
The Chairperson asked if there was a shift back to the Sobukwe clause.
Mr Meijer expressed that he did not understand what the Sobukwe clause was.
Mr Mpumlwana explained that the previous government made a special clause for him to remain in prison.
The Chairperson explained that there must be no selective justice. The law must be of general application.
Mr Meijer responded to the query on retrospectivity. He said distinction must be made between two things. Firstly, the court made its order retrospective until 27 April 1994 simply because that was when the constitution was forged. That is why the court has made the aforementioned date to be the retrospective date. Secondly, the provisions of section 18 themselves apply retrospectively with regards to current offences. The 20-year period means that if the offence is not listed and the complaint is brought forward regarding an offence that is not listed and a period of 20 years has prescribed since the offence was committed. The NPA does not have the right to institute the claim. If the offence is listed and the complaint is laid now with regards to an offence that was committed for example 25 years ago, the right to prosecute lapse after 20 years the offence was committed. It does not mean necessarily that if an offence is listed 30 years after the act, the NPA will automatically institute a prosecution.
Mr Mpumlwana sought clarity if it was the Constitutional Court that declared that the Act should be retrospective or if it was the Department.
Mr Meijer referred the Committee to page 37, order 5 of the Levingstein judgement. He said that the recommendations of the DoJ would be in view of the order of the court that the amendment bill be in line with the judgement of the court.
Mr Mpumlwana expressed that in other words there was no point of the Committee because the government can just make laws and expect it to rubber stamp.
Mr Mulaudzi was concerned that if the NPA declined to prosecute there would be some groups who wanted private prosecution
Mr Meijer acknowledged that the possibility was always there. The decision of the NPA is influenced by various factors including the strength of the case.
Ms G Breytenbach (DA) expressed that it was clear that when the NPA has strong cases they sometimes do not take them to court.
The Chairperson thought that the question Mr Mpumlwana had raised was important as it relates to the architecture of the constitutional system. The remedy lies in the fact that Parliament has the power to review the constitution. The question lies in exercising that power. The separation of powers would be meaningless if the courts would keep instructing Parliament.
He said for now the Parliament had to abide and effect the changes.
Ms Breytenbach suggested that the matter should be taken to the committee caucus.
The Chairperson stated that the right to go to caucus was accepted, however the Committee was not yet there. The mandate at hand was to accept the amendments to the Bill
He requested that in the following week the Committee will receive a report on the judgement of the court on the NPA Act, the scope and the nature of the amendments desired. A decision would be taken in the following week,
The architecture of the constitution allows the President to appoint. The President has duly appointed the acting national director of public prosecution, Advocate Dr Ramaite, who has been a senior public prosecutor for more than 16 years. The Committee unanimously supports the President. The Committee applauded the President for his swift response to protect the integrity of the NDPP.
Briefing on suspensions of magistrates
Adv Cassim Moosa, Chairperson Ethics Committee: Magistrates Commission, commenced his presentation by extending his gratitude on behalf of the Magistrates Commission for being summoned to come and present to the “members” having due regard to their “extremely busy” schedule.
Adv Moosa stated that a document pack has been presented to the members and that these documents have been emailed to them. He then outlined the format in which he would be dealing with the matters - detailing that:
5 of the matters stipulated in the documents before the members are dealing with the withholding of remuneration. Namely, they are: Ms VT Gqiba, Ms RM Malahlela, Ms JF van Schalkwyk, Mr MJ Kgomo as well as Ms FK Jasone-Twala.
The next 3 matters deal with provisional suspensions from office of Ms Jasone-Twala, Ms LB Freeman and Mr MD Hinxa.
The last matter deals with the suspension from office Mr IWM Morake
Adv Moosa clarified that the five first matters, regarding the withholding of remuneration, are to be dealt with in terms of the section 13 of the Magistrates Act, which states that “the remuneration of a Magistrate is not affected during a period of suspension in terms of sub-section 3(a) or 4(a) unless the Commission determines otherwise.” This is the very reason for which they (Commission) are in attendance for this meeting. Concerning the 5 matters, he referred the members to 4(a)(c), which states that “Parliament must, as soon as it is reasonably possible, consider that report and pass the resolution as to whether or not the determination concerned is confirmed, either with or without amendment or set-aside.”.
Adv Moosa indicated that the three matters that deal with provisional suspension are to be dealt with in terms of Section 13 3(a) with states that “The Minister on the advice of the Commission may provisionally suspend a magistrate from office…”, also stating that the sub-section indicates the different scenario to which this is applicable. Under sub-section (c) it states that “Parliament must, as soon as it is reasonably possible, pass a resolution as to whether or not the provisional suspension of the magistrate is confirmed.”
He then explained that the last matter, dealing with the suspension from office of Mr IWM Morake, is to be dealt with in terms of Section 13 3(4)(c), which stipulates that Parliament is required to pass a resolution to determine as to whether or not the magistrate should be restored to office.
He handed over to Mr Meijer for further clarification of all the 8 matters at hand.
Mr Johannes Meijer, Magistrate, Magistrates Commission, addressed the Committee concerning the withholding of remuneration. He stated that the Commission may rule that remuneration be withheld on both cases of definite suspension and those of provisional suspension from office. The Minister has to “table” a report in Parliament within 7 days of having the knowledge of the Commission’s decision to withhold remuneration. He confirmed that the report was submitted before the deadline.
Mr Meijer said that with regards to the provisional suspension from office, the Minister must first provisionally suspend a particular magistrate from office and then table a report within 7 days in Parliament. He also confirmed that this procedural process has also been followed for the cases at hand. He added that should the Commission recommend the removal of a particular magistrate the Minister must, if the magistrate has been provisionally suspended from office, confirm the suspension; also, suspend that particular magistrate if he has not been provisionally suspended from office and then table a report in Parliament within 14 days.
With regards to the first withholding of remuneration, the Parliament needs to confirm the determination of the commission to withhold remuneration; with regards to the provisional suspension, Parliament also needs to confirm the Minister’s decision to provisionally suspend a magistrate from office. However, with regards to the removal or suspension from office (which is in relation to Mr Morake’s case) Parliament must pass a resolution of not restoring the magistrate back into office but not of confirming the suspension.
He concluded by pointing out that in a previous resolution, Parliament had made a decision to confirm the suspension of the particular magistrate from office whereas the Commission had made a recommendation not to restore that magistrate back into office. Therefore, the High Court ruled that Parliament had not exactly quoted the Act itself and that this challenged the final decision of the NA and the NCOP. He then asked the Chairperson to ensure that, if the Committee is to table these reports and place them before Parliament, the decision is taken as it is in the Act.
Discussion
The Chairperson suggested before further proceedings that Mr Horn should clarify how the removal of judges is dealt with – does the JSC take a decision which is then endorsed by Parliament or does such a matter end elsewhere? He substantiated his question by saying that the law requires, those that have the duty to uphold it (including himself) to apply their minds in whatever they do. How do they do that while not doubting the integrity of the Magistrates’ Commission?
Mr Horn replied that in dealing with the removal of judges or the “ethic issue of Magistrates”, the role of Parliament can only be that which is enacted by law. So, Parliament has no “original power” or jurisdiction in this matter. The role of Parliament in all matters dealing with oversight over the judiciary, be it the Magistracy or the judges of the High Court, is prescribed by Parliament. He also argued that their role is the same as that of a Review Court in the sense that they could never be in a position to second-guess a finding on a merit. Their oversight ultimately can only be based on reviewing whether or not the correct process has been followed. He mentioned that there are obviously other avenues for aggrieved magistrates that have not been restored to office and one of the grounds for judicial review in the High Court is that Parliament may have not fulfilled its role.
He insisted that if Parliament did not phrase the Committee’s resolution correctly, the mistake must have been made elsewhere because it certainly wasn’t made by the Committee. He added that he is more interested, in reading the documents, to see whether the Magistrate Commission, or the Ethics division within the Commission, followed a proper process as described by the Magistrates Act. He thereafter declared that he is not prepared to do more than that until an Act of Parliament gives him authority or duty; and whether that type of “broadening of powers”, on the part of Parliament, in any event, will be constitutional, is yet another issue – in the sense that they are dealing with the sensitive matter of the separation of powers. While there is never an absolute separation of powers,
Parliament was standing was on an oversight position to see whether due and process was followed.
The Chairperson stated that the reason he asked Mr Horn was because he sat on the Magistrates Commission. He wanted to know whether the removal of a judge was for Parliament to rectify or it ended elsewhere.
Mr Horn responded that to the best of his knowledge the matter of a removal of a judge will also end up in Parliament. He added that in order for Members of Parliament to be enabled to take part in the Commission they are excused during the last agenda item on the standard agenda where matters of ethics and discipline are dealt with. They were not part of those decisions or the Ethics Committee.
Mr Meijer stated that with regards to the impeachment of judges the JSC makes a recommendation and two thirds of Parliament must confirm that decision whilst with magistrates just the majority of Parliament must confirm the decision to pass a resolution not to restore.
The Chairperson said that he had asked because transformation was an ongoing process. He did not think that Parliament could be more qualified or nearly qualified to the Magistrates Commission to do the work. Parliament could also not transform itself into the Magistrates Commission to do the work it had done. He thought that Mr Horn had put it well that Parliament does oversight work and refers to the House. If resolutions of the House are open to question he wanted to find out what the reason was for this. Is it because Parliament does not capture its decisions well? What is the basis of the challenges to the resolutions that are adopted?
The issue before Parliament was about the recommendations that had been tabled before the House. He asked Mr Meijer to continue with his presentation.
Briefing on the withholding of remuneration of Ms V T Gqiba, Chief Magistrate, East London
Adv Moosa stated that the first matter on the agenda dealt with the withholding of remuneration of Ms VT Gqiba. She is a former magistrate from East London. The National Assembly had passed a resolution that she should not be restored to office. The Honourable Minister subsequently removed her on 30 May 2018. What the Magistrates’ Commission was seeking from Parliament was for her remuneration to be withheld. This was not withstanding her removal from office and the resolution which the National Assembly had passed to remove her from office. In terms of Section 13 (4A)(c), the Magistrate Commission needed confirmation from Parliament that her remuneration be withheld.
Discussion
The Chairperson asked whether Ms Gqiba was not due for retirement when she left her office. He also wanted to know what the implication of the decisions to be taken would be.
Mr Meijer responded that she was found guilty of some crime and the State recommended her removal from the office sometime in December. In January she asked the Minister to allow her to vacate the office on early retirement. She retired on the 6th of this month. She then turned the age of 65. The Minister, having regard that the matter was still due to Parliament and that she was found guilty of misconduct, turned down her application to retire early. She then filed for two High Court applications which are still pending. The NCOP and the NA have already resolved to remove her from office. The issue now was just on the withholding of remuneration. She was not a magistrate any longer. In terms of the Act Parliament must still confirm the determination of the commission to withhold her remuneration.
The Chairperson then asked how long the withholding of remuneration would be.
Mr Meijer stated that the Commission determines the intention to act on withholding remuneration. If the Commission makes such a determination, that determination would be with immediate effect. The Minister must table a report to Parliament. The report must then be submitted to Parliament for approval. She is currently not receiving remuneration since January this year.
The Chairperson was concerned that it was human beings that the Department and Parliament was dealing with. Withholding remuneration from a person may amount to sentencing them to death. He asked if Parliament wanted to be a body that deprives people of resources to acquire basic needs. A 65-year-old person has all kind of health challenges. If Parliament aims to create a caring society, does withholding remuneration promote that? He did not want to reopen the case. Looking at the facts of the case, there are many of people who do things without permission. He wanted to ensure that the constitutional imperative of creating a caring society is carried. How many people in the country stole money that they did not work for? How many people get paid for jobs that they do not do? He expressed that this created problems with him however he was not the Committee.
Adv Moosa referred the Committee to the bottom of page 5 of the report to give Parliament as to where the Magistrate Commission is getting the authority for such a submission. “The Commission is further of the opinion that in line with its previous resolution to recommend to remove a magistrate from its office with reference to the constitutional judgement in Van Royen and others versus the state and others where the Constitutional court held that if good reasons exists for the suspension of a magistrate, the withholding of salary during the suspension is not necessarily disproportionate.” Ms Gqiba’s suspension without remuneration is at this stage justified. Since Parliament is currently not in session, it may still take some time for the NA to pass a resolution in this regard. Given the circumstances above, the Commission was of the view that there seems to be no reason why Ms Gqiba who is suspended from the office pending the decision by the NA to pass a resolution whether or not she returns to her position should still get her remuneration.
The Chairperson asked on what grounds Ms Gqiba’s case was going to court.
Mr Meijer responded that Ms Gqiba had no problem with the fact that she was found guilty of misconduct in that she was dishonest. She felt that the sanction imposed, which was the recommendation to have her moved from office, was too harsh. She is seeking relief from the court to have it set aside as well as the withholding of her remuneration. There are two cases pending which are opposed by the Commission and the Minister.
The Chairperson asked if the Minister had the power to agree to an early retirement under the law.
Mr Meijer responded that under section 35 of the Act the Minister can allow a magistrate to take early retirement on application for any other reason, even for ill-health. The decision is at the discretion of the Minister.
The Chairperson thought that the Magistrate Commission had done its work and was backed by court decisions. However, the reason Parliament had to take a decision was that it would be able to say it had done justice.
Mr Mpumlwana believed that the Magistrate Commission was bent on punishing Ms Gqiba, with due respect. He thought that not allowing Ms Gqiba to retire early and the further withholding of her remuneration was too harsh. There was no criminal record. The Department appointed somebody junior on top of her. This caused friction. The Department did not solve that problem. Ms Gqiba then went to Johannesburg because there was going to be a meeting which was later cancelled. However, she still went anyway to Johannesburg to talk to the senior about the problem. This was the main thing. The ruling on misconduct was acceptable; however the punishment was too harsh. He did not understand the punishment that was given to Ms Gqiba. This was somebody who had now retired and was no longer an employee. He did not understand why the withholding of remuneration was from the time she was suspended when Parliament had not yet approved it. Why should Parliament approve the retrospective withholding of remuneration?
The Chairperson stated that he was advised that he was out of order. Parliament had already deliberated on the matter. The matter that the Chairperson was trying to raise was whether the Minister’s decision was reasonable or not. It does not affect the resolve.
Adv Moosa referred the Chairperson to section 5(a) of the Magistrate Act of 1993. The Act was clear that the decision ultimately is in the hands of the Minister. It is the Minister who will decide whether the vacation of a person’s office under the three scenarios – on account of continued ill-health, in order to effect a transfer on appointment or for any other reason which the Minister deems sufficient. It is in the discretion of the Minister whether the reasons presented to him are sufficient.
The Chairperson asked if Parliament did not have the power to refer the matter back to the Minister to reconsider.
Mr Meijer stated that the request of a magistrate to leave office early on any reason is at the sole consideration and discretion of the Minister. In this instance Ms Gqiba did not ask to vacate office because of ill-health. She said she just wanted to go. The Commission’s view was that she wanted to prevent Parliament removing her from office. The bottom line was that this was a set of processes which Parliament was not part of.
The Chairperson stated that he raised the matter because the matter is before the court. He did not want to hear a situation where the Portfolio Committee of Justice is found to not have applied its mind when resolving matters. This would be the beginning of the end of the integrity of the structures of Parliament. Parliament was making sure that it is able to account for whatever it does.
The Chairperson stated that the Magistrates Commission had done its work on interpreting the law and he was satisfied.
Mr Mulaudzi wanted to ask the Magistrates Commission why it was in hurry to rule on the case when there matter was in court. What would happen if the court ruled against the Commission?
Secondly, he asked if the Magistrates Commission had a similar conviction of this nature where the person deserved to be punished harshly like this.
Ms Breytenbach stated that she was partially covered by the Chairperson’s realisation that the matter had already been covered by Parliament. With regards to the sanction, this was no ordinary magistrate. It was a chief magistrate who sat in judgement of many people every day. The punishment was not harsh at all. The aggravated circumstances were multiple. You cannot have a magistrate sitting in judgement of other people and leading other magistrates who is guilty of this kind of thing herself. It did not matter how sorry Parliament felt for her. The mitigating circumstances do not allow for sympathy. Human sympathy and empathy cannot be conflicted with the correct sentence. There was nothing wrong with the sentence. She supported the report.
Mr Horn reminded the Committee that at a previous meeting ultimately Parliament understood the yardstick with which this was measured. He added that the Committee must protect the integrity of the entire judicial system when making decisions. Therefore, any form of dishonesty must disqualify somebody to be in that form of an office. In respect to the withholding of the remuneration, he hoped that the consideration was ultimately that the court case was just an attempt to prolong the inevitable. Therefore, it would not be prudent for Parliament not to endorse the withholding of remuneration
The other side of the coin was that in the long run there can be no prejudice for this magistrate. If the court found in her favour she would in any event receive her remuneration. However, although there is an active legislation, Parliament and its constituents sometimes complain about people who sit and receive income for years while on suspension. However, there was now reluctance. Parliament was now faced with the situation and it needed to do what was just and fair in the interim.
In conclusion, given the fact that she will in any way get her remuneration if the court finds in her favour, it would not be unfair to withhold remuneration in the meantime.
The Chairperson remarked that no one was reluctant. The Committee was a democratic body. It was free to apply its mind to satisfy that whatever decision it takes is a decision that can pass constitutional master.
The Chairperson said that his last issue was that remuneration did not include benefits. He asked if she was going to get her benefits.
Mr Meijer stated that the fact that she had been removed from office was like a resignation. Ms Gqiba would not get her pension actuarial interest but a lump sum. She would get the lump sum pension that she was entitled to. If she had resigned, it would have been the same situation.
With regard to Mr Mulaudzi’s question, Ms Gqiba was found guilty of misconduct. The Commission already endorsed the sanction and made a recommendation to the Minister that she be suspended from office. The NCOP had already resolved not to restore her to office at the time. When she was requested to submit reasons why her remuneration should not be withheld, she then filed an application. Unfortunately, Parliament could not make a recommendation to the NA earlier. The recommendation presented had been made in the meantime.
She is the chief magistrate. She was also a member of the Commission. If she had any grievances against her newly appointed cluster head, she knew the route to follow. Ms Gqiba had been a chief magistrate for quite some time and in her previous issues in which she was severely reprimanded she promised not to conduct herself this way.
It was also not just any meeting that she attended. She wanted to see the chief magistrate of Pretoria who was the chairperson of the Chief Magistrate’s Forum. She did not attend the meeting nor did she see the chief magistrate. She also had made no appointment with the chief magistrate of Pretoria. It was clear that she had other private matters to deal with. Her intention was to go on state expense to pursue her private matters and this was an act of dishonesty. Taking into account everything the presiding officer recommended that she be removed and the Commission endorsed the decision.
The Chairperson thought that Mr Meijer had made his point. He had no intention of reopening the matter. He thought that as the Chairperson he had the privilege to play devil’s advocate. When matters go to court, it will cite the Speaker of the National Assembly and the Chairperson of the Committee. Some of the judges sitting at courts were his former students. He did not want to appear before his former students as having misdirected himself in law. He thought that the matter was closed and that the Committee needed to take a decision.
Mr Mpumlwana sought clarity on the retrospectivity of the remuneration to be withheld. He asked whether the Magistrates Commission was saying the remuneration should be withheld from January when she was suspended or from June when she retired.
Mr Meijer replied that the Commission, on the advice of the presiding officer, recommended that Ms Gqiba be removed from office. The Minister has to then table a report. The Minister must then take a decision to suspend her. If there is a recommendation from the Commission the Minister must take a decision to suspend in terms of the Act. Once this had been done, the Minister tables a report in Parliament. The Magistrate Commission foresees that Parliament will take a resolution within reasonable time. If the recommendation is that she should be removed from office there is no constitutional objection for taking her salary from the day of suspension until the removal from office or the decision passed by Parliament. If Parliament passes a resolution to restore her to her office she would be repaid immediately.
Mr Mpumlwana wanted to find out if the presiding officer could decide without going to court on the withholding of remuneration. He wanted to know if the Magistrates Commission was saying that the Commission gives a sanction and Parliament must endorse whatever sanction is presented to it.
Mr Meijer clarified that this was not a sanction. The presiding officer imposed a sanction to remove her from office. The decision of the Commission to determine to withhold remuneration took a different process. It may even occur when a magistrate is provisionally suspended from office. That is why it is in a totally different section in terms of the Act. Not all remuneration of magistrates who are provisionally suspended from office are necessarily withheld. If there were really good reasons in terms of the Act to withhold remuneration then the Commission makes such a determination. It would usually be when a recommendation is made to the Minister to suspend such a magistrate pending Parliament’s resolution not to restore the individual to office.
The Chairperson stated that the Committee had a situation where both parties had decided. The matter was also a problem because he was not sure whether it was right for the NCOP to act before Parliament acted. He said, however, this was water under the bridge.
The matter was also before the courts. He thought that the aggrieved person would get a remedy in one way or the other on that level.
He stated that any debate that may be entertained in the house would not take the matter further. He had to play the devil’s advocate because he did not want the Committee brought into disrepute. The Committee did not want to make decisions without applying its mind. He was not blaming Parliament, the Minister or anyone but was merely playing the devil’s advocate. What the Committee needed to do was to make a decision that it is competent to make, which is to either endorse or not endorse the withholding of Ms Gqiba’s remuneration.
Mr Mpumlwana asked why the Magistrates Commission was in a hurry. He asked if this was not implying that the court had already taken a decision.
Adv Moosa directed Parliament to page 3 of the report. Ms Gqiba had only approached the court in respect of the sanction. She had not taken the matter on appeal or review in relation to the conviction or the finding of guilt. It is only related to the sanction by the presiding officer and the approval by the Commission.
The Chairperson asked if the appeal included remuneration.
Adv Moosa responded that it did not. All she had gone to the High Court for was to ask that body to set aside and review the sanction placed against her of removal from office be placed aside.
Mr Mpumlwana asked if she would not have to be paid if the court ruled in her favour.
Mr Meijer said that that horse had bolted. Both the houses of Parliament had passed a resolution not to re-instate her. The withholding of remuneration is a totally different enquiry all together.
The Chairperson stated that Parliament should accept that the horse had bolted and vote on the matter.
Mr Mpumlwana raised a point of order that the Secretary appeared to be influencing the Chairperson by telling him what to do. He said that the secretaries were not part of the Committee.
The Chairperson responded that the Secretary was not telling him what to do. He was drawing his attention to documents that he had missed. He was not being influenced in any way and was prepared to stand by his decisions.
He agreed that the matter had been taken to court. It was time for the Committee to make a decision on withholding the remuneration.
Mr Mulaudzi thought that the Committee could get the information from the Minister about what informed him to make such a decision. How about the Committee come back the following week to have deliberations on the matter?
The Chairperson asked the Magistrates Commission what the law said with regards to Mr Mulaudzi’s remarks.
Adv Moosa stated that the law was crystal clear on the matter. In terms of section 13(5a), it ultimately leaves the decision in the hands of the Minister himself. The Committee is unable to interfere with the discretion that is given to the Minister in that regard.
The Chairperson asked if it would harm anyone to sleep on the matter so that the Committee asks the Minister to reconsider. This was an exercise of discretion and an exercise of discretion could be proper or improper. He asked that the matter be dealt with in that way and the decision be made the following week.
Adv Moosa pointed out that Ms Gqiba had now turned 65 and was already on pension. He did not know if asking the Minister to reconsider would affect matter.
The Chairperson said that as long as postponing this matter to the following week would not prejudice the Committee or the Magistrates Commission or the Minister, the matter should be concluded in a manner that parties involved do not end up throwing stones at each other. The matter should be concluded the following week. He asked that the matter be left that way.
The Chairperson said that the Committee was not taking a decision that it was not approving the withholding of the remuneration. It was dealing with the exercise of discretion by the Minister. The Minister has the right to confirm or not to confirm. It was a door of about three days for the Minister to do that. Parliament would abide by the decision of the Minister and the law.
Adv Moosa clarified that it was the decision of the Minister not to allow her to return to office.
The Chairperson stated that the Committee understood Mr Meijer’s statement. It was approaching the Minister with regards to the remuneration.
Adv Moosa stated that the Minister had no discretion in that regard. The Minister must file a report in Parliament.
The Chairperson asked what the Minister had discretion of.
Adv Moosa responded that he had no discretion at all in this regard according to the Act. He must table a report in Parliament.
The Chairperson asked Mr Mulaudzi if he followed that in terms of the law, the Minister had no room for manoeuvre.
Mr Malaudzi wanted to know what the role of the Parliament was then. Did Parliament have a room to say no to the recommendation of the Minister?
Adv Moosa responded that the decision of Parliament was to pass a resolution on whether or not the determination concerned would be passed with the amendment or not.
Mr Mpumlwana did not understand why the Magistrates Commission wanted to rush the matter. The fact that the Minister decided not to accept early retirement would have had an effect on the matter. If she took early retirement during the time of suspension, the time of the person being employed would end there. The Committee would be talking about the amount between the time of suspension and the time the Magistrate released herself. He asked why it did not allow the process even if it would not affect the matter. He asked what the difference was between taking the decision now and next week.
The Chairperson understood the words of Adv Moosa that the horse had bolted. The Committee should make a decision and leave the matter to the courts. He was happy that from the side of the Commission the law had been interpreted well. Parliament had to take a decision whether to endorse the withholding of remuneration or not.
Mr Mpumlwana stated that he did not understand why the matter had to be pressed. What was the harm if it was done next week?
The Chairperson said that if there was no consensus on the matter, the Committee should vote on how many people wanted to sleep over the matter.
Mr Mpumlwana left the Committee stating that he had been saying the same thing repeatedly. He was leaving so that there would be no quorum.
The Chairperson stated that this was just a briefing and no quorum was needed. He asked that the Magistrates Commission move to the next matter.
Briefing on the withholding of remuneration of Ms RM Malahlela, Additional Magistrate, Delmas
Adv Moosa stated that Ms Malahlela had resigned on 12 January 2018. What the Magistrate Commission was seeking in the particular matter was that the remuneration be withheld in terms of Section13 (4A)(c) of the Magistrates’ Act. The NCOP had already confirmed the withholding of remuneration on 18 July 2018.
He mentioned that he did not want to rehash the entire report. He wanted the Committee to note that on 18 June 2014, Ms Malahlela approached the North Gauteng High Court. She filed an order to motion wherein she sat at the magistrates’ commission with the Minister of Justice as the first and fourth respondent, where she applied for a court order to declare the Commission’s decision to charge her with misconduct wrongful and unlawful. The application is opposed and to date Ms Malahlela has not pursued that application for four years later.
It was the view of the Commission that Ms Malahlela was simply trying to unnecessarily delay the matter. The Commission is of the view that it is impinging and impacting negatively on the fiscus. It respectfully requests the Committee to assist it by proceeding in terms of Section 13 4ac, to withhold the remuneration of Ms Malahlela.
Discussion
Ms Mothapo asked if this was the Delmas case. She also wanted to know what the situation with the case was currently.
Adv Moosa responded that she had resigned on 12 January 2018.
The Chairperson recalled that in previous meetings (concerning these cases) the Parliament had approved all the cases in principle. However, this approval was subject to more information by the Commission. The Committee was very lenient on the matters and the Commission agreed with it. He stated that the matter could not be delayed any further.
Briefing on the withholding of remuneration of Ms JF van Schalkwyk, Chief Magistrate, Kempton Park
Adv Moosa reported that Ms van Schalkwyk has been on provisional suspension since 2013. It has been five years. She had approached the High Court to challenge the regulations and code of conduct as well as the Supreme Court for leave to appeal. The High Court ruled against her while the Supreme Court dismissed the leave to appeal on the 12 March 2018 with costs.
The NCOP confirmed the withholding of remuneration on 18 June 2018. The misconduct enquiry commenced before the court application and is currently occurring against Ms van Schalkwyk.
Looking at the history of the matter and the facts as they stand, the Commission was of the view that Ms van Schalkwyk was unnecessarily delaying the finalisation of the matter. Under those circumstances, the Commission submits that it would be appropriate in terms of Section 13 4ac for her remuneration to be withheld. It was asking the Committee to confirm such a decision by the Minister.
Discussion
The Chairperson requested that Adv Moosa allows the Committee to deliberate on the case before moving to the next one.
The Chairperson stated that the Committee went a long way to find excuses to deal with the question of Ms Gqiba. Ms van Schalkwyk was a white woman and someone would turn around and say that Parliament was quick to take a decision because of that. Parliament needed to be fair to all South Africans.
Ms Breytenbach stated that she loved the remarks of the Chairperson.
The Chairperson emphasised that he did not know the relevance of colour pertaining to race in all the matters at hand. He emphasised that Parliament had been lenient in all the matters before it, irrespective of race.
He said the fiscus was involved. Parliament could not be one that did not take matters to finality. If parliament took a wrong decision there is recourse in the law that the people involved could take. This would be his ruling unless he was overruled.
Ms Mothapo asked whether the Committee was still quorating as it was when the meeting started because this was still a briefing.
She stated that the matters had appeared before the Committee some time ago. She requested that the Committee be refreshed on the decisions they had made in previous meetings.
The Chairperson confirmed that the Committee was still quorating as these were briefings. He responded to Ms Mothapo by stating that the Parliament had approved all the cases in principle. However, this approval was subject to more information by the Commission.
Ms Mothapo asked if the Committee had received the information.
The Chairperson stated that the Committee was receiving the information. It was not re-opening the matter. It had no problem with the information that was being given and the interpretation of the law by the Commission. He asked that the Magistrates Commission continue with briefings.
Briefing on the withholding of remuneration of Mr M J Kgomo, Additional Magistrate, Randburg
Adv Moosa stated that the report was tabled in November 2017, thus some of the details that he will be presenting for this particular case would not be found in that report. Mr Kgomo was found guilty on 2 counts of corruption by the Randburg Regional Court on 27 October 2017, after having been suspended since 18February 2014. He was more recently sentenced by the Regional Court on the 20 April 2018 to 15 years of direct imprisonment. He subsequently applied for leave to appeal against both his conviction and sentence, which was declined. He followed that up with a bail petition which he was also deprived.
Adv Moosa said that in the interim, the Magistrates’ Commission has, based upon the 2 convictions that Mr Kgomo has received, proceeded to draft a new charge sheet and served it to him on the 19 April 2018. His provisional suspension was confirmed by Parliament on 13 April 2014. The Commission’s objective with this case is a request for the withholding of remuneration of Mr Kgomo, in terms of section 13 (4A)(c), because he’s currently receiving his salary even though he’s incarcerated and serving his 15-year sentence.
Briefing on the withholding of remuneration of Ms F K Jasone-Twala, Additional Magistrate, George
Adv Moosa then proceeded on to the next case which was that of Ms FK Jasone-Twala, a former Magistrate from George, who resigned on 31 January 2018 and soon passed away on 12 March 2018. He explained that there is a need for 2 resolutions from Parliament in order for the case file to be officially closed: a confirmation of provisional suspension from office and the withholding of remuneration of Ms Jasone-Twala.
The Chairperson requested Adv Moosa to then move on to presenting the next case.
Briefing on the withholding of remuneration of Ms L B Freeman, Senior Magistrate, Mossel Bay
This next case was that of Ms LB Freeman who is a senior Magistrate in Mossel Bay and Judicial Head of Office. She was served with a charge sheet with 14 counts of misconduct, on 24 November 2017. The inquiry then commenced 3 months later, on 24 February 2018 and is scheduled to continue again from 12-14September 2018 – thus the continuation is still pending.
Adv Moosa stated that Ms Freeman has filed an application in the High Court, compelling the Commission to disclose (to her) the recommendations of the investigator and the court ruled in her favor the previous week (from the date of this meeting). They, as the Commission, have since complied with that particular court order. He then requested a confirmation of Ms Freeman’s provisional suspension from office, in terms of 13 (3A) of the Magistrates’ Act, because the allegations against her are directly relating to “gross dishonesty”. He then referred the Members present to a “Discussion” section found on page 1 and 2 of the report, which stipulates that a Magistrate’s dishonesty is regarded as a serious offence; hence the request for a confirmation of provisional suspension from office is appropriate under the circumstances.
The Chairperson interjected and asked how this is was coherent to the court ruling that was ruled in her favour.
Adv Moosa then clarified that the court ruling only ordered that she should be advised of the recommendations resulting from the preliminary investigation by the investigating officer. This is not related to the suspension.
The Chairperson emphasised the importance upholding the judiciary and magistracy with integrity and honour. He suggested that these magistrates should seek employment elsewhere, where they would not be held to such a standard. He then remarked that the Commission should be allowed to do their work; that Adv Moosa has proven beyond reasonable doubt that he is not acting arbitrarily. Therefore, the Committee must endorse the appeal by the Commission and move forward.
Briefing on the withholding of remuneration of Mr M D Hinxa, Chief Magistrate, Bloemfontein
Adv Moosa said that the provincial suspension of Mr Hinxa was confirmed by the National Council of Provinces. On 24 November 2017 the Commission resolved to charge Mr Hinxa with misconduct and to recommend that he be provisionally suspended in terms of Section 13(3)a of the Act. The Magistrate Commission requested Parliament to confirm the provisional suspension in terms of Section 13(3)b of the Magistrates Act, no 90 of 1993. Mr Hinxa was receiving remuneration. The Magistrates Commission had not made any determination in terms of the remuneration. The misconduct hearing of Mr Hinxa would commence on 26-28 September irrespective of the of the High Court application. Mr Hinxa had approached the High Court seeking for the review of the decision of the Commission to charge him with misconduct.
The Magistrates Commission had decided, notwithstanding the decision of the High Court, it would still continue with its processes and the disciplinary hearing would commence on the given dates.
He reminded the Committee that many of the cases before it were not cases of ordinary magistrates but magistrates of high seniority. Under those circumstances the Commission needed to send a clarion call out to the judiciary and in the public eye that it was dealing with matters with a serious manner. He reminded the court that from the background of the case, the signature of the complaint on the withdrawal letter was different from her other letters. Mr Hinxa had tried to interfere with the procession. The Commission was of the view that if the Chief Magistrate of Bloemfontein was allowed to remain in office, serious problems would be created for the integrity of the judiciary and also compromise the process. It was of the view that the only option in the matter would be to allow for provisional suspension.
The Chairperson stated that the public comments on the issue of the NDPP indicate that the underlying issue is that of the integrity of institutions and the moment the integrity of all the law structured was in question, there would be the law of the juggle. Parliament must be the custodians of the institutions and support the Magistrates Commission to do its work. If Parliament had erred, people could turn to the courts. The Judicial system must be ran only by people with integrity.
Briefing on the provisional suspension and removal from office Mr I W O M Morake, Magistrate, Lichtenburg
Adv Moosa stated that, the last matter was that of Mr Morake. He was also head of the office. He was found guilty of misconduct on 23 June 2017 and the sanction was imposed on him on the 16 November 2017 that he be removed from office. The recommendation was endorsed by the Commission during January 2015 and his remuneration was withheld from 2011. Mr Morake started serving a sentence last year. The Minister suspended him in terms of the Section 13 4A(a) of the Act in 2018.
Adv Moosa referred the Committee to Mr Morake’s report for the charges. He was charged with 6 charges. Mr Morake was found guilty of five charges and acquitted of one. He had now served his sentence and was out of prison.
The Commission was seeking confirmation from Parliament that Mr Morake be removed from office in terms of Section 13 4A(c).
The Magistrates Commission thanked Parliament and hoped it had fruitful deliberations.
The Chairperson asked the Magistrates Commission if they had a training programme for magistrates.
Adv Moosa responded that the Commission was in very close collaboration with SAJE and it had identified many issues. It had identified problems in the magistrate’s office in Pietermaritzburg, where the Ethics Committee together with members of the division proceeded with a view to conduct a mediation investigation. In the delegation was the head of the SAJE who attended to the Commission to ensure a proper programme can be designed for magistrates that will alleviate and eliminate the kind of issues being observed.
The Chairperson asked what the Justice College was doing. Does it still exist? He stated that there were people employed and getting salaries at the Justice College.
Adv Moosa said the Justice College did not exist. It was now replaced by the SAJE. Apparently, the people being paid performed workshops and courses for prosecutors and administrators.
The Chairperson requested a full report on what the people employed at the Justice College were doing. He thought there were many decent young people who wanted to be trained who could serve this country without corruption.
He also stated that Parliament could not wait for the SAJE to do the aforementioned task as it had its own challenges. It should also act.
Ms Breytenbach asked if it was necessary to give training to magistrates.
The Chairperson responded that it was not necessary hence he had said that Parliament needed to be serious about its oversight role.
The Chairperson thanked the Magistrates Commission for the briefing and adjourned the meeting.
Audio
Documents
- Legal Practice Act, 2014: Regulations
- Con Court Judgement
- Criminal Procedure Amendment Bill, 2018 presentation
- State Liability Amendment Bill, 2018 presentation
- Provisional Suspension from Office: Ms L B Freeman, Senior Magistrate, Mossel Bay
- Ms V T Gqiba, Chief Magistrate, East London: Withholding of Remuneration Provisional Suspension
- Promsional Suspension from Office: Mr M D Hinxa, Chief Magistrate, Bloemfontein
- Ms F K Jasone-Twala, Additional Magistrate At George: Withholding of Remuneration Provisional Suspension
- Mr M 3 Kgomo, Additional Magistrate, Randburg: Withholding of Remuneration Provisional Suspension
- Ms R M Malahlela, Additional Magistrate, Dellwas: Withholding of Remuneration Provisional Suspension
- Confirmation of Provisional Suspension and Removal from Office: Mr I W 0 M Morake, Magistrate, Lichtenburg
- Report on Ms JF Van Schalkwyk, Chief Magistrate, Kempton Park
Present
-
Mulaudzi, Adv TE Chairperson
EFF -
Breytenbach, Adv G
DA -
Buthelezi, Mr EM
IFP -
Horn, Mr W
DA -
Maila, Mr MS
ANC -
Mothapo, Adv MR
ANC -
Motshekga, Prof MS
ANC -
Mpumlwana, Mr LKB
ANC
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