Legal Practice Act Regulations: adoption, with Deputy Minister

Meeting report

Legal Practice Act Regulations: briefing
Deputy Minister of Justice and Correctional Services, John Jeffreys, explained that in terms of the Act the National Forum on the Legal Profession makes proposals to the Minister, and the Minister must effectively make those into regulations which have to be tabled in Parliament. The first set of regulations which deals with the elections was tabled in July, and the other set was tabled in early August 2018. The requirement of Parliament is that both the National Assembly (NA) and the National Council of Provinces (NCOP) must approve the regulations. Parliament’s choice is to accept or reject the regulations, but it cannot amend the regulations. If Parliament rejects the regulations they have to go back to the National Forum to be done all over again, which will cause delays as the regulations have to start on the 1 November 2018.

The Deputy Minister said the only time the Minister has any power over the regulations is if the National Forum does not agree. There were problems with the training provisions. And so the Minister made a proposal which had to be agreed to by the National Forum. The regulations were published by the Ministry for public comment before final approval by the National Forum.

Mr Max Boqwana, National Forum Deputy Chairperson, said the National Forum on the Legal Profession is the body which comprises all legal practitioners in the country, the advocates in all the Bar Councils, the attorneys, the National Democratic Lawyers Association (NADEL), Black Lawyers Association (BLA), Legal Aid, and the University Deans. Essentially this is the final piece of work they have been doing the past two years in order to unite the profession and to put it on a transformation trajectory, and to ensure there is access to the profession. The purpose of this meeting is to ensure that the Legal Practice Act is taken to the next stage. There are two dates in the next stage that are particularly important: on 1 November 2018, the entire Act must be in operation for which the regulations must be approved. What they have to deal with it today are the regulations that deal with the elections for the composition of the governance structure for the National and Provincial Legal Practice Councils (LPC). A third important issue is vocational training because post university there has to be continued training. The last point is the disbanding of the National Forum, which has been an essential negotiating forum to get to where they are. The National Forum’s life comes to an end on 30 August 2018. This means that these regulations should be operational by 1 September 2018, because on that date they start the elections process.

Ms Charity Nzuza, National Forum Executive Officer, said indeed the National Forum submitted its recommendations to the Minister. These recommendations were converted into draft regulations. Section 109(1)(a) of the Act provides that the Minister must, within six months of receiving the recommendations make regulations. The six months ended on 30 April 2018. The regulations must, before publication in the Gazette, be approved by Parliament.

Ms Nzuza said in terms of regulations on the election procedure, Section 7(2) of the Act prescribes that the composition of the Legal Practice Councils must take into account the racial and gender composition of South Africa. Regulation 2 prescribes the election procedure for legal practitioners to the Council. There will be a separate voters' roll for the advocates and attorneys. Each candidate must be nominated by two practicing attorneys or advocates, as the case may be. The Council will send ballot papers to all practicing practitioners. The Council will appoint two to ten legal practitioners as scrutinisers to examine and count ballot papers. The Council will appoint a legal practitioner as referee to oversee the election and declare if the election is free and fair. The representation of 10 attorneys to sit on the Council will be split into a 70:30 ratio (black/white) and 50:50 ratio for gender representation. The representation of six advocates on the Council will be split into a 66:33 ratio (black/white) and 50:50 ratio for gender representation. The definition of Black is in terms of section 1 of the Broad-Based Black Economic Empowerment Act which includes Africans, Coloureds and Indians.

Regulation 3(1) lists the seats of the Provincial-Councils. A Provincial Council with more than one High Court will establish a subcommittee of the Provincial Council in every court where there is no Provincial Council. The subcommittee will have 2 attorneys and 2 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. Fifty percent of the members must be female and 50 percent male. The composition of the Provincial Council is 66:33 (black/white) and 50/50 (male/female) representation, except for Gauteng which has the same number of advocates.

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 its jurisdiction. The Provincial Council powers and functions are listed. These are administrative matters such as admission, enrolment, receiving of complaints from the public. This delegation will ensure easy access to justice for both legal practitioners and the public

Regulation 6 provides for two options of practical vocational training requirements of candidate attorneys.
• Option 1 (Regulation 6(1)(a): a degree referred to in sections 26(1)(a) or (b) of the Legal Practice Act; a practical vocational training contract for a continuous period of 24 months; completion of structured coursework of 150 notional hours
• Option 2 (Regulation 6(1)(b): a degree referred to in sections 26(1)(a) or (b) of the Legal Practice Act; a practical vocational training contract for a continuous period of 12 months; completion of structured course work of not less than 400 notional hours prior to entering into the 12 month contract. The course modules are listed in the regulations. A practical vocational training contract must be under a practicing attorney. A practicing attorney may have a maximum of three candidate attorneys. To broaden the base for access to the profession, attorneys employed by Legal Aid SA, legal aid institutions, for example, law clinics and other institutions that employ legal practitioners and have been approved by the Council may employ candidate attorneys. These attorneys can take a maximum of six candidate attorneys as their organisations have superior administrative and support structures available.

Regulation 7 provides for pupils' practical vocational training. A pupil must serve under a practical vocational training 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 practical vocational training contract, complete a programme of structured course work of compulsory modules, of not less than 400 notional hours. The modules are listed in the regulations. Similar to the current position, a pupil may be engaged by an advocate who is enrolled and practises as such. To broaden the base for access to the profession, attorneys employed by Legal Aid SA, legal aid institutions such as law clinics and other institutions that employ legal practitioners and have been approved by the Council may employ pupils. 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 pupilage of six months.

Regulation 9 provides that every matter must be settled before dissolution of the National Forum.

Discussion
Mr J Mthethwa (KwaZulu-Natal, ANC) asked why the ratio is not the same when it came to attorneys and advocates that sit on the Council. For attorneys it is split 70:30 (black/white), and for advocates it is split 66:33 (black/white).

Ms T Mokwele (EFF) asked how in future they will address gender because statistically in terms of race blacks are the majority and in terms of gender women are the majority. She asked if the National Forum will ensure that candidate attorneys selection is gender sensitive especially in the representation of females, not necessary females, but transgender also.  

Ms G Oliphant (Northern Cape, ANC) asked if there is a plan B if these regulations do not come into effect on 1 September 2018.

Mr Boqwana replied that there is only a plan A and they entirely depend on the Committee for that plan A to succeed. As far as plan B is concerned, they would have to go back to the drawing board, but really as negotiators their life comes to an end at the end of this month. They would like this process not to be delayed any further. Members will understand that this is a process which started in September 1996 and it is one of the most difficult processes to date to take forward.

Mr Boqwana said the reason they came to that determination about the numbers of attorneys and advocates was that up until 1998 all law societies governing the regulation of lawyers in South Africa, both advocates and attorneys, have been 100% white males. But then they needed to state where they start in terms of moving forward. So, in 1998 they entered into an arrangement for attorneys that involved NADEL and BLA where governance was on a 50:50 basis. Later Advocates for Transformation came into being and they legislated within those structures a 50:50 arrangement. Yet today they have a situation where the majority of attorneys and advocates in South Africa are white males. Therefore, if they say they should leave this to the good conscience of everybody they might still end up with the situation as at 1998. So, they needed to ensure that they put in certain thresholds. Unfortunately when one talks about non racial principles such thresholds might sound offensive. But they have a problem to address and they cannot avoid it. Therefore, this is why they have came to this 70:30 ratio. It has taken a long time for them to get to that agreement, but eventually they have agreed on that. When they looked at the 66:33 ratio, this is because mathematically they have fewer advocates.

Mr Boqwana replied about gender representatively that if one looks at statistics for universities, the majority of law students are women. If one looks at statistics for the profession the number of women tends to dwindle. If one looks at statistics for leadership at law firms, women lawyers almost disappear. That is the reality which they all need to look at. Therefore, it was in that context that they had to put the minimum threshold of 50% when it came to gender representivity. This does not stop them from having a council that is 100% women but they need to ensure in that council they do not have gender representivity of less than 50% women. That is where they are up to and what they are putting on the table. It will be subject to re-evaluation going forward depending on the changing dynamics and demographics of the profession.

Deputy Minister Jeffreys said he noticed with the provincial councils that there is protection for men as the regulation is 50% female legal practitioners serving on the provincial council and 50% must be male. But what Mr Boqwana said is correct. The legal profession still has a long way to go as transformation rests in gender transformation. The majority of graduates are women, the majority of candidate attorneys are women, but as they go up the ladder of attorneys, women representation gets less and less.

The Deputy Minister said when the Legal Practice Bill was passed or was being developed by Parliament there was a lot of concern from outside about need to preserve the independence of the Legal Practice Council so that it would not be government controlled. The Minister has three people that he can appoint to the Council which is also done in other parts of the world as well. As government they cannot interfere too much, but they would be pressuring the profession, the advocates and attorneys, to take more steps in ensuring the development of women attorneys and advocates.

The Deputy Minister replied that the Department of Justice has a national task team on LGBTI rights. He has engaged organisations representing transgender people and he has not come across any request for specific representation of transgender people. It is more of an issue of promoting the equality of transgender people and not to be discriminated again. As they know, the majority party has a 50:50 split in representation, 50% women and 50% men.

Ms B Engelbrecht (Gauteng, DA) referred to the regulation stating: “the Minister must within six months after receiving the recommendations make regulations”. The six months ended on the 30 April 2018, and the Minister did not do what he was supposed to do.
 
Dr H Mateme (Limpopo, ANC) was concerned about the diminishing number of women up the ladder. They should check on the composition of appointment panels because if the panels are male dominated, women stand no chance whatsoever of being appointed to the top. They should start with panel composition.

The Deputy Minister replied that what was tabled in October 2017 was incomplete because the National Forum could not agree on training procedures. Basically, there had to be consultations between the Ministry and the National Forum on that. There were also a few other areas that actually were not finalised. Thus it is not entirely correct that a complete set of recommendations were tabled in October 2017. In fact the National Forum only finalised some recommendations in May 2018. The regulations were ready in July 2018 but unfortunately Parliament was in recess. They are all working against the clock and nobody has been sitting on the regulations. As already stated by Mr Boqwana, the process started in the late 1990s and getting attorneys and advocates to agree was quite difficult, getting attorneys themselves to agree is quite difficult and getting advocates themselves to agree was also quite difficult.

However, these regulations have been approved unanimously by the National Forum which was the first council. After the election of the Legal Practice Council, it will look at what amendments it wants to make. The plea is for Parliament to approve because if Parliament rejects these regulations they will have to start the process all over again.

The Chairperson said the Committee should put it on record that the incoming Legal Practice Council puts women at the top of its agenda because it is very important and they need quarterly reports on that.

Mr Boqwana said there is a particular form of capitalism that operates and it makes those that are outside to be kept outside, which is why they need this collective responsibility. It should be stated that 70% of the legal work by attorneys and advocates is in one way or another related to the state. Therefore, Members as law makers are actually in a powerful position to force them into this situation, where they need to say in a big law firm if the senior partners of that firm are not women work should not be given to that firm. There is no other way they would change it unless government puts an economic sanction on that particular firm.

The Chairperson said the very character of a development state is to intervene in the transformation of the economy. He is not sure if they have a sector charter in this space, but if other sectors have charters why should they not have a charter in this sector

Mr Boqwana said they worked for a very long time to put in that sector charter and they actually agreed on the sector charter, which at that time was endorsed by then Minister Bridget Mabandla. After Minister Mabandla, the secretariat of the charter had to be within the Ministry of Justice to drive it. Due to a number of things that happened, the first draft of the Act included that charter, and during the course of the discussions that charter needed to be reviewed going forward. Therefore, the Chairperson is quite right that without those guidelines and clear targets it is going to be very difficult to work. So, it might be the responsibility of the Council to revisit that charter and the Council must report against that charter. From the profession side, they have no objection to that.

Deputy Minister Jeffreys agreed with Mr Boqwana that the sector charter would be a very important thing for the Council to look at to ensure targets are set.

The Chairperson asked for a mover for the adoption of the first set of regulations based on Section 109(1)(a) of the Legal Practice Act.

Ms Mokwele noted that there had been no discussion meeting on this. Therefore it might be contested in the plenary if it comes through the back door.

The Chairperson said Ms Mokwele’s point is noted.

Ms Oliphant moved for the adoption of the regulations. Mr Mthethwa seconded the move.

The Committee adopted the regulations.

The Charperson asked for the mover of the second set of regulations based on Section 109(1)(b) of the Legal Practice Act.

Mr D Ximbi (Western Cape, ANC) moved for the adoption. Ms Oliphant seconded the move.

The Committee adopted the second set of regulations.

Committee Report on Legal Practice Act Regulations
The Committee adopted the report.

Committee Report on Magistrate LB Freeman
The Committee adopted the report.

Free State Phuthaditjhaba Oversight Report
The Committee adopted the report.

Committee Minutes  
The Committee adopted the minutes of 20 June 2018.

The meeting adjourned.