Legal Practice Act, 2014: Amendment of Election Regulations - Briefing by Department of Justice and Constitutional Development and Legal Practice Council

Meeting report

Mr W Horn (DA) said he needed to leave the meeting at 10:00 to attend a magistrates meeting.

The Chairperson requested that the presentation be ready to be flighted as soon as the meeting began.

Ms Wilma Louw, State Law Advisor, Department of Justice and Constitutional Development (DoJ&CD), said she was ready to do the presentation on behalf of the Department

The Chairperson extended a special word of welcome and congratulations to the members of the Legal Practice Council (LPC) for being elected as members of the Council. In a previous engagement with the LPC, the Committee dealt with the first regulation on the curriculum which needed further deliberation. In this meeting, the briefing would be on the election of the LPC.

The Chairperson invited the Chairperson of the LPC and members of the newly elected Council to introduce themselves.

Ms Janine Myburgh, Chairperson of the LPC, thanked the Chairperson for the opportunity. She stated that the Executive Committee (EXCO) consisted of seven members; herself as the Chairperson, the Vice or Deputy Chairperson, and five other members. At her request, the Deputy Chairperson, Adv Kennedy Tsatsawane SC, Mrs Kathleen Matolo-Dlepu (former Chairperson), Mr Miles Carter and the Executive Officer, Ms Charity Nzuza individually presented themselves on the platform. Ms Myburgh noted that the remaining members were not able to join the meeting.

The Chairperson said Adv Tsatsawane was not visible when he introduced himself.

Adv Tsatsawane replied that he was having trouble with his device and would be switching to another device that would allow him to present himself in person.

The Chairperson invited Members to express a word of welcome to the Council members.

Adv G Breytenbach (DA) congratulated and welcomed the members of the new Council. She was looking forward to a productive relationship and to the effort that the Council had made.

Adv S Swart (ACDP) expressed his congratulations and mentioned that he was one of the Members who drafted the LPC Act many years ago. He was looking forward to working with the Council and thanked them for their commitment to justice for our people. He wished the LPC team all of the best for this term.

Mr Q Dyantyi (ANC) welcomed the members of the entire LPC team to Team Justice and wished for them to feel at home. The Committee was dealing with matters in a patriotic manner and was managing substantive issues regardless of who the person was and what formation they came from. The driving concern for Members of Parliament was a better South Africa for all in relation to the portfolio that they were working. He urged the Justice Portfolio to up its game in serving the people of South Africa. The interrogation of every institution is for the sole purpose of the administration of justice to everybody including people in the most rural areas.

The Chairperson of the LPC said she did not have a presentation but wished to make two comments [at the appropriate time].

Presentation: Proposed Amendments to Election Regulations in terms of the Legal Practice Act
Ms Louw thanked the Committee for the opportunity and presented the proposed amendments to regulations in terms of the 2014 Legal Practice Act dealing with the elections of the Council. [See the presentation slides]

Current Regulation
Regulation 2 provides only on a paper-based process for the election procedure in terms of section 7(1)(a) of the Act.

Proposed Amendments
The Council proposed amendments to provide for the option of electronic voting and to ensure a smooth transition from an existing council to another without duplication of elected members.

In terms of Regulation 2(25A)(a), the Chairperson and referee must examine the electronic documents, verify them, and regard them as void, if applicable.

Regulations 3 and 4 proposed that references to the first election in the ballot papers, as per Annexures A and B, be deleted.

In terms of Regulation 5, the Regulations will come into operation on the date of publication thereof in the Government Gazette.

Discussion
The Chairperson of the LPC said the proposed amendments will ensure a smooth transition from one council to the next and allow for electronic elections. In the past election, both paper and electronic ballots were allowed and only 13% of members voted according to the paper-based process. The LPC would prefer to retain both methods for their practitioners. She stated that it was important for a smooth transition when the Council is announced and when members took office. She that there may have been typographical errors in the presentation, e.g. the cross reference to 12(A)(1) should read 11(D)(2) and not 11(D)(1)(a)(a). Furthermore, where it stated that the Chairperson and the scrutineer should open the boxes, it did not allow for the Chairperson’s nominee to fulfil the duty, in the event that the Chairperson was absent.

Mr Carter said when the issue about the difficulty of the Chairperson’s position was raised, it occurred to him that it might not be appropriate for the Chairperson to have that role as there might be questions if the Chairperson was also a candidate. He suggested that the reference to Chairperson be replaced and the burden be placed of the shoulders of the Executive Officer. He would alert the relevant persons to several typos and grammatical errors. On the regulation regarding the sending out of notices to legal practitioners, he proposed that the word ‘practising’ must be inserted before legal practitioners, as only practising practitioners may vote. Otherwise notices would have to be sent to non-practising practitioners as well. Furthermore, the reference in subregulation (12) should be amended and the regulation regarding the retention of ballot boxes should be amended to account for the retention of documents in the case of electronic ballots.

Ms Nzuza remarked that the issue of the Chairperson’s role had been a problem in the last election. It resulted in the Chairperson being excluded from being part of the counting process and not being involved in the manner required. Ms Nzuza said she had to take over the role. She supported Mr Carter’s suggestion for the role to be allocated to her as the Executive Officer.

The Chairperson said it would not be appropriate or fair to proceed with deliberations as there seemed to be issues that needed to be corrected and cleared up properly between the LPC and the Department. It would be better for something that was watertight to be brought before the Committee.

Adv Swart agreed with the Chairperson and said the comments raised by the LPC members were important and there should be consultation between the LPC and the Department to clarify the issues before it was brought to the Committee. He did not understand why comments were not received when it was requested. The regulations should be completed and the final draft should be presented to the Committee.

Ms Louw said that part of the current Regulation (215) provides for envelopes to be opened by the Chairperson or the Executive Officer, if so nominated by the Chairperson, in the presence of the referee. On request of the Council, the reference to “Executive Officer, if so nominated by the Chairperson”, had been deleted from the current legislation. The draft regulations had been submitted to the LPC on numerous occasions for their input, as Parliament was not allowed to amend regulations. The Department would have to request the Minister to withdraw this set of regulations in order to restart consultation with the LPC. She apologised on behalf of the Department for the misunderstanding which she said could be attributed to the members of the LPC being new to the Council. She would do the necessary to restart the process.

Ms Nzuza said she wanted to come to the defence of both parties. These were the first elections that were being held after three years. At the time that the request for amendments was sent to the Department, it was during lockdown level two or three and the elections needed to be run around August and September 2021. The regulations had to be expedited to allow for the elections to be held electronically. The issues raised during the actual election process were lessons that the LPC had learnt and had taken note of.

The Chairperson of the LPC thanked the Chairperson and Members of the Committee. She said the LPC now had a better understanding of the process and stated that it was important to act in the interest of justice. She asked the Committee to bear with them to get the process right. She apologised on behalf of Adv Tsatsawane who was unable to reconnect to the meeting.

Adv Swart commented that Parliament could also learn from the electronic voting process. The Committee wanted to engage with the Council on matters of mutual concern. He acknowledged that engagements with the previous Council was not done proficiently but it was important to engage with professionals in the field on a more regular basis.

The Chairperson agreed that there should be continuous engagement with the Council. He would put the matter on the agenda for next year. The first item for next year was the regulation on the curriculum.

The Chairperson of the Council thanked the Committee for the opportunity and said the sentiment about regular engagement was music to her ears. The LPC had been inundated with challenges and would appreciate engagement with the Committee. She shared the statistics on spoilt ballots with the Members as it related to the last election, i.e. 120 spoilt paper ballots and zero electronic spoilt ballots.
 
The Chairperson acknowledged that the LPC was working under extreme pressure. He expressed the hope that the LPC would return to the Committee after consultation with the Department. The Committee had a lot of issues to discuss and would like to dispense with matters as soon it was possible.

The LPC members were excused from the meeting.

Consideration and adoption of Committee minutes
The minutes of the meetings held on 23 and 24 November 2021 were adopted without any amendments.

Concluding Remarks
The Chairperson noted that an issue highlighted by Mr Prins about the tracking of the Bill, which had been raised during public hearings, was not reflected in the minutes. He said the Department must be asked for a response on the matter even if it were to be provided in writing. In light of the regulations not being ready, the programme for the following week would be circulated during the weekend. Two days would be dedicated to internal issues. A presentation on the oversight visit should be obtained and Members would be asked to do some reflection of the year in terms of what needed to be prioritised. The week thereafter, outstanding Budgetary Review and Recommendation Reports (BRRRs) would be finalised. The only report outstanding was that of the Justice Department. The Committee had up to 3 December 2021 to adopt all reports.

The Chairperson said focus areas for the following year within the Justice Department, the Correctional Services Department and the Office of the Chief Justice needed to be identified. Under the Justice Department, the Masters Office needed attention under a dedicated programme. There was an agreement made in 2019/20 that briefings with the Special Investigating Unit (SIU), the National Prosecution Authority (NPA) and the Hawks should be held at least twice a year so that the Committee could be kept abreast of investigations and cases. He asked the Members to identify other areas.

The Chairperson said that 2022 would be a full year without interruptions but thereafter it would be half a year before the [national] elections. He asked the Members to keep in mind the legacy that the Committee wanted to leave behind.

Adv Breytenbach agreed with the Chairperson that Members should have proposals ready for the following week.

The meeting was adjourned.