Land Court Bill: deliberations; Legal Practice Regulations; with Deputy Minister

Meeting report

Mr John Jeffrey, Deputy Minister of Justice and Constitutional Development, said that the Land Court Bill had been published for public comment. The proposed amendments were in relation to the comments received from the public and engagements with several other parties.

Land Court Bill amendments presentation

Mr Makubela Mokulubete, Legal Advisor, Department of Justice and Constitutional Development (DoJ&CD), said he would be presenting the salient and most important details of the amendments made to the working document. He asked to discuss the deletion of certain parts of the Bill at a later stage.

A few amendments had been made to the Bill, particularly in the second part of the document, to align it with clause 17, which deals with the powers of the court when hearings are brought forward. Through engagement, an agreement was reached to add clause 37 and remove action proceedings, ultimately leading to a change in the numbering of the entire Bill.

Clause 7 dealt with the jurisdiction of the courts. The Bill initially had the term “concurrent jurisdiction.” He recalled that the jurisdiction of the Magistrate's Court had recently been reinstated, which meant that both the Land Court and Magistrate’s Court would have jurisdiction over certain matters.

In other instances, both the Magistrate’s Court and the Land Court would have concurrent jurisdiction. However, it was considered that it would be incorrect to use the term “concurrent jurisdiction” in all matters relating to the Act, because both the abovementioned courts would preside over matters that were best fitted for them.

Deleting this clause would be an attempt to rectify that incorrect assumption. Distinctions in the respective jurisdictions for the Land Court and the Magistrate's Court would be included in the new edition because sub-clause 3 was misleading, in the sense that it was establishing a division in the various courts. The word “each” would also be removed to rectify this incorrect assumption, so that it referred to the Land Court.

Clause 8 in the Bill discusses the appointment of judges that would preside over matters in the Land Court. This clause makes provision for judges who had not been previously appointed to a bench in South Africa. Judges appointed to the Land Court bench must hold single appointments to the Land Court. However, the Judicial Services Commission would advise the President on whether to appoint judges who hold concurrent appointments to the Land Court and the High Court.

Clause 12 discusses the matter of assessors. An issue had been raised regarding the skills required to become one. It was suggested that the requirements one would have to meet to become an assessor would be included in the Bill, instead of in the regulations. In alignment with the submissions received, it was decided that presiding judges would be the ones to appoint assessors. An assessor would have to be skilled, with experience relevant to the work of the Land Court. Legal qualifications would not be required, and the Minister would determine remuneration after consultations with the Cabinet.

Rules had been drafted to regulate the conduct and proceedings of the court. The rules include, but are not limited to, the inclusion of the requirement that the Rules Board must make rules for applications in terms of chapter 3(A) of the Restitutions Act. There was a suggestion that a certain clause be included that would empower the courts to reclaim or refer matters to the Commission with recommendations on what to investigate and report on.  

It was also suggested that courts be given power to make orders on procedures to be followed during trial. A proposal was made to ensure that there was no confusion on the status and rulings made by the courts.

Mr Mokulubete recalled the Chairperson’s request for clarification on a clause that was not incorporated into the Bill, following what was contained in a list that had been submitted. He said that he had indicated in the previous meeting with the Committee that there had been an error from his side. He apologised for not including the said portion, and said that the omission had been rectified to ensure that all relevant details were included in the Bill.

 A suggestion had been made that the clause be completely removed, as it was said to be too restrictive and needed to be expanded. The clause was expanded and provisions were made for persons affected by judgments to be able to apply for their recessions. Another provision was made to allow recissions of judgments obtained fraudulently, or as a result of a mistake, known to all parties.

It had also been suggested that provisions be made for matters to be removed from one sitting at a certain court, to another in a different place. This should be done in the same province. These provisions should also allow for removing matters from the Land Court to the High Court, and vice versa. This was so that parties could proceed with their matters in the correct forum.

See working document attached

Legal Practice Act Amendments Regulation Presentation

There were two presentations on two sets of regulations prepared in the terms of the Legal Practice Act, and to seek Parliament’s approval on these regulations.

The first set of regulations dealt with regulations that were proposed for purposes of community service, whereas the second set of regulations dealt with the amendment to regulation 2 of the regulations that were made in terms of the Legal Practice Act, which provides for the procedure in electing members of the Legal Practice Council.

(Detailed slide presentations and copies were made available for circulation amongst the Committee members. Present at the meeting were members of the Legal Practice Council, who would later assist in answering any questions that the Members had after the presentations had been concluded.)

Ms Fatima Bhayat, State Law Advisor, DoJ&CD, commenced with the presentation on the regulations relating to community service. She told the Committee that no regulations had been made regarding rendering community service as stated in section 29 (1). After consultation with the Legal Practice Council, this section also provided that the Minister must prescribe the requirements for community service.

Section 29 1 A and B provides that community service as a component of practical vocational training by candidate legal practitioners may be required, or that a minimum period of recurring community service by practitioners upon which continued enrolment as a legal practitioner is dependent, may be required.

Ms Bhayat said that section 29 of the Act lists some possible places where community service could be rendered. Section 29(3) states that the Council may exempt a candidate legal practitioner or legal practitioner from rendering community service.

In April 2022, Ms Bhayat said that the Minister approved that consultation with role players and interested parties may take place and the most common comments received were discussed. The Council provided comments on 20 June 2022 and 30 August 2022, which were incorporated into the draft regulations. Proposals were made that pro bono or community service should be defined in relation to the client's financial means and the public interest.

The Commission had proposed amendments to section 29 of the Act, and these appear to have the support of many attorneys. The proposed amendments provide that service at a Chapter 9 institution, and community service on a pro bono basis, be included as forms of community service. Some commentators indicated that the amendments to the Act should first be finalised before the regulations be proceeded with. The Department does not agree and is of the view that the proposed amendments do not impact proceeding with the regulations, and the listed options may still be added later on.

Ms Bhayat said several commentators had raised a concern regarding the consequence for a candidate or practitioner for non-compliance, as the draft regulations were unclear on how this was to be dealt with. It was proposed that a failure should not immediately be tainted by misconduct, and that a graduated system should be used. The Department was of the view that the provisions of regulations 4A(8) and 4B(10) were sufficient to address this, as they provide that professional standards, as provided for in the code of conduct and the rules, would be applicable, and non-compliance with the provisions of this regulation must be dealt with by the Council in accordance with the rules.

Ms Janine Myburgh, Chairperson, Legal Practice Council, thanked the Department for considering the LPC's comments, and said they supported the regulations in their entirety.

The Committee Chairperson thanked the Department for this briefing, and added that ahe fully supported the regulations and amendments that had just been presented.

See regulations attached

Discussion

Ms A Maleka (ANC, Mpumalanga) asked if there was any information on the types of community service that may be provided through services in the state. Regarding the Legal Practice Act regulations, if there was a minimum standard of at least eight hours of community service per year for candidate legal practitioners, would this be sufficient for them to make a meaningful contribution or to receive a meaningful learning experience?

She asked how the Council would ensure that the supervision of those performing community service was of an adequate standard. Lastly, she asked if the Department to give the Committee more information on the electronic voting process, and whether the relevant systems were in place to ensure a smooth voting process.

The Chairperson asked if the regulations provide that the time spent on providing supervision to a candidate legal practitioner who was rendering community services was attributable to the legal practitioner’s period of community service. Did this provision really correlate to the ethos of community service, which was to provide free legal services either in service of the state in some capacity, or for those in need as set out in the Act?

Secondly, did the LPC have the monitoring capacity to ensure that the application of professional standards was provided for in the code of conduct and the rules for community services rendered by a legal practitioner? Would enrolment as a legal practitioner be dependent on practising legal practitioners fulfilling the minimum period of recurring community service? Lastly, how would rural communities have access to community services, especially close to where they reside?

Mr T Dodovu (ANC, North West) commented that the idea of community service was a good one, but there was a big problem regarding young people who battle to find opportunities to be candidate attorneys. Most of these young people were black and female. He asked how the LPC would assist these young people from previously disadvantaged communities, because one had to be a candidate practitioner before getting admitted as an attorney or advocate.

He asked about ethics and the large amounts of money that had been missing from the trust accounts of attorneys. What was the LPC’s role in facilitating cases where legal representatives had mismanaged funds, and why did it take a while to facilitate or conclude these cases?

Responses

Ms Myburgh responded to Ms Maleka’s question on whether candidate practitioners had minimum community service hours they needed to complete. Currently, candidate legal practitioners do not have to perform pro bono or community services, so the LPC believes that that is sufficient for them. Monitoring would be based on the certificates they received. It would be an operational matter that they would have to attend to, seeing that as they had not done it since the LPC had come into existence, but they would have monitoring systems in play or put monitoring systems in place so that they could evaluate candidate practitioners.

Ms Charity Nzuza, Chief Executive Officer, LPC, added that the Council has offices which deal with candidates and their community service. They would be able to monitor the candidates through regulations that make it compulsory for them to pay subscription fees for their certificates. Their payment system would be able to record and track if the candidate had done the community service as required by the regulations.

Ms Nzuza confirmed they had a challenge of candidates battling to get articled. They were currently having ongoing discussions as the Legal Practice Council in professional affairs committee meetings, but what had been done in the past three years was that they had partnered with the Safety and Security Sector Education and Training Authority (SASSETA) and had been able to get some assistance in terms of payment of stipends for the candidates. This afforded financial assistance while they were in training, but they had not received sufficient assistance, which was still a challenge.

On the issue of complaints against legal practitioners, the provisions of the Act had to be followed. When a complaint is received, the Act makes provision for the urgent suspension of practitioners accused of misappropriating funds. The LPC takes a while to investigate because it has to ensure that the accused practitioners are not practising during the time of the investigations. All documents must be presented to the LPC following allegations of misconduct and/or misappropriation of funds. These documents include, but are not limited to, bank statements, affidavits etc. Practitioners must also be given a right to respond during investigations to ensure that the outcome is correct.

When it is likely that a practitioner has misappropriated funds, the LPC applies for a section 43, where a practitioner is suspended pending investigations. Some cases take longer than they should because some practitioners do not keep proper accounting records, which causes further delays in investigations. These matters would then be referred to the Fidelity Fund, which is a separate institution, that would do its checks and then eventually refund monies to the relevant parties.

The Chairperson asked for elaboration on the minimum hours of community service required from candidate legal practitioners.

Ms Nzuza explained that candidate practitioners were required to render only eight hours of community service, whereas admitted practitioners needed to render 40 hours per annum.

The Chairperson thanked the Department and the LPC for their presentations, and confirmed that the Committee would deliberate on the regulations to get them approved.

Committee matters

The Committee discussed the attendance of Committee Members and adopted the minutes of the previous meeting

The meeting was adjourned.