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JUSTICE PORTFOLIO COMMITTEE
4 May 1998
ATTORNEYS AMENDMENTS BILL [B7-98], SHERIFFS AMENDMENT BILL [B2-98], DEBT COLLECTORS BILL [B102-97], CRIMINAL MATTERS AMENDMENT BILL [B93-97], WITNESS PROTECTION AND SERVICES BILL [B9-98]: HEARING OF EVIDENCE
Documents handed out:
Law Society of South Africa: Attorneys Amendment Bill
Law Society of South Africa: Criminal Matters Amendment Bill
Law Society of South Africa: Debt Collectors Bill
Law Society of South Africa: Sheriffs Amendment Bill
Attorney General's Office (Pretoria): Witness Protection Bill
Law Society of South Africa: Witness Protection Bill
State Advocate (Cape Town): Witness Protection Bill
Attorneys Amendment Bill [B7-98]
Mr Botha of the Law Society of South Africa told the committee that the Law Society supported the Bill and had nothing further to add on the matter. He was however happy to answer any questions.
Mr Hofmeyer (ANC) asked for clarification of the words "...in so far as such investment is governed by any other law" in s1(6), as this seemed unclear and the committee felt it should perhaps just be left out. The drafter agreed that it should perhaps be left out.
Ms Ngwane (ANC) asked what the implications were for the client that some forms of investment were covered by the fidelity fund and others not.
Mr Botha explained that on the one hand attorneys received money , for example, as a deposit from a client for the purchase of a property. Although the client may instruct the attorney to invest this deposit until the sale goes through, it is not considered to be "investment money" and the client is protected against fraud by the Fidelity Fund. On the other hand many attorneys invest on behalf of clients ("investment practice"). This is inherently high risk and falls outside normal attorney-client relations. In such an instance, as envisaged by the Bill, a client will not be protected from loss by the Fidelity Fund.
Ms Jana (ANC) asked whether we should bar "investment practice" by attorneys completely?
Mr Botha responded that this would be very detrimental for a large number of attorneys. He pointed out further that this legislation resulted from the Vermaas case. Had he dealt with his clients funds through his trust account, claims against the Fidelity Fund would all but have wiped it out.
In reply to a query, Mr Botha said retainers were covered.
Mr Hofmeyr (ANC) asked how attorneys could be compelled to inform clients at the outset that investment moneys were not covered by the Fidelity Fund. Clients would therefore be in a position to take early action.
Mr Botha responded that this would be fair and should be done through the Rules of the Law Societies. This would not be a swift process as it would first have to be approved by various Judges President and the members at an AGM.
Mr Hofmeyr felt that this would take too long and result in the practical difficulty of the Bill being passed without appropriate mechanisms in place.
Mr Labuschagne (Legal Advisor) suggested that two options existed: either the Law Societies should prescribe of the Minister of Justice. It is not however possible to provide within the act for such fine detail.
Ms Jana asked whether an attorney dealing with investment money usually has to go through the Law Societies. Mr Botha responded that the attorney only needed written permission from the client.
With regards to notification to the client, the Law Society suggested that a clause might be included whereby an attorney who did not inform his client would be guilty of misconduct.
Ms Jana (ANC) asked why the Bophuthatswana Law Society wanted to be incorporated into the National Law Society and not the Transvaal Law Society?
Mr Botha (Law Society of SA) responded that incorporation into the Transvaal Law Society was an interim measure, as the Bophuthatswana Law Society has no fidelity funding at the moment. It would in any event fall under the umbrella of the National Law Society. He further mentioned that seven attorneys in Thaba Nchu would prefer to fall under the Free State Law Society and not Transvaal.
Sheriff’s Amendment Bill [B2-98]
Mr Du Plessis of the SA Law Society pointed to two major problems with the status quo: poor service from sheriffs and representivity in the Sheriff’s profession.
At present there is a monopoly in the profession (with only about 400 sheriffs countrywide). This is exploited, leading to increased costs which are carried by the public. Opening the profession up to competition would relieve this and ensure a higher standard of service. Therefore, qualified persons should have the right to practice anywhere (as long as they were registered with the Board of Sheriffs). Furthermore, persons qualified in law should also be allowed to practice as sheriffs, as should attorneys. Sheriffs should also be allowed to practice in partnership with each other and with attorneys.
Current vacancies should be filled by suitably qualified black persons. The Law Society would have no problem with the Receiver of Revenue, for example, choosing to use formerly disadvantaged persons to act as sheriffs for it. Also, areas in which it was uneconomic for sheriffs to practice would benefit if attorneys were allowed to double as sheriffs.
Ms Ngwane (ANC) asked what "duly qualified" meant. Mr Du Plessis responded that it was persons currently acting as sheriffs, persons who had completed articles or an apprenticeship with an attorney/ sheriff for one year and written a professional exam, as well as attorneys.
It was established that if attorneys are allowed to work as sheriffs, this would mean the removal of s53 of the Sheriffs Act to comply with that.
Mr Landers (ANC) asked about the possibility of increased costs to the client
and who will police the fees charged by attorneys in their capacity as sheriffs? Mr Du Plessis responded that tariffs were fixed and costs should decrease as a result of increased competition. Fees were monitored every time a matter comes before a Magistrate. Attorneys and advocates wishing to act as sheriffs would have to be registered with the Sheriff’s Board and be subject to its regulations and those contained in the Bill. He also felt that increased competition would result in more honest practice.
Dr van Heerden (NP) wanted to know if an advocate could be a sheriff, and could he as sheriff enter into partnership with an attorney? Mr Du Plessis said this would be a matter for the Bar Council decide. The Law Society did not have a problem with this.
Debt Collector’s Bill [B102-97]
Mr Van Zyl of the Association of Law Societies of the RSA (ALS) submitted that:
• in terms of s3, at least two attorneys should be appointed to the proposed council
• the words "without an option of a fine" should be removed from various sections so that the provisions would refer only to people who had been found guilty of an offence
• s 8(1) should provide for attorneys who practise in incorporated practices and therefore also cover attorneys who are employees.
• debt collectors should only be allowed to recover costs from their client, not debtors.
• no provision has been made for a Fidelity Fund or audit of trust accounts
• with regard to s20, it is unworkable to expect interest in terms of each individual deposit into a trust account to be accounted for. Rather, this interest amount should be contributed to the formation of a Fidelity Fund.
Ms Ngwane (ANC) asked for clarification of s20. Mr van Zyl read the section and reiterated that it was unworkable to account for interest generated by each individual amount paid into a single trust account.
Mr Landers (ANC) asked why "...without the option of a fine" should be removed.
Mr van Zyl responded that s18 refers to misconduct. It does not refer to instances where a person may have had the option of a fine imposed for a serious offence. Such a person would still be allowed to practise. This was unfair. Rather it should refer to everyone who had been sentenced for a serious offence.
Mr Solomon (ANC) asked what qualifications were required to be a debt collector. Mr van Zyl responded that there were none. The profession needed to be regulated so that these persons did not act extra-judicially. ALS is happy with this as changes would force many current debt collectors to act outside the ambit of the law. But, the Bill must be complied with: only capital and interest amounts are to be collected from the debtor because this is not occurring as part of a judicial process which has inherent checks and balances.
Dr van Heerden (NP) asked if debt collectors also had trust accounts. Mr van Zyl said they did not. The draft Bill makes provision for a trust fund, but it must also provide for auditing and a fidelity fund.
Ms Ngwane (ANC) said she believes local insurance companies are not happy to provide cover therefore the idea of interest being used to generate a fidelity fund was attractive.
Mr Botha (ALS) responded that attorneys had used their own funds to start their fund. Also, attorneys have to be issued with a certificate every year in order to practise, subject to an audit of their trust account. Debt collectors should be subject to the same rules.
Criminal Matters Amendment Bill [B93-97]
Mr Snitcher of the Law Society of South Africa (ALS) asked for an extension of approximately a month in order to canvas all members of his subcommittee (dealing with criminal matters).
Personally, he felt that the Bill seemed to be proposing a reversal of the onus for proving insanity. This would provide a problem for those people who could not afford a psychologist or psychiatrist. Furthermore, he suggested that the Legal Aid Board was thought to be reluctant to fund cases where the defence of criminal incapability might be raised.
The drafter responded that the intention was certainly not to reverse the onus and that this was not how they interpreted it.
Ms Ngwane (ANC) asked that Mr Snitcher continue his research and send this to the committee.
Ms Jana (ANC) asked what the present situation is. Mr Snitcher responded that state institutions are not adequate to evaluate a person's mental state at the time of the crime, as assessment often occurs months after the crime.
The legal advisor pointed out that there is a legal presumption that everyone is sane. If we were looking at reversing this, it would be necessary to look at a number of other jurisdictions and s36 of the Constitution. Prima facie, he did not see that the onus could be on the state in each case.
Ms Jana asked what happened when an accused could not afford to provide proof of his insanity. Mr Landers responded that the state would assist in such a case.
Mr Mahlangu (ANC) said he also read it as shifting the onus of proof and wanted to know why the status quo could not be maintained. Mr de Lange (legal advisor) said he read it as a confirmation of the common law, but it does seem to have been added in and he will have to look at the reasons for its inclusion.
Witness Protection and Services Bill [B9-98]
Mr Snitcher of the Law Society of South Africa said that he had not had a chance to consult other members of his subcommittee on criminal matters and that this was his own opinion.
Problems he had with the Bill included:
• places of safety other than prisons needed to be designated
• lay persons on the panel might not be capable of the evidential and factual evaluations which would be required
• provision should be made for the continued protection of witnesses until an appeal had been heard
Dr Pretorius of the Attorney-General’s Office (Pretoria) said that there was a need to evaluate witnesses effectively and guard against everyone wanting to go into witness protection. Witness protection (especially where witnesses are taken out of the country) is very expensive. There needs to be sufficiently weighty benefit to society to justify this. A problem is that directors might become removed from this issue and not sufficiently appreciate the need to be selective. The Bill neglects the evaluative role which the Attorney-General currently plays in this regard.
Further, Dr Pretorius pointed out that panels can become bureaucratic and cumbersome, although it does provide checks and balances, when often it is necessary to make quick decisions. Also, security may be at risk where very sensitive witnesses are involved (e.g. in respect of the CCB or chemical and biological weapons).
In instances of extraextraordinary situations (e.g. witnesses with information of corruption in security circles) it may be necessary to send the witness overseas as a last resort. This is not covered by the Bill.
Provision also needs to be made for bypassing existing channels (and going directly to the Minister and the National Intelligence Agency) when it is felt that these channels (which are currently staffed mostly by SAPS members) are compromised. There is also currently no provision for protecting a witness who has come forward while in prison.
Adv. Viljoen (State Advocate: Cape Town) submitted that the function of the police was not adequately spelled out. Furthermore, as relocation is the best form of protection, authority needs to be delegated to acquire accommodation.
With the regard to the panel, Adv. Viljoen felt that the Attorney General should be the main role-player. A member of the Witness Protection Directorate should also be on the panel. Psychologists and other experts could be called in as required.
No provision is made for temporary protection in case of emergencies. Authority needs to be delegated to this end. Furthermore, not enough provision is made for protection of witnesses while in court. The use of closed circuit cameras, in-camera hearings and exclusion of certain persons from the hearings were mooted as possible solutions.
Ms Ngwane (ANC) asked Adv. Viljoen to finish up as the committee was out of time. Members were asked if they had any questions.
It was agreed that as substantial submissions had been heard on this act, members needed time to digest it all. It was decided that the issues would be discussed in a committee meeting at a later stage, at which time it would be decided whether to invite the parties who had made submissions to attend a meeting and answer questions.
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