Attorneys Amendment Bill (B7 - 98): deliberations

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Justice and Correctional Services

18 May 1998
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JUSTICE PORTFOLIO COMMITTEE

JUSTICE PORTFOLIO COMMITTEE
19 May 1998
ATTORNEYS AMENDMENT BILL (B7 - 98): DELIBERATIONS

Documentation handed out:
Draft 2: Amendments agreed to for Attorneys Amendment Bill
Summary of submissions of the Attorneys Amendment Bill

A new draft of the amendments agreed to for the Attorneys Amendment Bill was handed out. The Chairperson, Ms Ngwane, identified the main changes to the previous draft as being the options available in relation to clause 1. She described clause 1 as being clear: giving the steps, forms to be completed and offences committed if the client is not informed of the provisions of s47(1)(g).

The various options were referred to. Option 2 was described as creating the offences, while option 3 was recognised as the mere rewording of the creation of the offences.

The Chairperson expressed her preference for the first option in that it is clearer and more in sequence to the clause.

Mr Groenewald (NP) raised the point that the second option was proposed by the Fidelity Fund, and enquired as to the Fund's feelings towards the first option.

In response to this, Mr Labuschagne, the Justice Department law advisor, noted that Mr Moorhouse (General Manager of the Fidelity Fund) indicated his preference for the first option. However this preference for the first option was expressed via telephone by Mr Moorhouse in his personal capacity, and not in his capacity as General Manager of the Fund.

The Chairperson asked Mr Labuschagne for an explanation for the removal of "in so far as such investment is governed by any other law." (clause 1). Mr Labuschagne replied that it created difficulties and problems in the area of estates and trustees. He felt a possible explanation for its original inclusion was the fact that it was taken directly from
New Zealand legislation. He continued that the Fund felt that the phrase could be deleted.

The discussion then turned to the possible sanctions for practitioners available under the Bill . Mr Labuschagne referred to the request from Mr De Lange (ANC) to contact the various law societies for comment on the issue. He reported that the Transvaal Law Society already made provision that a practitioner must inform his or her client as to the
provisions of s47(1)(g), and that failure to do so would result in a finding of unprofessional conduct. Mr Langenhoven, president of the society, was in support of an additional criminal sanction whereby practitioners could be imprisoned for the offence, but Mr Botha felt that the offence should remain that of unprofessional conduct and that an additional criminal sanction was unnecessary.

The Chairperson thus raised the question as to what the offence should be. Should it be unprofessional conduct, which would result in a fine and possible striking from the roll, or criminal liability, which would result in a fine as well as the possibility of imprisonment. There was no reply to this. Mr Landers (ANC) requested further clarification on the difference between the two offences, while Mr Mzizi (IFP) wished to know what would happen if an attorney failed to pay a fine. The Chairperson referred to the second option, clause, which states "shall be guilty of an offence and on conviction liable to a fine not exceeding R25 000". Mr Labuschagne stated that at the moment only a fine is provided for, and that if the fine is not paid, action would be instituted. He continued that the Department of Justice is encouraging the option of fine or imprisonment in this case.

Mr Mahlangu (ANC) enquired as to the recourse available to the client who had lost money in this way if the punishment was a fine alone. Mr Labuschagne replied that the Bill did not make provision for the reimbursement of the client, and that this would have to be pursued in the civil courts.

The Chairperson stated that although the members would not vote, it was nevertheless necessary to identify the issues before the committee. These issues were pin-pointed as the choice between the first and the second option in relation to clause 1, and the imposition of a criminal sanction resulting in possible imprisonment instead of the
charge of unprofessional conduct.

Mr Groenewald (NP) stated that response was still awaited from the Law Society and suggested that in addition they should be requested to consider and comment on the various options available in respect to clause 1. All members consented to this proposal.

The Chairperson once again highlighted the various issues before the committee, before stating that proposals and comments on the options would be awaited from the Law Society.

Mr Labuschagne referred to three further proposals contained in the summary of submissions of the Attorneys Amendment Bill (11/5/98) and stated that the Department did not support these proposals. The proposals related to the Fidelity Fund in clause 4 dealing with trust property and also to the question of whether attorneys practising in Thaba Nchu should form part of the Transvaal Law Society or the Free State Law Society.

Mr Labuschagne returned to a discussion of clause 3 in draft 2 (as on 19/5/98), that is
the deletion of "and" ("required and in possession of a certificate" - line 51). He submitted that the Department felt the "and" should be omitted in order to bring the new s55 under the old s55. He referred members to the submission of the Cape Law Society where the Society suggested that the inclusion of "and" resulted in an anomaly. He feels that the "and" is excessive and that if deleted the provision would merely be interpreted as before. Mr Labuschagne did however note that he would have to look for judgements on the point, but that perhaps it could be interpreted as "either/or".

The Chairperson stated that she was still uncertain as to the effect the "and" had on the definition of a practitioner, but requested that the various societies be asked for comment on the matter.

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