Portfolio committee on Justice and Correctional Services (National Assembly)
29 July 2014
Legal
Aid Bill [B8-2014]; Attorney’s Amendment Bill [B9-2014]: briefing by Deputy Minister
Documents Handed Out:
The Supreme
Court of Appeal of South Africa Judgment Case No: 736/10
Legal Aid
Act 22 of 1969
Legal Aid
Bill briefing presentation
Attorney’s Amendment Bill briefing presentation
Legal Aid Bill [B8-2014]
Attorneys Amendment Bill [B9-2014]
Chairperson: Mr M Motshekga
Summary
The Legal Aid Bill came as a post Constitution replacement of the 1969 Act.
Some amendments had already been inserted into the 1969 Act particularly
pertaining to the recovery of fees and the criteria determining provision of
Legal Aid services as there had been many court challenges on that issue. This
completely new Bill had been anxiously anticipated by Legal Aid South Africa.
It was hoped that the Bill would have been passed by the previous parliament
but that was not practically feasible. The Legal Aid Bill was the product of a
task team comprised of representatives of the Department from the Legislative,
Legal Advisory Services, Court Services and Policy Chief Directorate branches
as well as representatives of Legal Aid South Africa’s current Board. Clause 19
introduced a novelty pertaining to client privilege. A private legal
practitioner was to – when requested by LASA – grant access to the information
and documents contained in the file relating to the person in question. This
was for the sole purpose of conducting a quality assessment of the work done by
the legal practitioner. Clauses 15 and 16 dealt with the appointment and
functions of the Chief Executive Officer, where all the provisions were new
aspects not provided for in the Act. A new aspect introduced by the Bill was a
reference to certain aspects of the Prevention of Organised Crime Act (POCA).
The Attorney’s Amendment Bill is an interim measure pending the implementation
of the Legal Practice Bill. It sought to terminate the continued existence of
the Law Societies still operating in the former TBVC states and incorporate
them into the mainstream law societies. 1998 saw the Act amended to afford
attorneys practising in the former Bophuthatswana (Bop) and Venda the ability
of obtaining indemnity cover under the Attorney’s Fidelity Fund as they were
deemed to be members of the Law Society of the Northern Provinces (LSNP). The
LSNP was granted concurrent jurisdiction with the law societies of Bop and
Venda in disciplinary matters. Yet, problems have proved persistent with little
cooperation from the Bop Law Society. The Supreme Court of Appeal had
continually reprimanded the Bop Law Society over its reluctance to attend to
the legitimate complaints by the public.
In lieu of the enactment of the Legal Practice Bill which was to rationalise
the legal profession, the Department and Parliament had not been in favour of
ad hoc amendments. However, the Department had continued to receive
representations from the LSNP and the Law Society of South Africa (LSSA)
requesting the urgent amendment of the Act in the interests of the legal
profession and to protect the clients of attorneys in the former Bop.
Conversely, these problems had not manifested in the former Venda.
The Attorney’s Amendment Bill can be construed as a short term Bill. The
intention of the Attorney’s Amendment Bill would then be to deal with urgent
matters so that of the attorneys from Bophuthatswana and Venda that are not
part of the Law Society of the Northern Provinces (LSNP).The Legal Practice
Bill was passed and was still with the President for assent. Yet, there were
delays in the form of representations from the Democratic Alliance about
concerns surrounding the processes followed in the National Council of
Provinces. Thus, the Office of the President was
looking into the matter. In addition, on assent, most of the provisions of the
Legal Practice Bill would not be able to come into effect immediately.
The Members raised questions about the services of Legal Aid South Africa and
its objects; victim support and paralegal recognition. It was noted that there
had been a lacuna about legal aid for commissions of inquiry, and Member asked
if this was covered sufficiently by the provisions of the Bill. On the
Attorney’s Amendment Bill, clarity was sought as to what impact the Minister
now appointing the Board had. Questions about the rationalisation of law
societies were addressed and there was a resolute commitment to a speedy
passing of a long overdue Bill.
Minutes
The Chairperson commenced the meeting by requesting a political briefing on
both Bills from the Deputy Minister of Justice and Constitutional Development,
Mr John Jeffery.
The Deputy Minister recognised that the practice had been that officials would
give the Committee briefings on Bills but felt that as the Bills emanated from
the Executive branch of government, this practice should be altered and he
would thus provide some insight on each Bill. He noted that there was not much
controversy with either Bill. In terms of the Legal Aid Bill, it came as a post
Constitution replacement of the 1969 Act. Some of the needed provisions had
already been inserted into the 1969 Act particularly pertaining to the recovery
of fees and the criteria determining provision of Legal Aid services as there
had been many court challenges on that issue. The Bill had been anxiously
anticipated by Legal Aid South Africa. It was hoped that the Bill would have
been passed by the previous parliament but that was not practically feasible.
The Attorney’s Amendment Bill may be construed as a short term Bill. The Legal
Practice Bill was passed and was with the President for assent. Yet, there were
delays in the form of representations from the Democratic Alliance about
concerns surrounding the processes followed in the National Council of
Provinces. Thus, the Office of the President was looking into the matter. In addition, on assent, most of the provisions of the Legal
Practice Bill would not be able to come into effect immediately. There is a
requirement for a transitional council to be established to resolve standing
issues between attorneys and advocates. The council would have a time frame of
around three years to deal with such issues. Hence, the Legal Practice Bill
would fully come into effect in four years’ time. The intention of the
Attorney’s Amendment Bill would then be to deal with urgent matters such as
that of the attorneys from Bophuthatswana and Venda that are not part of the Law Society of the Northern Provinces (LSNP). The latter
was eager to resolve this matter such that there was talk of litigation to
compel government to expedite the process.
Adv Lawrence Bassett, Chief Director : Legislation Development,
Department of Justice and Constitutional Development clarified that the
Bill was mainly about governance and opined that the provisions were relatively
clear.
Legal Aid Bill [B8-2014]: briefing
Ms Wilma Louw, State Law Advisor, DoJCD, stated that legal aid is currently
regulated by the Legal Aid Act, 1969 (Act 22 of 1969). The Act is outdated and
requires revision in its entirety to replace it with a new Act to streamline
its application. The Legal Aid Bill was the product of a task team comprised of
representatives of the Department from the Legislative, Legal Advisory
Services, Court Services and Policy Chief Directorate branches as well as
representatives of Legal Aid South Africa’s current Board.
Clause 1 dealt with definitions. Currently the Act only defined Board and
Minister. Several new self explanatory definitions were inserted in the Bill.
Clause 2 detailed the establishment of Legal Aid South Africa as a public
entity that is governed by a Board of Directors. In clause 3 the objects of
Legal Aid South Africa (LASA) were set out as rendering and making legal aid
and legal advice available, providing legal representation to persons at State
expense as per the Constitution, the Act and any other law. Finally LASA was to
provide education and information concerning legal rights and obligations.
Clause 4 specified the powers and functions of the Board. These included public
awareness programmes which were a new function. Clause 5 introduced a new
provision that required LASA, its directors, its employees and agents must
serve impartially and independently, in good faith, without fear, favour, bias
or prejudice. Clause 6 entailed the composition of the Board. There would be a
reduction of members from the current 18 to 14 members in keeping with King III
good governance principles. All members would be appointed by the Minister.
Clause 7 defined the qualifications for membership of the Board as persons
collectively broadly representative of the diversity of the South African
population, being fit and proper persons of South African citizenry. Further,
it was required that members have skills including business management,
information technology, legal services, corporate governance, accounting or
auditing skills and community based knowledge relevant to legal aid. Members
must not have been convicted of theft, fraud, perjury or an offence under the
anti-corruption legislation of 2004. Neither should they have been convicted
post Constitution of an offence referred to in Schedule 1 of the Criminal
Procedure Act 1977.
Clause 8 specified the Chairperson of the Board as well as the Deputy
Chairperson, the latter to be designated by the Minister. Clause 9 dealt with
the term of appointment for the members and clause 10 with the termination of
membership. Clause 11 holds that the Board must meet at least four times per
year in accordance with the King III Report. Clause 12 provided for the quorum
where clause 13 provided for the establishment of committees of which there was
no similar provision in the Act. Clause 14 spoke to the delegation of powers by
the Board. Subject to the Public Finance Management Act (PFMA) the Board may
delegate any of its powers, duties or functions to any director, committee, employee
or agent of LASA. Such delegation would not divest the Board of the
responsibility for the exercise of the power or performance of the duty or
function. Clauses 15 and 16 related to the appointment and
functions of the Chief Executive Officer (CEO), where all the provisions were
new aspects not provided for in the Act. Clause 17 shifted the appointment
of employees from the Board (as under the Act) to the CEO in consultation with
the Board, subject to clause 18. Subsequently, clause 18 set out the terms and
conditions of employment.
Clause 19 introduced a novelty pertaining to client
privilege. A private legal practitioner was to – when requested by LASA – grant
access to the information and documents contained in the file relating to the
person in question. This was for the sole purpose of conducting a quality
assessment of the work done by the legal practitioner. The information
would remain privileged against any other party as information between attorney
and client, despite having been made available to LASA. The clause was
necessary to enable LASA to do quality control and assess whether private
practitioners conducted cases assigned to them in a proper manner. Under the
Act, where there was a compliant, LASA could not access the case file due to
the privilege rule to the detriment of the client and LASA.
Clause 20 resembled section 8A of the Act in dealing with cost recovery.
Whenever legal aid has been rendered and costs become payable, it is deemed that
the litigant has ceded her rights to those costs to LASA. Clause 21 regulated
finances subject to the Public Finance Management Act (PFMA). Clause 22 was
similar to section 3B of the Act and provided for the direction for legal aid
by the Court in criminal matters. A new aspect introduced
by the Bill was a reference to certain aspects of the Prevention of Organised
Crime Act (POCA). Clause 23 provides for a manual which is currently called
the Guide .Under this clause, the Board was to compile, review amend and
approve the Legal Aid Manual at least every second year. The manual was to
comprise of mainly administrative matters. The Manual and any amendments were
to be submitted to the Minister who was to table them in Parliament and simultaneously
give notice thereof in the Gazette. It was to take effect 60 working days after
publication. The Manual and any amendments were to be published by LASA on its
website and copies made available at all offices of LASA. Clause 24 on
regulations required the Minister to make regulations after receipt of
recommendations of the Board regarding types of matter for which aid is
provided or not provided; requirements an applicant must comply with to qualify
for aid; the policy relating to approval, refusal and termination of aid.
Regulations were to be tabled in Parliament by the Minister at least 30 days
before they were to be published in the Gazette. There was no provision in the
Act for regulations. Clause 25 repealed the Act and legislation referring to
the repealed Act was to be amended to refer to the new legislation.
Clause 26 comprised transitional provisions to the effect that the sitting
Board members were deemed to have been appointed under the Bill and were to
remain for 12 months after commencement of the new Act. The CEO and three
persons referred to in clause 6(1)(d) were to become members of the
transitional Board. The transitional Board was to facilitate the composition
and appointment of the new Board within 12 months. The CEO that held office at
the commencement of the Bill remained in office and was deemed to have been
appointed in terms of the Bill and was eligible for re-appointment. Anything
that was done in terms of a repealed law, which could have been done in terms
of the new Act, was to be regarded as having been done in terms of the new Act.
Measures regarding remuneration, pension, leave and any other terms and
conditions of service continued in operation until amended or repealed by the
new Act. All assets, rights, liabilities
and obligations which, immediately prior to the commencement of the new Act,
vested in the Legal Aid Board, were to pass to LASA on the date of
commencement. The Legal Aid Guide in force on the date of commencement was to
remain in force until it was withdrawn and replaced by regulations and the
Legal Aid Manual. The first regulations and Legal Aid Manual were to be made
and published within 24 months after the commencement of the new Act.
Adv Bassett concluded that the Bill was the result of a close collaboration
between the Department and Legal Aid South Africa, with the latter being
satisfied with the Bill to a great extent.
Attorney’s Amendment Bill [B9-2014]: briefing
Mr Dingaan Mangena, DoJCD State Law Advisor, said the Bill aimed to amend the
Attorney’s Act 1979 (Act 53 of 1979) as an interim measure
pending the implementation of the Legal Practice Bill. The Bill sought to
terminate the continued existence of the Law Societies still operating in the
former TBVC states and incorporate them into the mainstream law societies. 1998
saw the Act amended to afford attorneys practising in the former Bophuthatswana
(Bop) and Venda the ability of obtaining indemnity cover under the Attorney’s
Fidelity Fund as they were deemed to be members of the Law Society of the
Northern Provinces (LSNP). The LSNP was granted concurrent jurisdiction with
the law societies of Bop and Venda in disciplinary matters. Yet, problems have
proved persistent with little cooperation from the Bop Law Society. The Supreme
Court of Appeal had continually reprimanded the Bop Law Society over its
reluctance to attend to the legitimate complaints by the public.
In lieu of the enactment of the Legal Practice legislation which was to
rationalise the legal profession, the Department and Parliament had not been in
favour of ad hoc amendments. However, the Department had continued to receive
representations from the LSNP and the Law Society of South Africa (LSSA)
requesting the urgent amendment of the Act in the interests of the legal
profession and to protect the clients of attorneys in the former Bop.
Conversely, these problems had not manifested in the former Venda.
Apart from the above objectives, the Bill proposed an amendment that entitled
professional assistants to engage candidate attorneys under clause three.
Clause 14 of the Bill increases the notice period for applications for
readmission as an attorney to three months as the Act did not distinguish
between notice periods for applications for admission and readmission. Clause
15(a) was intended to change the Act’s provision in section 20 so that
attorneys admitted under the former homeland legislation could not appear in
courts other than where they had been admitted. This was underpinned by the
Constitutional Court case of Mabaso vs Law Society of the Northern Provinces
and the Minister of Justice and Constitutional Development. Clause 16 was
intended to do away with the requirement that the memorandum of incorporation
of a practice registered as a company must state that all past and present
directors of the company shall be jointly and severally liable. The amendment
would ensure that such a practice is registered as a personal liability
company. Clause 16 further vindicates the use of the name of a foreign firm as
a trade name by local firms with arrangements with such firms. Clause 19 was
directed at amending section 49 of the Act which required any action against
the Attorneys Fidelity Fund to be instituted in the High Court. Clause 20
allowed for actions against the Attorney’s Fidelity Fund to be instituted in
any court having jurisdiction. Clause 21, amending section 56 of the Act,
provided that by resolution of their members, the existing four law societies
could change their names and it demarcated the areas of their jurisdiction. The
law societies of the former homelands would dissolve in accordance with
regulations made under section 81 of the Act. The clause comprised transitional
arrangements.
Clause 24 amended section 71 of the Act and provided that the council of a law
society had the ability to enquire into alleged unprofessional, dishonest or
unworthy conduct of an attorney irrespective of where or when the alleged
conduct took place or whether it occurred before or after that attorney became
a member of the society or not. Clause 26 aimed to extend the limitation of
liability to agreements which were concluded under any law repealed in terms of
clause 35 of the Bill.
The remaining clauses gave effect to the view that law societies were not
necessarily bound to specific provinces; amended provisions which referred to
outdated terminology; repealed former homeland legislation as well as
legislation pertaining to interim measures relating to the former homelands.
Discussion
The Chairperson expressed concern at the public’s perception that the
justice system exists to protect the perpetrators of crimes whilst doing
nothing to serve the victims. He feared that this would de-legitimise the
system and sought answers that would deal with that situation. Further, in
terms of restorative justice, where an offender upon release would seek
reconciliation, one would find that because the victim felt they had no stake
in the system such reconciliation attempts would be refused. He went on to
identify the apparent lack of support for paralegals as it was thought that
they could establish legal advice centres where victims would be able to
enquire as to the available remedies. It was suggested that such paralegal run
advice centres and law clinics would serve as an avenue for law students to
complete community service. He was aware of the existence of an association of
paralegals and required clarity on its role and support obtained from the LASA
and DoJCD. The objects of the Bill dealt with education and public awareness.
There was a broad assumption that the masses in the country understood and
could utilise the Constitution to their benefit, which was not the reality. He
asked Legal Aid South Africa what endeavours they had made toward public
education and awareness and whether or not it should be regulated by the Bill.
He asked the meaning of independence in constitutional terms within the context
of interconnected yet independent organs comprising the organism of the state.
Deputy Minister Jeffery clarified that the Bill was intended to regulate the
entity, Legal Aid South Africa, and not the broader subject matter of legal
aid. There was a suggestion to rename the Bill more appropriately if the
Committee saw fit to do so. Paralegals were initially meant to be covered by
the legal practice Bill but as there were numerous other points of dispute it
was subsequently removed. The paralegal organisations had approached the
Portfolio Committee and there were undertakings made to pass legislation in
that regard. The Deputy Minister urged that the paralegal issue was better
placed in an amendment to the Legal Practice Act rather than in the Legal Aid
Bill. Legal Aid was primarily for those in need of legal representation as
there was a constitutional obligation for the provision of representation
particularly in criminal matters but LASA had been extending its scope to civil
matters. Such civil claim litigants could be construed as victims.
Mr Patrick Handemark, Chief Legal Executive: Legal Aid South Africa, stated
that civil matters had grown to 13% of the organisation’s work. It was possible
to assist victims of crime to seek compensation yet the difficulty lay in
enforcement of judgment. Paralegals were employed at each of Legal Aid South
Africa’s service points including satellite points in the rural areas. There
they would render services in an advisory or referral capacity. Where the issue
required litigation, it would be referred to a legal practitioner. Paralegals
were also utilised in visiting prisons and offering assistance there. The
organisation employed over 600 candidate attorneys thus enabling access to the
profession and providing employment opportunities. The recognition of
paralegals was an issue to be addressed by the Legal Practice Bill. LASA was
also involved with community paralegal associations in a collaborative effort
to provide legal representation where the paralegals had given advice or
referral. Thus there were linkages but the organisation was not funding those
advice centres as yet. In terms of education, LASA had an initiative that
linked sport in schools with concepts such as rule of law for instance.
Mr Pieter Du Rand, DoJCD Chief Director: Court
Services, added that there was a national call centre that provided callers with
advice either by a paralegal or a lawyer when more substantial advice is
required. Legal Aid was involved in the processes at court in trying to find an
equitable solution or sentence thereby contributing to restorative justice
concerns and bringing victim and community rights to the fore. Further, Legal
Aid had a unit of Impact litigation that looked at assisting large numbers of
victims through single cases. The silicosis matter was referred to in this
instance.
Mr S Swart (ACDP) enquired what the benefit was in having the Board established
as a national public entity. In terms of the new
independence and impartiality clause, clarity was sought as to what impact the
Minister appointing the Board had. On the composition and appointment of
the Board, it was noted that the organised professions had been removed from
being able to nominate members or where read with clause 6(4) could tender
nominations but there was no obligation to accept such nomination. Clarity was
asked for the reasons for this specific removal. It was enquired whether the
smaller Board was the result of efforts to save costs. He asked about the
precise meaning and implications of the word ‘collectively’ in clauses 6(1)(b)
and 7(c). He questioned the specific formulation for disqualification of a
person and whether one could not add the qualification of not being declared
insolvent as in the Constitution for disqualification and termination of
membership. There had been a lacuna about legal aid for
commissions of inquiry, and he asked if this was covered sufficiently by the
provisions of the Bill.
Deputy Minister Jeffery expounded on the issue of independence, stating that it
was imperative as in the majority of matters the litigation is against the
state. In the case of criminal matters, the community perception was that a
state-provided lawyer was bound to be biased and would thus not have their best
interests at heart. Similarly, in the
case of an indigent who wanted to bring a civil claim against the state,
independence was necessary to avoid allegations of conflict of interest or
state implication in cases that were refused funding. It was opined that the
view that considers political appointees as not independent should be
discarded. Comparisons were drawn to the appointment process for the Public
Protector as well as the processes in other jurisdictions. On
the issue of representation of organised professions on the Board, it had
transpired that over time, less was being done on the Board by such cohorts and
also that there was an increasing tendency by such associations to use Legal
Aid for their benefit.
Adv Bassett added that many of these provisions had emanated from the King III
Report on good governance. Thus, the proposed composition of the Board is
modelled on that, in terms of size and the removal of stakeholder interests
with the addition of experts to the Board.
Mr L Mpumlwana (ANC) asked for the reasons for and meaning of the independence
clause. In terms of the means test in determining the provision of legal aid as
detailed in the Bill, section 35 of the Constitution in comparison did not
specify such test, relying rather on the prevention of a substantial injustice.
Was the test thus the sole determinant of provision of aid?
Mr Handemark stated that clause 24 specified what the regulations should
entail, that is, detail the types of matters either civil or criminal in which
legal aid is provided or not or is limited. Regulations would also entail the
qualifying requirements that applicants were to fulfil such as the means test
or the policy relating to the approval or refusal of provision of aid as well
as the termination of legal aid. The latter could be
instructive in terms of unending cases that dragged out in court. These
provisions are dealt with in the regulations and not the guide because
regulations have the force of law.
Section 35 of the Constitution was clear on the provision of legal aid, and
that was based largely on the decision of Khanyile which
laid down the factors of when one was facing substantial injustice. One of the
main criteria was one’s ability to afford representation. This did not render
the means test the sole determinant, instead, it was an easy administrative
tool that enabled the organisation to determine whether one is indigent or not.
There were other processes in place to determine whether one is able to afford
litigation albeit with assets greater than the means test. Ultimately, the
Constitution would have to be complied with. Additionally, where Legal Aid
South Africa had refused to provide representation, the court could require
reasons for the refusal and conduct its own investigation as to whether
representation should be provided.
Mr W Horn (DA) stated that clause 10(2) lacked a procedure to remove a director
from the Board. He suggested that clauses 15 and 16 should be swapped and
clause 15 explicitly establish the position of the CEO. Finally, the
transitional provisions should account for the Board being bigger than
specified earlier in the Bill for the first 12 months.
Mr B Bongo (ANC) welcomed the Bill but raised concerns about the potential
abuse of words such as independence post promulgation. He questioned the
qualified majority in clause 12 and enquired whether a simple majority would
not suffice. Clause 21 was of concern in terms of the interpretation that may
be given to wording stating funds may be collected from the fiscus and ‘any
other source’. The same open ended interpretive concern was held with regard to
the use of ‘collectively’.
Deputy Minister Jeffery clarified the issue of funding, the reality remained
that resources were limited and this restrained the reach of LASA. Their
primary objective is the constitutionally mandated provision of representation
in criminal matters where there would otherwise be a substantial injustice. It
is trying to extend its work to civil matters as indigent people would
otherwise have no access to assistance in civil matters. It has also extended
its services to providing legal advice through call centres. Yet, the more one
extends its activities, the less money there is although it would be good to
have representation in commissions, which remains the balancing act.
Mr Handemark expanded on the sources of income. The organisation had accepted
donor funding but not for normal operations as that was unsustainable. Such
funding was used to test new models of legal service delivery. The use of
interns is one such test model. Another instance was collaboration with advice
offices. The term ‘other sources of income’ would have to clarified as this
could also mean cost recovery.
Ms M Mothapa (ANC) commended clause 3 but suggested that multilingualism be
taken into consideration. She sought clarification on the interface between the
guide, manual and regulations. What was the current success rate in recovery of
costs detailed in clause 20? What types of committees were contemplated in
clause 13? And in addition to the concerns shared by the Chairperson, how was
the exclusion of paralegals and candidate attorneys from the definition of
legal practitioner to be addressed?
Deputy Minister Jeffery stated that the Guide, which was perhaps wrongly named,
had set out the criteria to be followed for when legal aid was to be provided.
That guide would have to be approved by parliament. The guide was now going to
be available every two years with the regulations which were to be made by the
Minister after recommendations from the Board setting out the types of matters
for which LASA would provide legal aid.
Mr Handemark explained that King III was instructive on the types of committees
the Board would have as things developed and different needs arose. At that
stage, there was the Board Executive committee, the Remuneration and Social
Ethics Committee, Audit and Finance Committee as well as the Legal Services
Committee.
In terms of the difference between the Legal Aid guide and the Legal Aid
manual, the 2014 Guide had been split into a policy and procedures section.
This was done to ensure ease of transition as the policy component would become
regulations and the procedures would be contained in the Handbook upon
promulgation.
Legal Aid was bound by the constitutional provisions on multilingualism and as
such the organisation would have to look at how such provision could be built
upon.
Ms C Pilane-Majake (ANC) was of the view that there should be a concomitant
form of accountability with independence. Where clause 10 dealt with the
termination of membership, there was no provision for the end of term of a
Board member. This was an important issue whose procedure could be tendered in
the regulations. A preference was expressed for the Board to hold quarterly
meetings for monitoring purposes instead of the current provision of a
nondescript four meetings. Clause 14 provided for the delegation of the Board’s
powers to employees amongst others. It was thought to be within the competency
of the CEO and the provision as it stood could amount to tensions and
confusion. She asked for clarity on clause 20. What was the procedure for
lagging cases in relation to the budget – had this been provided for?
Mr Handemark reiterated the Deputy Minister’s statements about the independence
of the practitioners. One of the further requirements is that practitioners are
subject to an independent disciplinary committee which goes further than other
countries. This was done specifically as a means of guarantee to the public
that legal aid practitioners were acting in the client’s interests. In terms of
accountability the PFMA was clear on how the organisation was to account for
the monies received from parliament. Quarterly meetings could be restrictive as
the Board aligned its meetings according to deadlines as per the PFMA.
Clause 20 on the recovery of costs dealt particularly in civil matters and
enabled the organisation to step into the shoes of the litigant to recover
costs where successful in litigation thus protecting the interests of LASA and
the taxpayers who funded the case. It also enabled the levying of costs where
the person assisted exceeded the means test.
Mr R Ramakatsa (EFF) was of the view
that independence protected the state as well as public representatives. The
issue of independence should be kept in its proper context which pertained to
the functions of the Board. On the issue
of funding vis a vis provision of legal aid at a commission of inquiry, Mr
Ramakatsa called the objectives of the Legal Aid Board into question in
relation to the promotion of access to justice and victim support.
Deputy Minister Jeffery was of the view that issues such as the Marikana
question would be covered in the regulations, that is, whether legal aid would
be provided for commissions of inquiry. Further, issues such as Marikana were
instructive in questioning whether legal aid should be provided for commissions
of inquiry where there are limited resources, given that they yield no outcome.
That was an instance of the Board applying its criteria and independence was
imperative in preventing allegations of state intervention.
There were several unanswered questions and it was undertaken by the Department
that these issues would be revisited.
Mr S Swart (ACDP) noted that the comments by the SCA and the CC against the Bop
Law Society was an indictment that it had taken such a long time for such
legislation to be brought to Parliament. It seemed that there was a turf war
between the Bop Law Society and the LSNP and the comments of the SCA were such
that the Bop Law Society’s executive ran the risk of disciplinary proceedings
against themselves. He asked what the current standing was with the Bop Law
Society and whether there was any cooperation on their part. Secondly, why had
the Bill taken so long to reach the Portfolio Committee?
Ms Ross explained that at the time of the SCA and CC judgments, negotiations
around the Legal Practice Bill were ongoing and it was thought undesirable to
deal with the rationalisation of the legal profession in a piecemeal fashion,
but rather in a comprehensive manner. However, the Legal Practice Bill took
longer than expected.
Adv Bassett added that shortly after the SCA and CC judgments an amendment Bill
was brought before parliament but it was felt that owing to the sensitive
negotiations on the Legal Practice Bill at the time, the timing was
inopportune. Further, there was the preference of whole scale rationalisation
of the profession over piecemeal amendment.
Ms G Breytenbach (DA) was concerned that
the Bop Law Society had apparently opposed the amendment. She asked if the Bop
Law Society was functional and whether this opposition should be considered.
Ms Theresa Ross, DoJCD State Law Advisor, addressed the Bop Law Society’s
current state. It was uncertain as to that Law Society’s standing.
Correspondence was sent to that society in 2013 and no response was
forthcoming. Further, it had been learnt that there was only one individual
working at the Bop Law Society.
Mr L Mpumlwana (ANC) asked whether certain practices in some jurisdictions
(such as attorneys practicing as conveyancers under the Transkei Act) and not
necessarily with the requisite qualification, was covered by the Amendment
Bill. He also asked whether the Bop had made any representations to the
Department in terms of their opposition to the Bill.
Ms Ross stated that the Bill would repeal all former homelands’ legislation and
thus the Act would apply uniformly to all societies.
Ms M Pilane-Majake (ANC) commented that the amendment was long overdue. She
expressed a disapproval of piecemeal amendments and advocated a total
rationalisation or overhaul. Clause 21 provided for the continuance of the four
law societies in their current guises and she asked whether it would not be
better to align them to the current provincial boundaries.
Mr Mangena clarified that clause 21 stated that the current names would remain
in place until such time that the societies had amalgamated and chosen a better
suited name for themselves. The clause did not impose the status quo
indefinitely.
Ms M Motapho (ANC) commented that it was a mockery that previous regime
terminology was still used. What was at issue was a
jurisdictional matter, as jurisdiction over fidelity fund certificates and
disciplinary matters were divided between LSNP and the Bop Law Society and the
Act provided for concurrent jurisdiction. Thus, the Bill was welcomed
despite its delay. What was the situation with the then Transkei and
Ciskei?
Ms Ross explained that the 1998 amendment gave concurrent jurisdiction to the
LSNP and Bop Law Society mainly because the former was better placed to deal
with the control over trust funds. It was believed that the arrangement had
worked well except the disciplinary component.
Adv Bassett clarified that Transkei and Ciskei existed in name only and were
not functional. The attorneys in those areas were regulated by the Law Society
of the Cape of Good Hope.
Mr M Maila (ANC) was satisfied with the amendment and the reasons given for its
inception and the subsequent delays.
Mr R Ramakatse (EFF) agreed that the Bill was overdue and on how it should be
expedited. He also emphasised the need to align the law society names with
current demarcations.
The Chairperson interjected that the rate at which the Bill is passed rested
with parliament.
Meeting adjourned.