Legal Practice Bill [B20D-2012]: final mandates

NCOP Security and Justice

05 March 2014
Chairperson: Mr T Mofokeng (ANC, Free State)
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Meeting Summary

The provincial representatives indicated approval of all clauses with some proposed amendments. The Western Cape province voted against the entire Bill and asked that its stance be included in the Committee Report. This was that it believed that the Bill gave too much power to the Minister, especially with regards to the dissolution of the Council.

Some of the Committee’s proposed amendments were flagged by the State Law Adviser who asked the Committee to reconsider these changes. Such clauses were:
▪ Clause 93 where the Committee had to decide whether to use “guilty of” or “committed”. The Committee decided to leave it as is in the Bill;
▪ Clause 22 changes would lead to unintended consequences.
▪ Clause 26 changes would diminish the power that the South African Qualifications Authority and would create a problem
▪ Clause 6 which proposed “in consultation with the Minister”. It was explained that this would go against the Constitution if amended and the Committee understood this.
▪ Clause 107 where the amendment was to insert “present at a meeting” and the resolution was that the Committee had to take a uniform approach to that.

Meeting report

The Chairperson said that the Department of Justice and Constitutional Development (DoJCD) would comment on the Committee's agreed amendments. The parliamentary legal advisor would also make some comments before the vote. He noted that five votes were required per clause.

Mr Jacob Skosana, DoJCD Deputy Chief State Law Advisor, dealt with the technical amendments.

Clause 6
Mr Skosana explained that the proposed change after “may” to “in consultation with the council” would not be advisable. His reason was that the changes would mean that the Minister had to act at the request of the Council; whereas the Council is the one that should act at the request of the Minister. Thus he urged the Committee to reconsider this.

Clause 17
The proposed amendment was that in line 35, after “members” to insert “present at a meeting”. Mr Skosana explained that this was up to the Committee as they had to have a uniform principle.

Clause 22
The proposed amendment was that on page 16, in line 20, after “council” to insert “subject to section 57(1)(j)”. Mr Skosana said that doing this would lead to unintended consequences.

Clause 26
The amendment agreed on was that on page 18, in line 33, after “by” to insert “a university registered in the Republic offering an LLB degree, in consultation with”. Mr Skosana explained that doing that would diminish the power that the South African Qualifications Authority (SAQA) has. Universities are meant to teach while SAQA is meant to evaluate the learners. Thus the amendment would create a problem. He urged the Committee to reconsider this.

Clause 57
The agreed amendment was that after “22(1)(b)” to insert “if, in the opinion of the actuary appointed in terms of section 72, it is financially feasible for the Fund to do so in the financial year in question, failing which no such annual appropriation may be made for the year in question”.

Mr Skosana explained that the Fund must make an appropriation.

Clause 70
The agreed amendment was that after “members” to insert “present at a meeting”.

Clause 93
This agreed amendment was to replace ”guilty of” with “committed an offence”. Mr Skosana explained that in practice the term that is used is “guilty of” because of the due process. Many laws use “guilty of”. He said that the Committee had to choose which term they preferred although both terms meant the same thing.

Clause 107
The agreed amendment was after “members” to insert ”present at a meeting”. Mr Skosana explained that the Committee had to take a uniform stance on this. This is technical and the Committee should decide whilst keeping in mind what other legislation says on the issue so that this goes hand in hand with other laws.

Parliamentary Legal Adviser input
Ms Phumelele Ngema, Parliamentary Legal Adviser took over to add what the Parliamentary Legal Team had gathered from the Department’s responses to the amendments.

Clause 6
She noted that in Clause 6(5)(i) it was crucial that the Committee understand that “in consultation” would speak against the Constitution. She added that it was a misplaced provision to add “in consultation”.

Clause 26
With regards to SAQA and universities, Ms Ngema said that the Committee should deliberate on this as it was unclear how practically the applicant, with the help of the university and SAQA, would engage.

Ms Ngema added that some clauses cannot be separated. An example was clause 16 and 17 which could not be separated, as there cannot be a decision by a quorum if there was no quorum.

Clause 93
With regards to “committed” and “guilty of”, Ms Ngema said that the Committee had to decide which word they preferred. She referred to s93(i) and said “guilty of” is used when the court has made a judgement. Thus she suggested that “committed” is better.

Voting on the Bill
The Chairperson said that it was time for the provinces to vote on the agreed amendments and he emphasised that there was a need for at least five provinces to agree on each clause.

Clause 6
Gauteng, Free State, Eastern Cape, Limpopo, North West, Mpumalanga and Northern Cape agreed to the recommendation.

Clause 17
Gauteng, Free State, Eastern Cape, Limpopo, North West, Mpumalanga and Northern Cape agreed to it.

Clause 26
Gauteng, Free State, Eastern Cape, Limpopo, North West, Mpumalanga and Northern Cape agreed to it.

Mr H Groenewald (North West, DA) said that he was unhappy with the discipline of the ruling party. North West had two ANC representatives and they do not attend the meetings. It was not fair on his part that he had to leave another committee meeting to attend this one when the ANC representatives from his province were not attending the meetings.

Mr J Bekker (Western Cape, DA) said that the Western Cape was against the Bill thus they were abstaining from voting.

The Committee Secretary asked that provinces be specific about what they are agreeing to.

Mr A Matila (Gauteng, ANC) said that the Department had already indicated what it is that the Members should agree on and that was exactly what the Members were doing.

Mr M Mokgobi (Limpopo, ANC) agreed with Mr Matila.

Mr J Gunda (Northern Cape, ID) commented that the provinces had been told what way to take and that is all they wanted to do now.

Clause 22
Mr Skosana noted that this clause was linked with clause 57. The Fund must make an appropriation.

Clause 29
Gauteng, Free State, Eastern Cape, Limpopo, North West, Mpumalanga and Northern Cape agreed to it.

Clause 93
There were two views about this amendment. Mr Skosana had suggested that it stays as is in the original Bill while Ms Ngema has said that “committed” was better than “guilty of”.

Mr M Mokgobi said that “guilty of” meant judgement has been passed.

Gauteng, Free State, Eastern Cape, Limpopo, North West, Mpumalanga and Northern Cape agreed with their final mandates which was that the wording stays as is in the original Bill.

Clause 39
Mr Skosana said that this clause dealt with subpoenas. It stated that the subpoena could be signed by the chairperson and, in the absence of the chairperson, any member of the committee would be able to sign it or any other person. This meant that three people would be allowed to sign the subpoena and this was not acceptable.

Gauteng, Free State, Eastern Cape, Limpopo, North West, Mpumalanga and Northern Cape agreed with their final mandates which was that the wording stays as is in the original Bill.

The Chairperson said that Western Cape Province was abstaining and it wanted its minority views to be considered.

Mr J Bekker read out the reasons for Western Cape abstaining from voting and why it was against the Bill.

The Chairperson asked if the Committee could move for the adoption of the Bill.

Mr M Mokgobi (Limpopo, ANC) moved for its adoption. Mr J Gunda (Northern Cape, ID) seconded.

Committee Report on the Bill
The Chairperson read out the report and noted, as requested by Mr Bekker, that the Western Cape’s stance be included in the report. The Western Cape was against the Bill as it believed that it gave too much power to the Minister, especially with regards to the dissolution of the Council.

Meeting adjourned.

Present

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