Attorney's Amendment Bill [B7-98]: deliberatons

Meeting report

JUSTICE PORTFOLIO COMMITTEE
25 May 1998
ATTORNEY'S AMENDMENT BILL [B7-98]: DELIBERATONS

Documents handed out:
Letter from the Attorneys Fidelity Fund
Attorneys Amendment Bill, Law Society of Transvaal
Draft 3 of Attorneys Amendment Bill
Chapter two and three of Attorneys Act, No 53 of 1979

MINUTES
The Chairperson, Ms Ngwane (ANC), asked Mr Labuschagne (Law Advisor) to run through the changes which had been made to the Bill.

Mr Labuschagne started with the input received from the Attorney's Fidelity Fund. The Fidelity Fund has said that it is happy with clause 1(7) if the words "receiving an instruction to invest money" were deleted. Mr Labuschagne said that his department was happy with the deletion and that it had been effected. As the Fidelity Fund had expressed their support for Option 1, Option 2 could be discarded.

Mr Labuschagne went on to deal with the deletion of the word "and" from clause 3. The inclusion of the word "and" means that attorneys need to have applied for and be in possession of a Fidelity Fund certificate before they are covered by the Fidelity Fund. Mr Labuschagne said that he had spoken to Mr Moorhouse of the Fund and had been informed that, although this is the intention, it is not what happens in practice; i.e. the Fund does cover attorneys who are not in possession of the certificate.

Mr Hofmeyr (ANC) asked whether the effect of the deletion would not then result in the section meaning that attorneys could either have applied for or be in possession of a certificate.

Mr Labuschagne said that this was correct and apparently how it should be. The Fidelity Fund does cover attorneys who are not in possession of a certificate, although this seems to be contrary to s41(1) of the Attorneys Act.

The Chairperson pointed out that as attorneys have to apply annually for their certificates, there may be times at which they are not in possession of a certificate (if, for example, their audit has not been completed). They could not stop practising during this time and that is why the Fidelity Fund continued to cover attorneys who were not in possession of a certificate.

Mr Labuschagne then turned to a new clause drafted on representation of the Transvaal Law Society (TLS). The TLS council presently consists of 14 members, with 4 vacancies. The council wants to increase its size to 20 members of whom 5 will be representatives of NADEL and 5 of the Black Lawyers Association (BLA). This change can be effected in terms of the rules of the TLS. Section 62 of the Attorneys Act however only makes provision for the appointment by the council of members where the existing positions have been vacated. The TLS has therefore requested that they be empowered by the legislature to add 6 members to the council. Mr Labuschagne said that he had spoken to the TLS who had told him that they would make provision in their rules that NADEL and the BLA would be represented by 5 members each.

Mr Hofmeyr (ANC) asked if other provinces were not experiencing similar problems.

Mr Labuschagne said that the TLS had told him that a similar problem might arise in Natal, however the Natal Law Society had not made any representations in this respect or responded to his faxes.

Mr Hofmeyr (ANC) asked Mr Labuschagne to speak to the South African Law Society and ensure that this amendment would settle all similar problems.

Mr Mzizi (IFP) asked what the relationship was between the Bophuthatswana Law Society and the BLA.

Mr Labuschagne said that he did not know, however the Bophuthatswana Law Society was still being uncooperative about their inclusion into the TLS. Mr Labuschagne said that as this was an interim measure, the Bophuthatswana Law Society would have to accept the proposal until the attorney's profession had been restructured.

The Chairperson expressed concern about whether NADEL and the BLA had been consulted. She said that perhaps the possibility of building a quota into the amendment should be considered, as rules are easily changed and the legislation should serve to promote long term goals. The Chairperson pointed to the recent election of a new Medical Council which had only one black member, as an example of what might otherwise happen.

Mr Hofmeyr (ANC) said that it was unfair to burden Mr Labuschagne with liaising with NADEL and the BLA as this was not a technical matter. It was suggested that Mr Kali (Committee Clerk) should do this on an informal basis.

Mr Labuschagne said that he would send the draft amendment to the SALS, asking for their comment and assurances that it met with the agreement of all stakeholders.

Mr Landers (ANC) suggested that this should be in writing.

Mr Mzizi (IFP) agreed that assurances were needed. He pointed out however that the submission from the Transvaal Law Society does say that NADEL and the BLA have agreed to the proposed change.

The committee agreed that it would seek assurance from the South African Law Society, as well as, informally, from NADEL and the BLA that this amendment would be sufficient.

Appendix 1:
ATTORNEYS FIDELITY FUND

Dear Mr Labuschagne

ATTORNEYS AMENDMENT BILL, 1998
I acknowledge receipt of your telefax dated 19 May 1 998 herein.

After due consideration by the Fund of the document attached to your letter under reply, I have been directed to advise that Option 1 in regard to Clause 1 (the insertion of subsection (7)) is acceptable to the Fund, subject to the deletion of the words "receiving an instruction to invest money".

JOHN MOORHOUSE
GENERAL MANAGER

Appendix 2:

THE LAW SOCIETY OF THE TRANSVAAL

22 May 1995.

Reconstitution of the Council of the Law Society of the
Transvaal: Proposed amendment of the provisions of Section
62(2) of the Attorneys Act, i979.

I refer to the discussion held with you by the President of the Law Society, Mr. P.C. Langenhoven regarding the above and wish to confirm that it has been resolved by the Council of the Law Society at its meeting held today that the Department of Justice be kindly requested to assist the Law Society to facilitate the provincial restructuring of the attorneys profession in the former Transvaal province by way of an urgent legislative amendment.

It has in principle been agreed between the Council of the Law Society of the Transvaal and representatives of the BLA and NADEL that the Council of the Law Society be reconstituted on the basis that the Council should consist often attorneys from the establishment and five attorneys from the BLA and NADEL respectively, i.e. a new representative Council consisting of twenty persons.

Although it is intended to implement the restructuring proposal on an urgent basis, it appears that the provisions of Section 61(2) of the Attorneys Act, 1979 may result in a problem as it prescribes that "the members of a Council shall be elected in the prescribed manner by the members of the Society concerned".

It is obvious that members of the BLA and NADEL cannot at this stage be elected in the normal manner and that the Act would have to be amended to facilitate the restructuring as soon as possible. The proposal therefore is that Section 62(2) of the Act be amended to read as follows "whenever a vacancy arises on the Council for any reason the Council may appoint a member of the Society to fill the vacancy".

Your kind attention to an urgent amendment on the basis as explained above will be highly appreciated.

It needs to be mentioned that once this amendment has been affected, the existing Rules of the Law Society can then be suitably amended to enlarge the Council of the Society from 14 to 20 members whereupon the members of the BLA and NADEL can be appointed as members of the Council without any further delay.

If any further information is required, please do not hesitate to communicate with me telephonically or otherwise.

M J S GROBLER
Director