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Recommendations to the Minister October 2017: Recommendation 1

Recommendations to the Minister by the National Forum

RECOMMENDATION 1

Section 97(1) (a) (i): the National Forum must make recommendations to the Minister on an election procedure for purposes of constituting the Council.

  1. RECOMMENDATION:
    1. It is recommended that:-
      1. The recommended procedure is in respect of the 16 (10 attorneys and 6 advocates) Legal Practitioners as contemplated under section 7(1) (a) read with section 94(1) (c) of the Act.
      2. There shall be two separate voters’ rolls, the one for the advocates and the other for the attorneys. The advocates shall nominate their candidates and vote separately for their 6 representatives in the Council. Same shall apply to the attorneys who shall nominate and vote separately for their 10 representatives in the Council.
      3. The first election shall take place within a period of 60 days from the date on which chapter 2 of the Act would have come into operation.
      4. The Council (in respect to the first election of the National Forum) shall call upon members of the legal profession to nominate their preferred candidates to contest elections to serve in the Council. Each candidate shall be nominated and be supported by a practising Legal Practitioners in good standing with the Council (in respect of the first elections the provincial law society having jurisdiction over him or her).
      5. There shall be a referee and scrutinisers, who shall be appointed by the Council or the National Forum to ensure that the elections are credible, free and fair.
      6. Nominated candidates shall provide the Council or the National Forum (whichever is applicable) with their short profile or resume setting out their skills and accomplishments as well as experience and knowledge of the aspects set out section 7(2)(e) of the Act.
      7. The Council’s attorneys’ composition component ratio shall be 70% / 30% race (Black and white respectively) and 50% / 50% gender representative.
      8.  The advocates’ component of the Council shall constitute of two black  women, two black men, one white woman and one white man.
      9. Each ballot paper shall contain a notice drawing the attention of the Legal Practitioners to the provisions of section 7(2) of the Act and the provisions shall be reproduced on the ballot paper for ease of reference of the Legal Practitioners.
      10. The draft Regulation setting out the recommended election procedure and ballot paper for the election of the Legal Practitioners to the Council, is attached hereto as Appendix “A”.

MOTIVATION:

The reason for the recommendation is that s94 (1) (c) requires the Minister to make Regulations relating to a procedure for the election of Legal Practitioners to the Council as contemplated in s7 (1) (a).  Furthermore one of the objects of the Council in terms of section 5(a) of the Act is to facilitate the realisation of the goal of a transformed and restructured legal profession that is accountable, efficient and independent. In order for the Council to be able to deliver on this mandate such a Council must earn legitimacy by being representative of the racial and gender composition of the population of the Republic of South Africa. Taking into account that the majority of the Legal Practitioners are the white minority a mechanism in the Regulations must be introduced through which the election of the Council will reflect the racial and gender composition of the Republic of South Africa. If this mechanism is not put in place the likelihood is that the Council composition will reflect the demographics of the legal profession. In the event that the Council does not reflect the demographic composition of the national population the general citizenry will not view it in good light, equally the black legal professionals will not have ownership of the Council and as a result the Council will lose the authority, respect and legitimacy to the detriment of its function.

The proposed ratios of 70% / 30% (Black and White) and 50% / 50% (Male and Female) representation in the Council constitutes a workable compromise. This takes into account the fact that in the past the law societies were predominantly white male until same was change in 1998 into 50% / 25% / 25%,. 50% being for Non – BLA and Non – NADEL Legal Practitioners, 25% being for BLA and the other 25% being for NADEL. This arrangement resulted in about 50 / 50% between black and white in the governance of the attorneys profession. This recommendation will now improve on the arrangement towards the reflection of the national demographics of the Republic.

Black people make up more than 90% of the South African population. The 70 / 30% ratio representation is recommended on the basis that race and gender composition of the Republic is not the only requirements to be taken into account when composing the Council. There are other requirements under section 7(2) like the objects of the Council, representation of persons with disabilities, provincial representation; and experience and knowledge of issues under paragraph (e).

IMPLEMENTATION:

If the recommendation is accepted, it is proposed that the Minister should issue the draft Regulation attached hereto as Appendix “A” to give effect thereto. The procedural requirements for the issuing of Regulations are set out in s94(2) & (3) and s109(2). In order to enable the Council to function effectively, the Regulation pertaining to this recommendation should become effective when Chapter 2 of the Act comes into operation in terms of s120(3). It is, however, important that when the remainder of the Act comes to operation in terms of s120(4), the Council must be ready to execute its regulatory functions to avoid lacunae in the management of its operations and the regulation of the profession.