Hon Chairperson, the Legal Practice Bill is classified as a Bill to be considered in terms of the provisions of section 76 of our Constitution. On 12 November 2013 the Legal Practice Bill was approved by this House and referred to the National Council of Provinces. The National Council of Provinces has completed its deliberations and consideration of this Bill and has now referred it back to this House with several amendments.
At its meeting yesterday, the Justice and Constitutional Development Portfolio Committee was informed that six of the nine provinces had voted in favour of the Bill, and it consequently resolved to approve the Bill as amended by the National Council of Provinces with certain members of our opposition parties present voting against the Bill.
At issue is an amendment brought by the NCOP Select Committee to clause 93. Throughout clause 93, as approved by the National Assembly, is found the phrase "is guilty of an offence". This phrase is a standard phrase and is common to all our statutes where offences and penalties are provided for. It has been understood over the years by our courts and the legal profession.
The National Council of Provinces, on the advice of one of Parliament's legal advisers, has seen fit to replace the phrase "is guilty of an offence" with the new phrase "commits an offence".
Some opposition parties have pounced on this as a reason for a Bill approved by the NCOP to be rejected by this House and consequently to be referred to mediation, as provided for in section 78 of our Constitution.
The question raised by ANC members in the portfolio committee is apposite, namely: does it turn on this matter? We are of the firm view that it does not. Accordingly, we recommend that this House approves the Legal Practice Bill as amended by the National Council of Provinces. I thank you. [Applause.]
There was no debate.
Speaker, I move:
That the Bill be passed.
Declarations of vote:
Madam Chair, the DA believes that the NCOP took a final vote on the highly controversial Legal Practice Bill with amendments without the requisite number of properly mandated provinces. My hon chairperson will recall that, on Tuesday, I raised in the committee possible procedural problems with the NCOP vote, in respect of KwaZulu-Natal.
We are now objecting on the basis of procedure in respect of Gauteng. In my understanding, the votes of five provinces are required in the case of a Bill like the Legal Practice Bill because it was tagged as a section 76 Bill. I have seen records reflecting five provinces. I hear the hon Landers referring to six, but I think we better inspect that.
Our advice is that Gauteng - one of the five provinces that supported the Bill - did not have a valid and properly conferred final or voting mandate. We have a problem here. We object to this Bill. We object to the committee report, but you have a problem also.
Under the Mandating Procedures of Provinces Act, the full provisional legislature - and not a committee - must confer authority on its provisional delegate to the NCOP to cast a vote when the relevant NCOP Select Committee considers a section 76 Bill prior to voting thereon in an NCOP plenary. Now, our DA colleagues in Gauteng in the legislature advised that the Gauteng legislature conferred no such mandate.
By the way, it is also the case with the KwaZulu-Natal legislature, it did not meet to give a mandate and no formal abstention should therefore have been recorded.
Your problem is, in the number of provinces that have voted for this Bill in the NCOP, Gauteng was not properly mandated. Were the other provinces properly mandated? I think that should be inspected.
As far as we are concerned the Legal Practice Bill has consequently not been properly passed by the NCOP. The amendments adopted so-called by the NCOP and sent back to the National Assembly therefore have no status. We do not see how the National Assembly can accept them today, nor do we see how the Bill could then be sent to President for assent. I think that some investigation needs to take place here. [Applause.]
Madam House Chair, the Bill provides a legislative framework for the transformation and restructuring of the legal profession in line with constitutional imperatives so as to facilitate and enhance the independent legal profession that broadly reflects the diversity of South Africa's demographics. No more old boys club. No more inaccessible legal services within the democratic dispensation of South Africa.
The NCOP has indicated that six of the nine provinces have actually supported the Bill, which actually puts us in line with section 78 of the Constitution. Of course the NCOP has recommended that "guilty of an offence in terms of section 93" be substituted with "commits an offence". We regard the issue as a minor and not a substantial change, which means that we are in a position to move forward with it.
The Bill has been in the pipeline for too long. South Africans have been waiting for this Bill. There is no reason whatsoever for us to continue delaying passing this Bill. The ANC continues to support the Bill as amended by the NCOP. I thank you. [Applause.]
Motion agreed to (Democratic Alliance, Independent Democrats, Freedom Front Plus and African Christian Democratic Party dissenting).
Bill accordingly passed.
