| (1) | The members of the Council referred to in section 7(1)(a) of the Act must be elected in accordance with the manner determined in these regulations. |
| (2) | The election of members of the Council referred to in subregulation (1) must be conducted under the authority of the Council. |
[Regulation 2(2) substituted by section 2(a) of Amendment of Regulations, Notice No. R.3779 of GG49104, dated 11 August 2023 - effective on the date of publication in the Government Gazette]
| (3) | Only attorneys and advocates who are admitted to practise and who are enrolled on the Roll of practising legal practitioners contemplated in section 30(3) of the Act may— |
[Words preceding Regulation 3(a) substituted by section 2(b) of Amendment of Regulations, Notice No. R.3779 of GG49104, dated 11 August 2023 - effective on the date of publication in the Government Gazette]
| (a) | be nominated for election to the Council: Provided that attorneys may be nominated only by attorneys and advocates may be nominated only by advocates; |
| (b) | nominate an attorney or advocate, as the case may be, for election to the Council; and |
| (c) | participate in the election of members of the Council referred to in subregulation (1), as provided for in these regulations: Provided that an attorney may vote only for the election of attorneys and an advocate may vote only for the election of advocates, as members of the Council. |
| (a) | An election for members of the Council must be held, in the manner prescribed in these regulations, every third year following the year in which the first such election was held. |
| (b) | The term of office of the members of the Council referred to in section 7(1)(a) of the Act— |
| (i) | commences on the date of announcement by the chairperson of their election; |
| (ii) | terminates upon the announcement of the results of the next succeeding election for members of the Council, unless terminated earlier in terms of the provisions of the Act; and |
| (iii) | there may not be an overlap of the terms of office of newly elected members of the Council and those elected members whose terms of office have terminated. |
| (c) | An election for members of the Council must be conducted by— |
| (i) | electronic voting in the manner determined by guidelines published by the Council: Provided that the Council must appoint an independent electoral service provider for the purpose of managing the electronic voting platform; |
| (ii) | paper ballot in accordance with the provisions of these regulations; or |
| (iii) | both electronic voting and paper ballot. |
| (d) | The Council must appoint an independent electoral service provider for the purpose of performing the duties assigned to an independent electoral service provider in these regulations. |
| (e) | Within 90 days prior to, but no later than 60 days prior to, the third anniversary of the date of the announcement of the results of the immediately preceding election of members of the Council, the Council must dispatch a notice to every attorney and every advocate admitted to practice and enrolled on the practising Roll, calling for nominations of eligible attorneys and advocates for election to the Council, such nominations to be received not later than a date stipulated in the notice. |
| (f) | Should a vacancy become available in the Council, the candidate who in the immediately preceding election received the most electoral votes following the votes received by a member of the Council who received the least votes, and who falls within the same category set out in Annexure A, in the case of attorney members, or Annexure B, in the case of advocate members, as the departing member, must be appointed to fill the vacancy. |
| (g) | If the person referred to in paragraph (f) is not available to fill that vacancy, the candidate in the immediately preceding election who received the next most electoral votes, and who falls within the categories referred to in paragraph (f), must be appointed to fill the vacancy. |
| (h) | If no person is available to fill the vacancy the Council must conduct a by-election to fill the vacancy concerned. |
| (i) | The term of office of the member appointed or elected, as the case may be, to fill a casual vacancy in the Council will terminate on the date on which the office of the member who was replaced by him or her would have terminated: Provided that the member so appointed or elected to fill such a casual vacancy will be eligible for re-election. |
| (j) | The guidelines referred to in paragraph (c)(i) must include— |
| (i) | the period within which to cast the votes; |
| (ii) | the platform to be utilized for electronic voting; and |
| (iii) | directions on the completion of the declaration form and the electronic ballot. |
[Regulation 2(4) substituted by section 2(c) of Amendment of Regulations, Notice No. R.3779 of GG49104, dated 11 August 2023 - effective on the date of publication in the Government Gazette]
| (5) | A notice referred to in subregulation (4) must — |
| (a) | stipulate a date by which the nominations must be received by the Council, which date may not be earlier than 10 days from the date of the notice; |
| (b) | be sent by email to the email address of every practising legal practitioner, unless a practising legal practitioner has not provided the Council with an email address, in which case the notice must be sent by prepaid post; |
[Regulation 2(5)(b) substituted by section 2(d) of Amendment of Regulations, Notice No. R.3779 of GG49104, dated 11 August 2023 - effective on the date of publication in the Government Gazette]
| (c) | be published once in the Government Gazette on a date as close as possible to the date of dispatch of the notice; |
| (d) | give details of the number of vacancies on the Council for attorney members and advocate members, respectively; and |
| (e) | draw the attention of legal practitioners to the provisions of section 7(2) and (3) and section 8 of the Act. |
| (6) | A nomination of an attorney for election to the Council must be made by any two other attorneys in the manner prescribed by subregulations (8) and (9). |
| (7) | A nomination of an advocate for election to the Council must be made by any two other advocates in the manner prescribed by subregulations (8) and (9). |
| (8) | Any nomination of an attorney or advocate must be made in a document which provides the following information in respect of each nominee named therein, in not more than 600 words: |
| (a) | His or her name and identity number; |
| (b) | in the case of an attorney, the name of the firm of which he or she is a proprietor or a member or by which he or she is employed, stating also whether he or she is a director, a partner or a professional assistant of that firm; |
| (c) | in the case of an advocate, whether he or she renders legal services in terms of section 34(2)(a)(i) or section 34(2)(a)(ii) of the Act, and in either case whether or not he or she has the status of Senior Counsel; |
| (d) | his or her race, gender, date of admission and enrolment and period in practice; |
| (e) | if he or she has a disability and wishes to disclose that fact, a statement to that effect and the nature of the disability; |
| (f) | the address of his or her principal place of practice; and |
| (g) | his or her knowledge and experience in the matters set out in section 7(2)(e) of the Act. |
| (9) | The nomination document referred to in subregulation (8) must — |
| (a) | be signed by the two nominating attorneys or advocates, as the case may be; |
| (b) | be endorsed, over the signature of the nominee named therein, by his or her acceptance of the nomination; and |
| (c) | contain the nominee’s confirmation that — |
| (i) | the information given therein is correct; and |
| (ii) | he or she is not disqualified in terms of section 8 of the Act from membership of the Council. |
| (a) | Original signed nominations must be lodged with the Council by not later than the date stipulated in the notice referred to in subregulation (5). |
| (b) | Any nomination which does not substantially comply with these regulations or which is not lodged within the prescribed time does not qualify to be submitted for voting purposes in terms of these regulations. |
| (11) | If the number of candidates who are nominated exceeds the number to be elected as attorney members or as advocate members, as the case may be, the Council must, within 14 days after the last day on which nominations are required to be lodged in terms of subregulation (5), publish on the Council's website and send to every attorney or advocate, as the case may be, who is eligible to vote, by email to the legal practitioner's email address or, where the email address of a legal practitioner is not known to the Council, by prepaid post— |
| (a) | directions to the legal practitioner as to the size and format of the two envelopes to be used by the legal practitioner, where voting is to be by ballot paper; |
| (b) | a declaration form containing appropriate spaces for— |
| (i) | the surname and forenames of the voting legal practitioner; |
| (ii) | a statement whether he or she is an attorney or an advocate; |
| (iii) | his or her signature and the date of his or her signature; and |
| (iv) | a declaration by the legal practitioner above his or her signature that he or she has not already voted in the election concerned; |
| (c) | a ballot paper, in the case of the election of attorneys, in a form that substantially corresponds with Annexure A to these regulations or, in the case of the election of advocates, in a form that substantially corresponds with Annexure B to these regulations, containing the surnames and forenames in alphabetical order, by surname, of the nominated candidates and providing the information indicated in Annexure A or Annexure B, as the case may be, and nothing more; |
| (d) | a written notice in the form as the Council may direct— |
| (i) | drawing the attention of legal practitioners to the fact that votes may be cast by ballot paper or by electronic means, whichever one or both may be applicable, and that legal practitioners may vote only once in the election and either by ballot paper or by electronic means; |
| (ii) | advising the legal practitioner that, if he or she wishes to record a vote by ballot paper, he or she must— |
| (aa) | place a cross on the accompanying ballot paper against the name of each candidate for whom the legal practitioner wishes to vote, so as to indicate a vote in favour of not more than the number of candidates for which there are vacancies, and to make no other mark or alteration on the ballot paper; |
| (bb) | place the ballot paper in the envelope marked "ballot paper"; |
| (cc) | seal the envelope containing the ballot paper; |
| (dd) | complete and sign the form of declaration; |
| (ee) | place the completed and signed declaration, together with the envelope containing the ballot paper, in and seal the envelope marked "voting papers"; and |
| (ff) | dispatch the envelope marked "voting papers" with its contents to the Council so as to reach the Council not later than a date referred to in the notice; and |
| (iii) | advising the legal practitioner, if he or she wishes to record his or her vote by electronic means, to follow the guidelines referred to in subregulation (4)(c)(i): Provided that— |
| (aa) | an electronic identification system must be developed and established; |
| (bb) | legal practitioners will be required to identify themselves and authenticate their identification; |
| (cc) | the electronic ballot must exactly resemble the ballot paper referred to in subregulation (11)(c); and |
| (dd) | a legal practitioner must be given an overview of all his or her votes and be asked to confirm his or her choice before submitting the electronic ballot. |
[Regulation 2(11) substituted by section 2(e) of Amendment of Regulations, Notice No. R.3779 of GG49104, dated 11 August 2023 - effective on the date of publication in the Government Gazette]
| (12) | The notice referred to in subregulation (11)(d) must— |
| (a) | contain a warning that if— |
| (i) | a vote is cast in favour of more than the number of names referred to in subregulation (11)(d)(ii)(aa); |
| (ii) | any mark or alteration is made on the ballot paper other than the crosses indicating votes in favour of the candidates for whom the legal practitioner votes; or |
| (iii) | the declaration referred to in subregulation (11)(b) is not duly completed and signed by the voting legal practitioner, |
the ballot paper will be void; and
| (b) | draw the attention of legal practitioners to the fact that the profiles of candidates, containing the information set out in subregulation (8), will be published on the website of the Council for a period of 30 days commencing on the date of the written notice referred to in subregulation (11)(d). |
[Regulation 2(12) substituted by section 2(f) of Amendment of Regulations, Notice No. R.3779 of GG49104, dated 11 August 2023 - effective on the date of publication in the Government Gazette]
| (13) | The Council must send separate notices to attorneys and advocates for purposes of any election in terms of these regulations, and all notices must distinguish clearly whether they are intended for the election of an attorney or for the election of an advocate. |
| (a) | Within seven days after the last date on which nominations were required to be lodged in terms of subregulation (5), the Council must, subject to paragraph (b), in writing, appoint a legal practitioner who has been practising for a continuous period of more than 15 years, as a referee for the purpose of performing the duties assigned to a referee under these regulations. |
| (b) | A referee may not be — |
| (i) | a candidate for election to the Council in the election concerned; |
| (ii) | a legal practitioner who has nominated a candidate for election to the Council in the election concerned; or |
| (iii) | a member of the Council or of a Provincial Council. |
| (15) | In the case of paper ballots, on each day on which envelopes marked "voting papers" sent to the Council are received by the Council, or if it is not practicable on that day, as soon as practicable thereafter, the chairperson or, if the chairperson has been nominated for election, the executive officer of the Council, must, in the presence of the referee, open each such envelope and remove its contents. |
[Regulation 2(15) substituted by section 2(g) of Amendment of Regulations, Notice No. R.3779 of GG49104, dated 11 August 2023 - effective on the date of publication in the Government Gazette]
| (16) | The chairperson or, if the chairperson has been nominated for election, the executive officer of the Council, and the referee must together note the name and surname of each legal practitioner who has submitted a declaration and envelope marked "ballot papers", as well as whether that legal practitioner is an attorney or an advocate, in a voting register kept by the referee. |
[Regulation 2(16) substituted by section 2(h) of Amendment of Regulations, Notice No. R.3779 of GG49104, dated 11 August 2023 - effective on the date of publication in the Government Gazette]
| (a) | The chairperson or, if the chairperson has been nominated for election, the executive officer of the Council, and the referee must together— |
| (i) | examine each declaration form; and |
| (ii) | verify, to such extent as may appear necessary, the information contained therein against the records of the Council, and |
satisfy themselves that the declaration form has been duly completed and signed by the legal practitioner, failing which it will be regarded as invalid.
| (b) | In the event of a disagreement between the chairperson or, if the chairperson has been nominated for election, the executive officer of the Council, and the referee as to the validity or otherwise of any declaration form, the view of the referee prevails and his or her judgment on the matter is final. |
[Regulation 2(17) substituted by section 2(i) of Amendment of Regulations, Notice No. R.3779 of GG49104, dated 11 August 2023 - effective on the date of publication in the Government Gazette]
| (18) | The referee must endorse, with his or her signature, each declaration form found to be invalid, with the reason for the invalidity. |
| (19) | The chairperson or, if the chairperson has been nominated for election, the executive officer of the Council, must, in the presence of the referee, in respect of each declaration form found to be valid, place its accompanying envelope marked "ballot paper" unopened through a slot in a ballot box of a design and construction approved by the Council, one ballot box for ballot papers in respect of attorneys and one ballot box for ballot papers in respect of advocates, which must have been securely locked and sealed in advance by the chairperson. |
[Regulation 2(19) substituted by section 2(j) of Amendment of Regulations, Notice No. R.3779 of GG49104, dated 11 August 2023 - effective on the date of publication in the Government Gazette]
| (20) | After placing the last of such envelopes duly received in the ballot box the chairperson or, if the chairperson has been nominated for election, the executive officer of the Council, must, in the presence of the referee, securely seal the slot, and must hand the key to the referee. |
[Regulation 2(20) substituted by section 2(k) of Amendment of Regulations, Notice No. R.3779 of GG49104, dated 11 August 2023 - effective on the date of publication in the Government Gazette]
| (21) | The chairperson or, if the chairperson has been nominated for election, the executive officer of the Council, must keep the ballot box in a secure place, locked and sealed as contemplated in subregulations (19) and (20), and must deliver the ballot box in that condition to the scrutineers appointed in terms of subregulation (23) on the day following the date referred to in subregulation (11)(d)(ii)(ff). |
[Regulation 2(21) substituted by section 2(l) of Amendment of Regulations, Notice No. R.3779 of GG49104, dated 11 August 2023 - effective on the date of publication in the Government Gazette]
| (a) | All envelopes marked "ballot paper" which are accompanied by declaration forms which have been found to be invalid may not be placed in the ballot box. |
| (b) | The chairperson must — |
| (i) | in the presence of the referee, replace the envelopes referred to in paragraph (a), marked "ballot paper" unopened, together with their accompanying declaration forms endorsed by the referee as provided in subregulation (18), in the envelopes marked "voting papers" in which they were received; |
| (ii) | in the presence of the referee, securely seal all the documents; |
| (iii) | separately retain the documents, in the same manner as is provided for in subregulations (19) to (21), for a period of three months after the date referred to in subregulation (11)(d)(ii)(ff); |
[Regulation 2(22)(b)(iii) substituted by section 2(m) of Amendment of Regulations, Notice No. R.3779 of GG49104, dated 11 August 2023 - effective on the date of publication in the Government Gazette]
| (iv) | after the three month period destroy all the documents, unless ordered otherwise by an order of court: Provided that if there is a dispute regarding the validity of the declaration form, the documents must be retained until the dispute has been resolved; and |
| (v) | keep a separate record of the number of declarations and envelopes thus retained by him or her. |
| (a) | Prior to or on the date referred to in subregulation (11)(d)(ii))ff) the Council must, subject to paragraph (b), appoint not less than two legal practitioners and not more than ten legal practitioners, as scrutineers to examine the ballot papers placed in the ballot box and to count the votes received. |
[Regulation 2(23)(a) substituted by section 2(n) of Amendment of Regulations, Notice No. R.3779 of GG49104, dated 11 August 2023 - effective on the date of publication in the Government Gazette]
| (b) | A scrutineer may not be — |
| (i) | a candidate for election to the Council in the election concerned; |
| (ii) | a legal practitioner who has nominated a candidate for election to the Council in the election concerned; |
| (iii) | a member of the Council or of a Provincial Council; or |
| (iv) | the legal practitioner appointed as referee under these regulations. |
| (24) | Upon receipt by the scrutineers of the ballot box they must, with all of them present— |
| (d) | open each of the envelopes marked "ballot paper" and remove the ballot paper contained therein; |
| (e) | examine the ballot paper and satisfy themselves of its validity in accordance with these regulations or, if not so satisfied, reject the ballot paper after having endorsed on its reverse over their signatures the reason for its rejection; |
| (f) | count the votes recorded in the remaining ballot papers; and |
| (g) | record the result in the presence of the chairperson and the referee. |
| (25) | After complying with the provisions in subregulation (24), the scrutineers must replace all the ballot papers, including those rejected, in the ballot box, lock and re-seal it and hand it to the chairperson for safekeeping. |
(25A)
| (a) | On each day on which electronic ballots sent to the Council are received by the Council, or if it is not practicable on that day, as soon as practicable thereafter, the chairperson or, if the chairperson has been nominated for election, the executive officer of the Council, must, together with the referee, examine each electronic declaration form, must verify, to such extent as may appear necessary, the information contained in the electronic declaration form against the records of the Council, and must satisfy themselves that the electronic declaration form has been duly completed and signed by the legal practitioner, failing which it will be regarded as void. |
| (b) | In the event of a disagreement between the chairperson or, if the chairperson has been nominated for election, the executive officer of the Council, and the referee as to the validity or otherwise of any electronic declaration form, the view of the referee must prevail and his or her judgment on the matter must be final. |
| (c) | The referee must maintain a record of each electronic declaration form found to be invalid, with the reasons for the invalidity, and endorse the record with his or her signature. |
| (d) | The chairperson or, if the chairperson has been nominated for election, the executive officer of the Council, and the referee must together note the name and surname of each legal practitioner who has submitted an electronic declaration form and an electronic ballot, as well as whether that legal practitioner is an attorney or an advocate, in a voting register kept by the referee. |
| (e) | The chairperson or, if the chairperson has been nominated for election, the executive officer of the Council, must— |
| (i) | in the presence of the referee, securely retain or save, in the form and manner approved by the Council, each electronic declaration form, as well as the accompanying electronic ballots which were found to be valid; |
| (ii) | retain each electronic declaration form and electronic ballot in the same manner for a period of three months after the date of closing of casting of votes, whereafter he or she must destroy all such electronic declaration forms and electronic ballots, unless ordered otherwise by an order of court: Provided that should there be a dispute regarding the validity of the electronic declaration form or the electronic ballot, the electronic declaration forms and electronic ballots must be retained until the dispute has been resolved; and |
| (iii) | keep a separate record of the number of electronic declaration forms and electronic ballots retained as contemplated in paragraph (ii). |
| (f) | The independent electoral service provider must count the votes recorded in the electronic voting system and record the result in the presence of the scrutineers and the referee, whereafter the chairperson must securely retain or save the electronic records in the manner determined by the Council in these regulations. |
[Regulation 2(25A) inserted by section 2(o) of Amendment of Regulations, Notice No. R.3779 of GG49104, dated 11 August 2023 - effective on the date of publication in the Government Gazette]
| (a) | Subject to paragraph (b), the attorney candidates in the respective categories indicated on the ballot paper who receive the greatest number of votes of attorneys in diminishing order among the attorney candidates are deemed to have been elected as attorney members of the Council in those categories. |
| (b) | If there are insufficient candidates to fill a particular category of attorneys, the Council must co-opt a suitable attorney to fill the vacancy, and the coopted attorney is deemed to have been elected in accordance with these regulations. |
| (a) | Subject to paragraph (b), the advocate candidates in the respective categories indicated on the ballot paper who receive the greatest number of votes of advocates in diminishing order among the advocate candidates are deemed to have been elected as advocate members of the Council in those categories. |
| (b) | If there are insufficient candidates to fill a particular category of advocates, the Council must co-opt a suitable advocate to fill the vacancy, and the co-opted advocate is deemed to have been elected in accordance with these regulations. |
| (28) | If there is a tie between two or more candidates, which results in there being uncertainty which of the candidates has been elected in the relevant category, the question which of them is deemed to have been elected must be determined immediately by lot drawn by the scrutineers in the manner determined by the scrutineers. |
| (29) | Upon completion of the counting of the electronic votes and paper ballots and the scrutiny by the scrutineers, the scrutineers must immediately report the result of the election in writing to the chairperson and referee. |
[Regulation 2(29) substituted by section 2(p) of Amendment of Regulations, Notice No. R.3779 of GG49104, dated 11 August 2023 - effective on the date of publication in the Government Gazette]
| (30) | The report referred to in subregulation (29) must be signed by all the scrutineers and contain the following particulars: |
| (a) | The total number of ballot papers received; |
| (b) | the number of ballot papers rejected and the grounds of rejection; |
| (c) | the total number of votes in favour of each candidate in each category; |
| (d) | the result of any lot drawn in terms of subregulation (28); and |
| (e) | the names of those candidates who have been elected to the Council. |
| (31) | The referee must, as soon as possible thereafter, determine whether or not the election was conducted freely and fairly or not, and must issue in writing a signed declaration in that regard to the chairperson. |
| (32) | The chairperson must, after receipt of the report of the scrutineers referred to in subregulation (29) and the declaration from the referee referred to in subregulation (31)— |
| (a) | dispatch a notice to every attorney and every advocate admitted to practice and enrolled on the practising Roll, announcing the result of the election; |
| (b) | publish the result of the election on the Council's website; and |
| (c) | cause every candidate to be advised on the result of the election. |
[Regulation 2(32) substituted by section 2(q) of Amendment of Regulations, Notice No. R.3779 of GG49104, dated 11 August 2023 - effective on the date of publication in the Government Gazette]
| (33) | The report of the scrutineers referred to in subregulation (29) and the declaration from the referee referred to in subregulation (30) constitute conclusive proof of the result of the election. |
| (34) | The scrutineers must return the ballot box containing the examined ballot papers, which is locked in accordance with subregulations (19) and (20) to the chairperson, together with its key. |
| (35) | The chairperson or, if the chairperson has been nominated for election, the executive officer of the Council, must retain the ballot box in a secure place in that condition for a period of three months after the date referred to in subregulation (11)(d)(ii)(ff), after which date he or she must break the seal, unlock the box, empty it of its contents and destroy the contents and the valid declaration forms received by the Council, unless ordered otherwise by an order of court: Provided that should there be a dispute regarding the validity of the electronic declaration form or the electronic ballot, the electronic declaration forms and electronic ballots must be retained until the dispute has been resolved. |
[Regulation 2(35) substituted by section 2(r) of Amendment of Regulations, Notice No. R.3779 of GG49104, dated 11 August 2023 - effective on the date of publication in the Government Gazette]
| (36) | If an election is declared to be not free and fair by the referee in terms of subregulation (31), or by a court on application brought within one month of the announcement of the result, the process for the election of members of the Council must be conducted afresh. |
