Magistrates' Courts Amendment Bill [B33-98] and Public Protector Amendment Bill [B79-98]: discussion

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Justice and Correctional Services

01 September 1998
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Meeting report

JUSTICE PORTFOLIO COMMITTEE
2 September 1998
MAGISTRATES' COURTS AMENDMENT BILL [B33-98] AND PUBLIC PROTECTOR AMENDMENT BILL [B79-98]: DISCUSSION



This meeting was not minuted.

This report appeared in the Announcements, Tablings and Committee Reports, dated 8 September 1998.

Report of the Portfolio Committee on Justice on the Magistrates' Courts Amendment Bill [B 33-98] (National Assembly-sec 75), dated 2 September 1998, as follows:

The Portfolio Committee on Justice. having considered the subject of the Magistrates' Courts Amendment Bill [B 33-98] (National Assembly-sec 75), referred to it, reports the Bill with amendments [B 33A-98].

The Committee further wishes to report as follows:

1.         In the process of considering the Bill, the Committee was mindful of the advantages and disadvantages of the lay assessor system, and duly considered all submissions made in this regard. The Committee also paid specific attention to the judgement of the High Court in S v Gambushe [1997(1) SACR 638 N] and the guidelines contained therein.

2.         The Committee is of the view that the assessor system can be extended successfully to enhance community involvement in the administration of justice, by ensuring that-

(1)        cases where the appointment of assessors will be compul­sory will mostly, at this stage, be limited to matters which will be adjudicated upon by experienced magistrates;
(2)        extensive training of assessors will take place;
(3)        the possibility is created for the system to be implemented incrementally, in respect of both the geographical areas and the offences to which it will apply: and
(4)        certain checks and balances are created to deal with problem areas which may arise or have been brought to the Committee's attention.

This should also contribute towards establishing a pool of experienced assessors who will benefit from working together with senior magistrates. The offences contained in the new Schedule 2 to the Magistrates' Courts Act, 1944 (Act No.32 of 1944), are aimed at giving effect to this objective.

All magistrates will further have a discretion to summon assessors where their involvement will be expedient for the administration of justice in matters relating to bail and sentencing and all offences not contained in Schedule 2. Magistrates are encouraged, when this legislation is enacted, to make use of its provisions so as to enhance community involvement in the administration of justice.

3.         The Committee realises that the increased involvement of assessors in the administration of justice, as envisaged in the legislation, poses new challenges to the system, such as financial considerations, court management and procedural structures which must be put into place. The Committee has therefore ensured the possibility of an incremental approach being followed in the implementation of the legislation by providing that it can be implemented on different dates and in respect of different areas in the Republic. It will also be possible to limit the initial application of the Schedule, in terms of which the assistance of assessors is made compulsory in respect of certain offences.

4.         The Committee also holds the view that the regulations which will set out the criteria for, and the procedure relating to, the identification of suitable persons from the community to serve as assessors, will be of the utmost importance for the effective implementation of the assessor system. These regulations will be submitted to Parliament prior to the publication thereof in the Gazette, which will allow for further inputs, if necessary.

5.         As stated, the Bill aims to enhance community participation in the administration of justice, and in this context the Committee also raised the issue of victims' rights. The Committee wishes to urge the South African Law Commission to prioritise its investigation and report on victims' rights in South Africa and finalise this matter as soon as possible.

6.         During its deliberations on the Bill, the Committee was positively disposed to extending this envisaged lay assessor system to the High Courts. The Committee did not have sufficient time to deal with this matter, but requests the Department of Justice, at the beginning of 1999, to furnish Parliament with a report on the feasibility of such extension, including draft legislation, if appropriate.

7.         The Department is further requested to send this resolution, together with a copy of the Act, to all role-players within the Department's line function.

Report to be considered.

2.         Report of the Portfolio Committee on Justice on the Public Protector Amendment Bill [B 79-98] (National Assembly-sec 76), dated 4 September 1998, as follows:

The Portfolio Committee on Justice, having considered the subject of the Public Protector Amendment Bill [B 79-98] (National Assem­bly-sec 76), referred to it, reports the Bill with amendments [B79A-98].

The Committee further wishes to report as follows:

1.         The Committee has considered the following amendment, proposed by the Public Protector, to section 3 of the principal Act:

(16)(a)   Expenditure incidental to the exercise and performance of the powers and functions of the Public Protector shall be defrayed from money -
(i)         appropriated by Parliament for that purpose
(ii)         accruing to the office of the Public Protector from any other source.
(b)  (i)   The office of the Public Protector may accept donations and bequests, provided that any con­dition which may be attached to any such donation or bequest is acceptable to the Public Protector.
(ii)         Particulars of every donation or bequest so accepted shall be included in the next report to Parliament by the Public Protector.
(c)        The Public Protector may open an account with an institution registered as a bank in terms of the Banks Act, 1990 (Act No.94 of 1990).

2.         In view of the Department of Finance's objection to the above proposed amendment (because that Department is in the process of streamlining procedures in respect of donations and bequests to institutions), it was considered that the proposed amendment should not be incorporated in the Bill.

3.         The Committee was also of the view that, given the fact that in some instances some institutions spend money from donations and bequests on recurring expenses, for example on the employment of staff, it is reasonable at this stage not to accept the proposed amendment, pending the finalisation of the investiga­tion of the matter by the Department of Finance.

4.         Furthermore, the Committee was of the view that, should the need arise to make provision for donations and bequests in the principal Act, the matter will be considered.

Report to be considered.


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