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JUSTICE PORTFOLIO COMMITTEE
20 April 1998
SHERIFFS' AMENDMENT BILL [B2-98]; ATTORNEYS' AMENDMENT BILL [B7-98]; WITNESS PROTECTION & SERVICES BILL [B9-98]; DEBT COLLECTORS [B102-97]: HEARING OF EVIDENCE
Documents handed out
Board for Sheriffs
South African Institute of Sheriffs
Bophuthatswana Law Society
Attorneys Fidelity Fund
Human Rights Committee
Association of Debt Recovery Agents
Association of Law Societies
Sheriffs Amendment Bill [B2-98]
Mr A. P. Stemmet, of the Board for Sheriffs, commenced the meeting by highlighting the issues raised in the Board’s written submission on the Sheriffs Amendment Bill. The issue of appointment of members to the board, which had to be made by the Minister of Justice, was specifically mentioned.
Mr Green (ACDP) asked whether Mr Stemmet was of the opinion that Clause 4(a)(a) allowed for better representation of the broader population and for a balance of members on the Board of Sheriffs in terms of race and gender. Mr Stemmet responded by saying that the Minister would have more scope to ensure better representation if the Bill was passed, since Clause 4 made provision for a minimum of three and a maximum of six non-sheriffs.
The reply to a follow-up question by Mr Green was what the current composition of the Board was that out of the twelve-member Board, six were white and the remaining members were comprised of the other racial groups.
Ms Camerer (NP) asked Mr Stemmet what the Board of Sheriffs’ position was regarding clauses 9 and 10, which dealt with the Fidelity Fund Insurance for Sheriffs. Mr Stemmet replied that there was no objection to such a provision.
Advocate Michael Hellens, on behalf of The South African Institute of Sheriffs, outlined some of the main ideas of the organisation’s submission. He alerted the committee to the dangers which would arise if attorneys performed the functions of sheriffs. He listed examples of problems envisaged by The South African Institute of Sheriffs. Among those he listed was the importance of timeous serving of court documents to recipients. He said that late service could result in the prescription of a writ of execution, which could prejudice creditor(s). Mr Hellens emphasised that a sheriff, and not an attorney, would be better suited to carry out the necessary functions professionally and independently.
The Chairperson, Mr de Lange, asked Mr Hellens whether his organisation objected to the provisions of s9, which dealt with method of appointment of sheriffs by the Minister. Mr Hellens referred him to the various representations in their submission which illustrated the difficulties and the consequences of the proposed amendments. The Chairperson then asked whether the Institute proposed that every appointment had to be made in consultation with them. Mr Hellens answered in the negative, stating that the issue of appointments was linked to another issue; that of economic viability of a particular office. It was the desire of the Institute of Sheriffs to include the words “in consultation” in s3 (2).
The Chairperson wanted to know what the current race composition of the sheriffs was. The answer revealed that 391 of the 476 sheriffs were white, of which only 12 were females.
The Chairperson continued by asking whether it was the intent of the Institute’s submission that they were given veto power, which would result in no transformation within the profession. Mr Hellens informed the committee that the submission was brought in the spirit of problem-solving and the Institute, which would be involved in the training of sheriffs, had a valuable contribution to make.
Mr Green asked how the plight of the disadvantaged was going to be addressed if the proposed “consultation” effectively gave a vested interest to the 391 white sheriffs. Mr Hellens stated that the appointment process conducted by the Minister would achieve a balance in representation.
Attorneys Amendment Bill [B7-98]
In their oral submission to the Bill, the Bophuthatswana Law Society (BLS), represented by Mr Matlou, opposed the intended incorporation of that Society into the Transvaal Law Society. Mr Matlou contended that the BLS was regulated by its own statutes and, as such, should be protected by Schedule 6(2) of the Constitution of South Africa; that laws which existed prior to the Constitution remained enforced. The primary motivation for the continued autonomy of the Society was that the body of mainly black lawyers would have to surrender administrative control to the mainly white lawyers in the Transvaal Law Society.
The Chairperson asked whether the BLS intended joining the uniform body, which was in the process of serving as a National Law Society. Mr Matlou answered in the affirmative, but the Society preferred to do so directly and not via the Transvaal Law Society.
In addition, it was suggested that funds be made available directly to the BLS in order to rebuild the Attorneys Fidelity Fund, which had been depleted. Mr Gibson (DP) asked whether the BLS wanted someone else to fund their Fidelity Fund. Mr Matlou responded by saying that BLS attorneys were part of the South African attorneys. The request that funds be made available to the BLS was in the interest of the protection of the public.
Mr Gibson suggested that the matter between the BLS and the Transvaal Law Society be resolved at the level of law societies, as the BLS did not challenge the Bill itself.
Mr Landman presented the Attorneys Fidelity Fund submission which expressed concern that the public would be prejudiced by the limitation of the Fund's liability for investments.
Witness Protection and Services Bill [B9-98]
The Human Rights Committee (HRC) submitted its comments on the Witness Protection and Services Bill to the committee. HRC argued that the proposed ad hoc witness protection panels (as authorised under clause 5 of the bill) were problematic for the following reasons: they change from time to time, differ by region and are composed of part-time workers, thus resulting in inconsistency that would prejudice witnesses. HRC also submitted that the bill lacks criteria regarding qualifications and job descriptions of the panel members. Concern was raised about section 6(3) which allows only the director to grant an applicant temporary protection. Finally, the issue of secondment in clause 2(7) was discussed and deemed problematic. HRC suggested that a clause should be inserted which reaffirms the complete independence of the witness protection unit.
HRC then responded to questions of the committee members. S Camerer (NP) asked whether the HRC has done any research on costing; to which HRC responded in the negative. D Gibson (DP) also raised concerns about relocation costs. The HRC agreed with these concerns and suggested that a structure would have to be set up to assess such issues.
D Jana (ANC) asked for clarification on the independence of the witness protection unit. The HRC responded that it was important that the unit not only be independent but be perceived to be independent and impartial.
D Gibson (DP) said that in the final analysis a witness may not be protected especially after having been in a programme. The Chairperson, W Hofmeyr (ANC), agreed that this was an important concern that would have to be looked at by government. The chairperson raised the question of transaction costs as relating to name and address changes
Debt Collectors Bill [B102-97]
The Association of Debt Recovery Agents (ADRA) submitted its comments on the Debt Collectors Bill to the committee. The ADRA opposed section 3(2)(b)(ii) which provides for an attorney to be appointed to the Council, since attorney are excluded from the effects of the bill. It was also recommended that the number of debt collectors be increased from the proposed 2 to 4. Finally, it was submitted that the words “necessary expenses and costs” in section 19(1)(b), be replaced with the words “tariff amounts as per the tariff schedule”. ADRA’s rationale for the change is the protection of the debtor against the levying of additional costs.
ADRA then responded to questions posed by the committee members. Mr. Gibson (DP) asked why attorneys should be excluded. ADRA discussed the need for equity in the Council.
D.P. Jana (ANC) asked whether ADRA needs some provision dealing with insurance. ADRA responded that insurance companies had been reluctant to grant coverage on the grounds that the industry is not regulated. Mr. Hofmeyr (ANC) asked for a discussion on Council appointments. ADRA discussed the issue of appointments and qualifications and of unregistered debt collectors.
Mr. Gibson asked how large companies handled collection of debts. ADRA responded that large businesses, especially credit grantors, do their own collecting and are reluctant to assign outside collectors.