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JUSTICE PORTFOLIO COMMITTEE
3 August 1998
MAINTENANCE BILL; SHERIFFS AMENDMENT BILL, WITNESS PROTECTION AND SERVICES BILL: DISCUSSION
Mr de Lange (Chair - ANC) started the meeting by commenting that the Organised Crime Bill had been distributed to members and that this seemed to be in an advanced stage. He said that the Committee would try to arrange for briefings this week. The Chair also expressed disquiet at the limited number of submissions that have been received to date in respect of the Domestic Violence, Maintenance, Public Protectors, Assessors and other Bills. He excused the committee clerk, Mr Kali, from the meeting and asked him to call all relevant stakeholders to ensure that submissions are made.
Maintenance Bill [B72-98]
Mr Bassett (Law Advisor), who drafted the Bill, gave the briefing. He started by saying that the South African Law Commission (SALC) was currently investigating a complete overhaul of the Judicial Maintenance System. The SALC report is expected later in 1998. It is suggested that practical short term measures be taken in the interim, where these are urgently needed, can be easily implemented and are not controversial. This is the same process which has been followed successfully by the United Kingdom and Australia.
Mr Basset went on to highlight the main areas of change involved:
where a maintenance respondent fails to appear a default order can now be made
garnishee orders will be made as a matter of course
the respondent should show cause why a garnishee order should not be made; where this is done, the court must specify how payment is to be made, taking the wishes of the applicant into account
the court must enforce arrears payments
dedicated Maintenance Investigators with the same powers as Sheriffs are created by statute
Mr Bassett said that a concern which had been raised was the question of why the legislature was re-enacting the legislation and not merely making an amendment. The reason, he said, was because the legislature wanted to send a signal that the country is entering a new stage in respect of maintenance which will be sensitive and fair, focusing on recovery and enforcement. The current legislation is also very clumsy. The new Bill has a new format and includes a section on interpretation, an index and so on. It is also gender neutral.
He then went on to briefly discuss the clauses affected.
Deals with the appointment of Maintenance Investigators who will assist and work under the supervision of Maintenance Officers.
Gives the Maintenance Investigator authority to take statements under oath, investigate the earnings of a defaulter etc., under the supervision of a Maintenance Officer.
Is a re-enactment of the current s7(a) and gives the MO the power to summon persons with relevant information to appear before a magistrate. This is similar to s205 of the Criminal Procedure Act.
Contains the core common law principles in respect of parents' duty to support their children.
Obliges the MO to make a garnishee order except where not practical, appropriate or where there is no employer. It also makes it illegal for an employer not to comply.
Allows for default orders to be served on respondents who do not appear at a hearing to which they have been duly summoned. The respondent has 20 days in which to apply to court for the order to be set aside.
Mr Basset said that the Law Advisors had suggested that the matter of arrear maintenance be put on hold until its relationship to s65 of the Magistrates Act, dealing with unpaid debt, could be properly considered.
The Chair then opened the floor for questions.
Ms Camerer (NP) asked how the restatement of the provision empowering MO’s to extend the scope of their investigations would increase and ensure the use of this power. Mr Bassett responded by saying that other than putting the provision closer to the front of the Act, it was hoped that by establishing Maintenance Investigators, investigations would be more thorough, necessitating a wider scope.
Mr Green (ANC) pointed out that s6 seems to be based on the assumption that a parent would initiate the application on the child’s behalf. What of instances where both parents are neglecting to maintain their child? Mr Bassett referred Mr Green to the Child Care Act which makes it an offence for parents to neglect their children. Prof. van Heerden is currently involved with a related project and it was suggested that Mr Green speak with her.
Mr Nel (ANC) asked whether the Bill had been put on the Parliamentary Website yet, as he wished to elicit submissions from various people. Mr Bassett responded that it had been distributed to various role-players and that he would arrange for it to be put on the SALC website.
Ms Camerer (NP) expressed concern about the training of Maintenance Investigators. She pointed out that at present there is one working in Johannesburg and another working part-time in Port Elizabeth. Where, she asked, would funding be coming from?
Mr de Lange (Chair - ANC) suggested that this was a question which could be addressed at the discussion stage.
Mr Hofmeyer said that he was happy with the changes made and the user-friendly style. He felt however that the question of how garnishee orders would be ordered and whether it was up to the respondent or not to show why it should not be ordered, needed to be tightened up.
Mr O’ Malley (IFP) noted that the provisions relating to the respondents duty to support a first family, in preference to a second, had been left out. Mr Bassett said that this was however still a common law principle, aimed at preventing people from saying that they could not afford to support their first family as they now had a second family to support.
Mr de Lange (Chair - ANC) found this position unacceptable and suggested that the legislature would have to change it. On the whole, he said, he was happy with the layout of the Bill and the addition of a principled preamble. He requested that urgent submissions be sought so that public hearings can commence in the week 17 August.
Sheriffs Amendment Act [B2-98]
Mr de Lange (Law Advisor) took the committee through the changes.
This change was formally proposed by the Sheriff’s Board to amend s32 of the Act. It deals with the provision of Fidelity Fund certificates to acting sheriffs. These are currently renewed every 6 months, where in practise it is taking up to 2 years for acting sheriffs to become full sheriffs. The board therefore requested that the renewal period be increased to 1 year.
Deals with admission of guilt fines where sheriffs are guilty of misconduct. Mr de Lange said that he planned to completely redraft the existing s45 as follows:
s45(1) a sheriff may be charged by notice in writing of improper conduct. It was noted that currently any person may submit a complaint to the board, but if they did not wish to act it was unclear whether the board could do so. This will change with the new provision.
45(2)(b)&(c) the board may prescribe a fine in respect of admission of guilt.
45(2)(d) a register is to be kept of fines paid, which will be submitted to Parliament with the annual report
Mr de Lange (Law Advisor) pointed out that there are various degrees of misconduct, the most prevalent being the submission of false returns be the sheriffs. This, he said, is a criminal offence and should not be open to an admission of guilt fine.
Mr Landers (ANC) queried the position of repeat offenders. Mr de Lange (Chair - ANC) suggested that committee members would be able to pick this up from the report; furthermore it is possible for the Minister to make a “three strikes and you’re out” type of provision in the regulations.
Mr O’ Malley asked what the rationale was for allowing the Minister in s45(3) to withdraw charges against a person. Mr de Lange (Law Advisor) answered that it was so that the Board, once it had laid a charge, could not withdraw it. The final say lies with the Minister.
This is consequential to s46 and charges the Board with the duty to investigate a case where an admission of guilt fine has not been paid.
Makes it an offence to impersonate a sheriff or “any other specialised functionaries”.
Is a savings clause. It is unusual in that it attempts to facilitate the smooth dissolution of the existing board. The Minister is therefore given discretion to remove any member. At present anyone appointed to the Board serves for 3 years, the current term expiring early next year. The savings clause provides that on commencement of the Act the new Board will take over.
Mr de Lange (Chair - ANC) pointed out the need to ensure that this transition is made smoothly. Furthermore, he said, that it should be ensured that where a member was removed, they had to be replaced.
Mr de Lange (Law Advisor) went on to say that in terms of clause 6 the Board can appoint independent persons to conduct inquiries. It was felt that this was better than allowing the Board to charge, investigate, hear and sentence a person. There might, he said, be an administrative objection to this, along the lines of the ECC case in the 1980’s where the court found that the Defence Force could not be prosecutor and judge.
Mr de Lange (Chair - ANC) said that while this was to some extent valid, he did not wish to have firms of attorneys getting rich out of hearing disciplinary matters for the Board. It was pointed out however that this was not state money.
Mr Solomons (ANC) asked whether the use of “strong-arm tactics” had been made an offence. Mr de Lange (Law Advisor) said that they were looking for a suitable way to include it.
Mr de Lange (Chair - ANC) raised the question of whether deputies and assistants were required. He suggested that the structure as described in s3(4)(a) was adequate in that it provided for staff and not titles.
Regarding the Human Rights Committee’s concern that people be qualified and not lay persons, Mr Labuschagne said that he had copied s3(4)(b) from the OSEA Act. This puts a duty on state departments, persons, bodies and institutions to submit a list of persons suitably qualified and available when requested to do so.
Mr de Lange (Chair - ANC) pointed out that a mechanism was also needed for the director to reject anyone he did not find suitable, to prevent the Programme from ending up with the lame ducks of every department.
The meeting adjourned for lunch.
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