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PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS: STANDING COMMITTEE
30 May 2006
JOUBERT'S MAGISTRATE’S COURTS AMENDMENT BILL
Acting Chairperson: Mr A Ainslie (ANC)
Documents handed out:
Letter from Department of Justice dated 06 March 2006
Joubert's Magistrates’ Court Amendment Bill
Mr Joubert's legislative proposal for Magistrates’ Courts Amendment Bill
The Department of Justice and Constitutional Development briefed the Committee on progress with the proposed amendment to the Magistrates Court Act. The Department hoped to introduce the amendment still this year. All relevant officials had been made aware of the contents of the Constitutional Court ruling in the Jaftha and van Rooyen cases which prevented the sale of a debtor's immovable property without a court first considering all the relevant circumstances. The National Credit Bill had corrected another problem area that debtors had faced. The Committee was satisfied that the issue was dealt with and that Mr Joubert's legislative proposal should be taken off the agenda when the Committee had a quorum.
Mr Joubert's Magistrates’ Courts Amendment Bill
Mr Ainslie reminded the Committee about the previous discussions on this legislative proposal. He noted that the Constitutional Court had ruled that in order to attach a person’s immovable property, such as a house, one would need to go to court to issue a warrant of execution. This was because a number of homes had been attached for sometimes very small amounts of debt. The Constitutional Court ruling ensured judicial oversight as one had to apply to the Court for such a warrant, and not merely to the Clerk of the Court. Mr Joubert had proposed that the Magistrates’ Courts Act should be amended accordingly.
Mr Ainslie continued that, at the Committee's request, on 15 November 2005, Adv Bruwer, Deputy Chief Legal Advisor: Department of Justice and Constitutional Development, had briefed them on the matter. He had indicated that the Department itself was considering appropriate amendments to the Magistrates’ Courts Act. At that meeting, concerns had also been voiced that the courts were not in fact applying the Constitutional Court ruling. The Committee had since received a letter from the Department to the effect that the lower courts and others had been informed of the ruling and the South African Board of Sheriffs had noted the communication from the Department.
At the 23 May 2006 meeting, the Committee decided that Adv Bruwer should once again brief them, firstly on any progress with regard to the proposed amendment to the Magistrates’ Courts Act; and also on the statement in the letter from the Department that the South African Board of Sheriffs had noted the circular received from the Department. The Committee was concerned as to what that meant, and whether "noting" actually meant applying the Constitutional Court’s decision. Thirdly, reference was made to the National Credit Bill, and the Committee wanted to know what connection that Bill had to the matter under discussion.
Adv D Rudman (Deputy Director-General, Department of Justice and Constitutional Development, responsible for legislation) said that Mr Ainslie’s summary was perfectly correct. The Department had indicated that the judgement of the Constitutional Court in the Jaftha and van Rooyen cases, had been brought to the attention of all magistrates and also the heads of the administrative regions, the cluster heads, and it was their responsibility to bring it to the attention of the people operating with them. It was also brought to the attention of the Branch Court Services and they submitted the information by way of a circular to all Clerks of the Courts, all Court Managers, administrative office managers and heads of offices; so the Department was quite satisfied that the people who applied these provisions were well aware of the judgement.
The Department had also been concerned with the ‘noting’ of the Board of Sheriffs and had communicated with them. The Board said they had administrative problems (the chairperson of the committee to which this was referred was ill, and they were moving offices) and so would come back to the Department. The Department would pressurise them to bring this judgement to the attention of all people for which they are responsible. The Department would communicate with the Committee as soon as they heard from the Board.
Advocate Rudman responded to the second issue which was about the Department's reference to the National Credit Bill. One of the areas the Department had identified as problematic for debtors was the fact that often the debtor signed a contract which provided for the jurisdiction of a court where, for example, the debtor did not live, or to go to a High Court which was more expensive than the magistrates' courts. This problem had been solved as a provision had successfully been incorporated into the National Credit Bill [which became an Act on 1 June 2006]. The provision in the National Credit Act now reads:
'Unlawful Provisions of Credit Agreement
The provision of a credit agreement is unlawful if it expresses on behalf of the consumer (debtor) a consent to the jurisdiction of the High Court, if the magistrate’s court has concurrent jurisdiction, or any court seated outside the area of jurisdiction of a court having concurrent jurisdiction and which the consumer resides or works or where the goods in question (if any) are ordinarily kept’
That provision would then make it unlawful to provide in a contract for jurisdiction of a court where, for example, the debtor does not live, or to go to a High Court which was more expensive than the magistrates' courts. Adv Rudman clarified that that was why they had referred to the National Credit Bill. It was another provision to protect debtors as this had been a problem area.
Adv Rudman responded to the final question of progress with the Bill. The Department had a draft Bill and was meeting with the Deputy Minister to discuss the contents of the Bill to get his approval. It was on the legislative programme for this year and it was hoped it would be introduced this year.
Mr H Bekker (IFP) noted that the Department had requested that magistrates and sheriffs should take notice of the Jaftha and van Rooyen cases. If a person lost a house for a debt of R500 or R2000 due to a sheriff or magistrate ignoring the request; would the house be recovered or would it just be regarded as a bad case?
Adv Rudman responded that all the remedies would be available to that particular person: either by review of the matter or by appeal against it. If the appeal was successful the property would have to be returned.
Adv Bruwer agreed.
Adv Rudman noted that there was a case in Uitenhage related to an RDP house where a law firm used the provisions. The Department of Housing investigated and found that there was, in law, nothing wrong, as everything had happened before the judgement. The whole question should be brought to the attention of the Law Society. He would speak to the Law Society to ensure that attorneys knew they were being watched, and therefore should comply with the provisions of the Constitutional Court judgement. However, he felt that as the judgement had been in the media so often, everyone should know about it by now
Mr Ainslie asked whether Advocate Rudman was quite satisfied that the courts were applying this and Adv Rudman replied absolutely. Mr Ainslie appreciated Adv Rudman’s commitment to contact the Law Society to ensure that legal firms were aware of the Constitutional Court ruling.
Mr Bekker suggested that in view of the Department's response, the Joubert legislative proposal be considered dealt with and be taken off the agenda.
Mr Ainslie supported Mr Bekker’s recommendation, but a decision could not be taken, as there was no quorum.
Ms S Rajbally (MF) asked under whose jurisdiction the sheriffs fell.
Adv Rudman responded that they were an independent structure that operated in terms of legislation. There was the Board of Sheriffs; the Department could give some input as it served on that board. He was sure there was no need for concern; they would get the information from them.
Ms Rajbally felt that in some cases sheriffs acted without permission from any department or court.
Mr Ainslie agreed that he had had that experience but one must report such cases to the Board of Sheriffs who had oversight over the sheriffs.
Ms M Maine (ANC) was very happy to know that something was being changed regarding the sheriffs as people lived in fear of them.
Mr Ainslie thanked Advocates Rudman and Bruwer.
The meeting adjourned.
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