Joubert's Magistrate’s Court Amendment Bill

Meeting report

PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS STANDING COMMITTEE
23 May 2006
JOUBERT'S MAGISTRATE’S COURT AMENDMENT BILL

Chairperson: Ms M Mentor (ANC)

Documents handed out:
Introduction of a Bill – Mr L K Joubert, MP; 9 February 2005 (See Appendix)
Joubert's Magistrates’ Court Amendment Bill
Mr Joubert's legislative proposal for Magistrates’ Courts Amendment Bill
Minutes of Meetings held on 15 November 2005 and 14 March 2006
Draft Annual Report

SUMMARY
Joubert's Magistrate’s Court Amendment Bill
The issue of the Magistrate’s Court Amendment Bill was dealt with on 15 November 2005. The proposal was that in terms of that Bill, people’s houses should not be attached by the Sheriff for settlement of debt, and the committee had been inclined to agree with that proposal. In that meeting the Department of Justice presented and the committee had asked them to do a number of things.

Subsequently they informed the committee that they had circulated a letter or memorandum to all magistrates’ courts bringing their attention to the case of Jaftha v Schoeman; they had contacted the Board of Sheriffs but the Board of Sheriffs just noted the content of their letter but did not actually respond. The committee was expecting progress reports in terms of amending the Magistrate’s Court Act, but the Department of Justice referred to the National Credit Bill, which was not what they had been requested to do.
It was agreed that Advocate Rudman and Advocate Bruwer be invited back to explain to the committee the relationship between Mr Joubert’s amendment and their reference to the National Credit Bill.

Adoption of Programme
The staff had not prepared a programme so would have to be postponed to the next meeting.

Adoption of Minutes
Minutes of meeting held on 15^th November 2005 were not accurately recorded and therefore adoption was postponed to the next meeting.
Minutes of meeting held on 14 March 2006 were adopted subject to minor corrections.

MINUTES
Ms Mentor commented that there was an ongoing problem of members not pitching because they said they had not received notices. She had told the staff that from now on notices must be hand delivered and the secretaries of those Members of Parliament must attach their signatures and the date, because members were claiming they had not received and the staff was counter claiming. Two days before every meeting Ms Mentor would need to see where members had signed acknowledgement of receipt of those notices.
In addition, she had written a letter to the Speaker as well as to the Chief Whip complaining about the members of the ruling party who never attend. She had therefore asked that three members of the committee of the ruling party be replaced but in spite of having written numerous letters since November last year was till awaiting a response.

Ms Mentor informed the committee that she had received correspondence from the Speaker two months ago in which he was saying that things were standing before the committee for too long. Among other things, they were complaining about the Mrs Kellerman issue as well as the Election Fund Proposed Bill. At the time of their writing the committee had actually completed those two things so her response to the Speaker was that if there was a problem it was not with the committee but with the system of Parliament, because she had sent them the minutes. Apart from those two there was also another one that they were seeing for the first time which they claimed that they had sent for the attention of the committee and they disputed that, only to be told by the staff later on that it had been electronically sent, they had missed it. So there were the problems of members and the problem of the staff and she was talking to them very seriously about these issues.

Ms Mentor had drafted and submitted a programme, which was subsequently returned. They had asked how many petitions and how many bills would go through the committee. This committee was different because it waited for what was put before it. Only yesterday managed to reach consensus saying the committee must work on a rough figure using the trend over the last three years. Ms Mentor said that would be out of sync with what was happening now because this particular term the committee was flooded with petitions and with bills and if had to check with what happened three years ago there had been only one bill proposal. So it had been agreed to accept the programme as proposed, and also the issue of public participation, which was the issue of going to the provinces. Ms Mentor had put to him the visit to Gauteng, Mpumalanga and Limpopo but he wanted a programme for all the provincial visits. One was planned for September for the next three rounds of provinces and the other one for the first quarter of next year.

At that point Ms Mentor officially welcomed members.
There were only two items on the agenda, the issue of the Magistrate’s Court and the proposed tour to the provinces.

Magistrate’s Court Amendment Bill
Ms Mentor reminded the committee that the issue of the Magistrate’s Court Amendment Bill came from Adv Joubert and the matter was dealt with on 15^th November 2005. The proposal was that in terms of that bill people’s houses should not be attached by the Sheriff for settlement of debt, and the committee had been inclined to agree with that proposal. In that meeting the Department of Justice presented and the committee had asked them to do a number of things. They were to contact the Board of Sheriffs; they were also to check whether the magistrate’s courts had been told about that case of Jaftha v Schoeman and others; which was a precedent; and they were to inform the committee as to how far they with the process of amending the Act.

Subsequently correspondence had been received from them. Firstly they informed the committee that they had circulated a letter or memorandum to all magistrates’ courts bringing their attention to the case of Jaftha v Schoeman; secondly they had contacted the Board of Sheriffs but the Board of Sheriffs just noted the content of their letter but did not actually respond. The committee was expecting progress reports in terms of amending the Magistrate’s Court Act, but the Department of Justice referred to another matter, being the National Credit Bill, which was not what was requested them do.

Discussion
Mr A Ainslie (ANC) suggested that as Advocate Rudman or Advocate Bruwer, and sometimes both of them, had addressed the committee on these issues that involved the Department of Justice, and in the light of the chairperson’s report and the letter received from the Department of Justice, it would be useful to invite at least one of the advocates back to explain to the committee the relationship between Mr Joubert’s amendment and their reference to the National Credit Bill. He also noted the chairperson’s concern that yes the Board of Sheriffs had been advised of the Constitutional Court ruling but had only noted the letter. Was the Board of Sheriffs not only aware of this Constitutional Court ruling, but were they applying it. More importantly, in a letter dated 6 September Advocate Bruwer did make reference to draft proposals, so it would be useful to get them back and give a progress report.

Mr H Bekker (IFP) agreed with Mr Ainslie.
Ms I Mars (IFP) felt it was a very reasonable proposal and the way forward.

Ms Mentor proposed that she write to the Department and put these issues to them and instead of asking them to reply in a letter form, to ask them to come back to the committee although she would put matters of concern in the letter so that they could prepare themselves on those issues.

Mr S Mshudulu (ANC) agreed to the proposal as the last meeting held with them had been very fruitful. It was important to have dedicated time to focus on terms of legal practice. As a member of Provincial and Local Government, he used the example of the Mkize case, whereby municipalities went on with these attachments, so how did the different courts or institutions talk to one another because the municipalities just took their book and their lawyer and continued with the practice. He agreed there should be dedicated timing just to focus with that issue. He was not sure whether politically for the follow up should get the Department or also the Department of Justice.

Ms Mentor stated that she had written to the Chairperson of Justice with no response but she would do that again.

Ms Mentor also proposed that this issue must be put on top of the programme, the next meeting was supposed to deal with a different matter, but must be dedicated to this matter so that it could come to conclusion. So the programme must be changed to accommodate this one.

Ms Mentor enquired how many days notice would be required for the Department – should be next week.

Mr Mshudulu felt no, there was a lot of pressure coming into June.

Mr Bekker suggested it would be advisable to contact them directly, immediately after her letter, to contact Advocates Rudman and Bruwer and try to liase with them a specific time to fit into their schedule within the next two weeks or so.

Ms Mentor would contact them and bombard them with e-mail, fax, telephone calls, and would ask the staff to send a communiqué as to whether they would be available next week and would try to pressure them to come back in a week’s time.

Mr Ainslie suggested it might also be useful to have Mr Joubert.

Mr Mshudulu suggested it would be helpful if the minutes of those meetings could be distributed so that the members could go through the decisions taken to make it easier to follow during the meeting.

Ms Mentor agreed and would be meeting with the staff.

Proposed Programme
Ms Mentor informed the committee that the staff had not prepared a programme. Staffing was an ongoing problem and she had discussed the matter with the Secretary of Parliament and she would take it up once again. How could the committee adopt a programme that was not before it? It would had to be postponed to the following week.

Adoption of Minutes
Minutes of meeting held on 15^th November 2005.
Ms Mentor referred to the last page of the minutes. The committee was supposed to reconvene in December, but she didn’t think it was for that issue but on the issue of the Electoral Fund Act that it was agreed with the content of the letter from Treasury and the letter of the IEC and said that it was necessary to conclude that matter in good time before the elections.

Mr Ainslie agreed that that matter had been concluded and that it was agreed not to go ahead.

Ms Mentor declared the minutes were not an accurate record, there had been a tendency for the staff to mix the issues of the Admission of Advocates and the Magistrates Court Act. She asked whether the staff could call on members when they were confused with legal issues.
The minutes of 15^th November were therefore not adopted and adoption was postponed to the next meeting.

Mr Bekker suggested that the staff use headings to separate items, which could be the reason for the mix up.

Minutes of Meeting held on 14^th March 2006
Ms Mentor asked that the name of the new member Ms Otto (ANC) be recorded.
The minutes were adopted subject to minor corrections.

Ms Mentor informed the committee that since that meeting she had been pestered by the media. She was not a racist but she had received calls from two male Africans who claimed to be working for newspapers who were saying that they understood that the committee had assented to the plea of Mrs Kellerman while there were hundreds and hundreds of South Africans in the same situation, but they felt Mrs Kellerman was favoured being of the DA. She explained to them that when a petition was brought before the committee it didn’t matter what political party that person belonged to but because the petitioner was a South African. There was a vetting process that happened in the Speaker’s Office regarding which names came to the committee, so the committee couldn’t accept those names and situations. Ms Mentor also wrote to the Speaker that Mrs Kellerman continued to pester as to how far the process was. It seemed there was a need for a public interaction process as to what the process was to follow before a petition came to the committee and once the committee had applied its mind it was back to the Speaker and out of the hands of the committee. Once the committee said yes or no to a petition the Speaker would then write to Treasury, Public Service and Administration, Justice – all which would be the role of the Speaker’s Office. So the committee was going to provinces with legislature to explain to the country that they had the right to petition but that the process was very involved.

Mr Bekker suggested that Ms Mentor have a word with Mr Gibson, who would be able to explain quite appropriately to Mrs Kellerman.

Mrs Mars also thought it was very important to brief the legislators in provinces because many people addressed themselves to the legislator so they would be able to interact and explain whether it fell into that process.

Ms Mentor had written to the Gauteng Legislature.

The Committee Secretary explained the programme being 8^th/9^th June in Gauteng then travel to Mpumalanga for 12^th/13^th and 14^th/15^th in Limpopo.

Ms Mentor explained that earlier on we had proposed a week long visit but acknowledged that it might be problematic for the whole committee to be away for a whole week, so would be dividing accordingly so won’t be spending a whole week away. This programme to visit Limpopo, Gauteng, and Mpumalanga had been approved by Parliament. The committee would be going with the legislators who would facilitate. She had described the nature of the communities where they wanedt to hold the road show, one in a very poor and the other in an urban setting. It was originally proposed for May, but subsequently been communicated Gauteng for 8/9 June. Ms Mentor proposed in the Justice Department meeting tomorrow members give some idea how to divide the committee for these three provinces. Mr Mshudulu lived in Gauteng, to communicate with the staff which province he preferred to go to.

Mr Mshudulu agreed it was important that all members be furnished with a clear programme about such arrangements, because there were arrangements for other committees, which could overlap. Also being winter with the weather changing every day, timing was important.
On the question just raised about Mrs Kellerman, he felt it was Mr Gibson’s responsibility as it was a DA issue.
He suggested maybe a one-page communiqué that would simplify procedures through these provincial issues. Could explain to a person it was a process issue. The issue of payment was governed by the rules of the fund. It was not a question of the committee dictating to do this but according to the conditions and regulatory measures. The questions people would be asking would be very interesting. The media would be there and he suggested maybe should have a press conference prior to the day of the programme. Should be well prepared in terms of the floodgates.

Ms Mentor took Mr Mshudulu’s point on informing the members of the committee in good time about an outline programme but also requested members of the committee once furnished with a full programme of those visits to indicate where they would like to go. A member should at least visit two provinces so there should not be a situation where everyone wanted to go to Gauteng only.
Ms Mentor also took the point of media briefing prior to and during the visit.

The Legislator had also responded they were going to Gauteng on 8^th and 9^th, and would also spend another few days in Mpumalanga and Limpopo. Ms Mentor suggested they be given definite proposed dates so the committee would not impose on them.

Ms Mentor had spoken to the Premier of Mpumalanga informally and he was very excited, the news had not yet reached him because correspondence had been to the Speaker.

Mr Mshudulu felt there should be communication by way of a letter outlining where the committee would be going, and what they would be doing or saying, so that there would be no misunderstanding in terms of expectations.

Mr Bekker endorsed that, particularly from the aspect that over the many years where he had been involved, that the few cases that had been approved, in all those cases it had been either that it could be proven that the Civil Service, where most of these originated, had been at fault and that there was a gross unfairness that had been handed out to that particular member which came with a petition, and only agreed upon was where it was indeed approved by that petitioner that under normal circumstances the civil service would had acted differently, but there was actually a mal or misconduct on the side of the employer. That would also rather contain opening the floodgates that everyone suddenly now hears if I come with a petition I can get extra money.

Ms Tshwete apologised in advance that on 6^th June Health would be debating and 10^th June would be going to Australia with Water Affairs.

Ms Mentor concluded that the committee would meet next week; tomorrow would send members the response from the Justice Department and also an outline programme for the provincial visits for members to please indicate which provinces they wished to go to.
Referring to next week’s meeting, she had asked the staff that when petitions came they must not be tabled before other matters were concluded. The issue of compensation would be tabled when all the other issues were concluded. The issue of the Magistrates Act with the Department of Justice must be concluded before entering into the injury on duty compensation. She asked the staff to please circulate so members could read before the meeting.

Ms Mentor informed the committee that she would also be working on the issue of the quorum before the next meeting.

The meeting adjourned.

Appendix: Introduction of a Bill – Mr L K Joubert, MP; 9 February 2005

9 February 2005

The Speaker of the National Assembly
Parliament
CAPE TOWN

Dear Madame Speaker

INTRODUCTION OF A BILL

I wish to submit an Amendment Bill in the National Assembly in my individual capacity and accordingly hereby submit to you -

1. A memorandum in terms of National Assembly Rule 234(1)(a)
2. A memorandum in terms of Rule 234(1)(2) the objects of the Magistrates’ Court Amendment Bill, 2005 including a statement that the Bill has no financial implications for the state (Rule 234(1)(c)).
3. A copy of the proposal Amendment Bill.

I should therefore be pleased if Madame Speaker would kindly in terms of Rule 234(2) table my memorandum in the Assembly and thereafter in terms of Rule 234(1) refer my memorandum to the Committee on Private Members’ Legislative Proposals and Special Petitions.

Yours faithfully

L K JOUBERT MP