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PRIVATE MEMBERS LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS STANDING COMMITTEE
18 May 2005
JOUBERT'S MAGISTRATES’ COURTS AMENDMENT BILL: DISCUSSION
Chairperson Ms P Mentor (ANC)
Documents handed out
Mr Joubert's legislative proposal for Magistrates’ Courts Amendment Bill
The Magistrates’ Court Amendment Bill
The Committee heard Mr Joubert’s legislative proposal that aimed to curb the selling of poor people's homes to pay the debts they owed to ‘loan sharks’. The legislation would provide judicial oversight on the execution of Reconstruction and Development Project (RDP) houses by the loan sharks.
The Committee decided to liase with the Justice Portfolio Committee regarding the legislative proposal. Members concerns included the fact that this issue had been delayed unnecessarily for a long time. This legislative proposal tackled an important problem that was widespread. Others were concerned with the slow pace of all Private Members’ legislative processes and inconsistent meeting attendance by MPs. Members were pleased that their budget allocation and committee meeting time slots had been increased.
Mr L Joubert briefed the Committee on the Legislative Proposals in terms of National Assembly Rule 234. The history behind this proposed Bill was that, as a practising attorney, he had been alerted to this problem and had written four years ago to the then Minister of Justice. In his practice, he had often found that the loan sharks would lend people money especially if they had Reconstruction and Development (RDP) houses. Often the houses were sold in execution to cover loans that were as little as R500 to R1 000. The Magistrate Court Act made provision for necessities to be exempted from execution, for example chairs, tables and beds. Mr Joubert's initial idea was to try and amend that section of the Act, so that a house purchased by government funds up to a certain amount, for instance R16 000, should be exempted.
The case referred to in the Memorandum was Jaftha vs Schoeman and Others, CCT74/03. His aim was to control the process, so that it provides judicial oversight. As it was then, if one got a judgement against a person, that judgement went to the Clerk of the Court and if approved, the Sheriff sold the house. If there was judicial oversight, it had to go to the Magistrate’s Court by application. The Magistrate would examine the matter to see if it was reasonable.
The Chairperson was concerned that that the matter had been delayed for some time, and felt it needed to be fast tracked.
Mr A Ainslie (ANC) said that the matter was a very worthy suggestion. It was worrying to see low income houses being sold to settle small debts. It had happened in his constituency and he hoped someone would look at exempting houses below a certain capital level. Even with this amendment, poor people’s homes would continue to be sold, but this mechanism would help. He supported the judicial oversight on the matter.
Mr H Bekker (IFP) agreed, adding that judicial oversight was long overdue and the primary concern was for lower income groups. Vulnerable people often found themselves homeless because they were not able to pay the small amounts they owed. The Committee should take the relevant action so that judicial oversight would be in the legislation.
The Chairperson commented that the Memorandum presented an honourable proposal. The issue should be finalised by the end of the term.
Mr Joubert said that housing was a constitutional right. The Magistrate should consider whether the person had another house and if not, then the house could not be sold in execution.
The Chairperson said that she was going to have an informal meeting with the Minister of Justice and highlight the importance of fast-tracking the matter. She would liase with the Justice Portfolio Committee.
Mr M Likotsi (PAC) enquired if this proposal would go through the normal legislation process.
The Chairperson said that the Office of the Speaker would make sure that the proposal would go the normal route of legislation.
Mr Ainslie said that Members had to make sure that there was no duplication because the Committee did not know whether the Justice Portfolio Committee had been dealing with the matter.
Mr H Bekker agreed that the memorandum did not say that one couldn't sell a house. It was meant to bring in Judicial Oversight so unreasonable things did not happen. The World Bank study had shown that, for the first time, poor people could have property rights and move up the economic ladder. They could then use the property to ‘work for them’. The oversight role simply wanted to ensure that property worth R20 000 would not be executed for a loan of R8 000.
Mr S Mshudulu (ANC) suggested that the matter also be referred to the Portfolio Committee on Provincial and Local Government because it was directly affected by the issue.
The Chairperson said that the memorandum was not complicated but it exposed many inherent problems in the system. She reminded Members that the Committee used to meet on Wednesdays during lunchtime. The Presiding Officers felt that the time allocated to the Committee was inadequate, so more time would be allocated for Committee meetings. The proposal appeared to be a simple matter, but with more time allocated it would be dealt judiciously.
Mr Likotsi asked whether Members had the same understanding regarding the execution of property. The Chairperson replied that the proposal was aimed at curbing the unfair victimisation of the poor people.
Mr Mshudulu said that the problem that was being addressed by the proposal was not only faced by a certain sector, it affected everyone across the political spectrum. Local government would usually take a list of people who were in arrears, and hand them over to Lawyers to attach their properties.
Mr Ainslie said that the strength of the proposal was that the matter had already been before the Constitutional Court. The Constitutional court said there was a problem, and the way to overcome it was to submit proposals like the one at hand. That was why it was referred to the Committee.
Mr Likotsi suggested that the Committee hold a planning session so that they could plan ahead and not simply respond to petitions and proposals brought to the attention of the Committee. He added that the Committee needed capacity building to enable it to function properly.
Mr Mshudulu said that Members had raised the issue when he chaired the Committee. He was not happy with the consistency of Members attending meetings. Capacity-building for the Committee was part of the programme, which was agreed upon. He lauded that the Committee was given a regular slot by the Office of the Speaker and the consistency of Opposition Parties in attending Committee meetings. The ANC on the other hand, had deployed Members who had many responsibilities, such as the chairpersonship of other Committees. This led to an ongoing problem in attending meetings.
Mr Ainslie said that many of these problems had been raised before. The entire budget process was about raising the profile of the Committee, planning and capacity-building. It was not true that the Committee only ‘dealt with paperwork and not people’, as demonstrated by the petition of Mr Joubert.
The Chairperson said that the Committee's budget was the only one in which money was allocated as requested. The Office of the Speaker felt that the Committee should raise its public awareness because the petitioners had been the ‘elite’. The poor were not aware that they could initiate legislation to remedy their problems. The Committee had, for the first time, been allocated more than R2 million, which would give them ‘room’ to implement plans.
The meeting was adjourned
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