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JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
29 August 2000
ADMINISTRATION OF ESTATES AMENDMENT BILL; DIRECTORATE OF SPECIAL OPERATIONS BILL: BRIEFING
Administration of Estates Amendment Bill [B24 - 2000]
Directorate of Special Operations Bill [B39 - 2000]
Structural Diagram of the Directorate of Special Operations
Chairperson: Advocate JH De Lange
On the Administration of Estates Amendment Bill, the Master of the High Court in Grahamstown said he was concerned that while there might be an infrastructure problem in the High Courts, the Bill requires the Minister to appoint a Master for every High Court, including the former TBVC States, instead of the Provincial Divisions of the High Court. He was particularly worried about Section 18(3) of the Administration of Estates Act that provides for the procedure to deal with estates below R50 000. He mentioned that the procedure provided is not satisfactory as it sometimes results in heirs not receiving their inheritances. Proposals were made some ten years ago to effect changes to the section but to date nothing has happened to remedy the situation.
The Chairperson said the issue of High Courts versus Provincial Divisions of the High Court would be decided by the Superior Courts Bill. He said the Administration of Estates Amendment Bill and the Superior Courts Bill should be dealt with together as the latter impacts on the decision to be taken on Masters' Offices in the former Bill. He emphasised that the lack of infrastructure cannot be used to postpone taking services to poor communities any longer.
On the Directorate of Special Operations Bill, the Committee was concerned:
- that it did not contain a clear command structure for the Directorate,
- how the investigative and prosecuting units link their activities if they are separated divisions within the Directorate
- about issues of financial accountability.
The Chairperson decided that the Heads of the Scorpions, the SAPS, the National Intelligence Agency and the National Prosecuting Authority should appear before the Committee to explain what should appear in the Bill and answer political questions that the drafters are not able to address.
Administration Of Estates Amendment Bill
Clause 2(1) of the Bill amends the 1965 Act by providing that the Minister shall appoint a Master for every division of the High Court as opposed to just the provincial divisions of the High Court (which includes the former TBVC States). The Master of the High Court in Grahamstown, Mr Moodley, who appeared before the committee, is concerned that no infrastructure exists in the High Courts for dealing with deceased estates. One of the major shortfalls of the Magistrates' Courts and High Courts is that they are not computerised. He mentioned that there are currently 500 personnel in the Master's office and statistics indicate that there are about 370 000 deaths each year and only 52 000 estates are reported. There are no numbers available of Black estates dealt with in terms of the Black Administration Act. When that Act is amended, these estates would also be dealt with in the office of the Master of the High Court. Currently intestate estates of Blacks are dealt with in terms of the Black Administration Act and only testate estates of Blacks are dealt with by the Master's office.
Mr Moodley said he is not happy with Section 18(3) of the Administration of Estates Act that deals with estates below R50 000. He said the way these estates are dealt with in terms of the section is unsatisfactory as sometimes the heirs end up not receiving their inheritances. He mentioned that 10 years ago recommendations were made to effect changes on Section 18(3) but to date it remains unchanged.
The Chairperson said the issue raised by Mr Moodley concerning the amendment of Section 2(1) of the Administration of Estates Act is dependant upon the decision to be taken about superior courts in the Superior Courts Bill. He mentioned that he would prefer that the Committee deals with the Superior Courts Bill and the Administration of Estates Amendment Bill concurrently since the structure proposed by the former impacts on the latter. He added that it would not be possible for the Administration of Estates Bill to be dealt with this year because of the decision still to be taken on the structure of the courts.
He said the Bill is important because it provides for a Master's office to be opened in every province. The drafters would thus have to be careful with the formulation of the provisions so that the problems of infrastructure are taken care of. He observed that the fact that there could be infrastructural problems should not delay taking services closer to poor communities since this means the services would take ages to get there. The Master's office has to make sure that the Act takes it to these people. For instance provision could be made for satellite offices to be open in places that are far from a High Court for say a period of about two weeks at a time.
The Chairperson expressed concern that proposals made some 10 years ago on changing Section 18(3) had not been effected, especially considering that heirs at times do not get what is due to them. The Chairperson said that when the Black Administration Act is amended, there should be no distinction in the way Black and White estates are administered. This also means that the procedure for estates under R50 000 would have to be looked at as most estates would fall under this category. The unsatisfactory Section 18(3) would only perpetuate the discrimination of the poor.
Mr J Jeffery (ANC) asked if the Administration of Estates Bill amends the Black Administration Act so that the estates of Blacks are dealt with the same as those of Whites.
Mr Moodley responded that the Black Administration Act has not been repealed and that the Master's office has jurisdiction over all estates but not intestate estates of Blacks which are dealt with in terms of the Black Administration Act.
The Chairperson commented that a political decision would have to be taken on those areas that do not have High Courts especially the Northern Province because if problems of infrastructural backlog are not addressed now, they will continue.
Mr Jeffery noted that Mr Moodley's submission states that the Bill does not address wide-ranging discretionary power of the Master, and asked if the Department has considered that in the Bill?
The Department pointed out that the written submission was by Advocate Swanepoel and it related to trustees dealing with insolvent estates not deceased estates. The issue raised in the submission related to corruption appointing trustees.
The Chairperson said the issue would have to be addressed because corruption is a serious matter and if there is a loophole in the Act dealing with insolvent estates allowing for such abuse it would have to be corrected. He said a longer-term programme for the Master's office would be to address the cumbersome procedures for administration of smaller estates (under R50 000 and just above that) to cater for people who cannot afford the services of an attorney. The more urgent issue is the modification of the office of the Master to bring its reporting and systems in line with the twenty first century. He said the Committee would be interested in getting hold of the documents on rationalisation in the Master's office. He mentioned that he is going to suggest to the Minister that the Superior Court Bill and the Administration of Estates Bill be dealt with together. He stated that he does not anticipate the Committee dealing with the Administration of Estates Bill this year.
Directorate Of Special Operations Bill
Mr De Lange of the Department of Justice said a committee of the Justice cluster departments had been set up to look at the Bill which was approved, though with a major concern being that the Bill should work in practice.
Mr Jeffery said the organogram of the Directorate handed out by the Department does not accurately portray the structure of the Directorate of Special Operations as provided by Clause 3 of the Bill. The organogram shows the office of the National Director outside the Directorate of Special Operations while Clause 3 provides for a structure whereby the National Director is in the Directorate of Special Operations.
The Committee was interested to know how the Directorate would be working with the South African Police Service (SAPS). Mr De Lange said the wording of Clause 7 details the relationship between the Directorate and the SAPS. The National Director as head of the National Prosecuting Authority has to get together with the National Commissioner of the SAPS and set out guidelines on what offences should be investigated by the Directorate. A Ministerial Coordinating Committee decides what procedures would make those guidelines work. The National Director and National Commissioner may get together without guidelines and decide in respect of any other specific matter they feel should be dealt with by the Directorate.
Mr De Lange mentioned that Chapter 5 of this Bill, providing for powers and duties of directors, is very similar to that of the National Prosecuting Authority Act and it provides a basis for investigations and preliminary enquiries. The aim of the chapter is to ensure that assigned Directors are able to function in the Directorate.
Mr Jeffery asked if Clause 3(3)(a) necessitates the establishment of a fully fledged intelligence agency.
Mr De Lange said the initial plan had been to see if the Directorate could cope merely with the assistance from the National Intelligence Agency (NIA) and the SAPS. Eventually it was decided to go for a two-pronged approach with the Directorate splitting into two: the Intelligence Directorate and the Investigations Directorate. The Constitution (Section 179) carries a model of a prosecuting authority but it is necessary that a division for crime intelligence be established within the Directorate to concentrate on crime.
The Chairperson asked if people employed separately by the Directorate are covered by the Public Service Act or this Bill.
The Department said they are covered by this Bill under Section 20, also Section 36 states that the Directorate shall have its own budget
The Chairperson asked the Department to talk on the constitutionality of the Bill.
Mr De Lange for the Department said the Constitution provides for a single national police force. The context in which this is understood is that the Constitution does not prevent the establishment of specialised policing functions. The Constitution envisages a police force, intelligence, a prosecuting authority, but the strongest worded provision relates to the latter. It says "There is a single prosecuting authority in the Republicâ€¦". Mr De Lange said he had conferred with State Law Advisors and they agreed that it is the President's prerogative to assign specific functions to a Minister even if already assigned to another Minister. On the question of potential conflict between the Directorate and the SAPS, there could only be a problem if one overrides the other and this is prevented by the requirement that the National Director and the National Commissioner of SAPS meet and agree on categories of crimes to be dealt with by the Directorate.
The Chairperson observed that what the Bill says is that they can agree on procedures but there must be a deadlock-breaking procedure in case there is no agreement. He mentioned that the issue of jurisdiction as relating to SAPS and the Directorate is vital because it might be raised in court. He said the Department should get the State Law Advisor to look at it. He mentioned that they need not worry about the constitutionality of Chapter 5 dealing with powers and duties of Directors as this has been solved by the Constitutional Court.
Mr Jeffery said Clause 12 deals with powers and duties of Directorate members. He said he finds it confusing that Chapter 5 has additional powers and duties, why are these repeated? Why not a single reference to existing law such as the National Prosecuting Authority Act?
Mr De Lange explained that not all Directors have powers in terms of Clause 12 of the Bill. It was important to ensure that assigned Directors can exercise the powers that are given to them in terms of Chapter 5. For instance, in terms of the National Prosecuting Authority Act prosecutors have to do what the Head says and if they are sent to the Directorate they have to go, they are not seconded but assigned. It becomes necessary to provide for their functioning in the Directorate.
Mr Jeffery said he notices that in the structure handed out by the Department the Chief Executive Officer and the members assigned to the Directorate are absent. He said it would be interesting to know where they fit in. Also, when the Directors start incurring expenses, who pays and to whom do they go for money?
Mr J Mgidi (ANC) observed that the Chief Investigating Officer has to consult the National Director when appointing prosecutors as seconded members to the Directorate but the National Director does not have to consult the Chief Investigating Officer when assigning prosecutors to the Directorate.
Mr Jeffery asked why, if the Directorate wants a Chief Accounting Officer, it is not called that in the Bill. He said it would be interesting to know if the Chief Executive Officer's role includes accounting to Parliament and this should be clearly spelt out in the Bill. Mr De Lange said he shared these sentiments regarding the CEO.
A committee member noted that security clearance has been the exclusive role of NIA. Clause 23 of the Bill gives the Directorate this competence. If it has been agreed at Cabinet leve,l there is no problem. However the legislation giving NIA this sole entitlement should be amended. He asked if the Inspector General of Intelligence plays any role when it comes to intelligence activities of the Directorate.
Mr De Lange said they would have to look at the issue of security clearances. The provision relating to security clearance in the Bill is only for the purpose of appointment of staff in the Directorate. He said he does not see a problem with confining it only to this. He said the Department would go over the security legislation to check if there is a need to amend it. He said the Inspector General of Intelligence has an important role to play and they would also look into that.
Mr Jeffery questioned why the accounting officer, the CEO, is assigned to a subordinate position in the ranks of the Directorate while decisions would be taken at a higher level. Why is the National Director not the accounting officer for the Directorate.
The Chairperson said he realises that some questions could not be answered by the drafters as they were not involved in the political decisions taken on the structure of the Directorate.
Members expressed concern that different clauses of the Bill refer to powers and duties of members of the Directorate instead of referring to sections of specific legislation in terms of which those members are assigned or seconded which would help with the problem of constitutionality. Also this would eliminate the risk that the different clauses may be forgotten when the Acts in terms of which the members were employed are amended.
Ms F Chohan-Kota (ANC) said the exact legal relationship between the units within the Scorpions is not clear. The way it is shown in the organogram handed out by the Department suggests they operate independently of each other while one would expect that they must work together.
The Chairperson agreed with Ms Chohan-Kota saying the idea was to have a single prosecution-led investigating unit and originally the Bill contained wording to ensure that the unit combines prosecutors, investigators and intelligence so that they do not go off in different directions. He said the people in charge of the Directorate, the NIA, the NPA and SAPS should come and say exactly what they want to appear in the Bill. They would be able to answer most of the political questions that the drafters are not able to explain. He said he finds it hard to accept that the Bill allows for more expense on the part of the State for a different Directorate to perpetuate the existing inefficient co-ordination.
Mr Jeffery said there also needs to be clarity on whether the Directorate is a component of one department or is on its own. The Chairperson added that he believes the units within the Scorpions should operate under a single command otherwise it would be duplicating problems of turf that existed in the different structures before the creation of the Directorate.
Mr Mgidi pointed to a lack of coherence in the Bill as in Clause 4, for instance, the CEO is involved in salaries for contract members but when it comes to permanent members he is no longer involved. Also, regarding missing persons the only person who has to be satisfied is the Director of Special Investigations, he asked if there should be no checks of some kind in this regard.
The Chairperson said the drafters should not confuse how a person gets into the Directorate and the powers they have once they are in the Directorate. The structure of the Directorate should be one, and only the powers of the different units should be separate.
The Chairperson repeated that the Committee would like the people in charge of the SAPS, the NIA, the NPA and the Scorpions to come and tell them about the structure of the Directorate and what they would want the Bill to contain. They would also be required to answer some of the questions on political decisions taken on the way they envisage the Directorate to function.
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