The Committee firstly considered the final mandates for the Independent Police Investigative Directorate Bill [B15B-2010] and the Civilian Secretariat for Police Service Bill [B16B-2010]. Seven provinces supported the Bill.
The Department of International Relations and Cooperation briefed the Committee on the Amendments to the Convention on Prohibitions or Restrictions on the use of Certain Conventional Weapons. The purpose of the original Convention was highlighted as limiting the use of weapons that were excessively injurious or had indiscriminate effects on people, and it was noted that this was particularly relevant in
The Department of Justice and Constitutional Development briefed the Committee on the Magistrates’ Courts Amendment Bill [B23B-2010], which sought to abolish the requirement that
The Magistrates Commission presented progress reports to the Committee on some suspension matters, and also outlined the provisional suspensions that the Committee was requested to confirm. The details of each case were set out. Members questioned whether it was correct that those suspended should still receive their salaries and asked what was done to expedite matters.
The Chairperson of the Portfolio Committee on Justice and Constitutional Development noted that it was necessary to extend the date once again for the final repeal of the Black Administration Act, since the current term would expire on 31 December 2010, and the Traditional Courts Bill, which would replace the structural framework for traditional courts that was currently in the Black Administration Act, had not been completed. Members agreed to support the Bill and extend the date as requested.
Independent Police Investigative Directorate Bill [B15B-2010] & Civilian Secretariat for Police Service Bill [B16B] : Final Mandates
The Chairperson asked the representatives to indicate their final mandates on this Bill
Eastern Cape Final Mandate
The province supported the bill and mandated the Eastern Cape delegates to vote for the adoption of the Bill with amendments that may not have affected the principles of the Bill.
The Gauteng Provincial Legislature supported the principle and the detail of the Bill and therefore voted in favour of the Bill.
The delegation representing the
The Northern Cape legislature wished its delegate to vote in favour of the Bill.
North West Final Mandate
The Western Cape provincial legislature had voted against adopting the Bill. The provincial representative indicated that certain issues reflected in the province’s previous proposed amendments had not been taken into consideration.
Limpopo Final Mandate
The Free State did not submit a final mandate but its delegate indicated that this province would vote in favour of adopting the Bill.
KwaZulu Natal report
The delegate from KwaZulu Natal requested an extension of time, and could not hand in a final mandate. This province had not discussed the amendments adequately and thus had abstained from giving a final mandate.
Amendments to the Convention on Prohibitions or Restrictions on the use of Certain Conventional Weapons Convention (CCW): Department of International Relations and Cooperation (DIRCO) briefing
Ambassador Leslie Gumbi, Chief Director, Department of International Relations and Cooperation, briefed the Committee on the Amendments to the Convention on Prohibitions or Restrictions on the use of Certain Conventional Weapons (CCW). He gave a brief background to the Convention, explaining that it covered non-detectable fragments, mines, booby traps and other devices. The protocol also covered incendiary weapons, blinding laser weapons, and explosive remnants of war (ERW). This Convention was the only legally binding international arms control agreement that either prohibited or restricted the use of a range of conventional weapons, and it targeted those weapons deemed to be excessively injurious or which had indiscriminate effects. The Convention was an important instrument of international humanitarian law. Its attempts also to regulate the transfer of specific conventional weapons made it not only a non-proliferation measure, but also an arms control measure.
Mr Gumbi noted that
Mr Gumbi then highlighted the reasons why it was important for South Africa to continue to be a signatory to the Convention, saying that it contributed to creating a stable environment, the maintenance of international peace and security, and that it was useful in limiting and alleviating the suffering caused by excessively injurious weapons. Participation by
Mr Gumbi noted that an amendment had been proposed to Article 1 of the Convention and Parliament was therefore being asked , in terms of Section 231(2) of the Constitution, to ratify it, and to give consent that
Mr Gumbi stressed that
Mr Gumbi then outlined the implications of the ratification of the amendments to the Convention. This would constitute a significant gesture demonstrating
Mr Gumbi said that the ratification would have no financial implications, other than the servicing of the Meeting of State Parties in Geneva, Switzerland, involving conference services and documentation, for which South Africa’s assessed costs were approximately US $1 000 per annum. These costs were covered by DIRCO and were already being paid by the Department, since
Mr L Nzimande (ANC, Kwazulu Natal) asked how the figure of US $1000 per annum was going to be used, questioning whether this reflected the real costs, as he thought that the budget for this was too low.
Mr Gumbi responded that meetings had been reduced, resulting in savings for DIRCO. Previously, comprehensive tests on nuclear ban meetings were held six times a year, but this had now been reduced to twice yearly, in an attempt to encourage States to attend meetings. He explained that the $1 000 was for conference services, such as documentation and translation services. He said that
Mr Nzimande asked whether this amendment would entail any new staff in DIRCO, and, if so, how much their salaries would be.
Mr Gumbi responded that the Department would be using existing staff members for the CCW component, and their salary structures were the same as any other government department.
The Members resolved to recommend the ratification of the amendments.
The Chairperson read out the Report, which would be tabled in the House.
Magistrates’ Courts Amendment Bill [B23B-2010]: Department of Justice and Constitutional Development (DOJ) briefing
Mr JB Skosana, Chief Director, Department of Justice and Constitutional Development, gave a brief introduction to the Magistrates’ Courts Amendment Bill (the Bill). He stated that this Bill sought to abolish the current requirement that a magistrate must have an LLB degree before being appointed as a
Mr Skosana highlighted that the LLB Degree had been the sole requirement for all judicial positions. This was included in the legislation when the Regional Courts were established in 1952 to deal with criminal matters. At that time a number of other law degrees were also offered, but the LLB degree was the only one in which the students took specialist courses in criminal law.
Mr Skosana explained that since then the jurisdiction of the Regional Courts had been extended, and it was necessary to remove the distinctions between criminal and divorce jurisdiction. He explained that the Constitution also now provided that apart from the formal qualifications, a person who was seen to be fit and proper, and who had relevant experience, could be allowed to fill a post if that person also met the requirements such as competence, diligence and good character, as required by the employer.
Mr Skosana highlighted that this had led to the anomaly that a judge could be appointed to the High Court without having an LLB degree, in terms of the Constitutional requirements, whereas the same person could not be appointed as a magistrate.
He added that the reality was now that the LLB was an entry-level degree and the requirement in the Magistrates’ Court bill had become obsolete and academic.
Mr Skosana noted that there was a shortage of magistrates at
Mr Skosana noted that during a meeting with the Portfolio Committee on Justice and Constitutional Development, the question was asked whether this Bill was not effectively lowering standards for the Regional Courts. He pointed out that the removal of the LLB requirement would not open the gates for everyone, as the Magistrates’ Commission must still undertake an assessment of the potential magistrates.
Mr Skosana further noted that this Bill would deal with divorce jurisdiction. The
Ms Wilma Louw, State Law Advisor, Office of the Chief State Law Advisor, then outlined the clauses of the Bill to the Committee.
Clause 1 amended Section 9 of the Magistrates’ Court Act, by abolishing the requirement of the LLB Degree for
Clause 2 amended Section 10, as it was technical and outdated, and substituted it with a new section, similar to the requirements for appointment as a judge, and noted that the person appointed must be “fit and proper”.
Clause 3 amended Section 12. This related to the distinction between civil and divorce matters. The word “and” was to be replaced with “or” to broaden the potential pool of candidates for appointment. It was no longer necessary for a person, prior to appointment, to be proficient in both civil and divorce matters.
Clause 4 dealt with Section 15 of the Magistrates’ Courts Act, which currently related to the service of process. A new subsection was proposed, that would give the Minister discretion to determine the conditions of the authorisation of a person to serve process of court, or other documents on behalf of a public body.
Clause 5 was the short title of the Bill. Since no preparatory work needed to be done, the Bill should come into effect on the date of promulgation.
Mr M Mokgobi (ANC,
Mr Skosana disagreed that the LLB Degree was seen as a stumbling block. This qualification would not and could not be removed. Both the Judicial Service Commission (JSC) and the Magistrates’ Commission looked at an individual’s qualification but also at his or her experience before appointing that person. The Constitution set out that a person should be appropriately qualified as well as fit and proper. The criteria for “fit and proper” were set by the JSC and Magistrates’ Commission.
Mr D Bloem (COPE,
Mr Skosana responded that there would be no new qualification. However, the individual who may not have an LLB degree already could nonetheless be appointed as a Regional Court magistrate if he or she had the necessary number of years experience to be appointed in that position.
Mr A Watson (DA,
Mr Skosana responded that once the Bill was passed, the vacant positions could be filled by these Acting magistrates, provided that the positions had been advertised.
Mr A Matila (ANC,
Mr Skosana assured him that this was not the case. The selection criteria were still very strict, and although the LLB degree would no longer be needed, the individual appointed would still need relevant experience and expertise.
Mr T Beyleveldt (DA,
Mr Nzimande was aware of changes taking place in schools of law within academic institutions, and therefore said there was a change needed at a governmental level as well. He agreed with the abolition of the LLB degree requirement.
Members resolved to adopt the Bill, without amendments.
The Chairperson then read out the Report of the Committee, which would be tabled in the House.
Magistrates’ suspensions: Magistrates’ Commission progress reports
Mr Hans Meyer, Magistrates Commission, briefed the Committee on the progress of the matters involving suspensions of magistrates.
The Chairperson noted that the Minister had not made any pronouncements on the cases of four magistrates, and that the Magistrates’ Commission could therefore not conclude these matters prior to receiving the recommendations of the Minister.
Mr Meyer noted that the first matter was continuing with the misconduct enquiry and it should be concluded on 6 or 7 December 2010. The second matter was not concluded, as a criminal appeal was pending. The third magistrate had filed a High Court application to prevent the Minister from suspending him, pending a review, although there was a recommendation to remove him from office. In the fourth matter, a misconduct enquiry had commenced.
Mr Meyer then noted that the Minister of Justice and Constitutional Development had recommended that the provisional suspensions should be lifted on two magistrates. Since the basis for the suspension had fallen away there was no longer any reason to uphold the provisional suspension.
Mr Watson (DA,
Mr Meyer said that a date for the appeal had not been set yet but that the Magistrates’ Commission was liaising with the National Director of Public Prosecutions to set a date as soon as possible.
Members voted in favour of adopting the report.
Confirmation of Provisional Suspensions: Magistrates’ Commission briefing
Mr Meyer then continued to present the matter of an additional magistrate at George, who had been prosecuted on a number of charges, some of which were dropped, but was found guilty of five charges that affected her integrity as a judicial officer. The presiding officer had made recommendations to the Magistrates’ Commission, and, after holding an enquiry, the Commission believed that she was no longer fit and proper to hold office and recommended that she be removed.
Mr Meyer highlighted that she was currently still serving as an Acting Magistrate. The Portfolio Committee on Justice and Constitutional Development had recommended that she be retained in an Acting position.
Mr Bloem said that he was concerned about this matter. However, he moved that the Committee support the Magistrates’ Commission recommendation for her removal from office.
The Committee supported the removal from office.
Mr Meyer then briefed the Committee on the matter of a magistrate who had moved to
Mr Watson commented that the mere fact of his dishonest assurances to the Law Society justified his removal from office.
The Committee agreed that this magistrate should be removed from office.
Mr Meyer noted that the third matter concerned a magistrate at Lichtenberg, who had been provisionally suspended after six complaints had been lodged against him, pending an investigation into whether he was fit to hold office as a magistrate. The Magistrates’ Commission recommended that the provisional suspension should be converted to a full suspension.
The Chairperson asked whether there was a contingency plan for appointment of an Acting Magistrate in his place.
Mr Meyer said that there was someone who could be appointed as Acting Magistrate.
The Committee confirmed the recommendation for a full suspension.
Mr Meyer outlined the next case, which concerned a regional magistrate at Polokwane. In February 2010 this magistrate, a prosecutor and an attorney had been arrested, following an authorised undercover operation, having apparently pre-arranged the outcome of a criminal trial and sentence, for financial reward. The three were then charged in Musina District Court and were presently on bail of R10 000 each. The Magistrates’ Commission recommended his suspension from office, pending the outcome of the criminal trial, set for March 2011.
The Committee voted to accept the recommendation.
Mr Meyer said the next case concerned a magistrate from Cala who was being charged with fraud following the presentation of a false claim for travelling allowances. This case had been postponed to 18 November 2010. The Magistrates’ Commission recommended his suspension pending the outcome of this case.
The Committee agreed with the recommendation.
Mr A Matila (ANC,
Mr Meyer stated that the Magistrates’ Commission did liaise with the National Prosecuting Authority (NPA) to try to expedite these matters. One case should be finalised in November.
Mr Bloem questioned whether magistrates were ever imprisoned following successful prosecutions.
Mr Meyer noted that in the past a magistrate in
Mr Matila asked if the Magistrates’ Commission could not consider the merits of each case and perhaps decide to suspend without salary.
Mr Meyer admitted that this was a difficult situation, as a magistrate who was suspended without pay could argue that he was being deprived of the chance to obtain legal representation, and that would infringe on his or her Constitutional right. However, the Magistrates’ Commission did liaise with the NPA to expedite the proceedings.
Mr Bloem asked whether a magistrate could be represented by a union.
Mr Meyer responded that one person could not be refused representation under the Constitution, but a union was not allowed to intervene in disputes of such a sensitive nature.
Repeal of the Black Administration Act and Amendment of Certain Laws Amendment Bill [B37-2010]: Portfolio Committee Chairperson’s briefing
Mr J Sibanyoni (ANC), Chairperson, Portfolio Committee on Justice and Constitutional Development, briefed the Committee on the background to the Repeal of the Black Administration Act and Amendment of Certain Laws Amendment Bill [B37-2010] (the Bill) He noted that this Bill sought to extend the date by which the last remaining sections of the Black Administration Act should be repealed.
Mr Sibanyoni explained that the Black Administration Act, No 28 of 1927, was not yet repealed in its entirety, because it regulated the functioning of the Traditional Courts. It was intended that, once passed, the Traditional Courts Bill would eventually regulate the matters currently being dealt with in Sections 12 and 20 of the Third Schedule to the Black Administration Act. If the Black Administration Act were to be repealed, this would create a lacuna as the traditional leaders would have no framework within which to conduct their cases in traditional courts. The Traditional Courts Bill had not yet been passed. From time to time it had been necessary to extend the operation of the Black Administration Act, and it was currently in operation until December 2010. However, the Portfolio Committee on Justice and Constitutional Development would not complete its work on the Traditional Courts Bill by that date, and thus needed to extend the Black Administration Act further before it was due to expire.
Mr Nzimande asked why the Black Administration Act was due to expire on 31 December 2010.
Mr Sibanyoni explained that the operation had been extended before, for a year at a time, and the last extension was passed in 2009, up to December 2010. The Portfolio Committee had realised that one year’s extension was not sufficient to complete the work.
The Committee agreed to adopt the Bill granting the extension.
The Committee further adopted the Report, which would be tabled in the House.
The meeting was adjourned.
- Final Mandates Civilian Secretariat for Police Service Bill [B16B-2010]
- Final Mandates Independent Police Investigative Directorate Bill [B15B-2010]
- Text with Amendments and Protocols adopted Through 28 November 2003
- Consideration of the International Agreements Tabled
- Department of International: Amendments to Convention on Prohibitions or Restrictions on use of Certain Conventional Weapons
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