Sheriff's Amendment Bill [B2–2012]: public hearings; Criminal Procedure Amendment Bill [B39–2010]: adoption Committee Report on Department of Justice and Constitutional Development 2012 budget: adoption

Meeting report

The Chairperson welcomed the delegations from the South African Board for Sheriffs and the South African National Association of Progressive Sheriffs (SANAPS). He explained that he would have to leave early to meet with the Speaker of Parliament, and that Mr J Jeffrey (ANC) would be the Acting Chairperson in his absence.

Submissions by the South African Board for Sheriffs
Mr Thaka Seboka, Board Member, South African Board for Sheriffs, presented the Board’s submissions in relation to the Sheriffs Amendment Bill [B2–2012] (“the Bill”).  The reason for the amendment of the existing legislation related to the changed socio-economic conditions in which sheriffs operate and the need for transformation of the profession. The amendments dealt in large part with the composition and dissolution of the Board for Sheriffs. The Board’s presentation came about as a result of a number of meetings and workshops that it had engaged in with the Department of Justice and Constitutional Development, where consensus on a number of issues had been reached. The Board had already met with the Minister of Justice and Constitutional Development to outline its position. The Board approved the amendments in large part, but there were some areas in which the Board differed with the Department. 

The Board agreed with the content of Clause 4, which made provision for the Minister of Justice and Constitutional Development to appoint acting sheriffs after consultation with judicial officers.  However, the Board was concerned about the practical application of the clause. The need to appoint acting sheriffs would arise in instances in which a particular sheriff had an interest in the matter at hand, leading to a situation in which someone independent would have to be appointed to make service. Despite the agreement reached between the Board and the Department that this was a necessary occurrence, the Board noted that there were circumstances in which it had taken a long time before acting appointments were made. Mr Seboka gave some examples of challenges that had occurred in the context of the appointment of acting sheriffs. The Board recommended that the time limit for appointing acting sheriffs should be prescribed to take no more than 14 days, and that acting positions should subsist for at least three months, and at most, six months.

The Board did not support Clause 13, which provided that “[t]he maximum amount that may be recovered by the Board from the Fund for the purposes of subsection 27(1)(e) shall be determined by the Board, in consultation with the Minister.”  The Board would prefer to keep the current Section 27 of the Sheriffs Act, 1986 (Act No. 90 of 1986), which Clause 13 sought to amend.  The Board noted that there had been no consultation with the Board in relation to that amendment. The Board felt that, contrary to the amendment, there was no need for ministerial involvement, as illustrated by the fact that the Board had been operating fine up until the present time. 

Discussion
Mr Jeffrey said that he understood that the Board had concerns with acting appointments, and that it wanted more detail in the legislation to govern those appointments.  The provisions that the Board sought could, however, be provided for by regulation, and did not need to be contained in the primary legislation.  Making provision for time periods in the Act itself could turn out to be unnecessarily constraining over time. He noted that the Board objected to the setting of maximum amounts in relation to Fidelity Fund payments, and asked whether the Board agreed that there should be a maximum amount, and whether it thought that amount should be set by the Board instead of the Minister. 

One of the delegates from the Board for Sheriffs replied that the Department of Justice and Constitutional Development had not consulted with the Board about the amendment as contained in Clause 14, and that lack of consultation was the primary reason that gave rise to the Board’s objection. 

The Chairperson asked her what would happen if the Board set the maximum amount too high.

The delegate concerned replied that it had never happened in the past, so there was no reason to think it would happen in the future.

Mr S Swart (ACDP) remarked that the Board seemed more concerned with the fact that it had not been consulted by the Department than about the actual contents of the amendment.

Ms D Schafer (DA) asked the Department what the reason for the amendment was.

Mr Jacob Skosana, Chief Director for Legislative Policy in the Department of Justice and Constitutional Development, explained that the Fidelity Fund was a public interest fund, and was in place to protect the public.  It was not a fund for the betterment of the sheriff’s profession, and as such, the Board should not administer it.  The Minister was in a position to safeguard the interests of the public.  The Board could not be expected to uphold the best interests of the public, as it would understandably want to safeguard the best interests of the sheriffs' profession.  The Department had consulted with the Board on the matter, and had suggested to the Board that it create a committee to deal particularly with the Fidelity Fund and the protection of the public. 

Mr L Ndabandaba (ANC) asked whether there was any room for improvement in the way that the Board operated, or whether the Board wanted things to operate in the same way as it was accustomed to. 

Mr Seboka replied that the Board did not have any fundamental quarrels with the Bill, but that generally there was a sentiment that it had been operating well, and that since it was not broken, there was no need to fix it. There had never been allegations of misuse of the Fidelity Fund by the Board.

Mr Swart said that it sounded like there had been a lack of consultation in relation to the contested amendment in Clause 13.  He asked for clarity from Mr Skosana about what form of consultation had taken place.  He also asked whether the Department had reasons to be concerned about the possibility of financial mismanagement by the Board. 

Mr Jeffrey pointed out that while the Committee did not want to fix something that was not broken, it had passed legislation requiring judges to disclose their financial interests, even though a judge had never been found guilty of corruption.  This illustrated the precautionary measures that could be provided for by way of legislation.  He observed that there was a sense of disquiet on the part of both the Board and the Department.  He asked if the Board had raised its dissatisfaction with the Department or the Minister, and if so, whether it had received any response.

Mr Seboka said that while the Board and the Department had their differences, the Board was agreed that it was not only the Board that should represent the profession.  That was why the Board approved of the reduction in the number of sheriffs on the Board, in order to include other interests, such as the attorneys’ profession, as provided by Clause 7.  In relation to consultation, the Board had indicated to the Department in an informal manner that there had been a lack of consultation about the contested clause, but it had not written to the Department on that topic. 

Mr S Holomisa (ANC) asked whether the Board had made any payments to members of the public who had made claims over the course of the past three years. 

A delegate from the Board replied that the Board had made 26 payments amounting to R1.3 million in the period between November 2011 and March 2012. 

Mr Holomisa said that the information he had received in that respect must have been wrong.

Ms Schafer asked for clarity about what objections the Board actually had, and whether the objection to Clause 13 stemmed from the lack of consultation. 

Mr Seboka said that he did not think that there would be serious problems with ministerial involvement, and affirmed that the objection was largely a result of the lack of consultation.  The Board would in all probability endorse the amendment once it had engaged in consultation with the Department. 

The Acting Chairperson explained that the Bill was currently before Parliament.  Although the Board did not have a veto right, he asked whether the Board was happy to allow the Committee to move forward, or whether it should wait to hear from the Board on the matter of Clause 13. 

Mr Seboka replied that the Board would be meeting the following day, and that it would send a written submission to the Committee about its views on the matter after that meeting.

Submissions by the South African National Association of Progressive Sheriffs (SANAPS)
Mr Anthony Makwetu, Chairperson of SANAPS, introduced his colleague, Mr C Fourie, who took the Committee through the SANAPS presentation.  Mr Fourie explained that SANAPS had a problem with the inclusion of the term “fit and proper person” in Clause 2.1, because there was a different standard of “fit and proper” within the Sheriff’s profession, as opposed to, for example, within the medical profession.  Recently, the profession’s regulations had been amended.  The “fit and proper person” standard was not outlined in the current regulations, and that meant that the term needed to be defined properly before it could be included in the amended legislation.

Clause 3, which dealt with the allowances payable to members of the Advisory Committee, left it unclear who would be making the payments and from what funds the payments would be sourced.  It was assumed that those payments would come from the Department of Justice and Constitutional Development.  Clause 4, which dealt with the appointment of acting and ad hoc sheriffs, was not viewed as problematic.  However, SANAPS wanted acting sheriffs to be given at least three months’ notice to vacate their appointments.

Clause 6(B)(2) provided that the Rules Board would make new Rules for any sheriff appointed under Clause 6(B)(1), but there were already existing rules, and SANAPS did not see the need to make any additional rules.  The Minister should only make an acting appointment in cases in which there was no suitable existing sheriff available.  SANAPS strongly objected to Clause 7, dealing with the reconstitution of the Board, and had a fundamental problem with the reduction of the number of sheriffs on the board.  While SANAPS agreed that the Board should not consist of sheriffs alone, it felt that the sheriff component should be made up of no less than seven members. 

The amount of allowances payable to the Board, as set out in Clause 10, should be equal to the allowance paid to other Board members.  The amount of the allowances should be reviewed annually.  The clause in its current form made the Board responsible for determining the amount of the allowance, but a limit should be set.  Unlike the South African Board for Sheriffs, SANAPS supported Clause 13, but wanted to be consulted as a recognised professional association about the maximum amount recoverable, since the funds were primarily sourced from the sheriffs’ profession.

The insertion of Clause 15, which dealt with misconduct by sheriffs, was not problematic.  However, Section 50(3) of the Act currently provided that a sheriff was not allowed to do any other remunerative work in addition to his or her tasks as a sheriff without the permission of the Minister.  Mr Fourie explained that in some cases, sheriffs were forced to take on other work in order to augment their income. Ministerial approval was a cumbersome process that took a long time, and in some cases, applications of this nature were never replied to.  Unless a conflict of interest arose as a result of the additional job, it should not be considered “misconduct” if sheriffs worked outside of their duties as sheriffs.  While it was true that there needed to be regulation, at present, the matter was overregulated.

Discussion
Mr Ndabandaba asked what would happen if the term “fit and proper person” was done away with.  Ms Schafer remarked that it was obvious that the term should be read in the context of the legislation.  She asked why a three months’ notice period should be given to vacate a position as an acting sheriff.  Given the fact that the mandate of the Board was to do everything in relation to running the sheriffs’ profession, she asked whether SANAPS honestly thought that it was in the public interest for sheriffs to make up the majority of the Board.

Mr Fourie replied that SANAPS agreed a person should be “fit and proper” to be a sheriff, but that in the absence of a clear criterion for qualification – which had recently been removed from the regulations – it would be difficult to determine what that term actually meant.  The absence of a qualification left a void.  The profession had tried to professionalise itself over the years, but the removal of the post-matric qualification from the regulations had made it harder for them to do so.  Sheriffs felt that they were being unfairly singled out by the attempt to reduce their numbers on the Board, but SANAPS was happy to accept a composition that included seven sheriff members on the Board.  The three month notice period was necessary, because it was an expensive enterprise for a sheriff to set up offices and storage facilities. 

Mr Seboka agreed that the challenges facing acting sheriffs were massive, especially in relation to the expenses incurred in setting up offices and storage space.  In most cases, leases were for two years.  Acting sheriffs, especially those from disadvantaged backgrounds, were vulnerable to civil claims if they cancelled their lease agreements early.

Ms Smuts asked SANAPS for clarity about what had happened in the past with sheriffs who had transgressed the rules of the profession.  With due respect, it appeared that being a sheriff did not compare to being a doctor or a lawyer, because there appeared to be less regulation of the sheriffs’ profession.  On the “fit and proper person” standard, she made the comparison to the requirements for judges as set out in the Constitution.  She asked what used to be in the regulations, and what SANAPS would like the standard to be. 

The Acting Chairperson said that the amendment to Clause 2 had in fact tightened the previous appointment requirements by including the “fit and proper” standard.  The regulations provided that the Minister, in consultation with the Board, could make further regulations governing the requirements for appointment as a sheriff.  If the Act contained too much detail, it could become unduly constraining.  The issue of the composition of the Board came down to whether sheriffs would have a majority or not.  This was linked to the larger issue of self-regulation, which had been proven to be insufficient for the purposes of protecting the interests of the public. Sheriffs wielded enormous powers.  Both SANAPS and the Board had complained about the regulations and the involvement of the Minister.  The Committee needed to look at the issue of meeting with the Board on an annual basis to hear its representations, which would be a useful exercise.

Ms Schafer said that while the Board had a degree of control over the Fidelity Fund, it would not make sense to allow it to have complete control. 

Mr Holomisa asked who paid allowances to the Advisory Committee. 

Mr Skosana replied that the Department of Justice and Constitutional Development paid those allowances.

Mr Fourie explained that with the change of the regulations, the profession was faced with a difficult situation.  In the past, a one-year post-Grade 12 qualification had been developed specifically for the profession.  That had now become irrelevant, because it was no longer a minimum requirement in terms of the regulations.  SANAPS wanted to move back to using the qualification as a requirement for entry to the profession.  The sheriffs’ profession was not so different from those of doctors and lawyers.  Sheriffs paid contributions to the Fidelity Fund by way of levies and interest on the Fund, and therefore, they wanted to govern themselves.  Because the government was not funding the sheriffs' profession, it should not have a major role in ensuring that discipline and regulation took place.  The Board had consistently disciplined “bad apples” within the profession.  SANAPS and the other professional associations had supported the Board in its removal of them.  The Rules Board regulated the fees that were received by sheriffs.  Sheriffs struggled to secure payment due by attorneys.  He agreed with Mr Skosana that the Department paid the allowances of the Advisory Committee members.  However, the Bill was not clear on that point, and it should be. SANAPS was flexible in relation to the number of sheriffs on the Board, and understood that it did not need to be seven.

Mr Makwetu said that SANAPS was concerned about the plight of small-scale sheriffs, especially those operating in the rural areas. Because of this, SANAPS pled for a relaxation of the red tape that was hindering sheriffs within this demographic from being able to support themselves.  Some sheriffs only received five court processes per month, which did not provide enough for them to make a living wage. 

Another member of the SANAPS delegation said that if the Board were to be composed in the way it suggested, it would not affect discipline. SANAPS was a voluntary body that was in place to protect the interests of the profession, whereas the Board was a statutory body in place to protect the interests of the public.  Changing the composition of the Board would not necessarily ensure that the Board did its job properly in relation to discipline.  The provisions to guide disciplinary procedures were already in place.  In relation to the administration of the Fidelity Fund, SANAPS agreed that best practice showed that some body other than the profession itself should control those types of funds.  He asked how the Board could be monitored to ensure that it performed its disciplinary functions properly, and suggested that maybe that was something that needed to be dealt with in the Bill.

The Acting Chairperson thanked both the Board for Sheriffs and SANAPS for their contributions. He suggested that the Committee allow the Board for Sheriffs to respond in relation to the issue of ministerial involvement.  The Committee would then be able to take the legislation to plenary the week of the 12 June 2012.

Criminal Procedure Amendment Bill [B39–2010]: consideration
The Committee turned to a consideration of the Criminal Procedure Amendment Bill [B39–2010].

Mr Johan de Lange, Principal State Law Adviser: Department of Justice and Constitutional Development, pointed out that Clause 2 of the Bill still referred to “2010” as opposed to “2012”. 

The Committee agreed to make the change to reflect the correct year, and adopted the amended document that Mr de Lange tabled before it. 

The Bill was duly approved. 

Ms Smuts said that it was not right to pass amended legislation without explaining why changes were made.  There should be a debate between political parties in order to ventilate the issues for the benefit of the public.

Committee Report on Department of Justice and Constitutional Development 2012 budget
Mr Landers returned and the Committee moved on to a consideration of the Committee’s Budget Report in its draft form. 

Mr Jeffrey remarked that the Commission of Inquiry was incorrectly referred to as the “Arms Deal Commission” and that its proper name should be used instead.  The full name “South African Judicial Education Institute” should be written out, and other acronyms should be spelled out in full.

Ms Smuts said that the report should explain that while the Official Sector Determination (OSD) was brought about to retain legally qualified staff, the result of the “notching system” had meant that the OSD was actually counter-productive. Some staff members who reported to legally qualified personnel were in fact better paid than those with legal qualifications.  The Assistant Master in Port Elizabeth had reported to her about a receptionist with a Grade 12 qualification who was being paid better than some of her colleagues with law degrees. 

Mr Holomisa suggested that the Committee request the Department of Justice and Constitutional Development to provide a comprehensive report about the OSD, since it appeared to have a counter-productive effect from what was originally intended.

Mr Jeffery remarked that in relation to court maintenance, there was no available budget to make the changes that needed to happen.  The Department had to weigh up the building of new courts against the maintenance of existing courts. The report should include the Committee’s concerns that the existing budget was insufficient for the purposes of maintaining existing courts.

Mr Swart suggested that the report state that the physical state of many courts was a concern.

Mr Jeffery made reference to the Truth and Reconciliation Commission Unit, and said that the Committee was relatively pleased about the progress that had been made in tracing individual victims of human rights abuses for the purposes of paying individual reparations grants.  However, the fact that there were still no regulations in place to deal with other issues, including health and education grants, was unacceptable.

Mr Swart enquired whether the Committee should make a comment about the fact that it was urgently considering the implications of the recent Western Cape High Court decision regarding the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No 32 of 2007). 

The Chairperson said that the Committee would discuss the matter the following day.

Mr Jeffery said that it was necessary to note the Committee’s dissatisfaction with the fact that there were only six Master’s Offices nationwide that dealt with Guardian’s Fund matters, and that they were not always in the biggest metropolitan centres. The Committee should express the fact that it was “appalling” that people were required to travel such far distances to have their Guardian’s Fund matters attended to.  He suggested that the report state that urgent steps needed to be taken in order to speed up the roll-out of enhanced service points, as well as service points which could effectively serve as post boxes to the Guardian’s Fund.

Ms Smuts made reference to the Witness Protection Programme, and said that the report should state that the Committee felt that the witness protection function should no longer reside with the National Prosecuting Authority (NPA), but rather, that the programme should be part of the budget of the Department of Justice and Constitutional Development, and should operate under its auspices. The NPA had indicated to the Committee that they would be only too pleased to make that change.

Mr Jeffrey pointed out that there was currently no CEO in the NPA. The report should say that the position was vacant and that the Committee eagerly awaited the appointment of a CEO by the Director–General of the Department of Justice and Constitutional Development. 

Ms Smuts said that the reason that there was no CEO in the NPA was because that function used to reside within the Scorpians before they were disbanded.  She felt that the report should say that Adv Menzi Simelane had adversely affected the NPA’s performance.

Mr Jeffery made reference to the decline in the number of specialised courts, and the trend that had emerged of doing away with them.  The report should read that the Committee was distressed with the decline, especially in relation to the Sexual Offences Courts. 

Mr Jeffery felt that it was important to include the fact that the Committee was disappointed that the presentation that it received from the Special Investigating Unit (SIU) had been largely the same as the presentation it had received the previous year.

Ms C Pilane-Majake (ANC) said that the SIU had indicated to the Committee that it was largely dependent on “external funding”.  She suggested that the report indicate that the Committee was concerned that the SIU might end up being a privately-run institution as a result of funding by the private sector. 

The Chairperson agreed to do away with the term “external” because it gave the wrong impression, and was meant to refer to other government departments, instead of private entities.

Mr Jeffery said that it was important to express that the Committee’s interactions with the South African Human Rights Commission (SAHRC) had been of questionable value, in that they used the Committee to get more funding, but were sparse on detail about their programmes. The last engagement with the SAHRC had left the Committee needing more detail, and the report should express the fact that the SAHRC was failing to use its interactions with the Committee in the most constructive manner possible.

Mr Jeffrey felt that it was important to include the concern that allocations to the various provinces were not properly reflective of each province’s population, and that the Committee felt that there should be at least some correlation.

Mr Swart made reference to the part of the report that said that the Committee supported the planned assessment of the decisions of the Constitutional Court, and pointed out that it was not a proper reflection of all of the parties that constituted the Committee.

Ms Smuts suggested that the report should state that the DA and the ACDP had “grave reservations” in relation to that assessment. 

Mr Jeffery said that if those political parties wanted to include that information, they would have to submit it by way of a minority report.

The Chairperson asked for an explanation of the formalities of the process whereby the Committee could amend the budget.  He wanted to know whether the Committee could reshuffle money in the budget at the current point in the year. 

Ms Christine Silkstone, Content Advisor for the Portfolio Committee, replied that in theory, it was possible, but that it could prove to be very difficult. 

Mr Swart said that there had to be some mechanism in place that would allow for money to be reshuffled at the current time.  He suggested that maybe the Committee should approach the Standing Committee on Appropriations.

Mr Jeffery said that the uncertainty was the result of the Money Bills that they had passed.  He explained that the process that took place during the second half of the year meant that the Committee could make recommendations to the National Assembly after it had considered various annual reports.  If the National Assembly approved the Committee’s suggestions, the Minister of Finance would then be required to submit his response to the Standing Committee on Appropriations.  At that point, an amendment to the budget could take place.  If the Minster of Finance failed to approve additional funds, the Standing Committee on Appropriations was empowered to reconsider his decision.  In the past, the Committee had recommended that more money be granted, and in general, the National Treasury had approved such requests.  It would be worthwhile for the Committee to include a paragraph in the report expressing its extreme concern with the budget cuts visited upon the Department of Justice and Constitutional Development, and the impact that those cuts would have on the administration of justice.  If that were included in the report, it would serve as a warning to National Treasury, that Parliament was waving a red flag over the budget of the Department of Justice and Constitutional Development. 

The Committee agreed with his suggestion. 

Ms Pilane-Majake liked the idea of looking at the matter from a medium-term perspective. During the time that the National Treasury engaged with the various departments, the Committee could monitor those processes and be in a better position to make recommendations about what would be most suitable in the circumstances.  If the Committee operated in that way, it would not have to take as many retrospective steps to address problems that could have been avoided by way of earlier intervention.

The Committee officially adopted the report, with the agreed-upon amendments.  The DA opposed the adoption of the report and the ACDP abstained from voting.

The meeting was adjourned.