Superior Courts Bill [B7-2011]: continuation of deliberations

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Justice and Correctional Services

07 August 2012
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Portfolio Committee on Justice and Constitutional Development continued with deliberations on the Superior Courts Bill [B7-2011]. The Committee wanted a more descriptive term for nature of a court under Clause 31. The Committee amended clause 37(1) to include the words ‘or any disability’. The Committee agreed with a submission form the judiciary that clause 38 should be deleted as there was no need for it. A Member of the Committee said that that it should be noted in its report that the Minister of Justice should look at simplifying or modernising the civil procedure terminology. The Committee enquired as to whether ‘may’ should be used instead of ‘must’ in clause 49. The Committee also discussed about the degree of any incremental costs of the Bill given that the Mpumalanga and Limpopo divisions were still being set up.

Meeting report

Superior Courts Bill [B7-2011]: deliberations
Clause 31
Adv Johan De Lange, Principal State Law Adviser from the Department of Justice and Constitutional Development (DoJ&CD) said that the provision was the same as that found in Section 15 of the Supreme Court Act.

Mr J Jeffery (ANC) referred to clause 31(1) and asked if the nature of a court was the definition provided in the clause.

Adv De Lange replied in the affirmative. There may be a more appropriate term.

The Chairperson requested that Adv De Lange should look for a more appropriate term.

Clause 32
Adv De Lange said that the provision was the same as that found in Section 16 of the Supreme Court Act.

Clause 33
Adv De Lange said that the provision was the same as that found in Section 14 of the Supreme Court Act. This was applicable to the Supreme Court Act and the divisions.

Clause 34
Adv De Lange said that the provision was the same as that found in Section 18 of the Supreme Court Act. 

Clause 35
Adv De Lange said that the provision was the same as that found in Section 30 of the Supreme Court Act, there was also an equivalent provision in Section 10 of the Constitutional Court Complimentary Act.
Clause 36
Adv De Lange said that the provision was the same as that found in Section 31 of the Supreme Court Act, there was also an equivalent provision in Section 10 of the Constitutional Court Complimentary Act.

Clause 37
Adv D Lange said that the clause was simple and was the equivalent of Section 42 of the Supreme Court Act.

Mr Jeffery referred to clause 37(1) and raised concerns over the inclusion of the word ‘infirm’. The wording was outdated. The wording may also be offensive to disabled people for whom it was also intended.

Mr S Swart (ACDP) said that infirmity was a perfectly acceptable English word however Mr Jeffery was right in that disabled people were not covered.

Mr Jeffery said that the words ‘or any disability’ should be added.

The Committee agreed.

Clause 38
Adv De Lange said that the clause was also taken from the Supreme Court Act. The judges of the Supreme Court of Appeal (SCA) had said that the powers in the provision had never been used since 1959 and there was no need to retain them. The Committee may still want to gather more information from the other judicial officers, the Bar and South African Law Society (SALA).

Mr Jeffery said that the clause should be taken out. 

Adv De Lange said that he would follow up in any case with the judges.

Clause 39
Ms D Smuts (DA) referred the Committee to comments made by judges of the Constitutional Court (CC) regarding clause 39(1)(a) where they pointed out that administration was already included in the concept of ‘in the interests of justice’. They also said that anybody in South Africa could be subpoenaed to appear, an interlocutory were for those outside of the country or in hospital. It was difficult to see why its necessary for the High Court had to have the power when somebody was merely outside the area of jurisdiction. The judges also suggested that the interests of justice requirement would be appropriate for High Court intelocutories.

Adv De Lange said that he was inclined to agree with the judges.

The Chairperson said that this should be flagged for the moment.

Clause 40
Adv De Lange said that the provision was the same as that found in Section 33 of the Supreme Court Act, nothing has been altered.

The Chairperson referred to clause 40(1) and asked what rogatoire meant.

Adv De Lange said that it was in reference to when the assistance of SA courts was required insofar as judicial proceedings in other countries were concerned.

Clause 41
Adv De Lange said that the clause was from Section 49 of the Constitutional Court Complimentary Act. The provision was not a contempt of court provision.

Mr Jeffery referred to the following wording ‘rising of the court’ and said that the Committee should recommend to the Minister to look at simplifying or modernising the civil procedure terminology. This could be done via the South African Law Commission (SALC).

Ms Smuts said that it would be a pity to lose the elegance in the language used; the ordinary person understood what was going on in court. 

Adv De Lange said that the other problem was that there was not much consistency.

Clause 42
Adv De Lange said that the equivalent provision was from Section 26 of the Supreme Court Act.

Clause 43
Adv De Lange said that the heading has been changed with the addition of the words ‘by Sherriff’

Clause 44
Adv De Lange said that the clause was copied from Section 41 of the Supreme Court Act.

Mr Jeffery asked what an electronic medium was, should the provision not cover other things such as an email.

Ms Smuts asked that the definition in the Protection of Personal Information Bill should suffice.

Mr Jeffery referred to clause 44(3)(a) and said what if the person was arrested on Friday, they would have to be released on Sunday and courts were closed.

Mr Herman Smuts, State Law Adviser from the DoJ&CD said that the courts usually interpreted the 48 hour period as it was even if it was over the weekend, this would be double checked.

Clause 45
Mr Jeffery said that there was a need to modernise the clause, a person’s laptop could be seized but there might be privacy issues.

The Chairperson said that this should be noted for the future however the intention it seemed was that a person should be able to continue with their trade.

Clause 46
Adv De Lange said that the clause was copied from Section 40 of the Supreme Court Act.

Clause 47
Adv De Lange said that this was an existing provision; it prohibited a judge from being subpoenaed in civil proceedings without the consent of the head of the court.

Clause 48
The Chairperson pointed out that the clause was not in the Supreme Court Act.

Adv De Lange said that he would check however the clause was necessary.

Clause 49
Ms Smuts requested for confirmation on the proper meaning of ‘on the advice of’ in clause 49(1). As it was currently worded, the Minister could only act on the advice of the Chief Justice (CJ).

Adv De Lange agreed. 

Ms Smuts asked if the ‘may’ should not be a ‘must’.

Adv De Lange said that if it was changed then it would mean that the CJ would be given legislative powers.

Professor G Ndabandaba (ANC) agreed.

Clause 51
Adv De Lange said that this was a transitional provision that was there to get the rules in place until they were amended.

Short Title
Mr S Swart (ACDP) asked to what degree that would be an incremental implementation of the Bill given that the Mpumalanga and Limpopo divisions were still being set up.

Adv De Lange said that spate sections of the Bill would be

Schedule
The Chairperson said that there were statuettes that dealt with the homelands, in some of these statutes only some of the provisions were being repealed as opposed to the whole, was to be understood that they remained in force and in effect.


Adv De Lange said that if they were still alive it would have been in terms of the transitional provisions of the 1993 Constitution and final Constitution. This would have to be checked again and the Committee would be duly updated.

The Chairperson said that a working draft has to be ready by the time the Committee met again.

Adv De Lange agreed.

Meeting Adjourned.

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