Judicial Matters Amendment Bill [B7-2013]: Departmental briefing

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Justice and Correctional Services

15 May 2013
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Department of Justice and Constitutional Development (the Department) took Members through the Judicial Matters Amendment Bill, clause by clause, pointing out the amendments and the reasons why they were being effected. As was usual with this kind of Bill, amendments were being made to various pieces of legislation, including the Magistrate’s Court Act, the Criminal Procedure Act, the Child Justice Act, the Sexual Offences and Minimum Sentencing legislation, the Attorneys Act, the Small Claims Court Act, the Judicial Service Commission Act, Promotion of Access to Information Act, the Children’s Act, and the Reform of Customary Law of Succession and Regulation of Related Matters Act. Clauses 10 and 11 would be deemed to come into operation on 1 April 2010, the date on which the Child Justice Act had effected the amendments to the Criminal Procedure Act. Clause 48 would be deemed to have come into operation on the same date as the customary succession legislation did, on 20 September 2010. Whilst there was normally a presumption against retrospectivity of legislation, there was an exception if the legislation dealt with procedural matters, and these were purely technical amendments that effectively were correcting citations. The remainder of the Bill would come into operation when assented to and published in the Gazette. Two typographical errors in the Memorandum on the Objects of the Bill were noted.

Members noted that, in relation to amendments sought by the Attorneys Fidelity Fund (the AFF), the Law Society of South Africa had indicated that whilst in principle it had no objection, it nonetheless wished the AFF to act “in consultation” with the relevant provincial law society. The drafters had suggested that “after consultation” be used and this would need to be clarified. They took issue with the heading of one of the documents and pointed out that the Committee had not yet agreed to effect those amendments. Members also asked if the amendments sought by the AFF were being carried over also into the Legal Practice Bill and asked if they were urgent enough to merit being passed now. Members also sought clarity on the provisions that private prosecutions could be instituted in the case of theft of trust funds by attorneys. The Department was asked to check again on the wording for the Setswana text of the Child Justice Act, and to check whether it was necessary to effect the amendment formally through this Bill, as the Setswana text had not been assented to by the President. Members noted that the time period given by the Constitutional Court for amendment of the Promotion of Access to Information Act had long since expired and asked why this had not been done before. It was suggested that it could be useful for the Committee to approach specific interest groups, such as those dealing with children, or attorneys’ matters, for their comment on the Bill. A Member raised a query on the effect of the amendment to the Small Claims Court Act on the management committees for the Small Claims Courts. Members also discussed the tagging of the Bill. One Member suggested that the fact that the legislation dealing with the customary law of succession was being amended may require the Bill to be referred to the National House of Traditional Leader, but the Department and State law advisers were of the view that this was not necessary, since it was a technical amendment only. A Parliamentary Legal Services representative suggested that this may need to be tagged as a section 76 Bill but Members wanted that point to be debated by the various legal advisers and the Committee, and suggested there may be need to split the Bill.

Meeting report

Judicial Matters Amendment Bill: Department of Justice briefing
Mr Lawrence Bassett, Chief Director: Legislative Drafting, Department of Justice and Constitutional Development noted that the Department of Justice and Constitutional Development (DOJ&CD or the Department) was busy with a second Judicial Matters Amendment Bill, but the current Judicial Matters Amendment Bill [B7-2013] was now ready for presentation to the Committee.

Mr Sarel Robbertse, State Law Advisor, DOJ&CD, tabled a briefing document describing the amendments that were to be effected by the Judicial Matters Amendment Bill (the Bill), and took Members through each of the clauses. He said that to some extent these had been explained also in the Memorandum on the Objects of the Bill.

Clause 1 amended section 29 of the Magistrates Court Act (MCA), in the Afrikaans text, which did not match with the English text. The English text did not afford the Minister any discretion to place a monetary amount on credit agreements falling within the jurisdiction of the court, and so the words in the Afrikaans text that did afford the Minister a discretion would be deleted.

Clause 1(b) was a consequential amendment, striking out the reference to section 2(1)(e).

Clauses 2 and 3 amended Sections 30(1) and (3) of the MCA. The Constitutional Court, in the matter of Tatiana Malachi v Cape Dance Academy had declared arrests tamquam suspectus de fuga to be unconstitutional and invalid. The purpose of these was originally to prevent a person who owed R40 or more, and against whom the creditor had instituted action, from leaving the jurisdiction of the court until a judgment was given. However, the Court concluded that it infringed on the right to freedom, for no just reason, that the arrest would not render the judgment any more executable, and that the degrading effect of incarceration could not be undone if the money was not owed. Clause 2 deleted the reference to the arrest, and clause 3 increased the amount in section 30bis, to found or confirm jurisdiction, to R2 500, in line with the consumer price index increases.

Clauses 4 and 5 corrected technical errors to sections 38 and 73 of the Criminal Procedure Act (CPA) which were made by Schedule 4 of the Child Justice Act (CJA). Clause 4 would insert the number of the CJA into section 38(1) of the CPA. Clause 5 inserted the number of the CJA into section 73(3) of the CPA, and included a reference to a guardian of an accused under 18, as an additional category of person who could assist the accused.

Clause 6 amended 271B of the CPA, which dealt with expungement of certain criminal records and provisions around expungement. The section failed to make provision for expungement of a record if the person was, at the time of committing the offence, a child, and if the court had made an order under section 290(1)(a) or (b) of the CPA. The CJA requirements for expungement were based on the offence committed, rather than the sentence imposed. The CJA had repealed section 290 of the CPA that dealt with orders that could be made instead of penalties against children, and the Bill now sought to include court orders made under sections 290(1)(a) and (b) as sentences qualifying for expungement. However, Mr Robbertse noted that an order under section 290(1)(d) was not listed, because it was a custodial sentence. It was, however, addressed by clauses 6(a) and (b) of this Bill.

Clause 6(c) would amend section 271B(1)(a)(vii), which referred to “a sentence of correctional supervision” but which had cited the wrong sections, and it would be amended to refer to the correct section, section 276(1)(h) of the CPA.

Clause 7 would amend section 271C of the CPA, which set out the offences that could be automatically expunged by the Criminal Record Centre of the South African Police Service (SAPS), including the “apartheid offences”. SAPS had identified more “apartheid” laws under which people had been convicted and the new list of the offences, which included those under former land legislation and the Black Labour Act, was now set out on pages 11 and 12 of the attached “Briefing Notes” document, and these would be included under section 271C.

Clause 8 would insert new sections 271DA and 271DB into the CPA. Section 271DA would allow the Minister or Director General of the DOJ&CD to revoke an erroneously-issued certificate of expungement, and to request the head of the Criminal Record Centre to rectify information on a person’s criminal record. Mr Robbertse explained that section 271B did not allow for a person’s criminal record to be expunged, if his or her name appeared on the National Register for Sex Offenders, or the National Child Protection Register. However, those had not been fully implemented yet, and it may be that at the time a person applied for expungement, his or her name should have been, but was not entered onto the registers. Another cause for error could be that incorrect information or advice had been given, or the offence might fall outside section 271C(1) or (2) of the CPA. If the Minister or Director General intended to revoke the expungement, notice of this must be given to the person applying for expungement, and s/he must be allowed to furnish reasons why the record should not be expunged.

Mr Robbertse then explained that the new section 271DB would allow the Director General to delegate powers or duties under section 271B or 271C to an appropriately qualified employee of the DOJ&CD, who held the rank of Deputy Director General. This was necessary in view of the numerous applications.

Mr Bassett reminded Members that the CPA was amended in 2008 to include expungement provisions, and it was accepted at the time by Parliament that it was possible that not all of the apartheid offences may have been included. More were coming to light as more applications were received, and SAPS was alerting the DOJ&CD when it received them, hence the need to amend. The South African Law Reform Commission (SALRC) was also busy on an investigation into these issues.

Mr Bassett also said that the question had been raised as to the difference between expungements and the Presidential pardons under section 84 of the Constitution. The Constitution’s provisions noted that any offender, irrespective of the offence, may be pardoned, whereas section 271B of the CPA limited the expungement to less serious offences. The DOJ&CD had sought a legal opinion, which had concluded that the effect was the same, no matter under which Act it occurred.

Mr Robbertse continued with the briefing on the Bill.

Clauses 9, 10 , 11 and 12 corrected technical inaccuracies in the CPA and Schedule 4 of the CJA. Clause 9 amended section 276A of the CPA to reflect an amendment brought about by the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007 (the SOA). In the case of a conviction for a sexual offence, correctional supervision for up to five years could be ordered, but for other offences correctional supervision was limited to three years. Clause 9 would ensure that this was reflected correctly.

Clause 9(b) corrected the reference, in section 276A(2) of the CPA,  to section 77 of the CJA.

Clause 10 was amending section 309 of the CPA, which dealt with appeals by persons convicted from a lower to higher court, to include the correct amendment brought about by the CJA, by ensuring that the proviso was inserted.

Clause 11 would amend section 309B of the CPA, and was consequential upon the amendment to section 309(1)(a). It would spell out that a person sentenced to life imprisonment by a regional court need not apply to that court for leave to appeal against the conviction, sentence, or order.

Clause 12 amended section 309D, which dealt with explanation of certain rights to an unrepresented accused. It was also consequential upon the earlier amendments to 309(1)(a). A person must be informed, by the presiding officer, or his or her rights in respect of appeal and legal representation. The number of the CJA was being inserted as well.

Clauses 13 to 18 effected amendments to the Attorneys Act No 53 of 1979. They had been requested by the current Board of Control of the Attorneys Fidelity Fund (AFF), to enable it to act proactively to prevent damage and loss, rather than being faced with huge claims following theft of trust funds. The question was whether it was a matter that needed to be addressed now, rather than waiting for the Legal Practitioners Bill to be finalised, but the AFF had advised that it was in the interests of the AFF to be able to act now, rather than waiting for that legislation to be passed, since the AFF acted in the interests of the public and the profession

Clause 13 amended section 28 of the Attorneys Act, which currently referred to the members of the Board of Control being drawn from “the societies” – namely the four provincial societies. However, there were practical difficulties in that it referred to the president of the societies sitting on the Board, and because each society had different tenure for its presidents, this had resulted in high turnover of Board members, and a lot of money and time being spent by the AFF on continuous training, as well as loss of institutional knowledge. The AFF had requested that the requirement that the President of the societies be a member be repealed, referring merely to four members per provincial law society.

The AFF had adopted the King Code 3 recommendation to have Board members serve a term of at least three years, and clause 14 sought to amend section 29 of the Attorneys Act accordingly, and to allow an elected member to hold office until his or her successor was elected. A Board member would be eligible for one further term of office.

Clause 15 inserted a new section 46A into the Attorneys Act, to provide for specific powers of the Board of Control, to enhance its operational functions and to allow it to act proactively. The Board had advised that, in practice, not all the societies consistently instituted criminal cases against attorneys struck from the roll for theft, and this clause empowered the Board to institute a private prosecution. Mr Robbertse noted that section 8 of the CPA covered private prosecutions, and noted that these may be instituted, where the right to do so was conferred, after consultation with the National Director of Public Prosecutions (NDPP), if the NDPP had withdrawn its own right to prosecute.

Mr Robbertse noted that the Law Society of South Africa (LSSA) had said that whilst it was not opposed to the AFF requests, it requested that the clause be amended to include a reference to consultation with the relevant provincial law society. The AFF and the DOJ&CD had no objection to this, and the document that set out further proposed amendments by the Committee included the wording.

Clause 16 sought to amend section 48 of the Attorneys Act, which dealt with procedural aspects relating to claims lodged against the AFF. Currently, the Board of Control was required to consider all claims, but this was cumbersome and ineffective and clause 16 sought to introduce a new subsection 48(3) to allow the Board to delegate consideration of claims to any of its officials.

Clause 17 sought to amend section 78 of the Attorneys Act, which dealt with trust accounts. Section 78(8)  noted that the court may prohibit attorneys from operating on their trust accounts and appoint a curator. Some law societies took far too long, after irregularities were detected, to freeze the trust account, and the Board of the AFF had requested, therefore, that the AFF also be able to apply for this remedy. LSSA had requested that the clause be changed to provide that any application by the AFF to court must be done “in consultation” with the relevant provincial law society. Mr Robbertse would speak to this again later. The DOJ&CD and Board of the AFF would not object to this change.

Clause 18 amended certain phrases in the Attorneys Act, as more fully set out in the attached document,  to make them gender-neutral.

Clause 19 amended section 9 of the Small Claims Court Act, which regulated the appointment of Small Claims Court commissioners. In some districts people were not wiling to serve, and because the commissioners were currently appointed to a specific court, this hindered the proper operation of the courts. The amendment proposed the insertion of a new section 9(1)(c) to state that commissioners would be deemed appointed for any small claims court in the province, and this should allow for ad hoc appointments and improve access to justice.

Clauses 20 to 26 amended the Judicial Service Commission Act. Mr Robbertse explained that the Chief Justice (CJ) was the Chairperson of the Judicial Service Commission (JSC) and the Judicial Conduct Committee (JCC). Complaints against judges could be lodged with the Chairperson of the JCC, but if the complaint revealed the possibility of impeachment, the Chairperson must ask the JCC to consider whether the matter should be referred to the JSC, who would in turn consider whether the matter should be investigated and reported on by a Tribunal. As the JSC Act was currently worded, the Chief Justice would participate in all the phases, and sit on the committee considering appeals. This was undesirable and contrary to well established principles. Mr Robbertse pointed out that although the JSC Act did allow the Chief Justice to delegate functions to the Deputy Chief Justice, nothing was said about the situation where the Deputy Chief Justice was also unavailable.  Clause 20 therefore proposed that the Chief Justice could appoint an Acting Chairperson to address these cases.

Clause 21 added a new subsection 9(4) to the JSC Act, relating to chairing of the JCC.

Clause 22 amended section 14(1) of the JSC Act to note that the Chairperson may refer a complaint about a judge to the Deputy Chief Justice, who would then assume the role of Chair when dealing with that complaint. That was intended to ease the workload of the Chief Justice.

Clause 23 provided for the deletion of section 18(2)(b) of the JSC Act, consequential upon the changes to section 9(4).

Clauses 24 and 25 corrected textual errors in sections 19(3) and 34(1) of the JSC Act. Clause 24 would correct the reference in section 19(3), to section 16(4)(b), and clause 25 would correct section 34(1), to refer to the correct section 30.

Clause 26 corrected a textual error in section 35(1)(a), using the singular instead of the plural. Furthermore it inserted a new subsection 25(1)(c) to provide that the Minister may make regulations for witness fees. As was usual in subordinate legislation that involved expenditure for the state, these regulations must be made in consultation with the Cabinet member responsible for finance.

Clauses 27, 42 and 43 sought to give effect to the Constitutional Court order in the matter of Centre for Child Law v Minister of Justice and Constitutional Development and Others. The Court had ruled that certain aspects of section 51 of the Criminal Law Amendment Act (the Minimum Sentencing Act) were unconstitutional, insofar as they applied to accused who were under 18 years of age, because an individual approach was required to sentencing of juveniles, focusing on the child, rather than simply applying minimum sentencing. In addition, for children, the shortest appropriate detention should be applied.

Clause 27 therefore intended to amend section 51 of the Minimum Sentencing Act, by excluding a person who was under 18 at the time of commission of the offence, by deleting section 51(5)(b), and by increasing the age set out in section 51(6), from “16 years” to “18 years”.

Clause 42 would delete section 77(2) of the Minimum Sentencing Act, and delete the reference to section 77(2) in section 77(3).

Clause 43 would delete the reference to section 77(2) of the Minimum Sentencing Act from section 78 of the CJA.

Clauses 28, 29, and 30 would be giving effect to the Constitutional Court judgment in Brummer v Minister of Social Development and Others, which had decided that certain time periods prescribed in sections 77(5)(c) and 78(2) of the Promotion of Access to Information Act (PAIA) were unconstitutional. It was noted in the judgment that litigants would have to go through a number of steps, and the 30-day period then prescribed was considered insufficient. Parliament was advised to enact legislation prescribing a reasonable time limit, but pending the passing of new legislation, the Court substituted a reference to 180 days. The Court also noted that there should be flexibility given to the Courts to condone non-compliance with this time limit, where the interests of justice demanded.

Clause 28 therefore now amended section 77(5)(c) of PAIA, substituting the reference to 60 days with 180 days.

Clause 29 would amend section 78(2) and (3) of PAIA, by substituting the reference to 30 days with 180 days.

Clause 30 amended section 82 of PAIA by adding a new (e) providing for condonation by the courts.

Clause 31 inserted a new section 128A into the Children's Act. Mr Robbertse reiterated that at the moment a person whose name appeared on the National Child Protection Register would not quality for expungement of his/her record, in terms of section 271B of the CPA. This amendment would allow the Director General of DOJ&CD to determine whether there was compliance with section 271B of the CPA, and to call upon the Director General of the Department of Social Development (DSD) for particulars relating to the Register. Section 127 of the Children's Act prohibited disclosure of information from Part B of the Register, unless the disclosure was within the scope of other powers and duties, and the new section 128A was laying the foundation for this disclosure to the DOJ&CD.

Clause 32 was a consequential amendment, that inserted a reference to section 128A into the index of the Act.

Clause 33 inserted a new section 44A into the SOA, to give the Director General of DOJ&CD the power to obtain particulars from the National Register of Sex Offenders, for the purposes of considering an expungement of a criminal record. The information must be provided within 21 working days, and there was reference being made to section 52 of the SOA.

Clause 34 deleted section 66(2)(a)(ix) of the SOA. This section amounted to a duplication of duties, since section 50(3) placed similar obligations on the Registrar of the High Court or Clerk of Magistrates Court, in relation to forwarding the necessary details to the Registrar for the National Register of Sex Offenders.

Clause 35 amended the index of the SOA, to accommodate the insertion of the new section 44A. Additional amendments would be made to the index to reflect amendments made by Act 6 of 2012 (Criminal Law (Sexual Offences and Related Matters) Amendment Act): namely, the heading to section 56 and the new section 56A.

Ms Thandazile Skhosana, State Law Advisor, DOJ&CD, outlined the changes being effected to the Child Justice Act by the Bill.

Clauses 36 and 46 proposed amendments, respectively, to sections 11 and 97 of the CJA. Section 11 dealt with criminal capacity of children who were over 10 but under 14, and section 11(3) required the inquiry magistrate to consider evidence from, amongst others, a “suitably qualified person”, and could order evaluation of the child’s criminal capacity, including an assessment of the “cognitive, moral, emotional, psychological and social development of the child”.

The Minister of Justice and Constitutional Development had determined that psychiatrists and clinical psychologists were competent to do such evaluations. However, the Department of Health did not believe that these professionals could assess the “moral development” of a child. It was notable that the SALRC, and the initial draft of the Bill, did not make reference to “moral development”. The new wording proposed that the inquiry magistrate consider development on the basis of all evidence placed before the court, including the report of the person appointed to evaluate the criminal capacity of the child.

Clause 36 would insert a new subsection 11(4A) into the CJA. This had arisen out of concerns and questions about the handing-in of the report. The provisions of sections 77(2), (3) and (4) would be made applicable to the handing in of the report. If the report was not disputed, the court could make a finding without hearing further evidence. If it was disputed, the court may hear evidence from the prosecutor and accused. The party disputing the finding may subpoena and cross-examine any person who evaluated the accused.

Clause 46 effected a consequential amendment to section 97 of the CJA, providing that different categories and classes of persons may be determined for the purposes of the different aspects of development of a child. The Minister may also determine different allowances and tariffs of remuneration

Clause 37 amended section 28 of the CJA, dealing with protection of children in police custody. This amendment addressed the concern raised by Select Committee on Security and Constitutional Development, about the reporting lines in the SAPS. In future, reports on injury or trauma to a child must be submitted to the Provincial Commissioner, with a copy to the National Commissioner.

Clause 38 proposed amendments to section 43 of the CJA. Questions had been raised whether preliminary inquires should be conducted in the district court, or the court that finally was to adjudicate on the matter. It was proposed that the inquiry be conducted at district level, to facilitate the establishment of a trained and dedicated pool of functionaries equipped to deal with preliminary inquiries, at a central point. These were similar to proceedings under section 119 of the CPA. A new subsection 43(1)(c) would require a magistrate of the district where the alleged offence was committed to preside over the preliminary inquiry. A new subsection 43(4) was being added to deal with the jurisdiction issue.

Clause 39 was intended to allow the Minister of Social Development to delegate some of the powers set out in section 56 of the CJA, to provincial level. These included accreditation of diversion programmes and service providers. Ms Skhosana pointed out that the Minister of Social Development was required to develop frameworks and must invite applications for accreditation, but because welfare services were a concurrent national and provincial competence, in practice the policy framework for diversion would take place in the provinces, which also had the budgets for the programmes. A new section 56(4) was being added, to provide for delegation of power to the MEC responsible for welfare services, except for those powers and duties referred to in section 56(2)(a), which related to policies. Ms Skhosana pointed out that this was similar to the principles included in the Prevention and Combating of Trafficking in Persons Act.

Clause 40 would correct a textual inaccuracy in section 65(3) of the CJA.

Clause 41 substituted references in section 75 of the CJA, relating to sentences of correctional supervision. There was currently an incorrect reference to sections 271(h) or (i) of the CPA. The reference would be corrected to read section 271(h) of the CPA only.

Clauses 42 and 43 proposed amendments, respectively, to sections 77 and 78(1) of the CJA. Clause 42(c) was proposing a consequential amendment by correcting references in section 77.

Clause 44 proposed amendments to section 85(1) of the CJA, dealing with automatic reviews in certain cases. Ms Skhosana explained that if a child was, at the time of commission of an offence, under 16, or was between 16 of 18, and was sentenced to imprisonment, that sentence, irrespective of its duration, should be automatically reviewed by the High Court.

There were some inconsistencies with section 302(1) of the CPA, which also provided for automatic review of sentences of imprisonment, of over three months, imposed by judicial officers with certain experience, but section 302(3) said that no automatic review would apply if the accused was represented. Various questions had been raised by magistrates about the interpretation of section 85 of the CJA, and several magistrates had themselves submitted decisions to the High Court for review and to clarify questions (as more fully detailed on page 22 of the attached presentation). Clause 44 was therefore drafted to clarify the points

Firstly, the differentiation between the age categories of under 16, and then 16 to 18, would  be omitted from section 85(1) of the CJA. Secondly, if a child was sentenced to any form of imprisonment that was not suspended, or compulsory residence in a child and youth care centre, the sentence would be subject to review, irrespective of the duration of the sentence, the experience of the magistrate, or the fact of legal representation.

Ms Skhosana noted that this amendment was also informed by the recommendation of the SALRC, who had said that automatic review was supposed to be applicable to custodial sentences and those sentences that implied more than correctional supervision. Recently, the Western Cape High Court had also made it clear that it preferred an interpretation that insofar as it related to a child under 16, there should be automatic review irrespective of the kind of sentence handed down.

Clause 45 would amend section 87 of the CJA, which dealt with expungement of criminal records in respect of a child. It was similar to the amendments set out in clause 8 of the Bill. New subsections 87(7) and (8) would empower the Minister or Director General of DOJ&CD to revoke certificates of expungement issued erroneously. A new subsection 87(9) would allow for delegation of powers to appropriately qualified employees of DOJ&CD.

Clause 46 proposed amendments to section 97b of the CJA.

Clause 47 was correcting a textual inaccuracy in section 100 of the Setswana text of the CJA.

Clause 48 effected a textual correction to section 3 of the Reform of Customary Law of Succession and Regulation of Related Matters Act No 11 of 2009.

Mr Robbertse then concluded by describing the operational matters.

Clause 49 provided for the short title and commencement of the Bill. Clauses 10 and 11 would be deemed to have come into operation on 1 April 2010, the date on which the CJA came into operation and amended some sections of the CPA. He noted that whilst there was normally a presumption against retrospectivity of legislation, there was an exception if the legislation dealt with procedural matters, and he cited various authorities for this (see page 24 of attached document). He noted that clauses 10 and 11 were amending the CPA to afford a person an automatic right of appeal, but the amendments were merely making corrections to section numbers, and so this was essentially a procedural issue.

Clause 48 would be deemed to come into operation on 20 September 2010, which was the date of commencement of the Reform of Customary Law of Succession and Regulation of Related Matters Act.

Clause 49(3) required amendments to the numbering, and were setting out the correct clause numbers as 36, 39 and 46 (not, as currently, 35, 38 and 45).
The remainder of the clause would come into operation after assent and publication of the Act in the Gazette.

Mr Bassett referred Members to the Memorandum on the Objects of the Bill, and said that he had picked up two errors. Page 19 should have used the word “incompetent” in relation to impeachable complaints. On page 24, the word “the” should be added before “provincial level”, in the second line from the top.

The Chairperson noted that the advertisement calling for written submissions on the Bill was published in the previous weekend's newspapers.

Ms D Schäfer referred to the amendments that the LSSA had requested to the AFF’s suggestions for clause 17, and asked how this would be dealt with.

Mr Bassett suggested that if the Committee was amendable to what the LSSA had requested, the drafters could prepare the necessary wording which the Committee could then approve.

Ms Schäfer noted that whilst the LSSA had said that it wanted “in consultation” to be used, she would have thought that “after consultation” might be more appropriate, and asked if the LSSA would be happy with that.

Mr Robbertse read out the draft he had prepared, which did use the words “after consultation with the relevant provincial society”, and said that this would be effected in respect of both clauses where the AFF was seeking amendments.

Mr J Jeffery (ANC) noted that the document containing the proposed new wording actually set out the proposals of the Department, but it was incorrectly headed "Portfolio Committee amendments agreed to". This was inappropriate and presumptuous.

Mr Bassett apologised and said that this would be corrected.

Mr Jeffery asked if there was still urgency around the AFF amendments. This Bill had been some time in the drafting. He also asked if the same amendments would be incorporated into the Legal Practice Bill, although he accepted that it could be some time before that was fully implemented, even if passed.

Mr Bassett confirmed that the approach in both this Bill and the Legal Practice Bill was the same, but he would confirm the exact wording.

Mr Bassett also confirmed that the LSSA had not been dissatisfied with the amendments that the AFF had proposed but did wanted to ensure that if the Board of the AFF acted, it did so “in consultation” with the relevant provincial law society. He was not sure whether it would accept “after consultation”.

Ms C Pilane-Majake (ANC) asked for clarity on clause 15, which made reference to private prosecutions for theft by attorneys. She wondered why it was necessary to have this clause.

Mr Robbertse said that investigations into trust account theft were often very technical in nature and required experts. It was clear that in practice, very few attorneys were prosecuted for theft. Although the SAPS was supposed to investigate, it would be preferable, in practice, for the attorneys profession to take these prosecutions further. Section 8 of the CPA said that the NDPP may intervene and continue with a prosecution even if it was instituted privately. 

Ms Pilane-Majake referred to clause 47, relating to the textual inaccuracies in the Setswana text of the Child Justice Act. She thought that the words were still wrongly spelt, and asked the DOJ&CD if they should not be corrected again.

Ms Skhosana said that the CJA had been given to service providers for translation, but the communication unit of the DOJ&CD had also double-checked it. She noted that this was the spelling in the version as published, but would double-check on it. Although she was not an expert in Setswana, she was given to understand that the problem lay in use of singular and plural. She would also check with the Language Unit in the Office of the State Law Advisor.

Mr Jeffery also commented on this clause, and wondered if it was not the whole Bill that may need to be made consistent. It was possible that “Child Justice” may have been translated as “Justice for Children” or something similar. However, he made the point that it was the English version of the CJA that had been assented to, and he questioned whether it was correct process to amend a second-language translation in this way. He suggested that there must have been other incorrect translations, in the past. It might be possible to correct a translation without bringing a formal amendment.

Mr Bassett said that in other legislation there had been problems of discrepancies between languages, but this was slightly different, because the version was not placed before the House. He asked for an opportunity to check with the State and Parliamentary Law Advisors.

Mr Jeffery noted that the Brummer judgment had been handed down in August 2009 and Parliament was given 18 to amend the PAIA. He asked what had happened to prevent this amendment until now.

Mr Bassett said that all he could say was that this Bill had been considerably delayed in the drafting.

Mr Jeffery said that Anne Skelton had made submissions before the Bill was introduced, in relation to child justice matters, and she had indicated that she would make some public submissions. This was a very technical Bill and he thought it would be useful for the Committee to approach different interest groups, asking if they wished to make input. There needed to be some further consultation on the AFF and LSSA suggestions, particularly in view of the difference between what the LSSA wanted and what the DOJ&CD was proposing.

Mr J Sibanyoni (ANC) noted that the intention behind the amendments to the Small Claims Court Act was to give greater access to justice. He noted that the commissioners would henceforth be able to sit at any court in their province, but wondered how this would affect the management committees for each of the Small Claims Courts and to which committee the commissioners should belong.

Mr Robbertse did not think that this would pose practical difficulties, as the commissioners would be appointed ad hoc. The main reason for the amendments had been that under the current system, it took far too long to get appointments and to get the courts to run. If the jurisdiction was being widened, it should allow for courts to be held as needed. He was not sure to which committee the commissioners would belong.

Mr S Holomisa (ANC) noted that the Memorandum on the Objects of the Bill stated that the law advisers were of the opinion that this Bill would not have to be referred to the National House of Traditional Leaders (NHTL). However, he questioned this, noting that there were clauses amending the customary succession legislation.

Mr Bassett said that he did not believe the Bill would have to be referred to the NHTL, because there was nothing substantive to do with the succession legislation. Purely technical issues were being addressed.

Mr Monwabisi Nguqu, State Law Advisor, Office of the Chief State Law Advisor, agreed with Mr Bassett that clause 48 did not touch upon any substantive issues, but merely corrected references

Mr Jeffery also agreed on that point and said that it was a pity that the Acts were having to be corrected in this way.

Ms Phumelele Ngena, Parliamentary Legal Services, indicated that this office was still looking at the tagging of the bill but, considering what had just been raised, it was possible that this might be tagged as a section 76 bill.

Members asked why, and she explained that it could be argued that some of the provisions – such as delegation to the MECs dealing with social welfare – in clause 39 could impact upon the provinces. Others sections, including freezing of trust accounts, and matters like trade and consumer protection, may cross over into provincial areas.

Mr Jeffery thought it would be useful for the Parliamentary Legal Services office to forward to the Committee, for discussion, their thoughts on the matter, because the Committee should be part of the discussions. If there were any section 76 provisions the Committee may wish to consider splitting the Bill, to deal with the section 75 and section 76 matters separately.

Mr Bassett noted that there had been amendments to section 78 of the Attorneys Act, dealing with trust accounts, in the past, and they had consistently been tagged as section 75 bills.

The Chairperson noted that the Legal Practice Bill was tagged as a section 76 Bill.

Mr Jeffery said that whilst this was so, the Committee was not happy with the tagging and wanted an opinion on that. The presiding officers in Parliament had, however, said that there would be no prejudice if a section 75 bill was incorrectly tagged as a section 76 bill, although there could be prejudice if it were the reverse. He was very concerned that provinces might see themselves as being able to legislate on attorneys, but it was up to the Minister of Justice to get a legal opinion on that if he wished. Initially, the DOJ&CD and the Office of the Chief State Law Advisor (OCSLA) had felt that it should be a section 75 Bill but the Committee was not able to get a constitutional lawyer’s opinion.

The Chairperson said he had the sense that the Parliamentary Legal Services was taking the easy option and tagging as section 76 without really applying its mind to the issues.

Mr Nguqu said that OCSLA had looked into every clause of the Legal Practice Bill carefully, in the light of the Tongwana judgment, to consider whether any would justify a section 76 tagging and had believed that it should be tagged as section 75. The Constitutional Court had drawn a distinction between the competence of the authority and classification of the Bill.

Mr Jeffery interrupted to say that there was little point in debating the merits, and the decision on classification lay not with this Committee but with the presiding officers. However, it would be useful to discuss the process as the OCSLA seemed to have some cogent suggestions there. He wondered if the Committee, with the Parliamentary and State Law Advisors, should not debate the process.

The Chairperson noted that there was also a deadline within which to raise queries on the tagging.

Mr Jeffery also pointed out that there were some inconsistencies as some bills, such as the Independent System Market Operator Bill, had been changed. He believed that a bill as technical as the Legal Practice Bill would be difficult to have public hearings on, in the provinces, it would increase the cost to Parliament, and he would be most unhappy if provinces were given the power to start legislating on attorneys. The State Law Advisers should also discuss this and make suggestions to the Committee or Minister. He quipped that lawyers were not prone to coming to the same conclusions as each other.

The meeting was adjourned.


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