Judicial Matters Amendment Bill: Departmental response to submissions

Meeting report

Judicial Matters Amendment Bill: Department of Justice and Constitutional Development Response to submissions
Mr Lawrence Bassett, Deputy Chief State Law Advisor, Department of Justice and Constitutional Development, tendered the apologies of Ms Skosana, who was unable to be present to deal with child justice issues, but said he would deal with them instead.

Mr Sarel Robbertse, State Law Adviser, Department of Justice and Constitutional Development, tabled a summary of the submissions on the Judicial Matters Amendment Bill, and noted the responses of the Department.

Clause 6
Mr Robbertse noted that the Cape Bar Council (CBC) had pointed out a drafting error, noting that the word “on” should be inserted after “sentences” in clause 6(a). The Department agreed.

Clause 8
Clause 8 inserted a new section 271DA into the Criminal Procedure Act (CPA), relating to the powers of the Minister or the Director General to withdraw certificates relating to expungement. The CBC proposed some amendments (see attached summary document for details), which were basically to insert the phrase “in writing” into relevant portions of paragraphs (a), (c) and (d) and a wording change in paragraph (b), to ensure that the sentence made sense. The Department agreed with all suggestions. In essence, Mr Robbertse explained that the  powers and functions exercised by the Minister or Director General were administrative in nature. Wherever a person’s rights were affected, that person should be given written reasons, as outlined in the Promotion of Administrative Justice Act (PAJA), so it was important to include this phrase.

Clause 10
Legal Aid South Africa  had commented on clause 10, which was amending section 309(1)(c) of the Criminal Procedure Act, to provide that a person convicted by a lower court may appeal to a higher court. When this provision was amended, by way of the Child Justice Act (CJA) it had failed to incorporate certain amendments brought about in the Criminal Law (Sentencing) Amendment Act, which was enacted at about the same time. Legal Aid SA said that whilst the amendment was necessary, it should apply retrospectively to April 2010. The reason for this was that a person sentenced between 1 April 2010 until now would otherwise remain uncertain on his/her rights.

Mr Roberts pointed out that the Department believed that this was already covered in the Bill, at clause 49(2), which stated that clauses 10 and 11 were deemed to come into operation on 1 April 2010.

Clause 15
Mr Robbertse indicated that the Law Society of South Africa (LSSA) and Attorneys Fidelity Fund (AFF) had commented on clause 15, which would insert a new section 46A into the Attorneys Act, providing that the AFF Board of Control may institute a private prosecution against any person for misappropriation of trust money, similar to the powers already given to the provincial law societies. The LSSA had initially requested that power be exercised by the Fund in consultation with the relevant provincial Law society. However, a later submission did not deal with this. The AFF was not in favour of the suggestion of the LSSA, and said that, as a compromise, private prosecutions could take place with notice to the law societies. The Department of Justice had previously suggested that the words “after consultation with the society of the province concerned” be inserted. Another option was therefore to state that the AFF could act on written notice to the law society of the province concerned.

Mr Robbertse noted that similar powers were also found in the Legal Practice Bill, which was presently being considered by the Committee, in clause 64(1)(i) did not require that the AFF consult.

Ms D Schäfer (DA) suggested that whatever was done, there must be consistency between the Legal Practice Bill and this Bill.

Mr Bassett said that at the moment the Attorneys Act of 1979 gave the law societies the power to institute private prosecutions. He was surprised that the LSAA had not commented on clause 64 of the Legal Practice Bill, since that did not even provide that the Council would be able to institute a private prosecution, although the AFF would be able to do so. He wanted Members to be aware of the disparity between the two bills.

The Chairperson noted that the Members would bear that in mind and ensure consistency.

Clause 17
Mr Robbertse said that clause 17 amended section 78(8) of the Attorneys Act of 1979, to provide that a court may prohibit a practitioner from operating on the trust account. This amendment would allow the AFF also to do so. The comment from LSSA pointed out that although the AFF may only be possession of allegations of theft, the law societies would have access to other relevant information and the capacity to follow a defined process to investigation.  Complaints against attorney were usually first brought to the attention of a law society. Furthermore, where the information on a complaint related to alleged misappropriation, the procedure was that the law societies would immediately appoint inspectors to look into the matter and if they were confident that there had been misappropriation, they would take the necessary action against the attorney. The LSSA disputed the impression that was being created that there were delays. It felt that giving the same powers to two functionaries could lead to confusion.

Later, the Department was informed that the LSSA and AFF had continued to discuss the issues and had agreed that the AFF would only exercise the power to seek an interdict to prevent an attorney from operating the trust account, in consultation with the relevant provincial law society.

Mr Robbertse noted that one of the suggestions to the Committee, prior to this notification, had been that the Committee could amend the clause to afford the AFF this right only “after consultation” with the law society.

Mr Robbertse also noted that, as presently framed, clause 89 of the Legal Practice Bill dealt with the matter, but did not require consultation.

Another possibility, as outlined earlier, was to allow the Board of the AFF the power to exercise this function on written notice to the society.

Ms Schäfer felt that there would be no harm in giving the power to both bodies, but requiring that each act “in consultation” with the other.

Mr Robbertse noted that although one letter of April 2013 indicated that the bodies had reached a compromise – namely to use “in consultation” – the AFF had later said that in respect of instituting private prosecutions it would be prefer that it could do so “with notice” to the society concerned.

Mr S Swart (ACDP) said that the discussions were held in May and he enquired if the Department was aware of more discussions between those bodies to date.

Mr Bassett said that he was not aware of any others.

The Chairperson indicated that when drafting the new version of the Bill, for consideration by the Committee, clause 15 should reflect written notice by one body to the other, and clause 17 would note that “in consultation” must be required.

Clause 19
Mr Robbertse noted that this clause sought to amend the Small Claims Court Act, to the effect that commissioners would be deemed to be appointed for any small claims court in the province. The Committee had questioned how this might impact on the small claims court management committees. The Department noted that these were dealt with administratively and did not have statutory recognition and perhaps the whole issue should be dealt with administratively.

Clause 27
This clause proposed an amendment to section 51 of the so-called Minimum Sentencing Act, by excluding an accused who was under 18 at the time of the commission of an offence, from operation of the section. In particular, it would delete section 51(1)(5)(b) which related to the suspension of not more than half of the minimum sentence for a child between 16 and 18, and the increase of age of a person to whom section 51 did not apply, from 16 to 18. The Centre for Child Law (CCL) indicated that it supported the amendment which was in line with the Constitutional Court Case decision in the matter Centre for Child Law v Minister of Justice.

CIause 36
This clause sought to amend section 11 of the Child Justice Act (CJA) dealing with proof of criminal capacity for children between 10 and 14 years. The amendment would require the inquiry magistrate to consider the cognitive, moral, emotional, psychological and social development of the child, on the basis of all evidence placed before the court.

Mr Robbertse noted that the CCL supported the amendment but urged the Committee to prompt the Inter Sectoral Committee on Child Justice to submit the report, as required in terms of sections 8 and 96 of the Child Justice Act, to enable Parliament to review the minimum age of criminal capacity.

Mr Robbertse pointed out that the sections of the CJA only required the submission of such a report within five years after commencement of the CJA, namely by April 2015. The Inter Sectoral Commission was apparently currently collating information to allow it to compile and submit the report to the Minister within the specified time frame.

Clause 37
This clause amended section 28 of the CJA, which dealt with the protection of children in police custody. Section 28(2)(a) required any complaints about injury or severe trauma to a child to be reported to the station commissioner, whilst (b) required submission of the report to the National Commissioner of Police. The amendment proposed that a report must also be submitted to the relevant Provincial Commissioner.

National Institute for Crime and Rehabilitation of Offenders (NICRO) supported the amendment but had also recommended the independent monitoring of police cells for purposes of checking on the status of children detained there. It had further suggested that if the government did not have the capacity to do this monitoring, other NGOs would be prepared to assist.

Mr Robbertse said that the recommendation by NICRO actually fell outside the scope of the Bill. It was, perhaps, a matter that could be taken up with the Independent Police Investigative Directorate (IPID).

Mr Swart said that it seemed a reasonable proposal. He suggested that, whilst the Committee may not be able to amend the Bill as suggested by NICRO, it could certainly be referred to in the Committee resolution and Report.

Ms Schäfer said that she was concerned that even if the matter was referred to IPID, it would do nothing.

The Chairperson shared her concerns, but said that the Committee must do what it could, and this would mean that at least the Committee was making a strong recommendation.

Clause 42
Mr Robbertse noted that clause 42 amended section 77 of the CJA, dealing with sentences of imprisonment. If would be deleting subsection 77(2), which provided that a child over 16 could be dealt with in accordance with the Minimum Sentencing Act. This amendment was consequential upon the amendments earlier noted under clause 72. It was supported by the CCL.

Mr Robbertse also noted that the clause sought to insert a new section 77(4), as a consequential amendment arising from clause 41. This was not supported by the CCL, which found the new section confusing. The CCL felt that if the amendment sought to provide courts with the authority to impose a sentence of correctional supervision, in addition to one of imprisonment, it could be unduly harsh and could be set aside on review. However, it would support the amendment if it was intended to give courts authority to impose a sentence of correctional supervision where there was a suspended sentence.

Mr Robbertse explained that at the moment, the CJA did not empower a child justice court to impose a sentence of imprisonment and a sentence of correctional supervision. However, it did allow that a sentence of imprisonment could be converted into a sentence of correctional supervision. It might be inappropriate to include the proposal on section 77(4)(c) in this clause. He pointed out that the amendment reflected what was in 276(3) of the CPA, but this did not apply to children.

Mr Bassett added that when the Bill was drafted, it may have been trying to bring the two pieces of legislation in line, and ensure that section 276(3) covered both adults and children, but this was the concern of the CCL, and he agreed that such an amendment could be unduly harsh to children, despite the inconsistency.

Mr Robbertse continued that clause 42 also sought to amend section 77(5) of the CJA, which currently read that a child justice court, when imposing a sentence of imprisonment, “antedate the term of imprisonment by” the number of days the child had already been in detention. The amendment was trying to make this meaning clearer, However, the CCL did not support the amendment, saying that the words “take into account” actually weakened the protection afforded.

The Department said that there was a problem with the original wording, because the word “antedate” actually meant to assign an earlier date than the actual occurrence, which, if literally interpreted, could mean that the sentence may precede the date of conviction. That was not the intention. The courts had dealt with this section in a number of judgments, and had in fact used the words “take into account” (S v Sileni, where the court had indicated that the correct approach where a child had been in custody was that the court should consider the period of detention and impose a lighter sentence).

Clause 44
Mr Robbertse noted that clauses 44 proposed amendments to section 85(1) of the CJA, to clarify uncertainties that had arisen. The magistrates themselves had submitted some cases to the High Court to seek clarity on the application of section 85. The proposed amendments were in line with the judgments handed down.

Ms M Smuts (DA) questioned why the Child Justice Act needed so many amendments.

The Chairperson replied that there had been a lot of cases under this Act since its inception.

Mr Bassett said that it was a very difficult piece of legislation, virtually akin to a whole new Criminal Procedure Act. It was a step in the right direction and had introduced some excellent provisions, but he conceded that there had been some challenges, but this was to be expected. He said that there had similarly been numerous amendments to the Criminal Procedure Act a year after it was put into operation. It could be expected that certain matters and difficulties in interpretation would only come out in the few years after an Act came into operation.

The Chairperson said that the Criminal Procedure Act had been amended several times.

Mr J Sibanyoni (ANC) pointed out that whole new child jurisprudence was brought in by the CJA.

Mr Robbertse continued that, in relation to clause 44, the CCL had supported the amendments, but had also proposed some additional ones.

It proposed the insertion of a new subparagraph (d) to read “whether the child in question appeared before a district or regional court sitting as a child justice court.”

The Department agreed that automatic review should apply, no matter where the child was referred, and said that this new (d) was also in line with a special review judgment handed down after the Bill had been finalised.

Ms Schäfer questioned why (d) would be necessary. She pointed out that paragraph (b) already referred to a regional magistrate, and this ranking surely envisaged that district or regional courts could be involved.

Mr Robbertse read out the amended section 85, with the new wording.

Mr Bassett pointed out that paragraph (b) excluded certain persons, setting out time periods, but the new (d) would ensure that every case would go on review, no matter how long the presiding officer had been on the Bench.

Ms Schäfer agreed that the insertion of (d) would do no harm.

Mr Robbertse added that the CCL had commented that the phrase, currently in section 85(1), “that was not wholly suspended” excluded a child who had received a suspended sentence from the benefits of automatic review and this detracted from the principle that a child must not be treated more severely than an adult. The CCL pointed out that section 302 of the CPA did not exclude adults from this kind of protection, and recommended that the phrase “that was not wholly suspended” should be removed. The Department was in agreement with this.

Ms Schäfer asked if adults’ cases went automatically on review.

Mr Robbertse confirmed that the cases of adults who were not legally represented, and those mentioned in section 302, would go on automatic review.

Clause 45
Mr Robbertse noted that clause 45 amended section 87 of the CJA, which deal with expungement of certain criminal records of children. Amendments proposed here were similar to those proposed under clause 8, and allowed the Minister or Director General of Justice to revoke a certificate of expungement that was issued erroneously, on certain conditions. The CBC had made similar suggestions for paragraphs (a), (b), (c) and (d) as Mr Robbertse had indicated for clause 8 – namely to insert “in writing” and to amend wording in (b), and the Department agreed with these proposals.

Clause 46
This clause was amending section 97 of the CJA, to provide that different categories or classes of person may be determined for the purpose of the different aspects of development of a child referred to in the amended section 11(2)(b).

It further provided that the Minster may determine different allowances and tariffs for different categories or classes of person doing the assessment.

The CCL referred to its comments on clause 3, supporting the amendment in principle but urging that the inter-sectoral report be submitted.

NICRO had indicated its support for the amendment in relation to the people deemed suitable to conduct the evaluations, but cautioned against limiting various categories when evaluating different aspects of child development. It believed that this would result in a fragmented assessment that would not give a holistic picture. It also commented that it was unsure how a psychologist or psychiatrist would evaluate moral development, since cognitive and moral development were connected.

In relation to the allowances and tariffs, NICRO would prefer to have a set fee, although it did acknowledge that different fees for different groups were a reality.

Mr Robbertse noted that the Department had consulted with all role players, when determining the categories of persons who would be deemed competent to assess criminal capacity. This had included, for instance, criminologists and social workers. However, the regulating body for social workers had advised that its specialization categories were still being strengthened and suggested that at this stage they not be mentioned. Further input was awaited from the Department of Health on psychologists and psychiatrists’ ability to evaluate moral development. The issue of fees was also still being considered by the Department and relevant bodies. At the moment, the Department was suggesting, therefore, that the clause not be amended further.

Ms Schäfer questioned why social workers were considered and pointed out that no other profession was mentioned specifically in the clause.

Additional comments
Mr Swart asked about the further matters that were listed on the summary, at pages 12 and 13, which now appeared to have been removed from the Bill. Referring to the CCL submissions on the amendments to sections 11 and 12 of the Divorce Act that were originally included in the Bill, but subsequently removed, he asked when the Further Judicial Matters Amendment Bill was likely to be finalised, and asked whether the Department was satisfied that it would not fall foul of any timelines imposed by the Constitutional Court in the Johncom Media Investment case.

Mr Bassett pointed out that this Bill had a long history, and if all the clauses that were originally included had remained in the Bill, it would have been considerably longer than it was at the moment. The Department had been asked, in view of the shortage of time before the term of the Fourth Parliament expired, to try to include, in this Bill, only the most urgent amendments, and those which could be passed fairly easily. He pointed out that the clauses originally included but now excised had been more complex, had attracted a lot of public comment and were likely to take some time for Parliament to debate and settle.

He assured Mr Swart that there had been many comments on section 12 of the Divorce Act, but that since the Constitutional Court had, in that case, already addressed the matter to the extent necessary for the particular case. It had not given a specific time frame for amendment of the Divorce Act. The Department agreed that amendments were necessary to correct the position but there was not the same sense of urgency as with other amendments.

Clause 30
Ms Smuts wanted to speak to clause 30: proposed amendments to the Promotion of Access to Information Act (PAIA), although it was not mentioned in the summary document. She thought that similar amendments had been included in the Protection of Personal Information (PPI) legislation.

Mr Robbertse agreed that these were included, in the Schedule to PPI. However, he indicated that the PPI legislation would only come into operation on a date to be proclaimed in the Gazette. Because of the technical nature of this legislation, it may be some time before it came into operation.

Ms Smuts said that the law was badly needed.

Mr Bassett indicated that the Department’s legal advisers were currently dealing with the translation, in conjunction with the Office of the Chief State Law Adviser and as far as he was aware it was virtually finalised. However, he reminded Members that the Regulator must still be put in place, and that Office created, and regulations would still have to be made, so there were other matters also outstanding.

Ms Smuts said that she would have liked to see the Regulator appointed by this Committee in this Parliament, and said that it was urgent to force business and other entities to get their houses in order.

Mr Bassett said that the urgency was understood. .

Ms Smuts asked if there was any conflict in having amendments to the PAIA dealt with in both pieces of legislation.

Mr Robbertse said that there was not a problem; for instance the Attorneys Act was being amended whilst the Legal Practice Bill was being considered by Parliament, and it would be useful to get the current amendment in place, and perhaps in force, should the PPI be delayed. It would be possible to amend the PPI legislation, if necessary, at a later stage.

Mr Swart noted comments by NICRO on the challenges around expungement presently being experienced, as set out on page 12 of the summary document. It had made some useful suggestions and he wondered if these could also be included in the Committee’s Report on the Bill.

The Chairperson pointed out that the South African Law Reform Commission (SALRC) was also preparing a Discussion Document which would be released in 2014.

Ms Christine Silkstone, Content Advisor to the Committee, said that the Committee had also asked for a review on expungement, when passing earlier legislation, and that was still to be prepared.

Mr Bassett agreed and said that it was as a result of the Committee Report that the matter had been referred to the SALRC.  and that must still come

Mr Bassett said that it was a result of the Committee report that the matter ended up with the SALRC

Mr Robbertse noted that NICRO’s concern was that the process was taking a long time.

The Chairperson and Members were pleased to hear an assurance from the drafters that they would be able to produce a clean draft of the Bill by the following day, as well as an A-list. They thanked the Department for its excellent work.

Other business
The Chairperson noted that he had been approached by the National Prosecuting Authority (NPA), who was scheduled to present the Annual Report to this Committee in early October. The NPA had noted that it was intending to hold a press conference prior to the meeting. His initial reaction was to refuse permission, but he wanted to discuss this with the Committee. He reminded the Committee that the main concern was that in the past, institutions had held press conferences in the Parliamentary precinct, then arrived late at the meetings.

Ms Smuts agreed that it had been the habit for Ministers to hold media briefings before they announced something in the Assembly. She felt that this was incorrect. The Minister, and equally the NPA, was here to report to Parliament and should not hold any conference before coming to the Committee. The press conference could certainly be held afterwards, or in the NPA’s own precincts.

Mr Swart made the point that this Committee could in fact not dictate where or whether to hold a press conference and the Committee had no power to prevent it.

Ms Smuts agreed but said that it was polite for the NPA to ask. She agreed that the Committee could not actually refuse permission, but felt it would be inappropriate.

Ms Schäfer agreed with Mr Swart and said that the main point was that whatever the NPA decided to do should not impact adversely on the Committee. The NPA was, to her mind, wanting to do some “damage control” but should be doing that in the meeting.

The meeting was adjourned.