Criminal Procedure Amendment Bill: briefing; Judicial Service Commission Act Amendments: deliberations

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Justice and Correctional Services

01 September 2002
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Meeting Summary

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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
2 September 2002
CRIMINAL PROCEDURE AMENDMENT BILL: BRIEFING; JUDICIAL SERVICE COMMISSION ACT AMENDMENTS: DELIBERATIONS

PAPERS ISSUED:

Proposed changes to Judicial Service Commission Act
Judicial Officers' Amendment Bill - Latest Working Draft
Criminal Procedure Amendment Bill, 2002 - draft
Press release for Submissions on Criminal Procedure Amendment Bill, Insolvency Second Amendment Bill, Judicial Matters Amendment Bill, Promotion of Administrative Justice Amendment Bill (see Appendix 1)
S v Steyn judgment, 29/11/2000
Executive summary of Steyn Judgment (Appendix 2)

Chairperson:
Adv De Lange (ANC)

Department drafting team: Mr L Basset, Mr H Du Preez, Ms T Ross and Mr J De Lange

SUMMARY

The Committee was briefed on the draft Criminal Procedure Amendment Bill which will amend Section 309 of the Criminal Procedure Act. This is to follow through on the Steyn judgment that ruled for a less restrictive appeal procedure at the level of magistrates' courts.

In the briefing, reference was made to the Report on the Impact of Appeals on Administration of Justice during 2001/2. The Committee plans to be briefed fully on this research as decisions on the Bill's provisions will rely heavily on the information provided in the Report.

The Committee considered amendments to the Judicial Service Commission Act. Discussion arose on what the term "independence" meant for different organs of State. It was generally agreed that there was a need to hold a workshop on the issue. Problems with the appointment mechanism were highlighted. Provincial committees that currently appointed magistrates were considered to be acting ultra vires and the intention was to change the role of the committees to allow them to create a pool of fit and proper people from which magistrates could be appointed by the Minister in consultation with the JSC. On the issue of same sex partners, the Chair was adamant that the courts would decide what constituted a "life-partner", while legislation would only ensure that there was clarity for the department in terms of who would receive pension benefits.

MINUTES

Announcements
- The committee trip to the USA during the upcoming recess has been approved though the committee stipend has been 'slashed considerably'. Approval has been extended to 10 committee members.

- In reply to the Chair asking if the Promotion of Access to Information Act had been fully implemented, Mr Du Preez said that it had.

Criminal Procedure Amendment Bill, 2002
Before handing over to the drafter, Mr Henk du Preez, the Chair noted that this Bill was the most legally complicated of the upcoming Bills. Relevant to this Bill, was the Steyn judgement which would be provided for members.

Mr Du Preez began by noting that the Bill had recently obtained Cabinet approval and the Bill was expected to be certified by the State Law Advisors between 8 and 12 September 2002. Thereafter the Minister would formally introduce it. He pointed out that a request had been made to the Minister asking him to ensure that all comments on the Bill come before this committee for consideration.

Adv De Lange noted that it would be difficult for the Committee to pass the Bill this year. He explained that the time period set aside for public comment ended 27 September 2002. The cut-off date for Bills to be ready for adoption in the National Assembly was 25 October 2002. However, this would be 10 days after Parliament returns from recess (27 September -13 October)

 

Amendment to Section 309
Mr Du Preez explained that the main object of the provision would be to act as a filtering mechanism with regard to appeal and review procedures. He explained that in the Steyn judgement of 29 November 2000, the Constitutional Court found that S 309B and S 309C placed an unjustifiable limitation on the right to appeal and ordered a less restrictive appeal procedure at the level of magistrates' courts. As such, the provisions were declared to the unconstitutional.

Adv De Lange explained that the Steyn judgement left open the question regarding the unconstitutionality of the right of leave to appeal. He stated that the court in casu held that the mechanism created following the Ntuli judgement was unconstitutional for its vagueness. He emphasized that the Court did not reach a decision regarding the issue of leave to appeal, and noted that S 309B and S 309C were found to be unconstitutional in a very limited technical sense.

Adv De Lange requested that copies of the Steyn judgement, the Criminal Procedure Act 51 of 1977, the leave of appeal procedures from the High Court to the Supreme Court of Appeal, the leave of appeal procedures to the Constitutional Court, and the applicable rules in both instances, be made available to the committee.

Mr Du Preez moved on to deal with the automatic right of appeal. He referred to some of the findings in the Executive Summary of the Report on the Impact of Appeals on Administration of Justice (research conducted by the Department for twelve months - June 2001/May 2002):
- The number of High Court appeals submitted doubled.
- The number of pending appeals in the High Court increased drastically during the final quarter.
- Twice the number of appeals are being dismissed than are being appealed.
- The number of hours spent by judges on appeals nearly doubled from first to fourth quarter.
- About R40 million is spent per annum by the lower courts on transcriptions relating to appeals.
- The cost of legal aid is currently R6-9 million. This would increase dramatically to estimated R171 million to provide for the legal aid in respect of appeals.

Looking at the Report, Adv De Lange wanted to know how dismissed appeals could have increased by 141% yet the number of appeals heard had increased by 70%. He could not make logical sense of these figures. He emphasized that the Committee would be reaching its decision regarding leave to appeal on the basis of the information provided in the Report. Thus he felt that it would be essential for the Committee to receive a briefing on the Report from Ms Glans.

Clause 1
Mr Du Preez explained that the Bill aimed to reinstate leave to appeal. The provisions largely repeated S 309B and S 309C as they were before the declaration of invalidity by the Constitutional Court in the Steyn judgment.

Adv De Lange wanted to know what had been added to the Bill.

Mr Du Preez found that there had been two possible choices in light of the declaration of invalidity: either delete the sections from the Criminal Procedure Act 51 of 1977 or substitute the provisions. This second option was what the committee was currently engaged in. Nevertheless, he pointed out that the provisions remained largely the same.

Clause 2
Mr Du Preez referred to S 309B (2)(a) and listed the words which had been inserted into the Bill:
These were from the phrase beginning with "on receipt from the clerk" and ending with "before the trial magistrate". The entire second proviso had been inserted. Regarding S 309B (6)(a), the inserted phrase began with "if an application" and ended with "is granted". The entire S 309B (6)(b) had been inserted. With regard to S 309C (3), whilst subsection (a) had not been changed, the entire subsection (b) had been inserted.

Mr Du Preez read the relevant parts of the Steyn judgment that dealt with these insertions into the Act. He wondered whether this would include the order of the court.

Adv De Lange explained that towards the end of the judgment, the Court had described the problems experienced through High Court and Supreme Court of Appeal appeals. The other drafters were asked to find the appropriate sections whilst Mr Du Preez proceeded with the briefing. In that regard, he wanted to know what the insertions hoped to achieve.

Clause 1
Mr Du Preez explained that the Constitutional Court had struck down the phrase "subject to S 309B".

Clause 2
Mr Du Preez explained that this clause substituted S 309B and S 309C by retaining the right of leave to appeal and the petition procedures in the High Court.

Adv De Lange confirmed that another person wishing to hear the matter would require a record of the previous court before him. Mr Du Preez agreed.

Adv De Lange wanted to know what the second proviso meant. He wondered how one could read the two provisos together, and explained that the unavailability of a magistrate would increase the need for the court record. However, the second proviso effectively removed the need for the court record.

Mr Du Preez responded that the second proviso would have to be read with regards to the application itself.

Adv De Lange explained that the problem would arise in instances where a new magistrate sits on the case who would not know the preceding events. He repeated the problem saying that the first part of the provision before the proviso did not stipulate that the record would have to be available. Thus he could not see what the second proviso hoped to achieve.

Mr Basset stated that they would look into the issue with the State Law Advisors.

Section 309B and S 309C
Mr Du Preez read the provisions.

Adv De Lange understood this to mean that at a later stage in the Bill the department would deal with the situation where a refusal is changed on petition. He explained that a refusal would usually be followed by a petition.

Mr Du Preez stated that S 309C dealt with the petition procedure.

Ad S 309C (3)(b)
Mr Du Preez referred to the new subsection (3)(b).

Adv De Lange wanted to know if this was provided for at the Supreme Court level. Also he asked how they intended to 'get away' with this provision. Although he was aware that certain exemptions had been discussed, he wanted to know how this would operate.

Mr Bassett did not think that the procedure applied to the High Court and SCA appeals.

Adv De Lange stated that the idea behind the judgement would be to ensure that a judge sees the court record. Thus he wanted to know how this provision would circumvent the Steyn judgement. He pointed out that the provision had been made subject to S 309 (5)(a), and this meant that the record would not be sent automatically, thereby fulfilling the cost-cutting aim.

Mr Basset proposed tightening the wording of S 309(5)(a).

Adv De Lange suggested providing that "call for any further information including a copy of the record where such copy has not been provided in terms of (3)(b)".

Adv De Lange noted that Mr Du Preez had dealt with all the inclusions. He directed the drafters to ensure compliance with the High Court Rules.

Mr De Lange of the Department referred the Committee to paragraph 24 of the Steyn judgement, dealing with the automatic right of appeals. He also referred to paragraph 42 stating that it was an important paragraph because it would not be easy to simply equate High Court procedures with those in the lower courts.

Adv De Lange stated that the paragraphs still did not solve his problem.

Mr De Lange agreed. However, he felt that the paragraphs could assist the Committee in their decision-making process. He referred also to paragraph 47 of the judgement dealing with remedies. He explained that the court order set aside the provision. Interim arrangements were provided for, although this was limited to three situations where leave of appeal would be allowed.

The Chair wanted to know why they were not excluding automatic review.

Mr De Lange explained that automatic review procedures would lapse at the point of appeal.

The Chair stated that appeal procedures involved the same processes as automatic review procedures. Mr De Lange agreed.

The Chair wondered why they should not just exclude the right of leave to appeal.

Mr De Lange stated that automatic review would have to be allowed to run its full course.

The Chair accepted that position. He pointed out that although one used the term automatic review, this actually referred to an appeal.

Adv Masutha described the process as automatic appeal.

The Chair felt that automatic review should be allowed to run its full course whilst leaving no room for the right of leave to appeal. He explained that automatic review was stronger and that this meant that applicants should not be allowed to have the pleasure of both options.

Mr De Lange explained that parties may still wish to appeal decisions.

The Chair explained that automatic review was similar to an appeal. He proposed inserting the phrase "including an automatic review" with regard to the appeal procedures from the High Court to the SCA. He stated that this would allow for further reviews. Nevertheless, he explained that it would not be possible to have automatic review and then the right of leave to appeal from the automatic review process.

Adv Masutha wondered if the outcome of automatic review could be more severe than that from the initial judgement.

The Chair explained that upon automatic review, it would be possible to send a decision back for re-sentencing. However this would not be possible with appeals, where it would be possible to impose higher sentences. He was not aware if this would be possible with automatic reviews.

Adv Masutha stated that as far as he understood the whole process:
- A dissatisfied accused would have the opportunity for applying for leave to appeal.
- Automatic review will take place where an accused is not represented. He added that harsher penalties could not be imposed upon automatic review.
He wondered why an accused that does not use the right of appeal is allowed to benefit from the automatic review process.

The Chair suggested that the argument could be in relation to equality. He explained that automatic review would amount to automatic appeal where the automatic review process has been substituted for the right of leave to appeal.

Adv Masutha wanted to know if the right to apply for leave of appeal would still exist because certain persons could still wish to use that right.

The Chair stated that the point was that this situation would probably result only in smaller cases, and he gave the example of a 3 year sentence for the theft of a loaf of bread. He explained that upon appeal, the automatic review process would cease, thereby leaving the possibility of leave to appeal. Although he accepted that this was a possibility, he felt that the better position would be to allow the automatic review process, amounting to an automatic appeal, to apply. This is because review would be stronger. The aim would be to ensure that a person using the review process does not have fewer rights than one relying on the appeal procedure. It would be necessary to provide that High Court appeals equate with automatic review.

Nevertheless, the Chair directed Mr Du Preez to look to other possibilities, particularly with regard to the exclusion of automatic review and the amending of it in order to equate it with a High Court appeal. He emphasized that:
- Automatic review excludes leave to appeal.
- The Criminal Procedure Act must be amended in order to equate automatic review with automatic appeal.
He continued that all the committee was doing was excluding the automatic review process from the right of leave to appeal. However, it would be necessary to amend the Criminal Procedure Act in order to ensure that automatic review cases would be dealt with as High Court appeal cases.

In reply to Adv Masutha asking if the accused would have a say, the Chair responded that the automatic review process would make the decision.

Adv Masutha wondered whether such a position did not impinge on individual rights. However the Chair replied that it did not and that automatic review was actually stronger.

Adv Masutha stated that leave to appeal was a stage in the process. However, an applicant using the appeal procedure would have the opportunity to motivate his/her case before the judge.

Adv De Lange explained that they were dealing with unrepresented accused persons.

Adv Masutha felt that accused persons could fall into more than one category. He pointed out that in certain instances, an accused could innocently fail to obtain legal assistance. Upon conviction, the accused could then realize that such a decision was not sound. However, in terms of the explanation advanced by the Chair, the accused would not be able to appeal.

Adv De Lange explained that they would have to decide whether to keep the individual right to automatic review, where a case can be held on the merits, or whether to take away that right by granting the right of leave to appeal. He stated that they would have to make a policy decision in that regard.

Adv Masutha stated that it was not the Committee that was taking away such rights from persons. Rather, such persons would be doing that to themselves.

Adv De Lange stated that they were dealing with unrepresented accused persons. He was afraid of taking away definite rights from accused persons.

Adv Masutha said that attorneys would sometimes take advantage of an accused person with the aim of increasing profits. Hence he felt that the opportunity to personally motivate one's case would be very important.

Mr De Lange explained that upon the passing of a sentence, the decision of a magistrate would be automatically reviewable.

The Chair supposed that only magistrates would know this fact. The policy decision would be made at a later stage. He directed Mr Du Preez to deal with automatic review on the basis of two possibilities, namely that review excluded the right of leave to appeal or that the right of leave to appeal excluded automatic review. He added that the other exclusions should also be dealt with in the same manner as the Steyn judgement order, but only to the extent that they may or may not apply.

In response to the Chair asking why legal representation in the District Courts had been excluded, Mr Du Preez said that Regional Courts would hear extensive cases. Thus he felt safe saying that those cases would have to be dealt with. He added that it appeared that the quality of District Court judgements was not of the same standard as Regional Court judgements. They needed the advantage of a full case record.

Mr Basset added that Candidate Attorneys were allowed to appear before District Courts. However, they would only be allowed to appear before Regional Courts after a certain period of time. This meant that the argument would extend to the level of representation in the courts.

The Chair responded that the situation could be regulated. He added that excluding reviews in the District Courts could secure the cost-saving advantage. Nevertheless, he left the matter open.

Mr De Lange wanted to know whether this meant that advocates would not qualify.

The Chair said it did not. However, he pointed out that a vast majority of accused persons would opt for attorney representation. He directed Mr Du Preez to send the press statement requesting comment on the Bill to the NPA, the Legal Aid Board, the Bar and Side Bar and the Judiciary. He stated that the committee definitely needed comments from these bodies.

 

Amendments to Judicial Service Commission Act
The Chair briefed the Committee on what had been decided at previous meetings. The Bill, as it stood, placed complaints in the Remuneration Bill. It was now being added as an amendment to the JSC Amendment Bill. It only applied to judges but was being amended to include magistrates. The amendments provide for a Committee made up of non-governmental people - judges etc. - to deal with complaints and send all matters relating to misconduct to a Tribunal. The Committee would deal with matters in-between. The Tribunal would deal with the most serious cases relating to judges and magistrates. It is called a Tribunal because its recommendations will go to the Judicial Services Commission (JSC), who would make a finding that would be sent to Parliament. Mr De Lange was drafting further points on the issue.

Regarding salary mechanisms, the issue was how would the Commission operate. Mr De Lange was writing a letter to the Commission asking their views, which would then be used to process the issue of the salary mechanism.

Regarding same sex partners, no specific amendments were made but the Satchwell judgment had been discussed. Mr De Lange had been given instructions to make amendments to ensure that spouses as well as partners were understood to be part of the definition and the procedure would deal with only one payment of pensions. The same would apply to magistrates. The intention was to put the principles outlined in the Satchwell judgment in the Bill. The issue of hermaphrodites ("intersexuals") would also be catered for in the Bill but would be more difficult to deal with in the Equality legislation.

The appointment mechanisms had come out of the Van Rooyen judgment and dealt mainly with disciplinary measures. The judgment was interesting as it delineated the role between the executive and the judiciary. Mr De Lange read through paragraphs 46 to 48 of the judgment. The judgment cautioned against criticism between the executive, parliament and the judiciary. The Chair believed that the Court showed great leadership in the judgment. It indicated that the language and manner that is used should not be intemperate, as the Southwood judgment had been. Until now, the relationship has only been spelled out in one direction, and it was good that the court spelled it out for the judiciary.

Clause 12: Code of ethics, and advice to judges
Mr De Lange said that a whole new section had been inserted, and had emanated from the Constitutional Court finding s 12(2)(b) unconstitutional. Section 12 deals with the powers of judicial officers being magistrates and with the issue of assistant magistrates. The section had been found to be unconstitutional as it allows the Minister to decide on the limited powers of assistant magistrates. The intention had been to distinguish the specific matters that the appointed assistant judges would deal with. Nothing would change in practice.

The Chair felt that the clause should be widened to apply to all magistrates, especially bearing in mind the move towards a single judiciary. He gave the example of Benoni, where an African judge had suggested that the magistrates rotate in between the different courts in preparation of becoming a judge. However, female officers from the civil court had refused. The head judge had tried to get people to broaden their capacity and had met with resistance. There was no justification to resist a programme like that, which goes to the heart of reformation in South Africa. It should be made clear in the Bill that judicial officers would be subject to administrative control.

Mr De Lange responded that that was already catered for under s12 (1).

Adv Masutha (ANC) suggested that as there was perhaps a general problem with the word "independence", it should be proposed to the Minister to initiate a sort of workshop to find common ground on the issue.

The Chair replied that a workshop had been thought of but the problem was that "independence" meant different things for different structures. The prosecuting authority has independence that is sui generis, as reflected in the Constitution. The policy has been agreed but dealing with it practically - the operationalising of it - was the problem. If for example, there was a policy on prosecuting all gambling cases and the Prosecuting Authority did nothing in terms of it, the government could then take action. It was different with the judiciary because they did not "sit down" with government - it was a different kind of independence. Chapter 9 institutions did not seem to see that independence has to be within the context of South Africa and the Constitution and the legislation in terms of which they were created, and they therefore have to be accountable to Parliament. If they needed a bigger budget Parliament needed to query the different programmes and were in fact entitled and obliged to inquire about these issues. Parliament could not rubberstamp and if the Chapter 9 institutions were not interested in accounting, Parliament could refuse their budget considerations. There was also the issue of the Speaker and what "independence" meant for her. The problem lay with people who had their own agendas and dealt with the concept of "independence" differently to further their own objectives. A commitment had been made to obtain money for holding a workshop at some stage, as it was apparent that there were problems.

Amendment to s 14 of the Magistrates Act
Mr De Lange explained that the term "laws of the Republic" referred to the Magistrates Act and related legislation. The reference to "any specific case" was now unconstitutional. The intention had been to allow the Minister to appoint a magistrate, and not only a judge to head the JSC. He did not think that it would make any difference to take out the provision as the matter was dealt with from the beginning. It could fall away because it served no purpose and was unnecessary.

The Chair remarked that if it stayed it would have to be with a subject. Continuing, he explained that the entire disciplinary procedure had changed. All issues in the Bill had been covered with the exception of appointment mechanisms and clause 22.

There were problems with the appointment mechanism. If a person applied for a job, he/she had to do so in terms of the structures that were in place. Provincial Committees had been set up to deal with the appointment of magistrates. Nowhere in the Magistrates Act does it allow for acting appointments to be made for a probationary period. It was dealt with in the Rules, but could not be ultra vires. The only hearings done before the Commission are regarding the appointment of judges to higher posts and not when they just enter. It was clear that a problem exists with the procedure. It should be agreed as a principle that no appointment as a magistrate will be made unless the person concerned had first done time as an acting-magistrate, which was the same procedure that applied to judges. He suggested that the provincial committees be kept providing that they no longer decide on appointments of magistrates but would interview people to see if they fell under the category to become a magistrate. They would then be put into the national pool and become part of the sifting process.

Provincial committees have reached the stage where only people from the provinces may apply for posts in that province and so people were effectively being prevented from becoming part of the system. It was necessary to revert to the original idea that the names of fit and proper people be processed to the Commission who would then submit names to the Minister, who would then apply Constitutional principles to decide on an appointment. The procedure should be legal and transparent and be carried out by the Commission. There was a chance that the first appointments were not done legally and there was a need to draft something as soon as possible.

Mr Mzizi (IFP) suggested that there might be a problem with pooling people from different sectors. For example, people such as academics might not get an opportunity.

The Chair responded that the same procedure that applied to judges would apply in this situation. A professor would not be appointed until he had first done an acting stint.

Imam Solomon (ANC) commented that he found the provincial thinking strange, as it did not make sense in terms of the vision towards moving at a national judiciary.

The Chair responded that the Committees would stay but now needed to be part of a national pool to provide people who fit the requirements. This was the role that could be kept for them as he could see their value but did not feel that they should be able to make final decisions on magisterial appointments, and especially bearing in mind their provincial attitude. The Commission should indicate who is qualified and the Minister - who must be able to choose from a group of people - decides on the appointment.

Imam Solomon agreed that the proposal was good but felt that the potential still existed for conflict and tensions in the system.

The Chair disagreed and felt that it should not create tension because the law states that the Magistrates Commission should be appointing magistrates and they are not doing that, but letting provincial committees decide. Mr De Lange would be drafting something with regard to this and the public would be given a chance to comment.

The Committee turned to the issue of same sex partners.

Mr Masutha pointed out the practical concerns of establishing a whether one was a partner in a "permanent same sex life-partnership. This was a whole new legal dispensation of the common law regulation of marriage and was just beginning to find itself in the legal system. The worry was that a mere unilateral act by one party to remove the other from the record may not be adequate to take away the status of the other and may require a lot more than merely deregistration.

The Chair did not agree as he felt that a person could not be obliged to have a legal duty and the other person could not be involved in deciding. A system needed to be created that the judge could regulate, but even if that were done, a person could then pass a will to exclude the other. He did not know of a system where this was not possible. Nothing more could be done in this law than to ensure that the department creates a system. The partner should be involved as little as possible in the decision regarding a beneficiary. The decision should be left to a judge and if a third person wanted to dispute it they could do so through the regular civil procedures.

Mr Masutha remarked that it was incumbent on judges to register a partner for administrative purposes but it does not say that a life partner is the person who has been registered.

The Chair replied that if a judge put down a person's name, it should be clear to the department that that is the person who should be paid out. If there was no name the money should go to the estate. Clarity for the department was necessary.

Mr Masutha was of the opinion that it was necessary to guard against making registration the equivalent of a legal indication of partnership.

The Chair responded that a judge is legally entitled to register a partner or spouse. If the judge wanted a specific person to benefit upon his/her death then a specific person needed to be registered. If no one were registered the money would go to the estate. That fact needed to be checked, as he was not sure if pensions could go to an estate.

Mr De Lange stated that the pension would either go to a person or a lump sum would get paid into the estate.

The Chair reiterated that if there was a dispute of "life-partner", the dispute should be settled in court and it would not be stated in law who a life-partner was.

Mr Masutha's concern was satisfied.

Meeting adjourned

Appendix 1:
Executive Summary of Steyn Judgment

Prior to the introduction of sections 309B and 309C of the Criminal Procedure Act in May 1999 a person convicted and sentenced in a magistrates' court had an unconditional right of appeal. These sections require that such persons first obtain the leave of the magistrate and if refused the high court can be asked for leave to appeal. Mr Steyn was convicted and sentenced to a long term of imprisonment by the regional court sitting in Pretoria. His application to that court for leave to appeal and his petition to the Transvaal High Court were unsuccessful. He then approached this Court contending that the provisions infringe his right of appeal to a higher court in terms of section 35(3)(o) of the Constitution. The state's argument was that since the leave and petition procedure in respect of appeals against high court judgments had previously been found to be valid by this Court, that had to hold true in respect of magistrates' court appeals as well.

Acting Justice Madlanga, writing for a unanimous Court, held that the procedure does infringe the right of appeal, which requires that there be an informed reappraisal of the case. However, crucial material, such as the record of proceedings in the trial court and its judgment are not necessarily available to the high court when it considers a petition, nor is it compulsory for that court to hear oral argument. The high court might accordingly not be in a position to make an informed decision as to whether or not leave to appeal should be granted. Particularly in cases where the petitioner is unrepresented, there is too great a risk under this procedure that a genuine miscarriage of justice will not be picked up. Also magistrates function under great pressure and are often faced with unrepresented accused and must contend with relatively inexperienced legal practitioners and investigating officers, rudimentary library facilities and other resource-related impediments. In such circumstances, the risk of errors leading to an injustice is substantially greater than in the high courts. This greater margin of error calls for a less restrictive appeal procedure at the level of magistrates' courts.

The state also sought to justify the procedure on the grounds that it prevented the clogging of appeal rolls and ensured that hopeless appeals did not waste valuable court time. However, the state failed to establish this. Therefore, the procedure could not be justified in terms of section 36 of the Constitution.

The court accordingly declared the procedure to be inconsistent with the Constitution and invalid. In the interests of justice and equity, however, it suspended the declaration of invalidity for a period of 6 months. The suspension was necessary to enable the state to take steps to address the impact of the number of cases that would be added to the court rolls. The relatively short period of suspension was aimed at getting government to respond quickly to the declaration of invalidity. To protect the rights of would-be appellants during this period the full trial record and reasons for the magistrate's judgment must be lodged with a petition to the high court in certain circumstances such as where the person seeking to appeal against conviction and sentence had no legal representation or would spend a substantial period in prison.

Appendix 2:
PROMOTION OF ADMINISTRATIVE JUSTICE AMENDMENT BILL, 2002

Press statement issued by Adv. Johnny de Lange, MP, Chairperson of the Portfolio Committee on Justice and Constitutional Development.

The Promotion of Administrative Justice Amendment Bill will soon be introduced in Parliament and referred to the Portfolio Committee on Justice and Constitutional Development, for consideration and report.

The Bill aims to amend the Promotion of Administrative Justice Act, 2000, so as to amend a definition; and to provide for matters connected therewith.

If any person or organization would like to make written representations to the Committee on the Promotion of Administrative Justice, he or she should do so by no later than 13 September 2002. Any person or organization who would like to give further oral evidence before the Committee with regard to his or her written submission should notify the Committee of such intention by no later than 13 September 2002.

The Committee requests all persons and institutions who wish to make written submissions to it to make 20 copies available to the Committee, if possible.

The Committee reserves the right to decide:

  • Whether or not to hold public hearings on the Bill:
  • Whether or not to give individuals or representatives of organizations the opportunity to appear before it; and
  • The date, time, venue, duration and form of the hearings.

All correspondence should be marked for the attention of Sipho Jonas and be addressed to:

The Secretary to Parliament

PO Box 15

Cape Town

8000

Copies of the Bill may be obtained from Mr. Jonas.

Contact: Sipho Jonas (sejonas@parliament.gov.za) / Tel: 021 403 3660/9 / Fax: 021 462 2142

JUDICIAL MATTERS AMENDMENTS BILL, 2002.

Press statement issued by Adv. Johnny de Lange, MP, Chairperson of the Portfolio Committee on Justice and Constitutional Development.

The Judicial Matters Amendment Bill is soon to be introduced in Parliament and referred to the Portfolio Committee on Justice and Constitutional Development for consideration and report.

The Bill aims to amend the Insolvency Act, 1936, so as to effect certain textual corrections; to amend Magistrates Courts Act, 1944, so as to further regulate the rescission of judgments; to amend the Stock Theft Act, 1959, so as to repeal certain obsolete provisions; to amend the General Law Further Amendment Act, 1962, so as to repeal an obsolete provision; to amend the South African Law Commission Act, 1973, so as to effect a name change; to further regulate the appointment of members of the Commission; and to further regulate requirements in respect of the reports of the Commission; to amend the Companies Act, 1973, so as to further regulate the summoning and examination of persons as to the affairs of a company and the examination of directors and others at meetings; to amend Criminal Procedure Act, 1977, so as to further regulate applications for the discharge of State patients; to amend the Attorneys Act, 1979, so as to empower the Fidelity Fund to levy premiums on practitioners for the provision of professional indemnity insurance cover; to amend the Correctional Services Act, 1998, so as to effect a technical correction; to amend the Promotion of Access to Information Act, 2000, so as to amend a definition; and to provide for matters connected therewith.

If any person organization would like to make written representations to the Committee on the Judicial Matters Amendment Bill, he or she should do so no later that 13 September 2002. Any person or organization who would like to give further oral evidence before the Committee with regard to his or her written submission, should notify the Committee of such intention by no later that 13 September 2002.

The Committee requests all persons and institutions who wish to make written submissions to it to make 20 copies available to the committee, if possible.

The Committee reserves the right to decide:

  • Whether or not to hold public hearings on the Bill
  • Whether or not to give individuals or representatives of organizations the opportunity to appear before it; and
  • The date, time, venue, duration and form of the hearings.

All correspondence should be marked for the attention of Sipho Jonas and be addressed to:

The Secretary to Parliament

PO Box 15

Cape Town

8000

Copies of the Bill may be obtained from Mr. Jonas.

Contact: Sipho Jonas (sejonas@parliament.gov.za) / Tel: 021 - 403 3660/9/ Fax: 021 - 462 2142

INSOVENCY SECOND AMENDMENT BILL, 2002

Press statement issued by Adv. Johnny de Lange, MP, Chairperson of the Portfolio Committee on Justice and Constitutional Development.

The Insolvency Second Amendment Bill is soon to be introduced in Parliament and referred to the Committee for consideration and report.

The Bill aims to amend the Insolvency Act, 1936, so as to provide for notice of a petition for the sequestration of a debtor's estate to employees of the debtor and registered trade unions representing employees and the South African Revenue Service; to provide for the service of sequestration orders on such employees, trade unions and the South African Revenue Service; to amend the Companies Act, 1973, so as to provide for notice of an application for winding-up to employees of the company and registered unions representing the employees and to the South African Revenue Service; to provide for service of winding-up orders on such employees and trade unions and on the South African Revenue Service; and to provide for matters incidental thereto.

If any person or organization would like to make written representations to the Committee on the Insolvency Second Amendment Bill, he or she should do so by no later than 20 September 2002. Any person or organization who would like to give further oral evidence before the Committee with regard to his or her submission, should notify the Committee of such intention by no later than 20 September 2002.

The Committee requests all persons and institutions who wish to make written submissions to it to make 20 copies available to the Committee, if possible.

The Committee reserves the right to decide:

  • Whether or not to hold public hearings;
  • Whether or not to give individuals or representatives of organizations the opportunity to appear before it; and
  • The date, time, venue, duration and form of the hearings.

All correspondence should be marked for the attention of Sipho Jonas and be addressed to:

The Secretary of Parliament

PO Box 15

Cape Town

8000

Copies of the Bill may be obtained from Mr. Jonas.

Contact: Sipho Jonas (sejonas@parliament.gov.za) / Tel: 021 - 403 3660/9/ Fax: 021 - 462 2142


CRIMINAL PROCEDURE AMENDMENT BILL, 2002

Press statement issued by Adv. Johnny de Lange, MP, Chairperson of the Portfolio Committee on Justice and Constitutional Development.

The Criminal Procedure Amendment Bill is soon to be introduced in Parliament and referred to the Portfolio Committee on Justice and Constitutional Development for consideration and report.

The Bill aims to amend the criminal Procedure Act, 1977, so as to further regulate appeals against decisions of lower courts; and to provide for matters connected therewith.

If any person or organization would like to make written representations to the Committee on the Criminal Procedure Amendment Bill or in respect of any other aspect of the Criminal Procedure Amendment Bill, he or she should do so no later than 27 September 2002. Any person or organization who would like to give further oral evidence before the Committee with regard to his or written submission, should notify the Committee of such intention by no later than 27 September 2002.

The Committee requests all persons and institutions who wish to make written submissions to it to make 20 copies available to the Committee, if possible.

The Committee reserves the right to decide:

  • Whether or not to hold public hearings on the Bill
  • Whether or not to give individuals or representatives of organizations the opportunity to appear before it; and
  • The date, time, venue, duration and form of the hearings.

All correspondence should be marked for the attention of Sipho Jonas and be addressed to:

The Secretary of Parliament

PO Box 15

Cape Town

8000

Copies of the Bill may be obtained from Mr. Jonas.

Contact: Sipho Jonas (sejonas@parliament.gov.za) / Tel: 021 - 403 3660/9 / Tel: 021 - 462 2142

Issued by Adv. Johnny de Lange, MP

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