Promotion of Equality Amd Bill; Promotion of Administrative Justice Amd Bill; Insolvency 2nd Amd Bill; Limitation of Legal Proce

This premium content has been made freely available

Justice and Correctional Services

24 September 2002
Share this page:

Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
25 September 2002
FINALISATION: PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION AMENDMENT BILL; PROMOTION OF ADMINISTRATIVE JUSTICE BILL; INSOLVENCY SECOND AMENDMENT BILL; LIMITATION OF LEGAL PROCEEDINGS AGAINST ORGANS OF STATE BILL; PROMOTION OF ACCESS TO INFORMATION AMENDMENT BILL; PUBLIC PROTECTOR GRATUITY; SUSPENSION OF MAGISTRATE

Chairperson: Adv J H De Lange (ANC)

Documents handed out
Insolvency Second Amendment Bill [B53B-2002]
Institution of Legal Proceedings Against Organs of State Bill [B65C-1999]
Draft Promotion of Administrative Justice Amendment Bill
ATC containing Select Committee Report on Institution of Legal Proceedings Bill
Draft Insolvency Second Amendment Bill
Draft Promotion of Access to Information Amendment Bill
Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill - final version
Extended Legislative Programme of the Department (Appendix 1)
Banking Council of South Africa Submission on Insolvency Second Amendment Bill (Appendix 2)
Committee Report on Suspension and Removal of Mr Nongena (Appendix 3)
Committee Report on Conditions of Service of Public Protector (Appendix 4)
Committee Report on Remuneration of Public Protector (Appendix 5)
Committee Report on Institution of Legal Proceedings Bill (Appendix 6)
Committee Report on Judicial Matters Amendment Bill (Appendix 7)
Committee Report on Promotion of Administrative Justice Amendment Bill (Appendix 8)
Committee Report on Promotion of Equality Amendment Bill (Appendix 9)
Further Amendments to Insolvency Second Amendment Bill (Appendix 10)
COSATU Submission on Insolvency Second Amendment Bill (Appendix 11)
Committee Report on Insolvency Second Amendment Bill (Appendix 12)

Committee Amendments to the Insolvency Second Amendment Bill (Appendix 13)
Proposed changes to Judicial Service Commission Act

The following documents are awaited:

Moseneke and others v Master of the High Court CCT51/00 (6 December 2000)

SUMMARY
The salary and remuneration of the Public Protector was discussed. It was decided to alter the tax formula to enable the gratuity paid to Mr Baqwa to be taxed by SARS. The Committee resolution recommended no further action be taken in this matter. The suspension and removal from office of former magistrate Nongena was considered, and the Committee recommends that no further action be taken here.

A few technical and structural amendments were effected to both the Institution of Legal Proceedings Against Organs of State Bill and the Insolvency Second Amendment Bill, and the effect of the Moseneke judgment on the introduction of the Administration of Estates Amendment Bill was discussed.

The long title and Clauses 2 and 3 of the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill were amended via structural and technical changes, and the Committee resolution was amended and considered the definition of the term "intersexed". Technical amendments were also effected to the long title and Clause 2 of both the Promotion of Access to Information Amendment Bill and the Promotion of Administrative Justice Amendment Bill.

MINUTES
Morning Session
The Chair stated that five Bills would have to be passed during this meeting: The Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill, the Promotion of Administrative Justice Bill, the Insolvency Second Amendment Bill, the Limitation of Legal Proceedings Against Organs of State Bill and the Promotion of Access to Information Amendment Bill. There were also two matters relating to the Public Protector that had to be considered, as well as the gratuity to be paid to Mr Nongena, who has been removed from office as a magistrate.

Report on Remuneration of Public Protector
The Chair informed Members that this matter deals with the gratuity that was paid to the Public Protector in terms of the contract of service entered into seven years ago when he first took office. This contract had to be approved by Parliament and this was duly done by an Ad Hoc Committee, and declared that the gratuity which would accrue to the Public Protector upon the expiration of the seven year term would not be taxable. Yet SARS has since stated that this gratuity has to be taxed, because the legislation stipulates that any contract purporting to bypass the payment of tax would be declared void. It has therefore been decided to change the formula used to calculate the tax to be levied on this gratuity, and a letter from the Minister of Finance has to be secured as evidence that he has approved the tax rate. This matter cannot be resolved without that letter of approval.

Report on Salaries and Conditions of Service of Public Protector
The Chair stated that this is an instance in which the National Treasury and the Public Service Commission have approved several new positions of employment, but these are subject to the strict condition "as the money becomes available". One such appointment is now being made, and all relevant parties approve of the appointment. It is not a controversial appointment and the resolution of this Committee recommends that no further action be taken.

The Chair noted that all agreed.

Suspension and Removal from Office of Mr Nongena
The Chair stated that, because of the Van Rooyen judgment, the decision was taken to refer this matter back to the Magistrates Commission. This Committee has since passed a resolution (see document attached) recommending that the House take no further action in this matter at this point in time. Furthermore, the word "urgent disciplinary hearing" should be inserted in the Committee Report because Mr Nongena is currently at home receiving a full salary, and this matter therefore has to be resolved as soon as possible.

The Chair noted that all agreed.

Institution of Legal Proceedings Against Organs of State Bill
The Chair stated that this Bill was been passed by the Portfolio Committee, certain amendments were then considered and it was handed over to the NCOP for approval. The NCOP has since approved the Bill and it therefore remains for this Committee to approve the Bill.

Mr Johan Labuschagne, Legal Drafter from the Department of Justice and Constitutional Development, informed Members that the Draft C version of the Bill (see document attached) is the document which this Committee has to pass during this meeting. The Parliamentary ATC Paper containing the Committee Report on the Bill (see document attached) has also been made available to Members for information purposes. The Draft B of the Bill (see document attached) is the version of the Bill as passed by the National Assembly and in which amendments have been since been inserted, and has been provided so that Members may have a full picture.

The Chair noted that a technical amendment has been effected to the Preamble to the Bill. The phrase "periods of prescription" has now been replaced with "prescription periods". The Draft C version of the Bill contains those amendments which this Committee has already processed.

Mr Labuschagne stated that no changes have been effected since then, and he himself effected the amendments to the periods of prescriptio" in order to bring the Bill in line with the Prescription Act.

The Chair agreed and noted that Members approve the Draft C version of the Bill.

Mr Labuschagne informed Members that the Committee Report on the Bill has also been distributed (see document attached).

Administration of Estates Amendment Bill
The Chair informed Members that this Bill is in the process of being introduced in Parliament and Parliament has thus been requested to fast-track this legislation as the Constitutional Court has fixed the deadline for the finalisation of this Bill by 6 December 2002. During July 2002 the Department stated that it was experiencing problems with the Bill but they could be solved with a few amendments via this Bill, and there would be no need to request the Constitutional Court to extend the deadline beyond 6 December 2002. Those problems have since been resolved, and this Committee will then deliberate on this Bill during the final session of Parliament. Clarity is needed on the Moseneke judgment (see document attached) and its impact on this Bill.

Mr Tienie Cronje, from the South African Law Commission, stated that the judgment declares Section 23(7)(a) of the Black Administration Act of 1927 to be invalid.

The Chair asked Mr Cronje to direct Members to the crux or ratio of the judgment.

Mr Cronje replied that this is contained in Item 2 on the final page of the version of the judgement he was using, as well as in Footnote 33. Item 4 on the last page of the judgment declares Regulation 3(1) of the Regulations published in terms of the Act to be unconstitutional. It provides that the order of invalidity would be suspended for a period of two years, and during that period the word "shall" in that Regulation is to be read as meaning "may". This essentially provides a choice to the person to either report to the Magistrates Court or to the Master of the High Court.

The Chair stated that this then provides that, when a South African who previously fell under the jurisdiction of the Black Administration Act dies intestate, the estate could be administered by either the Master of the High Court or the Magistrates Court.

Mr Cronje informed Members that the paragraph of the judgment just prior to Footnote 33 outlines the circumstances in which the estate of an "African" who dies intestate would be administered according to the common law, and not according to African Customary Law.

The Chair stated that the SALC is currently considering this matter.

Mr Cronje contended that such matters would be best dealt with by African Customary Law because the administration of estates and matters relating to succession are intertwined. The Moseneke judgment also held that the Department cannot be prevented from making available some of the present benefits to all South Africans, and provided in Footnote 27 of the judgment. The judgment declares that all estates will now be administered by the Master of the high Court, but service points will also be opened so that there will no longer be any need for people to travel all the way to the Master's Office in Pretoria.

The Chair contended that this judgment essentially provides that the Master of the High Court can administer the estates and can also delegate this power to his staff, and the matter can therefore either go to the Master of the High Court or it could go to the Magistrates Court. The law now allows the Master's Office to conduct this matter and the Magistrate Court would only oversee the process, and all the records would then be handed over to the Master. Does this delegation of authority not create problems?

Mr Cronje replied that it will become a problem if the legislation does not specifically provide for the delegation. The proposed Clause 2 of the Bill stipulates what would happen after 6 December 2002 should nothing be done to remedy this situation, and provides that the estates of those abiding by African Customary Law would be administered by the Master of the High Court, but if this were not to be lodged the estate would devolve in terms of the common law. This provision thus clarifies the Moseneke judgment. The proposed Clause 3 of the Bill merely clears Section 23(7)(a) of the 1927 Act from the statute books.

The Chair stated that it has to be included in the Committee resolution on this Bill that once it is amended it has to be effected immediately and submitted to Parliament. The regulations have to be ready once this legislation is passed. This matter will be considered in greater detail after 18 October 2002.

Insolvency Second Amendment Bill
The Chair referred Members to the submission from the Banking Council of South Africa on the Bill (see document attached), and noted that it has raised no objections with the Bill. COSATU has also submitted an opinion on the Bill (see document attached), and stated that its concerns have been covered by the Bill.

Clause 1: Amendment of section 4 of Act 24 of 1936, as amended by section 3 of Act 16 of 193, section 19 of Act 62 of 1995 and section 1 of Act 49 of 1996
Mr Cronje stated that Clause 1 in the Draft Bill (see document attached) deals with voluntary surrender, and the new clause has been inserted to accommodate the concerns of the trade unions and the Receiver of Revenue.

The Chair asked Mr Cronje to explain why Subclauses (ii) and (iii) in Clause 1 have been separated into two provisions, because they seem to refer to the same thing. Should those two provisions not properly be included in one provision, because Subclauses (i) to (iii) currently looks like three different stages that have to be satisfied. These provisions have to be condensed.

Mr Cronje stated that the proposed Clause 11(2A) contains the sort of structure suggested by the Chair.

The Chair contended that this makes more sense because the formulation in Clause 1 creates the impression that the two are separate, and a comma should be inserted after the word "affixes".

Clause 2: Amendment of section 9 of Act 24 of 1936, as amended by section 6 of Act 16 of 1943, section 2 of Act 99 of 1965 and section 1 of Act 122 of 1993
The Chair stated that this clause seeks to amend Section 9 of the Insolvency Act, which deals with compulsory sequestration. Subclause (a)(iii) should be removed and the remaining provisions should be condensed into one section, and the present Subclause (a)(iv) would become the new Subclause (a)(iii). Are there current procedures similar to that provided for in this clause?

Mr Cronje replied that when a company wishes to sell some of its property urgently it approaches the court in this regard.

The Chair stated that the word "unless" in Subclause (a)(v) has to be removed, because if all other parties become aware of the notice it cannot then make a difference if the debtor knows as well.

Mr Cronje responded that the Court Rules provide that the court may dispense with the giving of the notice where it is in the interests of the respondent, here the debtor, to not do so.

The Chair suggested that this provision should then be phrased in the same manner as the Court Rules because it phrases it more vaguely and wider, as the current use of "unless the court order" is too specific. Thus the provision should instead require an affidavit here so that a uniform measure may be entrenched, and this would then avoid the undesirable situation should each of the nine provinces then develop its own rules here.

Clause 3: Substitution of section 11 of Act 24 of 1936
The Chair stated that the word "contemplated" in the proposed Section 11(2A)(a) should be replaced with the phrase "referred to".

Mr Cronje replied that he was not certain here.

A representative from the Office of the State Law Advisor stated that this amendment could be effected.

The Chair noted that all agreed with this proposal, and this provision should thus be altered to provide "referred to in subsection 1".

Clause 4: Substitution of section 15 of Act 24 of 1936
The Chair sought clarity regarding Clause 4 of the Bill.

Mr Cronje responded that this clause contains a typographical error, as it should properly state "Section 15" and not "Section 14". It is not certain whether the phrase "by reason of the provisional sequestration" would apply equally to companies, and it therefore proposed that this clause be inserted in the Companies Act as well.

Ms S Camerer (NNP) suggested that the word "damage" in the proposed Section 14 be replaced with "harm", because surely harm first has to occur in order to then prove damages.

Mr Cronje did not object to this proposal.

The Chair stated that the provision should remain as it currently stands, and suggested that this is a unique procedure that seeks to prevent the abuse of this remedy by awarding damages for the institution of vexatious or malicious litigation.

Clause 6: Amendment of section 346 of Act 61 of 1973 as amended by section 11 of Act 70 of 1984
The Chair stated that a comma should be placed before the word "affixing" in the proposed Section 346(4A)(a)(ii). Subclause (iii) should be removed and the current Subclause (iv) will then become the new Subclause (iii), and the current Subclause (v) will become the new Subclause (iv). Do the Court Rules include a provision that applies equally to companies?

Mr Cronje answered in the affirmative, and stated that it reads almost identically to this provision. Yet this is not a uniform Rule of Court as it is a Cape Division rule, but it has been applied in all courts.

The Chair approved, and stated that the wording of the provision has to be changed. Court Rule 347 has to be inserted here.

Long title
The Chair stated that the long title has to be amended by including a reference to the debtor, companies and damages from the presentation of sequestration, as well as a reference to damages for companies in Clause 4.

Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill

The Chair informed Members that the Committee Resolution on the Bill has been made available (see document below), and proceeded to read through the Bill (see document above).

Long title
The Chair stated that a few things in the long title have to be changed.

Dr J Delport (DP) suggested that the phrase "and training" in the long title should properly be placed before the word "designation", because training logically precedes designation.

The Chair stated that this should be shifted around.

Clause 2: Amendment of section 17 of Act 4 of 2000
The Chair requested clarity regarding the inclusion of the phrase "despite subsection (2)" in Subclause a(b).

Mr Henk du Preez, Legal Drafter from the Department, replied that Clause 3 refers to Subsection 1(a) because Subclause 1(b) deals with the appointment of clerks to the Equality Courts.

The Chair accepted Mr du Preez's explanation.

Clause 3: Amendment of section 31 of Act 4 of 2000
The Chair stated that the formulation of this clause is not satisfactory, and the structure has to be moved towards the margin. The structure of Clause 9A of the Promotion of Administrative Justice Amendment Bill (see document above) should be consulted on the structure of this provision, and Subclause 4(c) has to be included in the body of Clause 3.

Dr Delport suggested that that subclause cannot be included if specific reference is made to "subsection 4".

The Chair contended that it could probably state "with a view to providing for" and then include Subclause 4(a) to (c).

Ms Camerer suggested that "the social context training" will not make sense unless it is placed in parts (a) to (c).

The Chair stated that this provision should state:


"with a view to building a dedicated and experienced pool of trained and specialised presiding officers for the purposes of presiding in court proceedings as contemplated in this Act, by providing for-

(a) social context training etc."


Ms Camerer asked whether "social context training" is a term of art that is well understood.

The Chair answered in the affirmative and stated it is a concept that was taken from the Canadian system and includes racial, gender and class issues. Subclause 4(c) should thus be deleted and an "and" should be placed between Subclause 4(a) and (b), and "the" must be deleted from the beginning of Subclause 4(a).

Ms Camerer asked whether Subclause 6 would amended in the same way.

The Chair responded in the affirmative.

Dr Delport suggested that the phrase "by providing for the establishment of uniform norms, standards and procedures to be observed" should be replaced with the phrase "providing uniform norms, standards..." in Subclause 4(b).

The Chair agreed and called for Subclause 6(b) to be amended in the same way.

Committee Resolution on Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill
The Chair suggested that the phrases "due to the financial implications involved and" should be inserted before "since Parliament already fulfils an oversight function" in point 1 of the Resolution (see document attached). The phrase "and if necessary to introduce legislation to remove it from the legislation" has to be included in the resolution as well.

Mr J Jeffrey (ANC) questioned whether this is at all necessary, because it is then not clear whether the SALC Report or legislation has to be ready by February 2003.

The Chair contended that the phrase "including the introduction of legislation necessary to rectify legislation" be inserted after "report back to Parliament" in the last paragraph of the Resolution, and the sentence "relevant parties specifically the SAHRC must be consulted" also has to be included.

The Chair noted that Members agreed with these amendments.

Mr Lawrence Bassett, Legal Drafter from the Department, agreed with the amendments.

Mr Jeffrey asked whether the term "intersexed" has a legal definition.

The Chair suggested that the word "hermaphrodite" be inserted before "intersexed" at the end of Point 2 in the Resolution.

Ms Camerer stated that the term "intersexed" should be used instead because the contention is that "hermaphrodite" is seen to connote a "crippled person", and efforts are thus being made to move away from this labeling.

The Chair accepted the point and stated that the term "hermaphrodite" be omitted from the Resolution. All that is needed here is for the legislation to clearly state that when reference is made to "sex" or "gender" it includes "intersexed" persons as well. This is the reason for the request for the investigation into this matter.

Mr Jeffrey asked for clarity on the precise meaning of the phrase "whose gender roles are changed" in Point 2 of the Resolution.

The Chair stated that this is a big issue, and will be evaluated in the investigation.

Dr Delport suggested that the term "intersexed" be defined to mean "any person who is physically or psychologically neither male nor female, or is both male and female".

The Chair called for all these concerns to be included, and Ms F Chohan-Kota (ANC) has to be consulted on this matter.

The Chair read the Motion of Desirability.

Promotion of Administrative Justice Amendment Bill
Clause 2: Insertion of section 9A in Act 3 of 2000
The Chair stated that this clause in the Bill (see document attached) introduces a new proposed Section 9A(1)(b). The real change here is the insertion of the proposed Section 9A(2)(a). The word "duties" has to be inserted after "functions" in the proposed Section 16(5) in Clause 1 of the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill. This amendment has to be effected because the remainder of that Bill refers to "duties". Similarly, the word "duties" has to be inserted in the proposed Section 9A(1)(b) of the Bill.

Long title
The Chair stated that the long title has to be amended by the inclusion of the phrase "and to regulate the training of presiding officers in the magistrates' courts" after "so as to amend a definition". The phrase "for the purposes of this Act" should also be included after first phrase mentioned above.

Promotion of Access to Information Amendment Bill
Long title

Ms Camerer suggested that the word "regulate" in the long title be replaced with "ensure".

The Chair contended that it should be changed to "provide for".

Clause 2: Insertion of section 91A in Act 2 of 2000
The Chair stated that the word "duties" must be inserted after "functions" in the proposed Section 91A(1)(b).

Mr Bassett asked whether the front page of the Bill correctly states "As presented by the Portfolio Committee on Justice and Constitutional Development".

The Chair stated that this has to be checked, but it looks fine.

Committee Report on Promotion of Access to Information Amendment Bill
The Chair read the Report and noted the Members raised no objections to it.

Afternoon session
Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill

The Committee unanimously adopted the Bill together with its amendments.

Committee Report on the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill
The Committee unanimously adopted the report.

Promotion of Administrative Justice Amendment Bill
The Committee unanimously adopted the Bill together with its amendments.

Committee Report on the Promotion of Administrative Justice Amendment Bill
The Committee unanimously adopted the report.

Insolvency Second Amendment Bill
The Committee unanimously adopted the Bill together with its amendments.

Committee Report on the Insolvency Second Amendment Bill
The Committee unanimously adopted the report.

Promotion of Access to Information Amendment Bill
The Committee unanimously adopted the Bill together with its amendments.

Committee Report on the Promotion of Access to Information Amendment Bill
The Committee unanimously adopted the report.

Limitation of Legal Proceedings against Organs of State Bill
The Committee unanimously adopted the Bill together with its amendments.

Committee Report on the Limitation of Legal Proceedings against Organs of State Bill
The Committee unanimously adopted the report.

Public Protector Gratuity
The Committee unanimously adopted the report together with the amendment on the taxing formula.

Public Protector Staff Salary
The Committee unanimously adopted the report.

Magistrate Nongena
The Committee unanimously adopted the report.

Amendments to Judicial Service Commission Service Act
Mr J De Lange, Department of Justice official, explained that certain sections in the Judicial Service Commission Act would be brought in line with the new Constitution, especially Chapter 2.

The Chairperson noted that the discussion on this amendment would be deferred. This would give the Department an opportunity to research some of the crucial issues raised in the presentation. He suggested that the Judicial Services Commission be constituted by two Judges, one Magistrate and one person not involved in the administration of justice. While the Magistrates Commission should constitute one Judge, one Magistrate and one person not involved in the administrative of justice.

Mr J Jeffrey (ANC) proposed that the chairpersons of the Commissions, respectively, be person who are not involved in the administration of justice.

The Chairperson noted that this would be deliberated on in the next meeting of the Committee: whether judges or other persons should chair the Commissions.

Ms S Camerer (NNP) raised concerned about the powers and framework given to the Chief Justice to investigate complaints of corruption involving judicial officers.

The Chairperson held that a provision should be made for the Chief Justice to investigate complains of corruption at his/her own discretion in consultation with the Minister. He further proposed that the Department should research the possibility of the judicial officers being compelled to make incriminating statements without relying on their constitutional rights. Research into other countries' judicial systems, including our own TRC, would be of great assistance in this regard.

The Chairperson then thanked all those who have participated in the deliberations and ensured that the Bills are adopted, including Department officials.

The meeting was adjourned.

Appendix 1:
EXTENDED LEGISLATIVE PROGRAMME OF THE DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AS AT 16 SEPTEMBER 2002

A: BILLS FINALISED DURING 2002:
1. Implementation of the Rome Statute of the International Criminal Court Act, 2002
2. Constitution of the Republic of South Africa Amendment Act, 2002
3. Constitution of the Republic of South Africa Second Amendment Act, 2002
4. Loss or Retention of Membership of National and Provincial Legislatures Act, 2002
5. Insolvency Amendment Act, 2002
6. Reinstatement of Enrollment of Certain Legal Practitioners Act, 2002

B: BILLS BEFORE PARLIAMENT:
1. Judicial Officers Amendment Bill
2. Interception and Monitoring Bill
3. Prevention of Corruption Bill
4. Institution of Legal Proceedings against Organs of State Bill, 2002
5. Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill
6. Child Justice Bill
7. Constitution of the Republic of South Africa Third Amendment Bill (Limpopo and financial crises in municipalities)
8. Promotion of Administrative Justice Amendment Bill

C: BILLS TO BE INTRODUCED INTO PARLIAMENT DURING THE LAST SIX MONTHS OF 2002 WITH THE VIEW TO THE FINALISATION THEREOF DURING 2002, IF POSSIBLE:
1. Judicial Matters Amendment Bill (Approved by Cabinet and at State Law Advisers)
2. Criminal Procedure Amendment Bill (Steyn judgment) (Approved by Cabinet and at State Law Advisers)
3. Insolvency Second Amendment Bill (Approved by Cabinet and at State Lav Advisers)
4. Administration of Estates Amendment Bill (Moseneke provisions in separate Bill (Was at Cabinet Committee on 12 September 2002 and is at State Law Advisers)
5. Judicial Matters Second Amendment Bill (Establishment of Chief Master and policy of 'Minister in respect of appointment of trustees, etc) (Was at Cabinet Committee on 12 September 2002)
6. Public Protector Amendment Bill (Was at Cabinet Committee on 12 September 2002: Section 76 Bill)
7. Compulsory HIV Testing of Sexual Offenders Bill (Was at Cabinet Committee on 12 September 2002)
8. Insolvency and Business Recovery Bill (Review of the existing Insolvency Act, 1936) (Is already with the Minister)
9. Superior Courts Bill/Rationalisation of Courts Bill
10. Legal Practice Bill
11. Magistrates' Courts Amendment Bill (Administration orders)
12. Interpretation Bill (Review of the existing Interpretation Act)

D: OTHER URGENT BILLS OF A HIGH PRIORITY WHICH ARE TO BE PREPARE AND SUBMITTED TO PARLIAMENT AS SOON AS CIRCUMSTANCES PERMIT:
1. Sexual Offences Bill
2. Customary Law of Succession Amendment Bill
3. Criminal Procedure Amendment Bill (Right of appeal by the State on a question of facts)
4. Sharing of Pension Benefits Bill
5. Traditional Courts Bill
6. Application of Customary Law Bill
7. International Arbitration Bill
8. Domestic Arbitration Bill
9. Control of Unreasonable or Oppressive Stipulations in Contracts Bill
10. Special Investigating Units and Special Tribunals Amendment Bill
11. Access to Minor Children Bill
12. Public Interest and Class Actions Bill
13. Prohibition of Hate Speech Bill
14. Sentencing Framework Bill
15. Extradition Amendment Bill
16. Rules Board for Courts of Law Amendment Bill
17. Publication of Divorce Proceedings Bill
18. Convention on Torture Bill
19. Surrogate Motherhood Bill
20. (Possible) Prevention of Organised Crime Amendment Bill

Appendix 2:
THE BANKING COUNCIL OF SOUTH AFRICA

SECOND INSOLVENCY AMENDMENT BILL 2002
With reference to the press statement issued by the Justice Portfolio Committee we wish to advise that the banking sector has no objections to or comments on the provisions of the proposed Amendment Bill.

Yours faithfully

R S K Tucker
Chief Executive Officer

Appendix 3:
Report of the Portfolio Committee on Justice and Constitutional Development on Suspension and Removal from Office of Mr R M Nongena, Additional Magistrate, Humansdorp:

The Portfolio Committee on Justice and Constitutional Development in view thereof that the Magistrates Commission is in the process of arranging a disciplinary hearing to be conducted at which Mr Nongena will have the opportunity to respond to all the charges preferred against him begs to recommend that the House take no further action at this point in time.


Appendix 4:
Report of the Portfolio Committee on Justice and Constitutional Development on Conditions of Service of the Public Protector:

The Portfolio Committee on Justice and Constitutional Development, in terms section 2 (2) of the Public Protector Act, 1994 (Act No. 23 of 1994), begs to recommend that Parliament amend the remuneration and other terms of conditions of employment of the Public Protector, determined on 13 September 1995 as amended on 18 October 1996, as follows:

The substitution for paragraph 3.1 of the following paragraph:

3.1 On vacation of office a gratuity calculated in accordance with the formula -
D/7 x 2 x (F + 3) y F
In which formula the factor
(a) D represents the salary (basic per annum) which at the time of his her vacation of office
was applicable to the office of the Public Protector; and
(b) E represents the period in years of his or her period in such office and
(c) F repesents the provision for the calculation of Income Tax calculated at a marginal rate of
40 %


Appendix 5:
Report of the Portfolio Committee on Justice and Constitutional Developm regarding the remuneration, allowances and other conditions of employment determined by the Public Protector for staff in his office:

The Portfolio Committee on Justice arid Constitutional Development, having considered a document, dated 24 July 2002, regarding the remuneration, allowances and other conditions of employment determined by the Public Protector for staff in his office, tabled in terms of section 3(11)(a) of the Public Protector Act, 1994 (Act No. 23 of 1994), and referred to the Committee, recommends, pursuant to section 3(11)(b) of the said Act, that the determination as set out in the said document is in order and that the House take no further action.

Appendix 6:
Report of the Portfolio Committee on Justice and Constitutional Development on the Institution of Legal Proceedings against Organs of State Bill [B 65B - 99] (National Assembly - sec 75), dated September 2002:

The Portfolio Committee on Justice and Constitutional Development, having considered the lnstitution of Legal Proceedings against Organs of State Bill [B 65B - 99] (National Assembly - sec 75) and proposed amendments of the National Council of Provinces (Announcements, Tablings and Committee Reports, 30 August 2002, p 1373), referred to the Committee, reports the Bill with amendments [B 65C - 99].

Report to be considered.


Appendix 7:
Report of the Portfolio Committee on Justice and Constitutional Development on the Judicial Matters Amendment Bill {B... - 2002] (National Assembly -sec 75), dated 25 September 2002:

The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Judicial Matters Amendment Bill [B .. - 2002] (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, presents the Promotion of Access to Information Amendment Bill [B.. - 2002](National Assembly - sec 75), and endorses the classification of the Bill as a section 75 Bill.

The Committee wishes to report father, as follows:
1. The Committee having taken into account the limited time remaining to deal with draft legislation for the remainder of the 2002 session of Parliament, was of the opinion that it should deal with only one provision of the Judicial Matters Amendment Bill, namely that which entails amendments to the Promotion of Access to Information Act, 2000 (Act No.2 of 2000), since the issues involved in that amendment are the same as some of the issues involved in the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill [B41-2002] and the Promotion of Administrative Justice Amendment Bill [B46 - 2002], which are being finalised by the Committee on an urgent basis. All these Bills deal with the designation of presiding officers for purposes of court proceedings arising from the application of the Promotion of Access to lnformation Act, 2000, the Promotion of Administrative Justice Act, 2000, and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000.

2. The Committee intends finalising the remaining amendments in the Judicial Matters Amendment Bill at a later stage, either during the last quarter of the 2002 session of Parliament or, if needs be, during the 2003 session of Parliament, when the issues and principles contained therein can be debated without any time constraints.

Report to be considered.

Appendix 8:
Report of the Portfolio Committee on Justice and Constitutional Development on the Promotion of Administrative Justice Amendment BiII [B46-2002] (National Assembly sec 75), dated ... September/October 2002.

The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Promotion of Administrative Justice Amendment Bill [B462002] (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill with amendments [B46A-2002], and endorses the classification of the Bill as a section 75 Bill.

Report to be considered.

Appendix 9:
Report of the Portfolio Committee on Justice and Constitutional Development on the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill [B41-2002] (National Assembly - sec 75), dated ... September/October 2002:

The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill [B41-2002] (National Assembly - sec 75), referred to it and classified by the Joint Tagging N/1echanism as a section 75 Bill with amendments [B41 A- 2002], and endorses the classification of the Bill as a section 75 Bill.

Report of the Portfolio Committee on Justice and Constitutional Development on the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill [B41-2002] (National Assembly - sec 75), dated 25 September 2002:

The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill [B41-2002] (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, reports the Bill, with amendments [B41A - 2002], and endorses the classification of the Bill as a section 75 Bill.

The Committee wishes to report further, as follows:

1. The Equality Review Committee, established in terms of section 32 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000) must, for example, submit regular reports to the Minister on the operation of the Act including recommendations on any necessary amendments to the Act to improve its operation. The establishment of the Equality Review Committee was a conscious decision of the Legislature which was informed by the deliberations of the Ad Hoc Joint Committee on Promotion of Equality and Prevention of Unfair Discrimination Bill. The question has, however, been raised in various quarters about the continued existence and feasibility of the Equality Review Committee due to the financial implications involved and since Parliament already fulfils an oversight function. The Department is requested to investigate and report back to Parliament by the end of February 2003 on the feasibility and viability of the Equality Review Committee, bearing in mind the financial and other scarce resources it uses, and to address the matter appropriately, including the introduction of legislation if necessary. Relevant parties, specifically the South African Human Rights Commission, must be consulted in this regard.

2. It has come to the Committee's attention that there is concern that the usual exclusively dichotomous understanding given to the words "sex" and "gender", could carry over into the law and it could be argued that "intersexual" individuals or those "intersexual" individuals whose gender roles are changed, potentially remain unprotected. The Committee is of the view that the Equality clause in the Constitution was never intended to exclude any vulnerable groups, and that it may be necessary to include "intersexuality" by stipulation in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, by ensuring that the definition of "sex" in law explicitly includes "intersexuality".

The Department is requested to investigate this concern and address it in an appropriate manner, including the introduction of appropriate legislation if necessary. During this investigation the Department is requested to consult broadly, including the South African Law Commission, and to report back to Parliament by the end of February 2003.

Report to be considered.
Appendix 10:
Further amendments for consideration
The Committee is requested to consider the following:
Considerable damage may be done by a malicious or vexatious application for sequestration or winding-up without a provisional order being granted. The Committee is requested to consider the following amendment to proposed new section 14 of the Insolvency Act:

14. Whenever the court is satisfied that a petition for the sequestration of a debtor's estate is an abuse of the court's procedure or is malicious or vexatious, the court may allow the debtor forthwith to prove any damage which he or she may have sustained by reason of the [provisional sequestration of his or her estate] presentation of the petition and award him or her such compensation as it may deem fit.".

Clause 14 will probably not apply to companies and close corporations. It is submitted that the following section be inserted between sections 5 and 6:

Amendment of section 347 of Act 61 of 1973
5A.
Section 347 of the Companies Act, 1973, is hereby amended by the insertion after subsection (1) of the following subsection:

(1A) Whenever the court is satisfied that an application for the winding-up of a company is an abuse of the court's procedure or is malicious or vexatious, the court may allow the company forthwith to prove any damage which it may have sustained by reason of the application and award it such compensation as the court may deem fit.

The following minor changes are proposed:
In Bill A (List of Portfolio Committee Amendments) clause 1 item 1 at the end substitute "(4)" for "4".

In the Portfolio Committee Proposals, proposed new section 11(2A) line 3, omit "(ii) at the end of the line.

Tienie Cronje
24 September 2002


Appendix 11:
COSATU SUBMISSION ON DRAFT INSOLVENCY SECOND AMENDMENT BILL
23 SEPTEMBER 2002


1. INTRODUCTION
*
2. Comments on Specific Provisions of the Bill
*
2.1. Areas of Support
*
2.2. Notification of a Debtor
*
3. Conclusion
*

1. INTRODUCTION

COSATU would like to thank the Committee for inviting us to comment on the Draft Insolvency Second Amendment Bill, 2002 (hereafter the Bill). We also note with the appreciation the further efforts made to consult with us on the Committee's proposed revisions to the original published draft.

As noted in our submissions on the earlier Insolvency Amendment Bill[B14-2002], the NEDLAC agreement on the package of labour law amendments included substantial insolvency law reform particularly to the Insolvency Act. One of the core agreements was a proposed amendment to require petitioners to give trade unions and employees notification of applications for sequestration/liquidation orders. In our submission on the earlier Insolvency Amendment Bill, we registered our concern that no provision had been made for notification and we called on the Committee to insert a clause to rectify this. Owing to concerns regarding public consultation, the Committee decided not to insert a clause on notification, with the result that the Bill was passed without giving effect to the NEDLAC agreement.

COSATU subsequently pursued the matter with both the departments of Labour and Justice as well as at NEDLAC, which led to the drafting of the current Bill. Key provisions of this Bill provide for the compulsory notification of trade unions and employees in cases of insolvency, thus giving effect to the NEDLAC agreement. Accordingly, we welcome the Bill and note with appreciation the decision by the Department of Justice and this Committee to process it as a matter of urgency.

Further, we support the provision under clause 9, which sets the date of operation for 1 January 2003 or earlier, allowing for its provisions to be implemented with those of the earlier Bill.

Our comments in this submission focus exclusively on the issue of notification of trade unions and employees. We therefore reserve comments on other provisions, specifically the notification of the South African Revenue Services(SARS) and compensation of debtors in cases of abuse of the court's procedure.

2. Comments on Specific Provisions of the Bill

We wish to register our support for the provisions on notification in the original version of the Bill as published, since these are largely in line with our previous proposals and comply with the NEDLAC agreement.

However, we note that the Committee has proposed amendments to the published draft. Our comments focus primarily on the Committee's proposed amendments. While we are broadly in support of these, we nevertheless believe that further minor amendments are necessary as outlined in the submission.

2.1. Areas of Support
We note and support the Bill's proposed amendments to the Companies Act, which consequently affect close corporations as well. Earlier versions of the Bill applied only to the Insolvency Act. This would have created an anomaly, since only individual employers, and not companies and close corporations, would have been required to comply with notification provisions.

We note support for the following provisions, for which we are not proposing further amendments:
- The compulsory notification of trade unions and employees by a debtor of intention to apply for voluntary sequestration (clause 1);
- The requirement to serve a copy of the rule nisi on trade unions and employees upon granting of a provisional sequestration (clause 3); and
- The requirement to serve a copy of a winding-up order on trade unions and employees (clause 7).

2.2. Notification of a Debtor
The original published version of the Bill required the debtor (directors in the case of companies) to notify employees and trade unions even where the application for sequestration/winding up was made by a creditor. However, the Committee is of the view that a petitioner must be held liable for notification in all cases. The effect of this is to require the creditor to effect notification where s/he has applied for the sequestration/winding up of a debtor. With the exception of two minor amendments that we are proposing, we are broadly in support of the Committee's proposals in this regard.

Currently under the Insolvency Act, there is no express requirement that a debtor be notified before an application is made for compulsory sequestration. We believe that notification of the debtor at the same time is desirable, since it may serve as a safeguard against possible inadequate notification by the creditor. We note in this regard that the South African Law Commission (SALC) has provided for notification of debtors in the latest draft of the future comprehensive Insolvency Bill.

If our proposals are accepted, the following amendments will be required:

- Under clause 2, the insertion of the words "the debtor" as sub-paragraph (e) into the proposed subsection 9(4A) of the Insolvency Act. The effect of this is to require that a creditor notify the debtor of a sequestration application.
- Under clause 6, the insertion of the words "the directors of the company in respect of which the application is made" as sub-paragraph (e) into the proposed subsection 346(4A) of the Companies Act. The effect of this is to require that a creditor notify company directors of an application for a winding up order.

3. Conclusion
COSATU has long called for the review and overhaul of insolvency law in order to increase protection and minimise the devastating impact on workers when employers are liquidated. We believe that this Bill, combined with the provisions of the earlier Insolvency Amendment Bill, represents a significant step in that direction. There remain a number of issues that need to be addressed. These include holding company directors criminally and civilly liable for failing to pay over contributions to benefits funds as well as providing mechanisms to increasing overall protection of these funds. We intend to take forward these and other concerns in our engagements around the process on the future comprehensive Insolvency Bill.

Appendix 12
Report of the Portfolio Committee on Justice and Constitutional Development on the Insolvency Second Amendment Bill [B53-2002] (National Assembly -sec 75), dated 25 September 2002:

The Portfolio Committee on Justice and Constitutional Development1 having considered the subject of the Insolvency Second Amendment Bill [B53-2002] (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, presents the Insolvency Second Amendment Bill [B 53B-2002] (National Assembly- sec 75), and endorses the classification of the Bill as a section 75 Bill.

Appendix 13
PORTFOLIO COMMITTEE AMENDMENTS TO THE INSOLVENCY SECOND AMENDMENT BILL [B 53-2002]

LONG TITLE
1. On page 2, in the third line to omit "and".
2. On page 2, in the fourth line after "Service" to insert "and to the debtor.
3. On page 2, in the fifth line after "unions and" to insert "on".
4. On page 2, in the sixth line after "debtors" to insert "or a company's".
5. On page 2, in the ninth line to omit "and".
6. On page 2, in the ninth line after "Service" to insert "and the Company".
7. On page 2, in the eleventh line of the long title to omit "to provide for a penalty;"

CLAUSE 2
1. On page 3, in line 5 and 6, to omit "A debtor in respect of whom a petition is presented to court in terms of this section" and to insert:
When a petition is presented to the court, the petitioner
2. On page 3, in line 6 to omit ", within two days after receiving notice of the petition".
3. On page 3 in line 8 to omit "to the debtor's knowledge" and to insert as far as the petitioner can reasonably ascertain
4. On page 3 in line 11 after "which the" to insert "petitioner and the"
5. On page 3 in line 13 after "by the" to insert "petitioner and the"
6. On page 3 in line 16 to omit "immediately prior to and insert "at the time or
7. On page 3 in line 16 to omit "and"
8. On page 3 in line 17 after "Service" to insert:

"'and
(iv) to the debtor, unless the court at its discretion, dispenses with the furnishing of a copy where the court is satisfied that it would be in the interest of the debtor or of the creditors not to do so.
9. On page 3 in line 18 to 24 to omit paragraphs (b) and (c) and to insert:
(b) The petitioner must, before or during the hearing, file an affidavit by the person who furnished a copy of the petition, which sets out the manner, in which paragraph (a) was complied with.

CLAUSE 3
1. On page 3 in line 39 to omit "contemplated in section 4(2)" and to insert "referred to in subsection (4)"
2. On page 3 in line 40 to omit "in the manner contemplated in section 4(2)" and to insert:
By affixing a copy of the petition to any notice board to which the employees have access inside the debtor's premises, or if there is no access to the premises by the employees, by affixing a copy to the front gate, where applicable, failing which the front door of the premises from which the debtor conducted any business at the time of the presentation of the petition.

CLAUSE 4
1. On page 4 in line 6 and 7 to omit "provisional sequestration of his or her estate" and to insert "presentation of the petition".

CLAUSE 5
1. On page 4 in lines 9 to 12, to omit the clause.

CLAUSE 6
1. On page 4 in line 17 to omit "The directors of a company in respect of which" and to insert "When"
2. On page 4 in line 18 after "section" to insert "the applicant".
3. On page 4 in line 18 and 19 to omit ",before the company makes the application or within two days after receiving notice of the application,"
4. On page 4 in line 21 to omit "to the knowledge of the directors" and to insert "as far as the applicant can reasonably ascertain".
5. On page 4 in line 24 after "which the" to insert "applicant and the".
6. On page 4 in line 26 after ""premises by the" to insert "applicant and the".
7. On page 4 in line29 to omit "immediately prior to" and to insert "at the time of'.
8. On page 4 in line 25 to omit "and".
9. On page 4 in line 30 after "Revenue Service" to insert:
and;
(v) to the company, unless the application is made by the company, or the court at its discretion, dispenses with the furnishing of a copy where the court is satisfied that it would be in the interest 5 of the company or of the creditors not to do so.
10. On page 4 in lines 31 to 39 to omit paragraphs (b) and (c) and to insert:
(b) The applicant must, before or during the hearing, file an affidavit by the person who furnished a copy of the application which sets out the manner in which paragraph (a) was complied with.

CLAUSE 7
1. On page 4 in line 45 to omit "contemplated in section 346(4A)" and to insert referred to in subsection (2)".
2. On page 4 in line 46 and 47 to omit "in the manner contemplated in section
346(4A); and" and to insert:
by affixing a copy of the application to any notice board to which the employees have access inside the debtor's premises, or if there is no access to the premises by the employees, by affixing a copy to the front gate, where applicable, failing which the front door of the premises from which the debtor conducted any business at the time of the presentation of the application;
3. On page 4 in line 48 after "Revenue Service" to insert:
and;
(d) on the company, unless the application is made by the company

CLAUSE 8
1. On page 5 in lines 1 to 10 to omit the clause.

CLAUSE 9
1. On page 5 in line 14 to omit "a date determined by the President" and to insert "1 January 2003 or such earlier date as the President may determine".

Audio

No related

Documents

No related documents

Present

  • We don't have attendance info for this committee meeting
Share this page: