Judicial Matters Amendment Bill [B2-2015]: briefing by Deputy Minister

Meeting report

The Acting Chairperson welcomed the Deputy Minister of Justice and Constitutional Development, delegation from the Department of Justice and Constitutional Development and apologised on behalf of the chairperson of the Committee for his absence. She then asked the Department to introduce the Bill.

Mr John Jeffrey, Deputy Minister of Justice and Constitutional Development, clarified that it was not the Department introducing the Bill, as it came from the Cabinet, specifically the Minister of Justice and Constitutional Development. He said this was the first Judicial Matters Bill that the Committee would deal with and it would process at least one of these Bills every year. They are called Judicial Matters Bills, because they are amending small parts of a number of pieces of legislation. In this Bill, presently 14 pieces of legislation are being amended. These amendments are not meant to be controversial. He handed over to the representatives of the Department to present the contents of the Bill. 

Judicial Matters Amendment Bill [B2-2015]: briefing
Adv Lawrence Bassett, DoJ Chief Director: Legislation Development, echoed Mr Jeffrey saying the Bill is straightforward and affects a number of technical amendments to legislation under the control of the Minister of Justice.

Clause 1: Amendment of section 9 of the Magistrates Court Act
Adv Bassett said section 9(5) provides that an acting magistrate cannot be appointed for a period exceeding three months. The clause amends this to provide that the Minister may appoint an acting magistrate for a period of up to 12 months. This amendment is necessary to address practical matters, as is generally done in a Judicial Matters Amendment Bill. The Magistrates Commission has trouble filling the post of an acting magistrate within three months and the 12 month period is more in line with the appointment process. Further, being appointed as an acting magistrate will be more attractive, as people will invariably be appointed for a longer period than at present.

Mr Jeffrey proposed that questions be taken after each clause, seeing as they are different. Especially, as he had a particular interest in this clause.

The Chairperson accepted the proposal, and opened the floor for questions or comments.

Mr S Swart (ACDP) asked what the Deputy Minister’s particular interest was.

Mr Jeffrey replied that it was based on his delegated function to appoint acting magistrates. The process was that the Minister would appoint acting magistrates, in consultation with the head of court, chief magistrate or regional court presidents. These persons would send lists of names for new or renewed appointments. This is an onerous process, with an enormous amount of paper being generated. In some cases people were acting for periods of ten years and this he was not happy with, because these people are in essence permanent magistrates. Acting magistrate’s judgments carry the same weight as those of permanent magistrates. He was not comfortable with appointing acting magistrates for periods longer than two years. He would be more lenient in special circumstances such as in a small rural town, where there may be difficulty finding a person to act as a magistrate. The present three month period generates a large amount of paper work for the heads of court. Another aspect is that when a magistrate is appointed permanently, they are placed on probation for a three month period, following which they are reappointed. Generally a new acting appointee would still be appointed for a three month period and probationary magistrates who have gone through the Magistrates Commission interview process would be appointed for 12 months.

Mr L Mpumlwana (ANC) said this was a good amendment which he supported.

Clause 2: Repeal of section 384 of the Criminal Procedure Act 56 of 1955
Adv Bassett said this amendment deals with the predecessor to the present Criminal Procedure Act, of which only two provisions remain in force. This section deals with binding orders on people to keep the peace, also known as peace orders. This provision was designed to keep the peace where there were disputes between family members or neighbours. This provision has generally fallen into disuse and has been taken over by provisions in the Protection from Harassment Act and Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). PEPUDA prohibits harassment and the Protection from Harassment Act deals with repeated harassment. Consultation with the Magistrates Commission has seen magistrates encouraging the repeal of this provision, due to its questionable constitutionality, because it does not always give the other side a chance to be heard.

Mr Jeffrey added that a peace order can be obtained from a magistrate in chambers and if the person against whom the order is made, breaks the order they can be arrested. As the person is not given an opportunity to be heard. The procedure in the Protection from Harassment Act is much fairer, as an interim order is obtained and  there is a return date where the person against whom the order has been obtained can oppose the order. The problem is that while in many parts of the country peace orders were no longer being issued, in some they were still. He gave an example of a case in Khayelitsha where a peace order was issued in a neighbour dispute. The person against whom the order was issued was in dispute of the facts and despite this the order was pursued and the person arrested. This seems unconstitutional and if the clause is passed, people will have to use the procedure under the Protection from Harassment Act which is fairer to all concerned.

Ms M Mothapo (ANC) agreed with the clause, as it complied with the rules of natural justice.

Clause 3: Substitution of section 1 of the Prescribed Rate of Interest Act
Adv Bassett said at present section 1 of the Prescribed Rate of Interest Act provides that if a debt bears interest and the rate is not governed by any law, agreement, trade custom or any other manner, the interest will be calculated at the rate prescribed in subsection 1(2) by the Minister of Justice after consultation with the Minister of Finance. This amendment came from National Treasury, which was of the view that the prescribed interest rate and the standard interest rate should be similar and based on the same market principles. What was found under the Act, was that the prescribed rate was not always in line with the standard rate. National Treasury therefore proposed that the rate prescribed in this Act should be based on the repo rate, determined by the South African Reserve Bank, plus 350 basis points and should be adjusted whenever the repo rate changes. This provision gives effect to the above proposal and the Minister of Justice will publish the interest rate in the government gazette whenever there is a change in the prime rate as set the Governor of the Reserve Bank.

The Chairperson asked if there would be any logistical problems generated by moving from a uniform rate, to one which tracks the repo rate.

Adv Bassett said this provision would address many issues when the rate under this Act was not in sync with the repo rate. The amendment provides that whenever the repo rate is adjusted, the Minister of Justice must publish the amended rate by notice in the government gazette. Further, he noted that when the Bill was opened for public comment it received positive comments from industry.

Mr Mpumlwana wanted to know what the reasoning behind using 350 basis points was.

Adv Bassett answered that he was unsure of the exact reasoning, but this had been the proposal from National Treasury and he undertook to provide the answer to the Committee.

Mr Swart asked what the present rate of interest is, to give the Committee an idea of how far away it is from the inflation rate.

Adv Bassett replied that the current rate is 9%.

Mr Swart said the present repo rate was 9.25%.

Mr Jeffrey said the intention was where a court order is granted and money owed, that there is a fair way to calculate the interest. He understood that if the repo rate was currently 5.75%, plus the 350 basis points the rate would be around 8%. This is not bad at the moment, but when the interest rates were higher, people were not getting what they deserved as interest. If the amendment goes through, then the interest rate calculated would be fairer. He was unsure what the exact reasoning behind the additional 350 basis points, but he suspected that it was linked to the market rate charged by banks. He felt the DoJ should come back with detail, particularly on the reasoning behind the 350 basis points.

Mr Mpumlwana was concerned that if money is borrowed outside of an accredited financial institution, then interest is calculated at a rate of 15%.

Ms Fatima Mayat, an official in the Department of Justice and Constitutional Development, said the rate of 15% had been reduced in August 2014 to 9%.

Mr Mpumlwana continued that his concern was how the amendment would affect the fairness of the prescribed rate of 9%, plus 350 basis points.

The Chairperson said the DoJ should look into the matter for the Committee, so that it can work from a principled position regarding the additional 350 basis points.

Clause 4: Amendment of section 13 of the Magistrates Act
Adv Bassett said section 13 of the (MA) deals with vacation of office by magistrates and is quite a technical amendment. Section 13(5)(a)(ii) provides that the Minister, at the magistrates request, may allow a magistrate to vacate office for any reason the Minister deems sufficient. If this happens then section 13(5)(c)(ii) provides that the magistrate is deemed to have retired in terms of section 16(4) of the Public Service Act (PSA), regardless of their age. Section 16 (4) of the PSA provides that an official in the public service who has reached the age of 60 may retire from the public service, with the approval of the relevant executive authority. This entitles magistrates retiring in this way pension benefits under the pension act applicable to Magistrates, as if they had been of retirement age.

Under Section 17(4) of Government Employees Pension Law, if an additional financial burden is placed on the Fund by an action taken by the employer, employer and the government or if an Act of Parliament has the effect. This is occurs where a magistrate is deemed to have retired, as the pension pay outs are premature. Section 17(4) also provides that the relevant the state entity or entities responsible for the extra cost must pay the same into the Fund.

Adv Basset said currently when a magistrate is appointed as a judge section 13(5)(c)(ii) of the MA applies and the amendment is geared towards this situation. He noted that magistrates being appointed as judges is happening more frequently. Further, that once they become judges they receive a judge’s salary for life under the Judges’ Remuneration and Conditions of Employment Act. He was aware of a situation where a magistrate was appointed a judge and the state had to pay “R400 000” into the Fund. The amendment aims to prevent unintended and undue financial implications for the state where a magistrate is appointed as a judge, before retirement age.

Clause 4 inserts subsections (5A) and (5B) into section 13 of the MA. In summary Subsection (5A) provides that that a magistrate who is allowed to vacate their office, upon being appointed a judge is entitled to their accumulated actuarial interest in the und and payment of all accumulated leave. Under (5B) the magistrate is given two options, payment into a designated preservation fund until they reach 55, where after they can buy a monthly pension, take out an annuity, with a further the option to withdraw one third of the approved amount in cash. Alternatively, they could have interest paid directly to themselves, which has tax implications.

The Chairperson said it sounded as if this could save government a lot of money. She was aware of a new law introduced around pensions, which would bar the paying out of 100% lump sums from pension funds.

Adv Bassett replied that was not aware that it had been made law yet, but he had heard that National Treasury was working on a Bill which would have everyone who wants to leave their employment’s pension monies put into a pension fund for the general good.

Mr Jeffrey warned that there may be opposition to this part of the Bill, from magistrates who stand to benefit from the current position. He urged the Committee to stand firm on the matter, because it is unfair where the state pays the person a salary for the rest of their lives.

Mr Mpumlwana asked whether the section applies to magistrates other than those who are to become judges.

Mr Jeffrey replied that it does not apply where a magistrate vacates office due to ill health or voluntarily to pursue another career. It is specifically catered to entitlement where a magistrate is appointed as a judge.

Clauses 5, 17 and 18: Amendment of section 36 of the Judicial Service Commission Act and sections 1 and 13 of the South African Judicial Education Institute Act
Ms Mayat, said the amendment to the Judicial service Commission Act makes the Secretary-General of the Office of the Chief Justice the accounting officer for the Judicial Service Commission. Similarly the Secretary General is made the accounting officer for the South African Judicial Education Institute (SAJEI) and the Office of the Chief Justice is placed in control of SAJEI. These are aimed at enhancing the independence of the Office of the Chief Justice.

Mr Jeffrey added that the Office of the Chief Justice has been established as a separate department. This Office is at present responsible for high court administration, as well as the two acts to be amended. Therefore, the appropriate accounting officer is the Secretary General.

Clause 6: Insertion of section 4A into the Special Investigating Unit and Special Tribunals Act
Ms Mayat said the amendment seeks to strengthen the reporting responsibilities of the Special Investigating Unit under section 4 of the Act, by requiring the Head of the Unit to report to the President and the Minister of Justice on a Quarterly basis.  This report is to disclose progress made in investigations and matters brought before the SIU or any court. A discretion is deemed necessary as it may, in certain cases or circumstances, not be appropriate or advisable to report on an investigation or matter.

Mr Mpumlwana asked for clarity on the discretion of the head of the SIU.

Adv Bassett replied that there may be a situation where a particular institution is being investigated and it would be prudent to keep information away from their reach.

Mr M Maila (ANC) wanted to know if the discretion is also applicable to the presidency.

Adv Basset replied that the quarterly report must be presented, but the President may request information of specific investigations.

Mr Jeffrey said this clause got the most attention when the Bill was tabled. He said he would have phrased it as requiring the quarterly reports when it comes to the President and Minister of Justice, but discretionary for anyone else. It is the President who issues the proclamation, making the reporting mandatory.

Mr B Bongo (ANC) asked whether the Head of the SIU would report to the President and Minister of Justice separately or jointly in a single meeting.

Adv Bassett replied that the wording requires a report to be sent to both the Minister and the President.

Mr Jeffrey added that the reporting would generally be in writing, rather than meetings.

Clauses 7-12: Amendment of Sections 1 and 91A of the Promotion of Access to Information Act, sections 1 and 9A of the Promotion of Administrative Justice Act and sections 16 and 31 of the Promotion of Equality and Prevention of Unfair Discrimination Act
Adv Bassett said the amendments to all three of the Acts: the Promotion of Access to Information Act (PAIA), Promotion of Administrative Justice Act (PAJA) and Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA); are essentially the same in nature.

Ms Mayat added that the amendments are aimed at enhancing the independence of the Office of the Chief Justice, as part of transferring the administration over the judiciary to the Office of the Chief Justice.

Ms Mayat said the first set of amendments are aimed to allow matters arising from the Acts to be dealt with by Regional Magistrates courts, because the Acts were promulgated before these courts received civil and family jurisdiction in 2008. This will be done by amending the definition of ‘court’ in all three acts, including consequential amendments. Motivation for this includes the many district court magistrates who have been trained on the Acts have since been appointed to regional courts, the reduction in the workload of high courts and the enhancement to access to justice.

Ms Mayat said the second set of amendments reducing unnecessary administration, by transferring relevant duties to the South African Judicial Institute (SAJEI). At present the Chief Justice, in consultation with the Judicial Service Commission, Magistrates Commission and Minister is to develop and implement training courses related to the three Acts. Further, the Minister must table a report in Parliament relating to the content and implementation of the Acts. SAJEI is however mandated to deal with the education of judicial officers.

Under the SAJEI Act, the Council of the Institute is required to maintain contact with the Judicial Service Commission, Magistrates Commission, Heads of Court, organised legal profession, academics and other entities interested in judicial education. Further, the Council must prepare and submit to the Minister an annual report on its functions, which must be tabled in Parliament. As the Chief Justice is the chairperson of the Council, the Judicial Service Commission and Magistrates Commission are represented on the council, there is a duplication with the training and reporting requirements in the three Acts.

Therefore, taking PAIA as an example, the amendment in clause 8 transfers the current responsibilities of the Director-General if the DoJ regarding the keeping of a list of trained magistrates; transferring the responsibility of developing the contents of training courses to SAJEI; and deleting the requirement for the Minister to table a reporting Parliament on contents and implementation of the training courses a, as SAJIE’s report is sufficient. In sum the amendment aims to ensure that structures within the judiciary take responsibility for the designation of judicial officers to deal with matters arising out of this Act and that SAJEI is responsible for the training of judicial officers. Clauses similar to the above are aimed at the other two Acts.

Mr Mpumlwana, although not sure if this was the appropriate time, wanted to know why Magistrates have not been transferred to the control of the Chief Justice.

Mr Jeffrey agreed that this was not really the appropriate time, but said it was intended that the magistrates would eventually fall under the Office of the Chief Justice, however there were capacity constraints. The capacity required to administer the magistrates courts could not be generated over night. It has to be established in the Office of the Chief Justice and it is intended that once this capacity is developed that the magistrates’ court staff will fall under this Office. Therefore, at present the regional offices of the DoJ are responsible for lower courts. An example of the transition is that the court manager of the High Court is the acting provincial head of the Office of the Chief Justice.

Mr Jeffrey added that the amendments were to cater for the expanded jurisdiction of the Regional courts which was introduced in 2008. To give people the option of pursing a matter under these Act in a Regional Court. Further, to ensure that the magistrates dealing with these matters are properly trained. Also, enhancing judicial independence by requiring the judiciary itself to select the magistrates to be trained, rather than the Minister.

The Chairperson wanted clarity on what the role of the Judicial Service Commission will be regarding the development of the content of training.

Mr Jeffrey explained that the Acts SAJEI was to take this responsibility rather than the Judicial Service Commission. These amendments have been necessitated by infrastructure developments, specifically the expanded jurisdiction of Regional Courts which makes it logical for them to be empowered to deal with PAIA, PEPUDA and PAJA matters. Further, SAJEI under the Office of the Chief Justice now exists and this is where training of judicial officers takes place and it ought to be responsible for  training judicial officers in the three Acts.

Clauses 13 & 14: Amendment of sections 7 & 14 of Judges’ Remuneration & Conditions of Employment Act
Mr Jeffrey said this amendment was similar to the previous one, with a substitution of the Director General of the DoJ for the Secretary General of the Office of the Chief Justice, regarding responsibility for the administration of this Act.

Clause 15: Amendment of section 65 of Criminal Law (Sexual Offences and Related Matters) Amt Act
Ms Mayat said section 65 of this Act sets out the responsibilities, functions and duties of the Intersectoral Committee for the Management of Sexual Offences Matters. This committee is responsible for developing and a draft national policy framework for the consideration and adoption by the relevant ministers. The Committee consists of the director generals of the DoJ, Social Development and Health; the national commissioners of the South African Police Service (SAPS) and Correctional Services; and the National Director of Public Prosecutions.

Ms Mayat said at present the Minister of Justice must, after consultation with the Cabinet members responsible for the above departments, submit reports to Parliament by each department or institution on the Intersectoral Committee. The clause amends the Act so that the individual accounting officers of the entities represented on the Intersectoral Committee are responsible for placing an additional chapter into their Annual Reports to Parliament dealing with their activates in implementing this Act.

Ms Mayat said this amendment also addresses the uncertainty about when these reports are to be tabled in Parliament. Including the information in Annual reports takes care of the uncertainty, because these must be submitted to Parliament within five months of the end of every financial year. Further, the clause provides that the accounting officers must report to a committee or committees of Parliament, sitting jointly or separately at the instance of Parliament. This allows the Portfolio Committee on Justice and Correctional Services to retain its role in promoting the Act in Parliament, while providing the flexibility to refer matters to the relevant line function committee.

Clause 16: Amendment of section 66 of Criminal Law (Sexual Offences and Related Matters) Amt Act
Ms Mayat said  section 66 of the Act requires the department of Health, the SAPS and National Prosecuting Service to develop training manuals. Further, the Cabinet members concerned must table a report in Parliament every 12 months on the implementation of this training. However, the Annual Reports of these entities already contain reports on training. Therefore, the amendment seeks to avoid a duplication of reporting by deleting the requirement for the Cabinet members to report. However, it also requires that the annual reports contain reports on the implementation of the training courses.

Clause 19: Amendment of section 96 of the Child Justice Act

Adv Bassett said this section deals with reporting and is amended in the same way as the Criminal Law (Sexual Offences and Related Matters) Amendment Act discussed above.

Mr Jeffrey added that the purpose of the amendment was procedural. This Act and the above Act place a duty on the Minister of Justice to get the reports from the various entities and table them in Parliament. Therefore, the amendment places the duty to report on the individual departments in their Annual Reports, also dealing with the ambiguity about the timeframes for report.

Mr Bongo agreed with the amendment, because the responsibility ought not be on one department.

Clause 20: Amendment of section 98 of the Child Justice Act

Mr Jeffrey said getting one’s record expunged where it is not a sexual offence or financial matter can happen after ten years. Under the Child Justice Act, this period is five years. The problem is that officials interpreted this as the five years having to run from the date the Act came into effect and it could not operate retrospectively. He recalled that Mr Swart had been on the Committee when the Act had been passed. The intention had been that once five years had passed the record could be expunged, but the Act did not make this clear.

Mr Swart felt it would be desirable to make the position clearer, although he could not exactly remember dealing with the Bill.

Clause 21: Amendment of section 15 of the Prevention and Combating of Trafficking in Persons Act
Ms Mayat said this section deals with protective measures for foreign victims of trafficking. It provides that the Director General of the Department of Home Affairs may issue a visitor’s visa allowing them to remain within the Republic for a recovery and reflection period, not exceeding three months. This is consequent to a report being made to a police official and the National Commissioner of the SAPS has, in writing, confirmed that the foreign person to be a person who could assist in a police investigation relating to an offence under the Act.

Ms Mayat said the Department of Home Affairs, in the process of drafting regulations, had raised the question of whether the section is applicable in the case of a foreign person who is in possession of a valid visitor’s visa. The amendment therefore seeks to clarify the position, by limiting the section’s application to instances where the victim of trafficking is not in possession of a valid visitor’s visa or their visa is about to expire.

Clause 22: Amendment of section 43 of the Prevention and Combating of Trafficking in Persons Act
Ms Mayat said the clause seeks to amend section 43(2) of the Act, by adding a provision enabling the Minister of Home Affairs to make regulations regarding the manner in which a visitor’s visa may be extended or withdrawn. This is to operationalise section 16(1)(c) which empowers the Director General of Home Affairs to extend or withdraw a visitor’s visa, if requested to do so by the National Commissioner of the SAPS or the National Director of Public Prosecutions.

Clause 23: Short title and date of commencement
This clause merely contained the short title and date of commencement.

Discussion
Mr Bongo said most of the legislation being dealt with falls within the ambit of the Committee, however the final two clauses seem to deal with Home Affairs matters and he was concerned that the Committee may be overstepping its scope in dealing with them. Further, he was concerned whether there had been sufficient consultation with the relevant Ministry.

Mr Jeffrey said what happened was that Acts were assigned to a particular ministry and often other departments are relevant to the functioning of the Act, as seen with the Criminal Law (Sexual Offences and Related Matters) Amendment Act. This was the case with the Prevention and Combating of Trafficking in Persons Act and there had been a request from the Department of Home Affairs for an amendment to a Ministry of Justice-administered Act. He noted that this Act was not in effect as yet. Regulations from the Ministry of Justice have been tabled in Parliament, on the basis of implied consent and the period for objections from Parliament has passed. The outstanding regulations are those from Social Development and Home Affairs. He had received assurance from the Social Development that they would be signed before the end of the week and these must be published for comment before they can come into effect. These are necessary, because they deal with the definition of a victim of trafficking. The Home Affairs regulations could be dealt with later, because they only deal with foreign victims of trafficking and Parliament could take the issue up with Home Affairs. Further, the amendment could assist Home Affairs in producing the regulations.

Mr Swart said it was important to note that the interim provisions in the Criminal Law (Sexual Offences and Related Matters) Amendment Act apply, before the Prevention and Combating of Trafficking in Persons Act comes into force.

Mr Jeffrey said the provisions criminalise trafficking for sexual purposes and of children, in terms of the Children’s Act. The provisions of the Prevention and Combating of Trafficking in Persons Act reinforces these provisions and deals with labour trafficking which is not currently a crime.

Mr Swart said the question was when is the Act going to be implemented and he recalled a lot of contention from the Department of Home Affairs during the processing of the Act. He was pleased that the regulations from Justice and Social Development were near completion, but he was concerned about giving Home Affairs even more scope to produce regulations and cause further delays.

Mr Jeffrey said the intention is that once the regulations from Social Development are promulgated, the Act will begin to be implemented, even if the sections dealing with foreign trafficking are not operationalised while awaiting Home Affairs. However, at least domestic trafficking and the criminal penalties attached would come into effect. The Justice regulations had been referred to the Committee, but the time for comment had expired. Although, in the period before they were promulgated, perhaps comments could be entertained.

Mr Swart asked if there was a specific timeframe for implementation, given the near completion of  Social Development’s regulations.

Mr Jeffrey replied that the Minister of Social Development had informed him that she would sign by the end of the week and the regulations would then have to lie in Parliament for 60 days to allow for comment. Implementation would therefore follow in the next three months.

Adv Bassett commented that the amendments brought in the present Bill would not affect Social Development or Home Affairs’ responsibilities regarding regulations for this Act, as they were merely procedural.

Mr Swart proposed that something ought to be said in the Committee’s resolution that the actions of Home Affairs have delayed the implementation of the Act, to avoid the situation where Home Affairs decides to wait for the amendment in the Bill to create its regulations.

The Chairperson then declared the meeting adjourned.