The Department explained the effect of the Stellenbosch Judgment on the Courts of Law Amendment Bill. The Judgment means that an emolument attachment order (EAO) cannot be issued unless a court has authorised it after satisfying itself that the requested order is just and equitable and that the amount is appropriate. The reading-in of amendments to the Bill as suggested by the court was discussed. The remark was made by an MP that this was unprecedented.
The Department outlined its responses to the public submissions on the Court Bill dealing with expansion of court days, factors that guide just and equitable order, change of some mandatory language, replacement of the sufficient means test with just and equitable order, provision of application procedure for persons affected by emolument attachment orders to seek redress, and amendment of the short title and commencement date to avoid retrospectivity. The proposed amendments as a result of the public submissions were noted.
Responding, members expressed concern about the separation of powers in that the Stellenbosch Judgment infringes on the legislative mandate of Parliament, given that the court read in provisions into a subject matter that is undergoing legislative amendment. They resolved to table their concerns at a meeting with the Chief Justice on 28 November.
As a step towards its finalisation, the Department presented the drafted Portfolio Committee proposed amendments to the Protected Disclosures Amendment Bill. Notable amendments to the Protected Disclosures Amendment Bill were provisions dealing with the exclusion of civil and criminal liability, criminalisation of disclosure of false information, and the addition of the Commission for Gender Equality, the South African Human Rights Commission, and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, and the Public Service Commission to the list of bodies to whom disclosures could be made.
The Democratic Alliance and African Christian Democratic Party members restated their objection to the criminalisation of false disclosure. The Committee aims to finalise both bills on 16 November.
Courts of Law Amendment Bill: effect of Stellenbosch Judgment
Mr Lawrence Bassett, Chief Director: Legislative Development, Department of Justice and Constitutional Development (DoJ&CD called on Ms Kalay Pillay, DDG: Legislative Development in the DoJ&CD, to explain how the Stellenbosch Judgement [University of Stellenbosch Legal Aid Clinic and Others v The Minister of Justice and Correctional Services and Others CCT 127/15] affects the Court Bill.
Ms Pillay explained that the Stellenbosch Judgment dispenses with the issuance of an emolument attachment order (EAO) unless the court authorises it. For the court to authorise an EAO, it must be satisfied that the requested order is just and equitable and that the amount sought to be attached is appropriate. She explained that there were three judgments in the case: a minority judgment by Jafta J. (first judgement), and two majority judgments by Cameron J (second judgment) and Zondo J (third judgment). Other than Jafta J., all the judges concurred in the second and third judgments. The majority judgments did not uphold the declaration of invalidity made by the High Court. Rather, they ordered the reading-in, and severance of, some words in section 65J(2)(a) and (b) of the Courts of Law Act to remedy the constitutional defect.
Mr S Swart (ACDP) expressed concern about the implications of the Stellenbosch Judgment on separation of powers between Parliament and the courts. He asked whether the court was aware that there was a bill pending in Parliament when it issued the judgement.
Ms Pillay responded that the court was aware because the DoJ&CD filed an affidavit in the suit setting out the provisions of the Court Bill at that stage. She noted that the court was concerned with granting immediate relief, which is why it ordered reading-in and severance to remedy the identified constitutional defect.
Mr B Bongo (ANC) echoed Mr Swart’s concerns about the judgement’s implications for the separation of powers doctrine. He expressed displeasure that the court practically directed Parliament on how to proceed with the Court Bill. He noted that, if unchecked, such encroachment on the legislative mandate affects, in the long run, the relationship between the judiciary and Parliament.
The Chairperson stated that the Judgement does not preclude Parliament from continuing with its amendment of the Court Bill. He expressed confidence that the Court Bill will afford greater protection than the Stellenbosch Judgment, which is merely an interim measure.
Mr Bongo declared that there is a huge debate on the extent of courts’ remedial powers because these powers often affect separation of powers between the three arms of government.
The Chairperson stated that there is a meeting with the Chief Justice on 28 November. He advised members to raise their concern about the Stellenbosch Judgment at that meeting.
Ms C Pilane-Majake (ANC) noted that the Judgement agrees with the Court Bill. However, she wondered what would have happened had the Judgment opposed the Court Bill.
Mr Swart noted that the Judgment read in several provisions into the Court Bill. This reading-in is unprecedented and ought to be addressed.
The Chairperson asked members to defer the issue to another forum.
Courts of Law Amendment Bill: Department response to submissions
Mr Bassett reminded the Committee that public hearings were held and responses submitted on the Court Bill, all of which are included in the response document.
Ms Pillay took the Committee through the response document, explaining key proposed amendments to the Bill. These proposed amendments are, notably, expansion of court days, factors to be considered when making a just and equitable order, change of some mandatory language, replacement of sufficient means with just and equitable order, insertion of basic salary into attachable assets, provision of application procedure for persons affected by emolument attachment orders to seek redress, and amendment of the short title and commencement date to avoid retrospectivity.
Mr Bassett assured the Committee that the Court Bill has satisfied the means test and the just and equitable test demanded by the Constitutional Court in the Stellenbosch Judgment.
The Chairperson called on members to raise objections to the proposed amendments if they wish. Following the absence of an objection, he called on the DoJ&CD to finalise the Court Bill and submit it to the Committee next week.
Protected Disclosure Amendment Bill
Mr Henk Du Preez, State Law Adviser, presented the drafted Portfolio Committee proposed amendments to the Bill. Notable amendments were the insertions of sections 9(A) and 9(B) dealing with exclusion of civil and criminal liability and criminalisation of disclosure of false information, as well as the addition of the Commission for Gender Equality, the South African Human Rights Commission, and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, and the Public Service Commission to the list of bodies to whom disclosures could be made.
Mr Swart and Ms G Breytenbach (DA) restated their objections to the criminalisation of disclosure of false information.
The Chairperson declared that the Committee would adopt the Bill the next day.
Mr L Mpumlwana (ANC) asked the Chairperson why the Bill could not be adopted now.
The Chairperson replied that certain DoJ&CD members need to be present.
The Chairperson thanked everyone and adjourned the meeting at 11:10 am.
- Protected Disclosures Amendment Bill: NA comments working document
- Protected Disclosures Amendment Bill: clean working document
- Protected Disclosures Amendment Bill [B40A-2015]
- Protected Disclosures Amendment Bill: B - version
- Courts of Law Amendment Bill: Summary of Submissions and Department Response