A delegation led by the Deputy Justice Minister briefed the Committee on the Judicial Matters Amendment Bill. It explained that the Bill seeks to amend:
- section 9 of the Magistrate Courts Act of 1944,
- State Liability Act of 1957,
- Institution of Legal Proceedings against certain Organs of State Act of 2002,
- section 103 of the Administration of Estate Act of 1965,
- South African Law Reform Commission Act of 1973
- Rules Board for Courts of Law Act of 1985,
- Criminal Procedure Act of 1977,
- Attorneys Act of 1979, Small Claims Courts Act of 1984,
- Sheriffs Act of 1986,
- Magistrate Act of 1993,
- Criminal Law Amendment Act of 1977,
- National Prosecuting Authority Act of 1996,
- Debt Collectors Act of 1998,
- Promotion of Equality and Prevention of Unfair Discrimination Act of 2000,
- Prevention and Combating of Trafficking in Persons Act of 2013,
- Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007,
- section 44 of Superior Courts Act of 2013, and
- sections 6(1) (b) and 9 of Legal Aid South Africa Act of 2014.
A member expressed concern that proposed amendments on default judgements under Clause 3 of the Bill could place a burden on those suing the state and that the composition of the Magistrates Commission is top-heavy. Another member expressed concern on the danger of numerous litigations against the state and the problematic definition of older persons for purposes of rape convictions. She said that the Minister should be the appropriate body to make rules relating to Small Claims Courts. The EFF representative reiterated his party’s call for repealing apartheid era laws.
The Chairperson countered by blaming the nation’s problems on the ineffectiveness of land claims and the post-apartheid piece of legislation, the Land Restitution Act. He said the Land Restitution Act must be abolished so that communal land can be released for the people who own it.
Responding, the delegation clarified the composition of the Magistrates Commission, the mandate of the South African Law Reform Commission, its reporting mechanism, the term of office of the Board of the Legal Aid SA, and the rationale for assigning rules of court from the Justice Minister to the Rules Board.
The Chairperson welcomed the Deputy Minister of Justice and Constitutional Development, John Jeffery.
Judicial Matters Amendment Bill: Department Justice & Constitutional Development (DoJ&CD)
Ms Theresa Ross, Specialist State Law Advisor in the DoJ&CD, explained that the Bill seeks to amend several Acts of Parliament to address practical and technical issues which hamper effective administration of justice. These are as follows:
Clause 1: Amends section 9 of the Magistrate Courts Act of 1944 to regulate the remuneration of magistrates who are statutorily required to complete part-heard matters when they vacate office.
Clauses 2, 28, 29, and 31: Aim to eliminate unnecessary administrative processes relating to the designation and training of judicial officers.
Clauses 3 and 4: Amend the State Liability Act of 1957 to reduce the high rate of default judgements against government departments.
Clause 5: Amends section 4 of the State Liability Act dealing with definitions to bring the definitions in line with other legislation and the amendments proposed in clause 3.
Clause 6: Amends section 103 of the Administration of Estate Act of 1965.
Clauses 7 and 16: Amend the South African Law Reform Commission Act of 1973 (clause 7) and the Rules Board for Courts of Law Act of 1985 (clause 16) to ensure that a retired judge can be appointed to serve on these bodies.
Clauses 8-13: Amend the Criminal Law Amendment Act of 1977 to include torture as an offence which does not prescribe (clause 8), to make the availability of witnesses who are about to abscond, less invasive (clause 9), to further regulate the competency of witnesses to give evidence due their state of mind (clause 10), and to make technical corrections (clauses 11, 12, and 13).
Clause 14: Amend the Attorneys Act of 1979 to remove the ceiling of five years imposed as eligibility of attorneys to hire candidate attorneys.
Clause 15: Amends the Small Claims Courts Act of 1984 to transfer power to make rules from the Minister of Justice to the Rules Board for Courts of Law.
Clauses 17-21: Amend the Sheriff’s Act of 1986 to enable sheriffs to be able to act outside jurisdiction, transfer of unclaimed monies in the trust accounts of sheriffs to the Fidelity Fund for Sheriffs (clauses 19 and 20) and allow the Fund to assist indigent litigants (clause 21).
Clauses 22 and 23: Amend various outdated references in the Magistrate Act of 1993 and further regulate the composition of the Magistrates’ Commission.
Clause 24: Extends the retirement age of magistrates from 65 to 70 years.
Clause 25: Amends the Criminal Law Amendment Act of 1977 to provide life imprisonment for rapes of older persons.
Clause 26: Amends the National Prosecuting Authority Act of 1996 to establish offices in local seats of High Court Divisions.
Clause 27: Amends the Debt Collectors Act of 1998 to allow the Council for Debt Collectors to, among others, acquire immovable property.
Clause 30: Includes ‘HIV/AIDS status’ as a prohibited ground in section 1 of the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000.
Clauses 32 and 33: Amend the Institution of Legal Proceedings against certain Organs of State Act of 2002 to ensure that service of court process against the SAPS is dealt with timeously and that all court processes against the state conform to the State Liability Act.
Clause 34: Deletes section 141(1)(c) of the Children’s Act of 2005 to remove references to child trafficking in the Prevention and Combating of Trafficking in Persons Act of 2013.
Clauses 35-37: Amend the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007 to include the particulars of convicts in the National Register for Sex Offenders (clause 35), to further regulate the Register (clause 36), and further regulate the designation of sexual offences courts (clause 37).
Clause 38: Amends the Prevention and Combating of Trafficking in Persons Act of 2013 to align penalties with the Immigration Act of 2002, and to include the particulars of convicts under the Act in the National Register for Sex Offenders.
Clause 39: Amends section 44 of the Superior Courts Act of 2013 to ensure that facsimile does not constitute service.
Clause 40: Corrects a cross reference in section 6(1)(b) of the Legal Aid South Africa Act, 2014.
Clause 41: Amends section 9 of the Legal Aid South Africa Act to remove the limitation to two terms of office of the three managers of Legal Aid SA to serve on the Board of Legal Aid SA when they are still employed by Legal Aid SA.
Clause 42: Concerns short title and commencement date of the Bill.
Mr B Bongo (ANC) recalled that Parliament discussed repeal of legislation yesterday and suggested that a table of proposed amendments should be prepared. He sought clarification on the amendments to the Legal Aid South Africa Act.
Mr W Horn (DA) requested detailed information on default judgements under Clause 3 of the Bill. He expressed concern on placing a burden on those suing the state and suggested a rephrasing of Clause 3 to avoid this unwanted consequence. He said that the Magistrates Commission is top-heavy and needs to be streamlined.
Mr N Matiase (EFF) recalled that the EFF has called for a thorough review of apartheid-era legislation which is not consistent with constitutional values. He called on the Committee to avoid double standards in its treatment of law review.
Ms C Pilane-Majake (ANC) sought clarity on the framing of Clause 1 of the Bill dealing with part-heard matters. She said that clauses 3 and 4 could put the state in crisis from numerous litigations. She wondered whether clause 15 (Small Claims Court) is justified, given that the Minister should be the appropriate body to make rules. On clause 25, she said that the definition of older persons could be problematic. Similarly, the term of office of the Board of Legal Aid SA could be problematic.
The Chairperson said that since government exists to deliver justice to the people, a wholesale scrapping of apartheid laws does not necessarily deliver justice to the people. As former Deputy Chief Justice Moseneke pointed out, the lands claims process is not going well and the Constitution is being wrongly blamed for this. The nation is facing a crisis of poverty, inequality and unemployment because the Constitution is not being interpreted well. South Africa’s social ills cannot be resolved without addressing the lands claim problem. If laws must be scrapped, the scrapping needs to start with the Land Restitution Act. The Chairperson cited the example of a headman with questionable (apartheid-era) appointment credentials who attempted to interdict a burial ceremony because permission was not obtained for the burial land. He concluded that the Land Restitution Act must be abolished before Parliament ends its tenure so that land can be released for the people who own it. He suggested a joint committee of relevant government departments to tackle the land problem.
Deputy Minister Jeffrey explained that the laws the EFF seek to abolish are not wholly apartheid laws, since some of them are post-1994, while others were adopted in the twilight of apartheid. Accordingly, abolishing them will be difficult. He cited the example of people having to wait 10 years before their admission-of-guilt convictions can be struck off the criminal record. He clarified the composition of the Magistrates Commission, explaining that the law requires retiring magistrates to complete their matters on an hourly rate remuneration. The proposed amendment seeks to remedy ex-magistrates’ complaints that hourly rates do not include their preparation time for cases.
The Chairperson said that the mandate of the South African Law Reform Commission (SALRC) seems to be unclear. The SALRC ought to have the primary responsibility of repealing laws. However, it does not seem to be aware of the full range of this mandate. The present constitutional dispensation is failing in justice delivery to the people and the DoJ&CD should not be saddled with the task of wholesale repeal of legislation. He urged the DoJ&CD to prevail on the SALRC to prioritise the land law reform.
Ms Pilane-Majake suggested that the Committee should have a way of obtaining reports from the SALRC.
Ms Kalay Pillay, Deputy Director General: Legislative Development in the DoJ&CD, explained that the SALRC reports to the DoJ&CD and tables annual reports to Parliament. The SALRC has resource constraints, but has produced about 18 reports.
The Chairperson said that the Committee requires only reports on specific challenges facing the country.
Ms Pilane-Majake added that the SALRC reports must be relevant, monitored, and disseminated to the appropriate government departments.
The Chairperson further added that though independent, the SALRC should not dictate to Parliament on prioritisation of law reform.
Ms Pillay admitted that the SALRC had been flying under the radar of the Committee and the DoJ&CD will remedy this. The term of office of the Board of the Legal Aid SA is two to three years for a maximum of two terms. However, its chair serves for a maximum of five years.
Ms Pillay explained that a key aim of the Bill is quick resolution of cases against the state. The proposed amendments will benefit litigants to achieve this, but the DoJ&CD will revisit the amendments.
Ms Pillay further explained why rules of court are proposed to be issued by the Rules Board. The main reason is that because of their expertise and their team of researchers, the Board is in a better position to make informed recommendations to the Minister.
Ms Pilane-Majake sought clarification of the tenure of the Legal Aid SA Board members.
The Chairperson said according to the Rules of Parliament, the permission of the House is required if a Committee makes amendments to any sections of a Act not included in the Amendment Bill. He called on members to decide whether the House should be approached for the amendment in the Courts of Law Amendment Bill to section 55(A) of the Magistrates Court Act?
Deputy Minister Jeffrey advised that incidental amendments do not need parliamentary permission. Only fresh, substantive amendments require permission.
The Committee was advised to seek the permission of the House as this amendment, although incidental, had to do with protecting debtors. However, public hearings would not be necessary.
Members agreed to seek the permission of the House and that public hearings would not be necessary.