Judicial Matters Amendment Bill: Department response to public comments, with Deputy Minister

Meeting report

Responses to comments on Judicial Matters Amendment Bill [B14-2016]

Mr John Jeffery, Deputy Minister of Justice and Constitutional Development (DOJCD), said that based on a previous public hearing that was held, there was a dispute over the use of the word “exclusive” in sexual offences in section 35A, and the request from the Committee was that the Department convene with the NGOs that had made presentations -- Rape Crisis, the Women’s Legal Centre and the Rape Survivors’ Justice Campaign. A meeting had been conducted with the NGOs, together with the Regional Court Presidents, because the issue was one of case flow management. Six of the Regional Court Presidents were present during that meeting.

The Women’s Legal Centre had submitted a draft, and the Department had distributed it to the Regional Court Presidents. The Department would then present the draft, together with comments from the Regional Court Presidents and some consequential amendments to the draft report, and taking into account the position of the Department. In the meeting with the NGOs, the main issue had been that an exclusive sexual offences court rollout was needed. This had been the amendment made to the Bill -- that there should be a court that dealt explicitly with sexual offences.

Mr Sarel Robertse, State Law Advisor (SLA), DOJCD said that Rape Crisis had proposed amendments to section 55A of the Sexual Offences Act. They had requested the inclusion in section 1 of the Act of a definition that comprehensively defined a sexual offences court. Currently in terms of section 55, a provision was made that a court had jurisdiction to try certain sexual offences. Those were mainly of a sexual nature, as well as those deemed to be a sexual offence. Section 55A was moved to the definition and now provided that a sexual offences court was a court that dealt with matters relating to sexual offences. Due to the fact that the Department had moved the provisions that defined the jurisdiction of a sexual offences court in section 55A of the proposed amendment, clause 37 of the Bill was therefore amended to the extent that jurisdiction was not further specified in section 55A, but merely said that “a sexual offences court should be established and that a high court, or lower court, was a sexual offences court.”

Ms Theresa Ross, SLA, DOJCD said she would deal with the clauses in respect of the comments and submissions made by NGOs, such as the Commission for Gender Equality (CGE) and the Civil Society Prison Initiative, and then the responses of the Department.

She said that clause two of the Bill aimed to delete section 12(7) of the Magistrates Courts Act, 1994, so as to do away with the requirement that only a magistrate of a regional division, whose name appeared on the list referred to in sub-section 7, could adjudicate on disputes contemplated in section 29(1) (civil disputes) or 29(1B) (divorce matters), in accordance with the criteria set out in sub-section 8. The CGE had raised a concern that the clause did not make any mention of gender equity considerations that needed to be taken into consideration when a magistrate of a regional division appointed a magistrate to adjudicate in civil disputes or divorce matters. The CGE had recommended that the following provisions be inserted in section 12(8) of the Magistrates Courts Act: “the magistrate at the head of the regional division must ensure that gender imbalances of the past are addressed when making appointments in terms of this section”. In response to the submission, the Department had said the appointment that the CGE was referring to was a not a new appointment, because the amendment sought only to do away with burdensome administrative procedures in so far as it related to the keeping of a list by the Magistrates Commission, of persons who were competent to preside over civil disputes and divorce matters.  It was submitted that the concerns of the CGE were already addressed in other legislation which dealt with employment equity and discrimination based on gender.

The CGE had pointed out that the requirement in clause three of the Bill, that a plaintiff must cite the executive authority of the Department as a nominal defendant prejudicially affected the rights of the plaintiff. The reference to “executive authority”, “a nominal defendant” and a “state department”, was unclear and it could contribute to the citing of a wrong party, and where departments were represented in provinces, it could not always be practical to serve process on the office. The CGE proposed that section 2(1) be amended by the substitution for the expression “nominal defendant,” of the expression “defendant in a representative capacity”. Section 2(2) should also be amended to provide for the services of process on the national, provincial or regional head of the department who was located closest to the court which issued the relevant proceedings or notice, and a “national, provincial or regional head of the department be defined as to include, without limitation, a Director-General, Chief Executive Officer, National Commissioner and Member of Executive Council (MEC)”.

The Department had responded that “executive authority” was defined in section 4A of the State Liability Act and meant, in relation to a national department, the Cabinet member who was accountable to Parliament for the Department, and in relation to a provincial department, the member of the provincial legislature for the Department. “The Department” was also defined in section 4A of the State Liability Act as a national or provincial department. “Nominal defendant” had a legal technical meaning, and was used to describe a person or entity that had a technical nexus to a dispute. The primary aim of the amendments to section 2 of the State Liability Act was to address the magnitude of default judgments which were obtained against government departments from time to time, due to the fact that departments failed to oppose litigations against them. One of the main reasons for this failure was that the court process was served on persons who failed to bring this to the attention of the persons who were supposed to deal with litigations against the state.

With regard to clause six, the Law Society of South Africa (LSSA) had recommended that guidelines should be made which the Minister would take into consideration when making regulations regarding persons, or categories of persons, who may liquidate and distribute deceased estates. The Department’s response to that recommendation had been that guidelines were already in place when making regulations and it was therefore not necessary to make new guidelines before taking the next step.

The CGE had made a recommendation that the Minister take into account, for the purposes of the appointment of a sheriff as contemplated in section 2(3) of the Sheriffs Act, the promotion of gender equity, and this should be specifically included in the proposed amendment. The Department had responded that there was sufficient other legislation that catered for the promotion of gender equity and therefore there was no need for the recommendation to be included in the Sheriffs Act as well.

Clause 37 related to the Sexual Offences Act, and under section 55A (1), Rape Crisis Centre and the Women’s Legal Centre had recommended that the word “exclusively” be deleted, since there were concerns that it would give rise to interpretation problems because it did not empower the Minister to designate a court room, but rather a court. The Department had responded that it was considering adding a new clause that would give effect to the recommendation.

Discussion

Mr W Horn (DA) said that he had questions with regard to clauses 3 and 4, and that services going forward should have been to the Head of the Department, who was defined as the Director-General. He asked if his understanding was correct that going forward, if the HOD of Agriculture were to receive a summons from the high court in the Northern Cape, for instance, that there would be no address (regional or provincial) that would satisfy that summons other than the head office in Pretoria.

Mr L Mpumlwana (ANC) said that if he was in Umtata, would he have to appoint a sheriff from Pretoria to go and serve a summons to a state attorney who was in his midst, less than a kilometer away. He asked if there was there no other way apart from making it difficult for a plaintiff to serve.

The Chairperson said with regard to the submission of LSSA, that there were areas which were contentious and it would be difficult to amend.

Mr Robertse said that the Committee should distinguish between primary legislation, where there was an enabling provision that gave authority to make regulations, and then make the right regulations itself. The Department needed to make regulations to provide for the appointment of persons who would be involved in the administration of the state. Usually there were conflicting decisions in the Constitutional Court over whether regulation fell under administrative or legislative action. If regulation fell under administrative action, then this would involve public consultations, views being taken into account and results being published. If regulation was not strictly an administrative action, then a narrow approach could be followed. Usually when regulation was made, public consultation was required to get an idea of the regulation they wanted to make. A draft was then drafted and distributed for public comment. After comments were received, the draft was finalised and sent to the State Law Advisor for certification, and after that it would be promulgated in the government gazette to have a binding legal effect.

Mr Robertse said that the LSSA wanted the DOJCD to make certain guidelines that would be taken into account if they made regulations. The Department had responded that this was not necessary because in the process of drafting regulations, there was usually a draft of guidelines and research done to make sure the regulation would give effect to the empowering provision.

Ms Kalayvani Pillay, Deputy Director General (DDG), DOJCD, said the clause the Department was trying to amend was sa that the Minister could make regulations on the basis of categories of persons who could be appointed to deal with the administration of the state. Currently it was restricted only to attorneys, and the Department was looking at broadening this to include other persons as well.

Mr Robertse said that there were procedures and processes in place that needed to be followed before issuing summons to a person.  

Mr Horn said that this was something that the Committee needed to look at in greater detail, because the liability of the state was already limited in terms of prescription and there were tighter timelines with respect to when two people would like to sue each other. Everything he was hearing pointed to internal governance. It seemed that the Committee was being asked to legislate a situation caused by a lack of proper internal arrangements in departments, and ultimately if they took away the right of litigants to serve on other offices of departments, then it could lead to a situation where the amendment would have the effect of restricting access to justice.

Mr Mpumlwana said that he was comparing the pros and cons of each course of action, and he thought -- maybe mistakenly -- that the State Attorney was an agent of the Head of the Department, and that service on him was service to the department. He would have been happy if the clause stated that you could serve the State Attorney, but when the matter reached the courts, the State Attorney would have to produce evidence that he served on behalf of the Head of the Department.

Mr Jeffery said the issue was that some departments complained that when they served on the State Attorney, they did not receive responses timeously.

Mr Jeffery said that the issue was big, because state liability involved state funding..

Mr Robertse said that a litigant would be inconvenienced if he or she needed to appoint a respondent to serve a subpoena on a head of department in another province. It was necessary to take into account that it was often problematic for the National Police Commissioner to receive the subpoena through the proper channels, and so the Department had thought that it was best to regulate this and ensure that the person held accountable to pay, was notified about the subpoena.

Mr Jeffery said that if the Committee allowed the Department to make presentations during deliberations, then they could provide proper in-depth information. For the time being, they were being asked only to provide responses to the comments.

Mr T Mpanza (ANC) proposed that where there were agreements, the Committee could dispense with those issues and focus on issues were there were no agreements, and then find a way of going forward. Looking at clause two, even though there was no agreement, the response of the Department was enough to satisfy the concerns of the CGE.

Mr Jeffrey said the concern was that if someone wanted to serve on the Director General of Home Affairs, they could not serve at their local Home Affairs office, but needed to go through the State Attorney.

Mr Mpumlwana asked if serving was done through email or fax, whether the same procedure would apply.

Mr Jeffery said that email presented issues relating to technological capacity.

The Bill was finalised, with amendments.

The meeting was adjourned.