The Department of Justice briefed members on the Courts of Law Amendment Bill and the Judicial Matters Amendment Bill. While the Judicial Bill seeks to amend several laws that hamper the smooth administration of justice, the Courts Bill addresses alleged abuses in the civil debt recovery system, following the Constitutional Court judgment in University of Stellenbosch Legal Aid Clinic and Others. It also provides increased judicial oversight over emolument attachment orders, transfer of regional courts’ judgements to district courts to ease debt collection, rescission of judgments where the debt is paid, and rescission with the consent of a judgment debtor.
Discussing the Judicial Matters Amendment Bill, Members expressed concern about access to justice in clause 3, noting that it compels litigants to serve notice on the Department of Justice in Pretoria, instead of at any nearby Office of the State Attorney. On the Courts of Law Amendment Bill, Members asked if there will be a window period to make the 25% benchmark for emolument attachment orders across the board, noting that up to 50% of some debtors’ earnings are attached. One Member expressed concern over the undue burden placed on magistrates by the Courts Bill. Another Member asked for the rationale for clause 8 which include torture as an offence which does not prescribe under section 18 of the Criminal Procedure Act.
Responding, the Department explained that clause 8 inserts torture as a prosecutable offence and prevents a statutory limitation on torture in line with South Africa’s treaty obligations. It also repealed offences concerning trafficking in persons. The Judicial Matters Amendment Bill seeks to streamline summons issued against the state by making it easier for government departments to respond in a timelier manner. The 25% benchmark for emolument attachment orders relate only to debt recovery ordered by the Magistrates’ Court, and seeks to protect debtors from undue hardship.
The Criminal Procedure Amendment Bill was unanimously adopted.
Judicial Matters Amendment Bill [B14B-2016]: briefing
Mr Sarel Robertse, State Law Adviser: Department of Justice, explained that the Bill seeks to amend several laws which hamper the smooth administration of justice. It makes the following amendments:
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: Amends 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: Amends 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 Sheriffs Act of 1986 to enable sheriffs 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 rape of old person.
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 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 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.
Courts of Law Amendment Bill [B8B-2016]: briefing
Ms Kalay Pillay, Deputy Director General: Legislative Development in the Department of Justice explained that the Courts of Law Amendment Bill seeks to:
• Address alleged abuses in the civil debt recovery system and provide for more judicial oversight over judgements and emolument attachment orders (EMOs);
• Provide for the rescission of judgments with the consent of a judgment debtor, and rescission of judgement for cases where the debt has been paid;
• Transfer regional courts judgements to district courts for the debt collection process.
Ms Pillay explained that these amendments were informed by widespread abuse of the civil debt recovery system in Magistrate Courts, the Constitutional Court judgment in University of Stellenbosch Legal Aid Clinic and Others, and the Department of Trade and Industry’s removal of adverse consumer credit information project (see document).
Mr G Michalakis (DA, Free State) expressed concern about access to justice in clause 3 of the Bill. He noted that the amendment arose from ‘chaos’ in the State Attorney’s Office. The amendment means that notice can only be served on the Department of Justice in Pretoria, instead of at any nearby State Attorney’s office.
Ms B Engelbrecht (DA, Gauteng) sought clarification over the ambit of the 25% benchmark for EMOs, noting that up to 50% of some debtors’ earnings are attached. She asked if there will be a window period to make the 25% standard across the board.
Ms G Manolope (ANC, Northern Cape) expressed concern over the undue burden placed on magistrates by the Courts Bill. She commended the Department of Justice for its synergistic approach to amendments. She cited the amendment of magistrates’ retirement age as an example.
Mr M Monakedi (ANC, Limpopo) sought the rationale for the amendment in clause 8, which concerns the addition of torture as an offence under section 18 of the Criminal Procedure Act.
Mr Robertse explained that amendments to section 18 of the Criminal Procedure Act sought to:
- insert torture as a prosecutable offence and prevent a statutory limitation on torture in line with South Africa’s treaty obligations;
- repeal offences in section 18 that deal with trafficking in persons, since they are covered by the Trafficking Act.
Ms Pillay explained that amendments to issuance of summons seek to streamline the service of court documents against the state by making it easier for government departments to respond in a timelier manner. She explained that the 25% benchmark for EMOs relate only to debt recovery ordered by the Magistrates’ Court, and seeks to protect debtors from undue hardship.
Mr J Mthethwa (ANC, KwaZulu-Natal) moved for the adoption of the Bills.
The Chairperson stated that this adoption could be done in the next meeting.
Criminal Procedure Amendment Bill [B2B-2017]: adoption
The Chairperson read out the Report on the Criminal Procedure Amendment Bill, which provides the courts with a wider range of options when it is found that the accused is not capable of understanding criminal proceedings due to mental illness or intellectual disability.
The Committee expressed support for the Bill and unanimously adopted the Committee Report recommending its adoption.
The committee minutes of 31 May and 7 June 2017 were adopted.
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