Judicial Matters Amendment Bill: briefing; Anti-Personnel Mines Prohibition Bill: finalisation

Meeting report

SECURITY AND CONSTITUTIONAL DEVELOPMENT SELECT COMMITTEE
3 June 2003
JUDICIAL MATTERS AMENDMENT BILL: BRIEFING; ANTI-PERSONNEL MINES PROHIBITION BILL: FINALISATION

Chairperson: Kgoshi M L Mokoena (ANC, Northern Province)

Relevant documents:
Anti-Personnel Prohibition Bill [B44B-2002]
Judicial Matters Amendment Bill [B2-2003] (email [email protected] for B version)

SUMMARY
The Department of Justice presented the Judicial Matters Amendment Bill to the Committee. The Department explained that the Bill aimed to designate a Chief Master of the High Courts to lead the ten Masters of the High Courts in South Africa. The Bill also sought to empower the Minister to create a policy to control the method in which the Master of the High Courts appointed lawyers to act as trustees.

The Department of Defence reviewed the concerns the Committee had raised with the Anti-Personnel Mines Prohibition Bill. Changes were made to Clauses 11 and 19. The Bill was passed unanimously by the Committee, as amended.

MINUTES
The Chairperson welcomed everyone in attendance and informed the Committee that the Department of Justice would brief the Committee on the Judicial Matters Amendment Bill. The Department of Defence would present the Anti-Personnel Mines Prohibition Bill to the Committee for final consideration.

Judicial Matters Amendment Bill
Mr J de Lange of the Department of Justice briefed the Committee on the purpose of the Bill, which was to address two issues. The first issue related to the ten Masters of the High Courts. Mr De Lange explained that the Pretoria High Court had traditionally been seen as Chief of the Ten High Courts. The absence of any legal designation as chief, however, had created a situation in which Masters of the High Courts had functioned as autonomous bodies. The Bill aimed to assign the Pretoria High Court as Chief Master of the High Courts.

The second issue related to the unchecked powers of the Masters of the High Courts to appoint curatores bonis, trustees, provisional trustees, co-trustees and provisional judicial managers for bankruptcy and estate cases. The Bill sought to enable the Minister to create a policy that would dictate how the Masters appointed such people in order to promote consistency, fairness, transparency and the achievement of equality for persons previously disadvantaged by unfair discrimination.

Mr De Lange explained that the Insolvency Act, the Administration of Estates Act, the Companies Act, and the Close Corporations Act would all be amended to affect the change.

He briefly reviewed every clause of the Bill, noting the changes that had been made. Clause 1 defined the term 'Minister' as "the Cabinet member responsible for the administration of justice".

He explained that most of the amendments in the clauses simply involved changing the "Master may appoint…" to the "Master may, in accordance with policy determined by the Minister, appoint…".

Mr de Lange pointed out that Clause 12 empowered the Minister to determine policy for the appointment of a curator bonis, trustee, provisional trustee or co-trustee by the Master for issues pertaining to the Insolvency Act.

Clause 14 stipulated that the Minister "shall appoint a Chief Master of the High Courts, who shall, as such, be the executive officer of the Master's offices and exercise such supervision over all the Masters as may be necessary in order to bring about uniformity in their practice and procedure." Mr De Lange said that the Chief Master would play a similar role to that of the National Director of Public Prosecutors.

Clause 15(1A)(a) provided that the Minister "may determine policy for the appointment of a provisional liquidator, co-liquidator, liquidator or provisional judicial manager by the Master" for issues pertaining to the Companies Act.

Clause 20(1A)(a) granted that the "Minister may determine policy for the appointment of a liquidator by the Master" in order to deal with issues pertaining to the Close Corporations Act.

Discussion
Mr P D N Maloyi (ANC, North-West) asked why the Bill stipulated that the Minister "may" determine policy for the appointment process conducted by the master. The Committee should consider making the Minister's determination obligatory.

Mr De Lange answered that the Minister did not believe that he should be obligated to determine the policy. Rather, the Bill was meant to enable the Minister to do so.

The Chairperson asked what was wrong with the present system.

Mr De Lange replied that, under the present system, the Masters were inconsistent in their appointment of lawyers to serve as liquidators, trustees and so on. Some Masters preferred to appoint lawyers with twenty years of experience while others preferred to appoint those that had been previously disadvantaged.

Mr Maloyi again questioned why the Bill did not specify that the Minister must determine policy for the Masters. If the Minister was not obligated to do so, the system could remain as it was.

Mr De Lange responded that, by making it 'must', the Bill would then have to define the policy concerned. A schedule would have to be created to avoid misunderstanding.

Mr G J Hoon, State Law Advisor, suggested that 'may' had been included in the Bill to allow the Minister flexibility in shaping, revising, and implementing the policy.

Mr B J Mkhaliphi (ANC, Mpumalanga) asked why the Minister was not required to come up with a policy for the Masters, especially since this policy appeared to be necessary.

Mr De Lange replied that there was a practical need for this Bill. The policy had already been prepared by the Department of Justice and would be implemented once the Bill was passed and the Minister empowered. There was no need to make the Minister's actions obligatory.

The Chairperson noted that Mr De Lange had stated that the new arrangement with the Chief Master would be similar to that of the National Prosecuting Authority. He asked if the powers were similar.

Mr De Lange stated that the powers were different. Only the arrangement was similar.

Mr P A Mathee (NNP Kwazulu-Natal) asked how the Minister's policy for appointment would be implemented.

Mr De Lange answered that the policy would be submitted to Parliament and then published in the Gazette. The policy would be available to everyone.

The Chairperson noted that some departments had a tendency to overlook the Select Committee.

Mr De Lange stated that the Department of Justice rules stipulated that policy regulations were required go before Parliament before they could be implemented. This guaranteed that the Select Committee would receive the regulations concerned.

The Chairperson thanked the Department of Justice for their briefing and said that the Committee would meet on Monday to finalise the Bill.

Anti-Personnel Mines Prohibition Bill
Mr Rathebe of the Department of Defence and Mr Hoon addressed the Committee on the Anti-Personnel Mines Prohibition Bill.

The Chairperson asked Mr Rathebe to respond to concerns raised by members at the previous meeting.

Mr Rathebe said that the first concern had been with the phrase "competent court" in Clause 4 of the Bill. Mr Hoon explained that the definition was extended to include a military court. In some instances, a military court could be considered a "competent court" to deal with civilian matters, just as a regular court could deal with military matters. Mr Rathebe added that competency related to jurisdiction.

Ms N D Ntwanambi (ANC, Western Cape) asked why Clause 4 expressly included military courts.

Mr Rathebe stated that this was to ensure that military courts would be able to try civilians in certain instances.

Ms E N Lubidla (ANC, Northern Cape) asked if the accused could come up with their own defence in a military court. She asked what happened if both a military court and a civilian court had simultaneous jurisdiction.

Mr Rathebe replied that, while these questions were important, they were not pertinent to this Bill. The Department was currently formulating a bill that would deal with the military criminal justice system. Such issues would be discussed when that bill entered Parliament.

Mr Rathebe moved onto the Committee's second concern, which was with Clause 11(2). The Clause stated, "If such contravention occurs, the Minister must order the termination of any further involvement in the operation, exercise or activity in question or may take such other appropriate action as he or she may deem necessary." Mr Rathebe stated that the Clause was a mistake. He proposed that the Clause be changed to end after "in question". He added that the other option would be to stipulate that only the part of the operation that accounted for a contravention of the Convention should be terminated.

Ms Ntwanambi agreed with ending the Clause after "in question".

Mr Mkhaliphi stated that this Clause was important because it gave purpose to the Convention.

Mr Mathee worried that the Minister would be obligated to terminate every operation in which a contravention was found. He wondered what would happen if the contravention was minor and was rectified.

The Chairperson stated that the Committee was talking about a serious contravention.

Mr Mathee said that the Bill did not specify a 'serious' contravention.

Mr Mkhaliphi argued that any contravention was serious. That was the point the signatories of the Convention had sought to make when they had formulated the Convention.

Ms Ntwanambi suggested that the clause be changed into a 'may' clause, but specifically including the termination of operations as an option.

Mr Rathebe said that Mr Hoon would come up with a solution. He suggested that Clause 11(2) read, "If such contravention occurs, the Minister must order the termination of any further involvement in the operation, exercise or activity in question unless the state in question takes immediate steps to rectify the situation giving rise to the contravention."

The Committee agreed with the new formulation.

Mr Rathebe stated that the third concern involved the wording "organ of state" in Clause 13. At the previous meeting the Committee had suggested the use of 'agent of state', but the Department saw no reason to make the change.

Mr Rathebe said that the fourth suggestion had been that the word "environment" in Clause 19(b)(ii) be changed to "property." He explained that this could not be changed because the words are not synonymous.

Mr Mathee suggested that the Clause should read "property or environment".

Mr Rathebe agreed to add the term 'property'. The Committee endorsed the new formulation.

The final suggestion had focused on Clause 20. It was suggested that the Bill should regulate the conduct of the police. Mr Rathebe stated that this was beyond the scope of the Bill. The Committee agreed.

The Chairperson stated that he believed it was desirable for the Bill to be passed. The Committee agreed to the Motion of Desirability.

The Committee formally considered every clause and agreed to every one of them, including the Schedule. Clauses 11 and 19 were agreed to as amended.

The Bill was passed with unanimous support.

The Chairperson thanked the Committee and the Department.

The meeting was adjourned.