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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
9 September 2003
JUDICIAL MATTERS SECOND AMENDMENT BILL: DELIBERATIONS
Judicial Matters Second Amendment Bill [B41-2003]
The Committee deliberated on the Judicial Matters Second Amendment Bill for the first time since the initial briefing on the Bill on 8 August by Ms P Naidoo and Adv L Basset (Department of Justice: Legislation). The Banking Council provided a briefing on Clause 2 as it was very technical in nature. Treasury will be asked its opinion of this clause. A further amendment that will be included in this Bill is to the Correctional Services Act. It provdes that if a prisoner is to be paroled then the victim of the prisoner or, in the case of a murder, the victim's family should be informed and be invited to make representation at the parole hearing.
Clause 1: Substitution of Section 35B of Act 24 of 1936
Adv Basset said that the Banking Council would explain this amendment to the Committee since it is very technical in nature.
The Chair noted that it is not the Committee's practice to allow another agent to promote a proposed amendment. The duty to promote any proposed amendment lies only with the department. Therefore although they would allow the Council to advocate this proposed amendment due to its technical nature, in order to avoid a precedent to be created in this regard, they would take its as if it is argued by the department.
Ms I Hoogendoon (Banking Council) said that this amendment involves setting-off obligations between banks. It is aimed at protecting them should one of the parties in a collateral agreement become insolvent before it could fulfil its obligations under such agreement.
The Chair asked if there are any other countries that have a similar provision in their legislation. He asked the Banking Council to furnish scientific evidence which would prove that the provision they seek to amend is the cause for money not flowing well into the country.
Ms Hoogendoon said that there are many countries that have this provision in their legislation, including England and Australia. They would indeed submit such evidence as requested by the Committee.
The Chair noted that this amendment is vaguely formulated and thus very confusing. Therefore it is proper that it should be rewritten and a better explanation be provided for it, including empirical evidence and how it has been dealt with in other countries. He said that the Committee should be satisfied that it would not have a detrimental effect on ordinary citizens and only banks and big institutions would be affected by it. It is important that the Department acquire National Treasury's views on this proposed amendment.
Clause 2: Amendment of Section 4 of Act 16 of 1965
The Chair noted that although this clause is drafted differently from the provisions it refers to in (d), (j) and (l) of Section 2 of the Act, he is concerned about its constitutionality.
Clause 3: Amendment of Section 60 of Act 51 of 1977
The Chair noted that although this clause seems to be relevant, it is not in the right place as it relates to decision making. He requested the drafters look at this and also come up with resolutions regarding national legislation on pre-trial services.
Adv Basset said that they would see whether a new clause should not be created. As to the resolutions, he said that the preparation for such are on the pipeline and thus the proposal would strengthen that effort.
Clause 4: Amendment of Section 276 of Act 51 of 1977
The Chair noted that this clause is wrongly worded. In law a minimum sentence is not prescribed but merely a sentence. He requested them to rewrite it.
Adv Basset acknowledged the oversight. He further proposed that the following words "whether at common law or statute" be inserted after the words "A court convicting a person of any offence" in par (b).
Clause 5: Insertion of Section 13B in Act 53 of 1979
The Chair noted that although in principle he supports the clause, he feels that it should be broader in its application - taking into account the fact that there are one-man firms that have been in existence for a long time and they should also be provided the training.
Clause 8: Amendment of Section 7 of Act 70 of 1979
Mr L Landers (ANC) welcomed the amendment and proposed that it is imperative that other Acts, which deal with pension, should also be amended so as to put them in line with this one.
The Chair agreed. He asked how would one know that such an endorsement as required by law has indeed been made.
Adv Basset proposed that a provision should be inserted - requiring such a proof be given to the registrar of the court.
Clause 12: Amendment of Section 10 of Act 99 of 1998
The Chair was concerned that this clause would create a tautology between the function of the investigators and that of the Family Advocate. Further, as there are finances involved here it would be proper if the a Director General could submit a memo to the Committee giving an explanation of the financial implications and practicality of this proposal.
Adv Basset said that it should be noted that the Family Advocate would only be called in when the welfare of a minor or dependent child is at stake. He undertook to convey the concern of the Committee to the Director General and request him to submit such memo.
Clause 15: Amendment of Section 5 of Act 116 of 1998
The Chair raised a similar concern to that he had raised with Clause 12. Further, in both clauses the Family Advocate is drawn in under the disguise of the welfare of a minor or dependent children.
Clause 16: Amendment of Section 10 of Act 2 of 2000
The Chair noted that for the SA Human Rights Commission to be given one more year is justifiable taking into account the fact that the failure to come up with a proper manual at the prescribed time was not due to its own failure but that the department was also partly responsible. The drafters should also consider creating a criminal sanctions provision in the Act. This provision should deal with the failure of private bodies to produce their manuals. Further, he proposed that a provision regarding the Judicial Services Commission and Rules Board be created in the Promotion of Access to Information Act.
Adv Basset noted that the proposals regarding the insertion of the Judicial Services Commission, Rules Board and other amendments into the Act are in the pipeline and would be introduced to the Committee in due course.
Clause 17: Amendment of Section 16 of Act 4 of 2000
The Chair noted that this is a jurisdictional amendment and as such it should be spelt out clearly in the Bill. He noted that this Committee had not dealt with this Act and as such it is not aware whether there are rules applicable to these Equality Courts and thus the drafters would need to look at that.
Adv Basset agreed and noted that they would also like to introduce other amendments to the Promotion of Equality and Prevention of Unfair Discrimination Act, such as giving the Director General powers to delegate some members of his staff to be clerks of the Equality Courts.
Clause 18: Amendment of Section 2 of Act 42 of 2000
The Chair expressed dissatisfaction that three years after the Cross Border Insolvency Act has been passed, there has never been any country designated in terms of its provisions. It is therefore imperative that a letter explaining when it would come into operation be submitted to the Committee before it could pass this Bill.
Clause 19: Amendment of Section 16 of Act 47 of 2001
The Chair requested the department to move fast on this matter since what was still left to be determined is what is due to surviving spouses of judges.
Adv Basset noted that the department would look at the matter. He then informed the Committee that there are further amendments that the department would be introducing to the Bill. Amongst these would be one involving the Correctional Services Act. The Department of Correctional Services would like to introduce an amendment that if a prisoner is to be paroled then the victim of the prisoner or, in the case of a murder, the victim's family should be informed and be invited to make representation.
The Chair thanked the department for the briefing and the meeting was adjourned.