Cannabis for Private Purposes Bill: response to submissions; Land Court Bill: proposed amendments; Removal of Magistrate

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Justice and Correctional Services

31 May 2022
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary


Attorney Letters - Ms van Schalkwyk (Internal). 

Centre for Applied Legal Studies (CALS) Letter (Internal). 

Committee Response to CALS (Internal). 

In this virtual meeting, the Magistrates Commission briefed the Committee on the issues relating to the removal of a Magistrate from Office and how far the Magistrate’s Commission was on those issues. Members noted the serious charges against the Magistrate and that the NCOP had already proceeded with the removal decision. The Committee agreed it would recommend to the National Assembly that the Magistrate be removed from Office.

The Department of Justice and Constitutional Development briefed the Committee on its response to the public submissions received on the Cannabis for Private Purposes Bill. 25 submissions had been considered so far while ten submissions had not been catered for. Some of the groups and organisations that sent in submissions included the Ras Tafari Community of South Africa (RCSA), Rastafari National Council of South Africa (RNCSA), Western Cape Government (WCG), South African Drug Policy Initiative (SADPI), Centre for Child Law (CCL), Department of Defence (DOD) and the South African Medical Association (SAMA).

A member noted that the Committee was faced with a difficult situation. Through the presentation, it was clear that certain amendments were to be made by the Department in reaction to the further comments that were made during the second round of public participation. For the Committee to properly engage with the Bill it would need sight of those amendments. It was asked if the Department was having second thoughts about the commercialisation clause. The presentation had placed emphasis on the fact that the Department was not authorised to deal with the commercial aspects of cannabis. A member also raised concern on the issue of criminalisation and decriminalisation in the Bill.

The Department of Justice and Constitutional Development took the Committee the Land Court Bill working document.

The Committee awaited the Department’s response on some of the other matters relating to the Land Court Bill. A member raised an issue around clause 22, as it related to evidence. During the public participation process, many stakeholders had raised objections to the use of hearsay evidence as it related to restitution matters. The member wanted further clarity on the court’s ability to potentially regard hearsay evidence as evidence.



Meeting report

The Chairperson welcomed Members to the meeting and noted the apologies.

Deliberations on removal of a Magistrate from Office

Mr Johannes Meijer, Member of the Magistrates’ Commission, briefed the Committee on the issues relating to the removal of a Magistrate from Office and how far it was on those issues.

Mr Meijer provided background detail on the removal of the Magistrate van Schalkwyk, from Office. She was charged with failing to adhere to official court hours, arriving late and departing early. She was charged with improper use of a state vehicle, being rude, humiliating, belittling and threatening other judicial officers and officials at the Office. She had been gambling during official hours. She was absent with leave without cause. Mr Meijer detailed the other charges and complaints laid against Ms van Schalkwyk.

Ms van Schalkwyk was provisionally suspended from office on 4 June 2013. She took the decision of the Commission to charge her with misconduct on review and appeal to the High Court. The High Court dismissed the application for leave to appeal. She then went to the Supreme Court of Appeal (SCA). All of those applications were dismissed with costs.

Ms van Schalkwyk was found guilty at a misconduct enquiry in October 2020 on 13 counts of the aforementioned charges. The most serious one was when she borrowed money from an attorney to go abroad, to attend a conference when her attendance was not approved by the Chief Justice. A presiding officer imposed a sanction in 2020, recommending to the Commission that she was guilty and be removed from office in terms of section 13(4)(a)(1) of the Magistrates Act. That recommendation was endorsed by the Commission. The Commission advised the Minister, on 17 March 2021 accordingly.

Ms van Schalkwyk filed a notice of motion, reviewing and setting aside the presiding officer’s finding of guilt and the recommendation that she be removed from office. This application was filed on 21 May 2021. The Minister, without any bar from proceeding with the suspension, suspended her from Office on 27 July 2021. Ms van Schalkwyk was suspended from Office pending Parliament’s decision to either restore or not restore to Office. The Act said that Parliament must as soon as was reasonably possible pass a resolution, either to restore or not to restore the Magistrate to Office. The NCOP had already passed a resolution on 24 November 2021 (SC Security Committee Report). It was expected that the matter on review may be heard in the third or fourth quarter of this year.


The Chairperson said that the members would have received a letter from Ms van Schalkwyk’s lawyers. It was asked to be distributed among the members.

Mr W Horn (DA) discussed the letter sent by Ms van Schalkwyk’s attorneys. The Committee needed to get information from Mr Meijer on the statement that the Magistrates’ Commission had chosen not to oppose the review in respect of nine of the 13 charges. What was the reaction of the Magistrates’ Commission to the argument in this letter? It was a confirmed stance from Ms van Schalkwyk’s attorneys that there would be no prejudice for the members to ultimately not proceed with confirming the removal from Office given the fact that she was at this stage suspended and not receiving remuneration. Was it factual that the Magistrates’ Commission had chosen not to oppose the review in respect of nine of the 13 charges? What would be the effect thereof, in the view of Mr Meijer, on the decision to remove her from Office if only four of the 13 charges stood? What was the Committee to make of the argument that there would be no prejudice against the state and the public purse given the specific circumstances?   

The Chairperson asked if the Committee should only look at the prejudice in terms of the public purse? What about services that were affected? If there was a complement of four Magistrates and one had been on suspension for a very long time, then there was one Magistrate short? The people were not getting the service that they would have ordinarily received if there was the required complement of magistrates.

Mr Meijer said that the Commission conceded on a few charges and did not oppose them. Specifically, those emanating from her work done in the Judicial Officers Association of South Africa (JOASA). The six remaining charges were regarded as so serious as to remove her from office. It still warranted and justified her removal from office. He noted that she was a Chief Magistrate of Kempton Park and the Chief Magistrate did not go to court. There was someone acting in her place. That would be a burden on the Department’s budget but as for the rest, she had never gone to court. She was a manager. All the additional magistrates performed the court functions. There was no problem with the courts serving the community.

The Chairperson said that those magistrates would have to do the managerial work and do their judicial function. It was an added burden on them. If Ms van Schalkwyk was there doing her work, then they would have been focused on what they were supposed to be doing. Why did it take so long for the Magistrates’ Commission to concede quite a number of chargers and not to oppose them? This matter had been going on for some time.

Mr Meijer responded that this was the liaison with Ms van Schalkwyk’s legal team. It was done to limit the disputes so that the review application could be dealt with as soon as possible. She was a manager and there was someone acting as a Chief Magistrate in Kempton Park, performing her overseeing role. The additional magistrates were still performing all of the court work. The cluster head of Johannesburg was assisting in that regard.

The Chairperson asked if the cluster head was doing their work in Johannesburg and in Kempton Park.

Mr Meijer responded that the cluster head had appointed one of the senior magistrates, in their district, to head the Office. A senior magistrate had been pointed to act in that position, to head the Office in Kempton Park.

The Chairperson said that that magistrate was now acting as a manager.

Mr Meijer responded that was correct and in the post of acting Chief Magistrate.

The Chairperson asked what was happening to the original duties of that magistrate who was performing them.

Mr Meijer responded that someone else was then required to act in that position or it could be left vacant and then the Chief Magistrate in Johannesburg had to deal with those issues as well.

The Chairperson said all those things would not have happened if Ms van Schalkwyk was in Office. There would be no acting magistrate for her.

Mr Meijer agreed with the Chairperson. That was why she had been provisionally suspended from Office.

The Chairperson asked Members if they had any comments or views. What did Members say to the briefing that the Committee had just received? Should the Committee proceed with a recommendation to the National Assembly that she be removed?

Mr X Nqola (ANC) said that considering the past five magistrates that had been removed, this was the worst case. It had all of the aggravating circumstances. The NCOP had already proceeded with the removal decision. He proposed to the Committee that it proceed to the House and recommend that Magistrate van Schalkwyk be removed from Office.

Mr Horn said that the Committee needed to find a balance in dealing with these matters, specifically if there were pending review processes that were to unfold. The Committee needed to find a balance between the rights of the magistrate in question versus the rights of the public, and the interest the Committee had in ensuring that the administration of justice is secured at all times. The whole issue of no prejudice being suffered by the State was then spotlighted from another angle. There was a flip side to that argument from Ms van Schalkwyk. She would also not be prejudiced if Parliament proceeded now with removal. If she won the court case, she would be restored to Office retrospectively and there would be no prejudice for her. For now, the Committee needed to put its faith and trust in the processes that had unfolded. The Committee needed to accept the assurances of the Magistrates’ Commission that even when they had conceded on some of the charges brought, the balance would remain strong enough to warrant removal from office. Embracing the Committee’s responsibility to ensure the proper administration of justice, he seconded the proposal by Mr Nqola.

The Chairperson said that the proposal had been seconded. There was no contrary view. The Committee would recommend to the National Assembly that Ms van Schalkwyk be removed from Office. A report will be prepared. The report would be circulated later in the day for consideration tomorrow. Tomorrow the Committee would vote on the report and then it would be transferred to the Programming Committee for it to be considered by the House.

Cannabis for Private Purposes Bill: response to public submissions

Adv Sarel Robbertse, Senior State Law Advisor, Department of Justice and Constitutional Development, briefed the Committee on the comments received on the Cannabis for Private Purposes Bill and the responses to those comments. He had looked at 25 submissions so far and had not catered for ten submissions. Some of the groups and organisations that sent in submissions included the Ras Tafari Community of South Africa (RCSA), Rastafari National Council of South Africa (RNCSA), Western Cape Government (WCG), South African Drug Policy Initiative (SADPI), Centre for Child Law (CCL), Department of Defence (DoD) and the South African Medical Association (SAMA).

A submission stated that the Bill reflected a lack of understanding of cannabis in general and its socio-economic potential for the people of South Africa. The response was that it was acknowledged that the commercialisation of cannabis for recreational purposes would stimulate the economy significantly. The DoJ&CD cannot promote legislation that provides for commercial activities relating to cannabis, since such initiative falls within the mandate of other Departments (Departments of Health; Agriculture, Land Reform and Rural Development; and Trade, Industry and Competition). 

A submission stated that Government should apologise to the victims of the criminalisation of cannabis, which was now considered useful. The response was that the change in policy resulted from a declaration of rights by the Constitutional Court and developments in foreign jurisdictions.

A submission rejected the Bill for a number of reasons. Lack of participation and consultation with interested parties; and the legislative process did not allow for meaningful participation of the poor and uneducated who are the primary users of cannabis and who will mostly be affected by the Bill. The response was that although the Bill was not made available for comments before its introduction in Parliament, ample opportunity has been afforded for public participation during the Parliamentary process. Public participation is provided for in the Rules of the NA and NCOP. In terms of the parliamentary process, the Bill must also be considered by the NCOP which allows for public participation on a provincial level.

The Department received a recommendation from members of civil society that cannabis should be regulated the same as alcohol and or tobacco. It was said that cannabis was regulated differently from the manner in which tobacco and alcohol were regulated and the stricter regulation of cannabis amounts to unfair discrimination against users of cannabis. The response was that the activities that are regulated in terms of the Bill in respect of cannabis are substantially similar to those regulated by Liquor Legislation in respect of alcohol and the Tobacco Products Control Act in respect of tobacco. The difference between the Bill and the Tobacco Products Control Act and the Liquor Legislation relates to the penalties that may be imposed.

A submission stated that cannabis cultivation should be freely open to all to grow without any form of permit or restriction of any kind. A permit system was not necessary for an agricultural commodity. Regulation is only required at the stage of processing or retail to ensure quality and safety. The response was that Clause 1B seeks to accommodate cultural or religious use of cannabis within the regulatory framework of the Bill. Clause 1B makes provision for the issuing of a permit which authorises a cultural or religious community, among others, to possess, obtain and supply cannabis plant cultivation material; cultivate cannabis plants in a private place;  possess in private, cannabis plants in a public place; possess, obtain and supply cannabis plants; provide, obtain and supply cannabis; possess in private, cannabis in a public place; or possess cannabis in a private place, on behalf of its members for cultural or religious purposes.


Mr Horn said the Committee was faced with a difficult situation that through this presentation it was clear that certain amendments were to be made to the Bill, by the Department, in reaction to the further comments that were made during the second round of public participation. For the Committee to properly engage with the Bill it would need sight of those amendments. He wanted to interrogate a few matters. He noted some amendments to the Bill in respect of the preamble and the way the Rastafarian community was singled out. That was appreciated. He noted that the Department was re-looking at the whole idea of a prohibition on the procurement of seeds. That could have a chilling effect on the ability of people to make use of cannabis in a private manner. He would await news on those matters.

He wanted to raise three additional issues. He was not sure to what extent he misunderstood. Was it correct that through the reactions of the Department today that it was having second thoughts about the commercialisation clause? He noted that the presentation had placed a huge emphasis on the fact that the Department was not authorised to deal with the commercial aspects of this. Was it going to be proposed that that clause be withdrawn? If not, through the second round of public participation he did not think that the clause was as clear as it could be. A lot of commentators clearly interpreted the beginning of that clause as ‘subject to other legislation’ to strengthen the prohibition on commercial activity whilst the Committee’s understanding was that this was an interim measure. If it was not going to be withdrawn, then he pleaded that any ambiguity is removed in respect of this matter. He discussed the matter of THC levels. He hoped that some guidance would come during the second round of public participation and assist the Committee with THC levels in a better way. As lawmakers, they wanted to work with certainty. The question around THC levels needed to be turned around. Was the Department advised as to what the typical THC levels to be found in cannabis vegetation in South Africa would be? He discussed the Committee giving proper effect to the Prince Judgement. He was appreciative of the fact that the Department kept reminding the Committee that that was the Committee’s job. If the use was regulated under THC levels, that would make private use of specific plant material virtually impossible because the THC levels were too low. He noted that seemingly no scientific information was available to guide the Committee. The minimum request should be, what was the typical type of THC levels in plant material in South Africa? He discussed the argument around clubs. He noted the stance of the Department that this could not be accommodated via this Bill. He wanted to ask for a better substantiated reason behind that. It might be argued that regulating or allowing for clubs could in theory go further than the minimum requirements set by the Prince Judgement. On the other hand, the arguments around properly enabling practical use could be valid arguments. If the answer was that regulation would be difficult given that all clubs had executives and it would become a regulatory issue around how much managers or the executive is allowed to be in possession of in order to enable use by the club. The latter part of the presentation which spoke about quantitative limitations could be used also as well as registration of clubs. The Department needed to give the Committee a more substantiated reason why it believed the whole issue for clubs could not be accommodated.

Dr W Newhoudt-Druchen (ANC) said that she did not want to say much now until she was able to go through the document in its entirety and absorbed it. The document only arrived this morning so she did not have enough time to go through it in depth. She had just listened to the presentation. She did not expect a response now but she wanted a better understanding when the members went through it clause by clause. She was struggling to understand the part where Adv Robbertse said that this Bill still criminalised cannabis and did not decriminalise cannabis. The Bill only gave effect to the Prince Judgement. The Constitutional Court did not decriminalise cannabis. When Parliament passed this Bill did the Prince Judgement fall away because the Prince Judgement instructed Parliament to do certain things? She was confused about what would happen when the Bill was passed, became an Act, and gave effect to the judgement. Maybe her confusion was because she was unsure how the Prince Judgement, the Bill, and the decriminalisation all worked. She wanted clarity on that issue.

Adv Robbertse responded to the questions on decriminalisation and continued criminalisation. He referred to paragraph 1.1 (b) of the presentation. The Prince Judgement declared the prohibitions in respect of the Drugs and Drug Trafficking Act so far as it related to private cultivation, possession and use of cannabis unconstitutional. The judgement further clarified the issue of private space and private use for adults, it could not be done in public. It could not be done in the presence of children. The legislation that gave effect to that judgement was the Bill. Clause 2 of the Bill respected the right of a citizen to possess cannabis and cultivate cannabis plants for private purposes. In line with the Constitutional Court judgement, it prescribed certain quantities. In that context, the Bill did legalise the use of cannabis for private purposes. However, the other provisions of the Bill, clauses 3 to 6, prescribed certain limitations that were imposed on the right of an adult in terms of the Constitutional Court judgement. This was obviously to enforce the prescribed quantity limitations and to provide for additional aspects in respect of the legal position that resulted from the Prince Judgement. It was to regulate other aspects that needed to be regulated to protect others against harm. The Constitutional Court judgement was in respect of the right of privacy, and it rightly decriminalises cannabis private use for adults. The Bill was not contrary to the judgement. It did provide for that right in clause 2.

He discussed criminalisation in terms of the limitations that were imposed by the other clauses of the Bill. The other clauses of the Bill regulated this right of privacy. Cannabis would be decriminalised in terms of the Bill as it gave effect to the judgement. Criminalisation needed to be seen as intended to enforce the limitations that were imposed on the right or privacy.

He discussed the further submissions that were made regarding cannabis clubs. Countries that allowed this were Uruguay, the Netherlands to an extent, and there were some US States that did allow for it. There was certain discrimination that may result in terms of clause 3, which limited the cultivation of cannabis plants to a private place. There were also restrictions that were imposed on where cannabis may be possessed, in terms of clause 4. There were restrictions relating to the consumption and use of cannabis, in terms of clause 5. That related to persons who did not have a place to exercise that right or to consume cannabis. Cannabis club regulation would authorise the memberships, how many people may belong to a cannabis club, how many plants may be cultivated, how much cannabis may be obtained by members of the cannabis club and what may be used as a venue for consumption of cannabis. It was his submission that regulation was required for those activities. He noted the submission of Fields of Green for All (FGA). There was an indication that cannabis clubs already functioned in South Africa to an extent. There was a code that regulated their actions. The code even went so far as to impose limitations to address certain harms. In terms of FGA’s presentation, there was an indication that Government should provide for further regulation and that Government should be responsible for this. He referred to a pending court case where a person, through the internet, received orders and seeds on behalf of others. They cultivated cannabis plants in a certain place, harvested the products and then provided that back to the members that placed an order. Such aspects were very loosely regulated, and it did allow for illegal activities to take place. There were more restricted models that could be imposed if there was a clear membership and identified persons that belonged to that cannabis club. If Government did not regulate cannabis clubs to some extent, then it did open up the opportunity for criminal activities. It was possible to provide legislation to that effect. It depended on whether the Bill was an appropriate instrument to take that forward. The Department of Justice could not administer cannabis clubs. It could not enforce measures. It did not have the capacity to do that. Other Departments were in a better position to regulate and enforce this. The Prince Judgement stipulated that any activity of adults in relation to the cultivation of cannabis plants for that adult’s own purpose should not be criminalised. There were submissions during the previous consultation process that indicated that it could be accommodated in that regard. There was discrimination if the person could not apply the private cultivation measures. That may amount to a constitutional issue at some stage. If there was no adequate regulation it may be used for unlawful purposes. Because the Department itself could not administer any legislation or regulation that gave effect thereto, it would be problematic for the Department in this Bill to specifically provide for cannabis clubs.

He discussed the THC content of cannabis in South Africa. He had already clarified the hemp issue. That Bill did not provide for that. Other legislation must provide for that. It needed to take due cognisance of South Africa’s climate. It needed to prescribe a THC limitation which was appropriate in South Africa’s circumstances. Some of the submissions that were received indicated that the general content of THC in plants in South Africa was more or less between 3% and 7% THC. There was another submission that indicated that it was between 2% and 5%. He discussed the current definition of cannabis, especially in paragraphs (b) and (c). The first part dealt with the cannabis plant. Paragraph (b) dealt with any substance containing THC. Previously a limitation of 1% THC was proposed in the previous process on the Bill. It had been increased to 2%. Additional limitations were then imposed in respect of other sections of the Act. The 2% of THC that was proposed in paragraph (b) did impact paragraph (a), the cannabis plant. It could be interpreted that the cannabis plant would only be regarded as a cannabis plant, through the definition of cannabis, if it had 2% THC. As was indicated previously, it was a rather arbitrary amount that was prescribed considering various circumstances. There was a need to also provide for THC products, like edibles or consumables or concentrates. He submitted that the amount could be reduced to any products that contained 1% of THC, as it previously was. The narcotic effect of cannabis also needed to be looked at. It was submitted that 1% THC per volume may already be quite substantive and may have a narcotic effect on the person, which did warrant its limitation in terms of clauses 3, 4 and 5. In children, a lesser quantity of THC was required. He would try to obtain further information and consult with subject experts on this provision to provide a clearer indication of the limits that were required to produce a narcotic effect on a person. The main aim was to clarify the percentage of THC that must be prescribed or determined in paragraph (b) of the definition. Paragraph (c) may then also further be clarified if there was a sure indication of the psychoactive effect of the THC quantity on a person.

He discussed commercial activities. The Department of Justice could not commercialise or promote legislation for such commercial activities. In terms of the current clause 1.2, there was a provision that other legislation may regulate certain activities in respect of cannabis cultivation material, cannabis plants, and cannabis products. There was an attempt to accommodate commercialisation in terms of the Bill. It was also previously indicated that that clause was subject to criticism by the Department of Health, the Department of Agriculture, and the Department of Trade and Industry to the effect that it did not provide a clear authorisation for commercialisation. The concerns related to South Africa’s international obligations in terms of the Drug Control Conventions. Clause 1(a) aimed to provide that authorisation. Although that authorisation was subject to the promotion of other legislation. There was a clear indication that contrary to South Africa’s international obligations, commercial activities may take place in South Africa for commercial purposes. That was the main aim of clause 1(a). It was further clarified in the stated in the memorandum, that it did provide for the commercialisation of cannabis. Clause 1(a) further clarified what was already stated as one of the intended objects of the Act. It clarified that authorisation of commercial activities may be undertaken. It did not fall outside the intended initial objective of the Act. There was no U-turn on that issue. It stayed as is. He discussed commercialisation and subsequent legislation that needed to be promoted. It was catered for fully in policy documents. There was a cabinet decision in 2019. The Cannabis Masterplan gave effect thereto. Hemp cultivation had already been implemented through the regulations made under the Medicines Act. Clause 1 (a) further catered for commercialisation. It was acknowledged that clause 1(a) needed to be cleared up. The main concern against 1(a) was that other legislation needed to be promoted, as indicated in the Western Cape Government submission. It was recognised that clause 1(a) was needed. The only real proposed amendment that was accommodated was to clarify with reference to legislation on (a)(ii), that had been removed.

He discussed the matter of seeds. It may be considered to remove the limitations on the availability of seeds. In terms of clause 2, seeds may be distributed without remuneration amongst adults. It did not provide specifically, amongst others, for the buying of seeds. Although an adult person may possess an unlimited quantity of seeds there were restrictions on the distribution thereof. Any intended commercial activities of seeds, in some countries, were strictly regulated. The reason was to restrict it to certain cultivators that had a safe amount of THC to ensure that it was distributed through approved outlets. It also ensured that a substantial revenue that may be generated through the selling of seeds may be appropriately taxed and regulated, to obtain some sort of benefit to address the harms of cannabis. The commercialisation of seeds should be regulated by the other legislation that provided for the commercialisation of cannabis.

Prof C Msimang (IFP) said that his concern was about the way forward. The Committee had listened to the report telling it that the Bill had been rejected. What now? What options did the Committee have? There was the option of taking the Bill back for amendments. The report said that after amendments, the Bill actually got worse. What options were there left to consider to save this Bill?

The Chairperson said that the Bill had not been rejected. Those were the views of the Department. The Committee was still going to consider the Bill, clause by clause. Those were the responses from the public hearings and those were the responses of the Department based on the views expressed by the public hearings.

Adv Robbertse responded that these were mainly submissions that were made by stakeholders, that accepted or rejected the Bill. There was no intention to withdraw the Bill. It was in the Parliamentary process, and it was subject to due consideration by Parliament.

The Chairperson said the next step was to proceed to consider clause by clause the processing of the Bill, taking into consideration the responses and the public hearings that had taken place. The Department needed to proceed and put in front of the Committee a Bill that it would consider clause by clause. The Committee agreed that that was in order. The Chairperson asked Adv Robbertse how long it would take to have that Bill ready for it to be considered by the Committee?

Adv Robbertse said that with due consideration to his workload it would probably take a month, but he could organise it within ten days from today. That would be a reasonable period. He noted that some of the submissions had not been discussed. That would be considered and accommodated in the finalisation of the text. He requested ten days to prepare the Bill. There was other legislation that was equally important that needed to be finalised.

Adv G Breytenbach (DA) said that she agreed with Adv Robbertse and the ten days. The Committee should bear in mind that he was still recuperating and should not put pressure on him. The ten days were reasonable but if Adv Robbertse needed more time then the Committee should allow that.

The Chairperson said that the Committee’s last meeting would be on 8 June. The Committee should allow for time. When it came back from recess the Department would have had enough time to do all the necessary consultations and the Bill would then be ready for the Committee to consider clause by clause. The Committee agreed that that was in order. The Chairperson thanked Adv Robbertse and his team for the work done. The Committee would meet with them again when it came back from recess in August. That would give the Department enough time to work on the Bill.  

Land Court Bill Working Document

Adv Henk du Preez, Senior State Law Advisor, DoJ&CD, briefed the Committee on the Land Court Bill working document. The Bill was to provide for the establishment of a Land Court and a Land Court of Appeal; to make provision for the administration and judicial functions of the Land Court and Land Court of Appeal; to make provision for budgetary matters; to provide for the exclusive jurisdiction of the Land Court and the Land Court of Appeal for certain matters; to provide for mediation and arbitration procedures; to amend certain laws relating to the adjudication of land matters by other courts, and to provide for matters connected therewith.

The document took the Committee through the provisions in the Bill, clause-by-clause, and clarified certain definitions in the Bill.


Dr Newhoudt-Druchen said that she did not receive the document. She asked that it be emailed to her, with the highlighted parts so that she could read through it.

Mr Horn said that the presentation dealt with the non-controversial issues raised. The Committee awaited the Department’s response on some of the other matters.

He discussed clause 22, around evidence. His recollection was that during the public participation process it was the argument of some that it may be necessary to qualify that the evidence ordinarily based on the rules of evidence would not be permissible or entered into the record if that was to be entered into the record did not take away from the inherent authority of the court to make a determination on the extent of reliance on evidence. He did not know whether the Department had considered that specific issue.

Adv du Preez responded that the Department was trying to clarify that when hearsay evidence was involved that the court should have the authority, the power to decide whether that evidence should be allowed or not. The ordinary rules of evidence would always apply. He apologised that the document was not ready for distribution this morning or last night. He noted Dr Newhoudt-Druchen’s request.

Mr Makubela Mokulubete, State Law Advisor, DoJ&CD, said that he could not take the matter further than what Adv du Preez had said. The Department had realised the issues that had been raised. Many role-players were against hearsay evidence. This specific clause was taken directly from the Restitution of Land Rights Act and put in the Bill. It had been qualified so that it was now applicable only to the Restitution of Land Rights Act. The Department was not aware of any challenge to this provision as it was currently contained in the Restitution Act. The restitution matters dated as far back as 1913. When the Department previously briefed the Committee, it had indicated that in some instances in relation to restitution matters some of the witnesses were so aged they were not in a position to recall or remember certain facts that would be of assistance to the court. That was why the Department wanted to confine hearsay evidence only to restitution matters. The court would only admit that hearsay evidence when it is relevant. The court would give weight to the hearsay evidence presented to the court. The Department had taken note of the comments that had been raised against that. Hence, the Department was confining it to restitution matters. The court should not be able to hear hearsay evidence related to other pieces of legislation that fell within the jurisdiction of the court.

Mr Horn said that he accepted the explanation as far as it related to restitution matters. However, subsection 1 was a section of general application. Subsection 2 made specific reference to restitution matters. He argued that if the intention was to deal with the special circumstances that may be applicable to restitution matters then the provision as it was now, was not clear. He raised the issue of courts of law and equity. The response of the Department was that the law of evidence would be applicable in the case that these courts were courts of law. If it was argued that these courts were courts of equity, then there was an obligation on the courts to be part of a programme of action aimed at achieving a certain outcome in terms of land. Then the courts were no longer bound by the rules of evidence. The obligation around equity would bring into play a situation where the ordinary rules of evidence would no longer apply. He believed that there may be a link between this specific provision and the declaration that the courts should be courts of law and equity. He did not expect a full answer. The Department was still looking into what was meant by declaring it courts of law and equity. This needed to be considered as part of that explanation.

Adv du Preez said that the officials could never come to the Committee without the blessing of their superiors. The Department was looking at Mr Horn’s request. It would respond when appropriate.

Mr Mokulubete said that the Department would consider the matter with the comments that had been raised by Mr Horn.

The Chairperson asked if the Department was still considering the issue of the Appeal Court and matters of arbitration.

Adv du Preez responded that was correct. The Department was also going to respond to the question raised by the Committee relating to expropriation. That was extremely technical in nature, but the Department would respond to the Committee.  

The Chairperson asked when the Department would be ready because the Committee wanted to finish this Bill as soon as possible. Would the Bill be ready next week Tuesday?

Adv du Preez responded that it was difficult to commit to time periods especially when it came to the Committee because the officials of the Department never wanted to let the Committee down.

Mr Mokulubete said that he shared the sentiments of Adv du Preez. The issues that the Department had been requested by the Committee to deal with were quite big issues.

The Chairperson said that both Adv du Preez and Mr Mokulubete were diplomats. The officials might be having a lot of work in the next term. There were a lot of Bills, close to six, that were Constitutional Court Bills and their deadlines started in November. Then the Department would not have time. The Department would meet with the Committee on Tuesday and present what it had. Then the Committee would take it from there. The more the Committee postponed many Bills then, the Department would be overwhelmed in the next term. There was a general problem of capacity where a few people were dealing with many Bills in the Department. Quite a number of Bills with Constitutional Court deadlines needed to be finished before November.

CALS Letter

The Chairperson discussed two housekeeping issues. Last week, the Committee circulated a letter from the Centre for Applied Legal Studies (CALS) at Wits University with respect to the Cannabis Bill. There was a proposed response from the side of the Committee that had been circulated amongst members so that members could have sight of the letter and the response. The Committee was dealing with people who were very litigious. It should be the response of the Committee. He asked if Members had time to look over the letter and the response. There were quite a number of members who expressed a view that they were fine with the response. He wanted a final word on the letter to be sent by the Committee.

Dr Newhoudt-Druchen said that she had read both documents and agreed to the response on behalf of the Committee.

Mr Horn agreed that that should be the Committee’s response to CALS.

Chairperson of Correctional Services Subcommittee

The Chairperson said the next item was that the Chairperson of the Subcommittee would not be joining the meetings until 14 November. He appealed to the Subcommittee on Correctional Services to proceed on Friday and elect a new Chairperson to Chair meetings. He did not want there to be successive postponement of issues. That would not be good for the Subcommittee’s workload and it would not be good for the reputation of the Subcommittee. He asked if members would proceed on Friday and that the Subcommittee would elect a new Chairperson?

Mr Horn's proposal said given the fact that the Subcommittee was faced with diminishing numbers, would it be possible for the Committee members to attend? Ultimately, the correctional services matters remained the responsibility of this Committee. Could the matters be dealt with by way of Committee meetings?

Dr Newhoudt-Druchen supported the suggestion.

The Chairperson said that the suggestion was agreed to. He asked for the agenda for the following day’s meeting to be presented.

The Chairperson noted the items that would be dealt with in the following meeting.

The meeting was adjourned.

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