Judicial Matters Amendment Bill: DoJ&CD briefing; with Deputy Minister

Meeting report

Opening Remarks
The Chairperson welcomed Deputy Minister Jeffrey and the Department of Justice and Constitutional Development (DoJ&CD) and requested the Deputy Minister to commence the presentation.

Presentation on the Judicial Matters Amendment Bill [B7 - 2023]
Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, was unsure as to who was to make the presentation but owing to connectivity issues, Adv Tsietsi Sebelemetja, Chief Director for Legislative Development and Implementation at the Department made the presentation.

Adv Sebelemetja stated that he would briefly address the 37 clauses that would amend numerous Acts administered by the Department of Justice and Constitutional Development. The amendments were largely technical and so were of a non-contentious nature. The proposed amendments would remedy identified shortcomings and constitutional defects in current Acts.
Adv Sebelematja introduced each clause. The Deputy Minister elaborated on particular clauses during the presentation.
Clause 1
Clause 1 amended section 51 of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944) to provide who the court must subpoena to give evidence. The clause further empowers the court to subpoena the court manager of that court whenever it requires information pertaining to an infrastructure-related or operational matter that arose at the court. (see also Clause 11) 

Deputy Minister Jeffery added that the Director-General was summoned to courts around the country to provide an explanation when the court was having a problem with issues not being addressed and that was preventing the court from functioning properly. The DG had been summoned a number of times to different courts around the country. So, the aim of that clause was to say the court must start with the court manager and work its way up to the DG, if necessary. The reason for the clause was really to stop the courts from summonsing the DG in the first instance.

Clause 2
Clause 2 deleted the proviso in section 93ter(1)(b) of the Magistrate Court Act, 1944, as recommended by the Regional Court President’s Forum, as long delays are occasioned as a result of not being able to find assessors.

Deputy Minister Jeffery said what had been deleted was a provision that gave the accused the right to, in certain serious matters in the Regional Court, have lay assessors hearing their case. It was not something that was there for the High Court, so he was not sure why it was put in for the Regional Court. He suggested that it may have been put in when there was the extension of powers to the Regional Court and there was concern about it. However, the Regional Court Presidents were finding it problematic because people did not want to be lay assessors, particularly in some of the more serious cases, such as gang cases, armed robbery cases, and so on. The deletion would take away the accused’s right to insist on assessors. The magistrates could still use assessors if they so wished, but it was no longer a right of the accused. That was the same as the position in the High Court if they were tried there.

Clause 3
Clause 3 amends section 28 of the Administration of Estates Act, 1965 (Act No. 66 of 1965) to remove reference to cheque accounts and cheques or orders, to allow the executor to open an appropriate account and to make e-payments, to align with modern circumstances. The clause further requires that all payments from the estate account must be made by the executor to contain relevant information and any information as directed by the Master. 

Clauses 4 and 5
Clauses 4 and 5 propose the amendments to remove references to cheques and make provision for an affidavit by the executor for the declaration of payment to creditors or heir's share in the process of winding up an estate.

Clause 6
Clause 6 makes provision for the Chief Master to review any appointment by the Master of an executor, curator or interim curator after taking representations from an executor, curator interim curator beneficiary or any other person the Chief Master considers relevant. (See also clause 8)

Deputy Minister Jeffery added that currently, the Chief Master did not have any real powers. The Master had the powers and the problem that the clause was trying to correct was that where there were complaints from interested parties about the way the Master had exercised the powers, the only remedy was to go to court and get a review. The clause allowed the Chief Master to consider the matter and, if necessary, change the decision without it having to go to court. If the Master was not happy with the Chief Master, then the Master could go to court for a review, but it just provided another level, which would hopefully make it easier for disputes to be dealt with and resolved without having to go to court.

Clause 7
Clause 7 empowers the Chief Master acting upon a request of a Master or a person designated by him or her to institute civil proceedings in pursuance of the Administration of Estates Act, 1965 (Act No. 66 of 1965), against any executor, tutor, curator, administrator or interim executor or curator.

Clause 8
Clause 8 inserts section 96A to provide for the powers, duties and functions of the Chief Master.

Clause 9
Clause 9 proposes amendments to section 103 to correct a technical and drafting oversight. Section 103 was amended by the Judicial Matters Amendment Act, 2017 (Act No. 8 of 2017), by inserting subparagraphs (eA) and (eB). It transpired afterwards that section 103 was previously amended by the Estate Affairs Amendment Act, 1992 (Act No. 1 of 1992), which had already inserted a paragraph (eA) in section 103.

Clause10
Clause 10 proposes the insertion of new sections 57B, 57C and 57D into the Criminal Procedure Act, 1977 (Act No. 51 of 1977). Section 57B proposes the Minister may declare that certain categories of offences do not result in a previous conviction against the accused and also provides for expungement of minor offences as well as certain offences committed in terms of the Disaster Management Act, 2002 (Act No. 57 of 2002).

Deputy Minister Jeffery explained that the Committee had been asking specifically about the admission of guilt fines under the Disaster Management Act and that was covered by 57D, but it also provided for other admissions of guilt where the accused had a record. That was what the Department had been working on and then put it in a specific clause on the Disaster Management Act, and the offences committed in terms of that Act, as requested by the Committee.

Adv Sebelematja noted that the Deputy Minister had also referred to the proposed new section 57C which sought to provide for the expungement of the criminal records of persons whose names appeared in the records of the Criminal Record Centre of the South African Police Service after having paid admission of guilt fine for offences as envisaged in the proposed new section 57B(1). The objective of the amendment was to also provide for automatic expungement of the criminal record.

Clause 11  also amends section 186 of the Criminal Procedure Act, 1977(Act No. 51 of 1977) ("the Criminal Procedure Act"), for the same purpose, relating to issues pertaining to infrastructure-related and operational matters.

Adv Sebelematja added that the clause was intended to address challenges when the court might not be able to proceed because of infrastructure issues. In such a case, the court manager would be issued with a subpoena to the person directly responsible to go and give information instead of the court having to summons the Director-General who would not have the specific details. 

Clause 12
Clause 12 proposes the repeal of section 21(2)(a) of the Matrimonial Property Act, 1984 (Act No. 88 of 1984), to comply with the Constitutional Court judgment in Sithole and Another v Sithole and Another [2021] ZACC 7, which found the section 21(2)(a) to be unfairly discriminatory and not justifiable under section 36 of the Constitution to the extent that it maintains and perpetuates the discrimination created by section 22(6) of the Black Administration Act, 1927 (Act No. 38 of 1927) by regarding marriages of Black couples entered into under the BAA before 1988, to be automatically out of community of property.

Clause 13
Clause 13 proposes amendments to section 11 of the Sheriffs Act to extend the duration of the term of office of members of the Board for Sheriffs.

Clause 14
Clause 14 proposes an amendment to section 1 of the Intestate Succession Act, 1987 (Act No. 81 of 1987), so as to align that section with the judgment in Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51. The court ruled that the omission of a surviving life partner from benefitting in terms of the same Act is invalid and unconstitutional.

Clause 15
Clause 15 amends section 1 of the Maintenance of Surviving Spouses Act, 1990 (Act No. 27 of 1990) consequent to a Constitutional Court judgment in Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51. The Court ruled that the definition of "survivor" should be amended to include all parties for the purposes of benefitting the surviving party when the estate is winded.

Clause 16
Clause 16 amends section 34 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998) ("NPA Act") to align the due dates of annual reports that must be submitted to the National Director of Public Prosecutions ("NDPP").

Clause 17
Clause 17 amends section 35 of the NPA Act to change the date envisaged in section 35(2), on which the NDPP must submit to the Minister the annual report to align with section 40 of the Public Finance Management Act, 1999 (Act No.1 of 1999).

Clause 18
Clause 18 amends section 3 of the Debt Collectors Act, 1998 (Act No. 114 of 1998), so as to increase the term of office of members of the Council for Debt Collectors and to provide that such a member is eligible for reappointment.

Clause 19
Clause 19 seeks to amend the Domestic Violence Act, 1998 (Act No. 116 of 1998), so as to penalise the making of a false declaration.

Deputy Minister Jeffery elaborated on the reason for the clause. It related to something that came to light after the Domestic Violence Amendment Act was passed. The whole intention was to try and make matters easier, a provision was included for people to make applications for a protection order online. However, generally, they required an affidavit which meant that they had to go to a Commissioner of Oaths or police station to get that done, which could take time, particularly if their life was under immediate threat or they could not get there. When the drafters checked, they found there was no requirement that it had to be an affidavit. It could be a declaration, but clause 19 would penalise the making of a false declaration. So the intention was that a person could make the application just by declaration, not by affidavit but, to prevent false declarations, there were consequences for making a false declaration accusing somebody falsely. The clause provided for a penalty for making a false declaration.

Clause 20
Clause 20 seeks to amend section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000) consequent to the CC judgement of Qwelane v South African Human Rights Commission and Another [2021] ZACC 22. 

Clause 21
Clause 21  seeks to effect an amendment to section 10(1)(a) of the Protected Disclosures Act, 2000 (Act No. 26 of 2000) to include more bodies such as the SAHRC (South African Human Rights Commission), the CGE (Commission for Gender Equality), the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities and the Public Service Commission, to which a protected disclosure may be made. Currently, the reference is to the Public Protector and Auditor-General only.

Clause 22
Clause 22 seeks to insert a new subsection (3) in section 13 of the Judges Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of 2001) to allow the adjustment of certain amounts by notice in the Gazette.

Clause 23
Clause 23 inserts section 34A after section 34 of the Prevention and Combatting of Corrupt Activities Act, 2004 (Act No. 12 of 2004) to provide for the failure of persons or entities to prevent bribery, as recommended by the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud.

Clause 24
Clause 24 amends sections 29(3) and (4) of the Sexual Offences Act to clarify that the Director-General of Health is responsible for the distribution of notices contemplated in section 29(3) and that the Director-General: Justice and Constitutional Development will be responsible to distribute notices contemplated in section 29(3).

Clause 25
Clause 25 amends section 40 of the Sexual Offences Act, to delete a reference to the repealed section 24B of the Film and Publications Act, 1996. Section 24B of the Film and Publications Act, 1996, had been repealed by the Cybercrime Act, 2020 (Act No. 19 of 2020).

Clause 26
Clause 26 amends section 55A of the Sexual Offences Act, to align practical considerations to the legal position.

Deputy Minister Jeffery stated that there was a problem with the designation of sexual offences courts currently, in terms of section 55. The intention was for specific courts or places of sitting to be designated as Sexual Offences Courts, and then the regulations kicked in at those designated courts as far as what the public could expect at a Sexual Offences Court. The problem with the Act and why the designation had not been able to properly take place, was that the definition currently means that only the Regional Courts of the province could be designated. So individual places of sitting of the Regional Court could not be designated and that defeated the objective because it would mean every Regional Court was a Sexual Offences Court, which, although that would be nice, the Department did not have the resources for that. So, the intention of the amendment in clause 26 was to allow places of sitting in the regional divisions to be designated as Sexual Offences Courts. That would mean that the Minister could then properly designate the Sexual Offences Courts.

The Chairperson requested the Deputy Minister to repeat his explanation.

The Deputy Minister said that it was a technical amendment. Currently, the Minister could only designate the Regional Court of a province as a Sexual Offences Court. So it would be the Regional Court of the Western Cape, Gauteng, whatever. In terms of the wording, an individual court place of sitting could not be designated. However, that was the whole intention of section 55A: that the Minister would designate particular courts as Sexual Offences Courts. And different things happened in those courts where particular regulations took effect. So currently, the Minister could only say the entire Regional Court of a province 
were Sexual Offences Courts, which technically meant that every Regional Court in that province and in the country was a Sexual Offences Court. But they were not and the Department did not have the resources to kit out every Regional Court in the country. The clause 26 amendment would allow the Minister to designate specific Regional Courts as places of sitting as Sexual Offences Courts.
 
Clause 27
Clause 27 amends section 66 of the Sexual Offences Act, in order to regulate the confidentiality and destruction of child pornography.

Clause 28
Clause 28 amends section 17 of the Superior Courts Act, 2013 (Act No. 10 of 2013) which deals with leave to appeal in order to revise the reason for referral of the matter by the President of the Supreme Court of Appeal for reconsideration to be in circumstances where a grave failure or injustice would otherwise result or the administration of justice may be brought into disrepute, instead of the current provision for "exceptional circumstances."

Adv Sebelematja explained that the intention was to bring clarity with regard to the reasons for the referral for reconsideration.

Clause 29
Clause 29 substitutes section 18(4) of the Superior Courts Act to clarify the meaning of the phrase "next highest court" in relation to an automatic right of appeal granted to an aggrieved party to legal proceedings to mean a full court of that Division, if the appeal is against a decision of a single judge of the Division; or the Supreme Court of Appeal, if the appeal is against a decision of two judges or the full court of the Division. 

Clause 30
Clause 30 amends section 44 of the Superior Courts Act in order to make provision for the service of documents in civil proceedings before a superior court. The amendment proposes the usage of virtual technology or electronic mail as contemplated in the Electronic Communications and Transaction Act, 2002 (Act No. 25 of 2002). This is in addition to the existing mechanisms currently in use.

Clause 31
Clause 31 seeks to amend section 15 of the South African Human Rights Commission Act, 2013 (Act No. 40 of 2013), which regulates the powers of the South African Human Rights Commission (“the SAHRC”) during its investigations. The qualification in section 15(2)(b)(i), that the order must be issued in consultation with the DPP who has jurisdiction, is not provided in the legislation of other Chapter 9 Institutions.  In view of the aforementioned statement, Clause 31 proposes the removal of this qualification.

Clause 32
Clause 32 proposes an amendment to section 6(4) of the Legal Aid South Africa Act, 2014 (Act No. 39 of 2014) to replace the system of nominations with a call for individuals to apply to serve as Board members. The consequence of a call for nominations is a cumbersome process.

Clause 33
Clause 33 proposes amendments to section 17(2) of the Legal Aid South Africa Act, to substitute obsolete references.

Clause 34
Clause 34 corrects a reference error in Article 17A(2) of Schedule 1 of the International Arbitration Act, 2017 (Act No. 15 of 2017). 

Clause 35
Clause 35(1) seeks to repeal the common law relating to the crime of defamation. Clause 35(2) is a restatement that the repeal of the common law relating to the crime of defamation does not affect civil liability.

Clause 36
Clause 36 provides for transitional provisions.

Clause 37
Clause 37 contains the short title and commencement.

Adv Sebelematja added that most of the prohibitions or the clauses that were proposed would not require regulations, except for one clause, which was section nine that should only come into operation on a day to be fixed by the President by proclamation in the Gazette, because it talked to the reformulation of the provision that dealt with the regulations.

The Chairperson requested the Deputy Minister to repeat the clause that stemmed from a proposal by the Judicial Commission of Inquiry.

The Deputy Minister stated that it was Clause 23 that inserted section 34A after section 34 of the Prevention and Combatting of Corrupt Activities Act, 2004. It was a request for an additional crime. It was a failure by members of the private sector or incorporated state-owned entities to prevent corrupt activities. So, it was a new provision that was recommended by the State Capture Commission. (Note: the Deputy Minister incorrectly stated it was clause 34A but it was clause 23 that corrected section 34A.)

The Chairperson asked what happened once that failure was criminalised.

The Deputy Minister responded that the Commission had said it was a gap in the Prevention and Combating of Corrupt Activities Act. That particular element was not criminalised.

The Chairperson asked about the sentence if a person were found guilty.

The Deputy Minister presumed that it was provided for in the Act.

Adv Sebelemetja confirmed that the sentence was provided for in the relevant Act.

Discussion
Mr W Horn (DA) said he would give his face-value reaction to clauses 1 and 6. The rationale to enable the courts to call officials to account for functionality made a lot of sense. The question, however, arose whether it should not be expanded to at least the Office of the Chief Justice and the Department of Public Works and Infrastructure. Alternatively, the clause should be phrased sufficiently generally to enable the court to call officials from other departments, in addition to the Department of Justice.
On clause six, He said that one had to, in principle, be in favour of enabling a simpler internal review, not necessarily a judicial review when liquidators and executors ought to be appointed. The worry was that there might be a situation where, depending on who was the Chief Master, that type of review ultimately might not serve the best interests of the process or the public. He did not know to what extent it had been considered that the internal review authority might be a body rather than the Chief Master. One would think, given the fact that there was a Master in every province, that such an internal review authority might operate better if it were the Chief Master along with two or three of the Masters. His provisional reaction was that he had a slight discomfort with it being the Chief Master alone with that authority and he would want the Department to consider whether it shouldn't be structured in a slightly different manner.
Mr Horn added that those were initial reactions. He believed that the Committee would embark on a simplified version of public participation. There might be input from stakeholders, which might also influence his party’s view on some of the other proposals, although it was quite clear, as said at the beginning of the presentation, the Bill aimed at dealing with a number of technical matters, which was important from time to time.
Dr W Newhoudt-Druchen (ANC) said that she was at a disadvantage because she did not have the Bill in front of her but she asked about the payments by cheque. What replaced the word “cheque”? How had payment been done or would be done? So what was replacing the word “cheque”? And then the issue of the court assessors: did it say that the magistrate or the judge could have an assessor for advice?

Deputy Minister Jeffery responded to Mr Horn. In clause one, he explained that the courts could summons anyone that they liked, and they did. And they summoned the DG of the Department of Justice and Constitutional Development a lot. So, a court could summons the Department of Public Works and Infrastructure. He did not think they had done that yet, but it was not a bad idea. The high courts could summons the Secretary General of the Office of the Chief Justice. But it was specifically dealing with the problem of the DG receiving regular summonses to attend court to give explanations for issues that were not functioning.

Regarding clause six, which was the other point, he did not want Mr Horn to accuse the Department of not doing its work, but it would be useful if there was more of an engagement with Mr Horn on what he was suggesting. His problem was that currently the powers were exercised by the Master of the High Court. So in each Master’s office, the power was with the Master and once that decision had been taken, it could only be taken on review in the High Court. The clause added the Chief Master who was in a functionary position. It was usually the next functionary who reviewed a decision. He was not sure if a committee could review a functionary’s decision. In certain instances, the Minister could review a decision made by a functionary. It's the Minister as a person. So he was not sure if it would work, but the Department could engage further with Mr Horn on that matter.

Adv Sebelematja responded to Dr Newhoudt-Druchen. Obviously, cheques were no longer in use. They had been phased out, so the reference was to a current or transactional account or the EFT electronic payments. So it was the current systems of payment that were being facilitated because cheques had been phased out by the banks. With regards to the issue of assessors, the current provision, although empowering that an assessor might be called to the assistance of the court, was peremptory in that the provisor allowed that even if the accused was standing trial in the court or the regional division on the charge of murder, whether together with other charges or not, the judicial officer shall (which meant it was peremptory) be assisted by two assessors, which made it a condition unless the accused requested that they proceed without assessors. So the amendment removed the proviso so that the assessment could be done by the presiding officer so that the process was not held up. 

He added that in clause one, the rationale for when the court should call other departments would depend on the issues that the court might seek clarification. The provision related to operational or infrastructure-related matters.

The Chairperson asked for further comments or questions of clarity. He said it appeared that Members were satisfied. The Bill was subject to public hearings and deliberations within the Committee before it would be finalised.

Ms Y Yako (EFF) was curious as to whether the public hearings would be virtual or held in Parliament.
Virtual hearings seemed a little bit exclusive of some of those who might want to contribute. She hoped the Committee was going to embark on physical public hearings. A physical hearing had much more of an impact.

The Chairperson said that he understood it from one angle, that since the country was on stage six load shedding, it had become really difficult to run a long meeting, and the Committee might need to think about it. He had found when the Zoom platform was working well and there were no issues with load shedding, people who ordinarily would not be in a position to get to Cape Town, especially the small NGOs, had been able to participate via Zoom. He saw even with the Constitutional 18th Amendment Bill and the Cannabis Bill that quite a number of small NGOs (non-government organisations) or CBOs (community-based organisations) were able to participate. But the Committee would have a discussion on that and look at each on a case-by-case basis to determine how to approach it.

Mr Horn agreed with the Chairperson’s statement that the Committee should decide on a case-by-case basis. He agreed with Ms Yako that in certain instances an in-person public participation process would be better. In the current circumstances, if for a moment one just focused on the Judicial Matters Amendment Bill, as long as load shedding did not bedevil the whole process, the Zoom platform would be good enough to have fruitful truncated public participation. So he was supportive of the idea of assessing the route to follow in each instance because there were definitely some instances where he believed that Ms Yako was quite correct that in-person meetings would bring better results in terms of the public participation process.

The Chairperson thanked Members for the input, noting that they would continue the discussion when they had to deal with the issue of the public hearings for that particular Bill.

The Chairperson noted the end of the meeting. On the following day, Members would meet for the debate and on Friday for the Correctional Services matter. He asked the Committee Secretary whether he anticipated that the Committee would be deliberating on the names for the National Council for Correctional Services (NCCS) in item 2 on Friday.

The Committee Secretary stated that he hoped the Committee would get an update on the process from the Department.  

Closing Remarks
The Chairperson thanked the Deputy Minister and adjourned the meeting.