Judicial Matters Amendment Bill: public hearings; Committee Report on amendments to the PDA Practical Guidelines for Employees

Meeting report

The Chairperson conveyed his condolences to Mr Werner Horn who recently suffered a family bereavement.

Ms N Maseko-Jele (ANC) sent condolences, on behalf of the ANC, to Mr Horn, his family and the DA.

Adv G Breytenbach (DA) thanked the Members for their words and stated that she would convey their words to Mr Horn.

The Chairperson asked the Committee Secretary to flight the list of the organisations expected to brief the Committee. Thereafter, he outlined that each organisation would be afforded twenty minutes to present on the Judicial Matters Amendment Bill (JMAB), starting with Media Monitoring Africa (MMA) and concluding with the Women’s Legal Centre (WLC).

MMA Presentation

Mr William Bird, Director, MMA, briefed the Committee on the MMA’s submission.

The MMA welcomed the proposed removal of Clauses 35(1) and 35(2), which relate to the common law crime of defamation. Such a move would assist journalists in conducting their work freely. However, the MMA submitted that the inclusion of Clause 36 (which states that “any criminal proceedings in respect of a crime of defamation which are pending before any court and which are not concluded before the commencement of the act, must be continued and concluded in all respects as if Section 35 has not been passed”) was unnecessary because it would result in a person being convicted of criminal defamation a day after the Act is passed.

(See Presentation)

Africa Criminal Justice Reform (ACJR) Presentation

Ms Kristen Peterson, Researcher, ACJR, briefed the Committee on the ACJR’s submission.

The organisation’s submissions were related to the proposed additions of Section 57 (b), (c) and (d) under Clause 10, which address expungement, payment of admission of guilt fines without an appearance in court, and Covid-19-related offences.

The ACJR was pleased that the Bill addresses the criminalisation of minor infractions of the law, as most convictions subjected to the admission of guilt fines are trivial and pose no risk or harm to others. A criminal record in respect of such an offence is an inappropriate response to dealing with such behaviour.

One of the issues, noted by the ACJR, was that often, mostly poor, people are issued admission of guilt fines without being informed by law enforcement officials that such payment is accompanied by a criminal record.

As such, the organisation commended the Bill for its attempts to address prior convictions by making provision for the automatic expungement of such criminal records by the criminal records centre in the South African Police Services (SAPS). However, the ACJR was concerned that the Bill did not adequately determine the offence type that will be classified for expungement. For this purpose, it called for Parliament to initiate public consultations on the list of the offences that will be identified by the Ministers of Justice and Police.

A significant number of individuals, most of whom were black and poor, were arrested for specific offences under the Disaster Management Act (DMA). While Section 57(d) of the Bill seeks to provide for the automatic expungement of people who were convicted for specific offences under the DMA, it only allows for the expungement of criminal records of people who were convicted and sentenced via the court by virtue of an admission of guilt fine, as contemplated in Section 56 of the Criminal Procedure Act (CPA), or those who appeared in court in terms of a summons or written notice. There is no rationale in the differentiation of the expungement.

(See Presentation)

Discussion

Dr W Newhoudt-Druchen (ANC) agreed that the criminalising of many people, several of whom are young, for transgressions of DMA regulations was unfortunate and concerning. She asked if those whose records are expunged will have the money they spent on their fines paid back.

Ms Peterson felt that the differentiation between those who qualify for their criminal records to be expunged was not well-thought and that the Minister would have to provide greater clarity. In addition, she explained that the Bill did not make provision for the monies of those who paid fines to be returned.

The Chairperson indicated that the Department would provide responses on the matter after the recess.

Law Society of South Africa (LSSA) Presentation

Ms Ntlai Masipa, Vice-President, LSSA, stated that with the advent of the Legal Practice Act (LPA) and the repeal of the Attorneys Act in 2018, the LSSA amended its constitution and extended its mandate, which now included the establishment of provincial associations in all nine provinces.

She clarified that the established Legal Practice Council (LPC), which is the regulatory body for legal practitioners, did not replace the LSSA, and it continues to exist as an independent voluntary body.

Some of the LSSA’s objectives include: upholding, safeguarding and advancing the rule of law; the administration of justice, the constitution, and the laws of the country; and providing legal education on the issues faced by female practitioners.

Mr Hussan Goga, Chairperson: deceased estates, trusts and planning committee, LSSA, took the Committee through the briefing.

He explained that the LSSA represented 30 000 attorneys, bringing together the black lawyers association, the national association of democratic lawyers and the independent attorneys in representing the attorneys’ profession.

Thereafter, he outlined the LSSA’s comments on the Bill.

One, he said that the proposed addition of Section 51 (4) of the Magistrates Court Act was concerning as it allowed for a magistrate to act in an adversarial position. The practicality of who would lead a witness and cross-examine him or her is problematic and raised certain questions, such as: can a party ask a magistrate to exercise the right to call such a witness; who would issue the subpoena and pay the sheriff’s fees, travel and witness fees, especially if the witness has to travel from out of town and stay overnight.

The LSSA believed that the proposed Section 51 (4) was in fact a replica of Section 186 of the CPA. If introduced, it would create a departure from established practice because in a civil trial, it is not the practice for magistrates to enter the arena; it is only for the litigants to decide how to conduct their trial. The magistrate must be independent at all times and make a decision on all facts.

Two, he submitted that provision should be made for only a transactional account in clause two of Section 28 of the Bill, instead of including both that and a current account, as both refer to the same thing, he added. Moreover, he submitted that the amount of R1000 should be increased to a minimum of R5000, as it will create hardship for vulnerable people who report an estate with a small value.

Still on clause two, he said that the Chief Master should not be permitted to issue a directive on the establishment of the account. He admitted that the LSSA did not have confidence in the Office of the Chief Master.

The proposals made in clause two on the identity of a payee appear impractical, he stated, as not all banks print such information on their bank statements. Due to the confusion this would cause, the LSSA did not support the requirements for this information. He called for the requirements to be clearly set out in the act.

Section 28 (b) and (c) were a repetition, as one spoke about a savings account, while the other was on an interest-bearing account, which is identical. He proposed that paragraph b be superseded by paragraph c to resolve this.

Three, he said the word ‘may’, in the second line of clause four, should be replaced with the word ‘must’, as receipts cannot be obtained from creditors. The only solution, the LSSA believed, is for the inclusion of a requirement for an affidavit to be submitted to the Chief Master.

Four, clause eight in 96(a), he submitted that it should read that the Chief Master, as head of the office of the Master of the High Court, must be subjected to the directions of the Minister.

Five, clause nine Section 103, he submitted that regulations made under the administration of the Estates Act should be made by the Minister, in consultation with recognised bodies and associations representing legal practitioners.

Referring to the amendments of the Matrimonial Property Act (MPA) 1984 clause 12 Section 21, the LSSA believed that the draft amendment should be read as Section 21 2(a)(2), as it is the only part of the clause which has been rendered unconstitutional, rather than the entire subsection A. The deletion of the entire subsection A would create uncertainty for the parties who were married after the community of property applied to the commencement of the MPA.

The proposed amendment would mean that parties married before the act, out of community of property would have to have executed anti-nuptial contracts in accordance with the Act after its commencement.

(See Presentation)

Discussion

Ms Maseko-Jele asked if the LSSA could clarify if it was dissatisfied with the individual at the helm of the office of the Chief Master or the office itself.

Mr Goga clarified that the LSSA was dissatisfied with the entire leadership of the office. In a previous instance, the Office issued directives to create specific laws, which the LSSA tried to convince them to remove – which the office agreed to. However, five years later no action has been taken. Further to that, the LSSA did not believe that it was the duty of the Office to make laws.

He requested that the Committee allow, in the future, for the LSSA to make a presentation to it on this matter.

The Chairperson mentioned that this request was raised by the organisation’s parliamentary liaison officer. It was communicated by the Committee that time permitting, it will conduct a meeting with both the LSSA and the Office.

Mr Q Dyantyi (ANC) asked the LSSA to provide the Committee with a problem statement on what it thought was at the core of the challenges faced by the Chief Masters Office and what could be done to resolve them, in a written submission, prior to the planned meeting.

Ms Maseko-Jele asked whether the LSSA would still oppose the Office if it managed to resolve some of its challenges.

The Chairperson requested a mover for Mr Dyantyi’s proposal.

Adv Breytenbach moved to support the proposal.

Ms Maseko seconded the proposal. She added that once the problem statement was received, the Committee should hold a meeting with the LSSA before the planned one with the Office of the Chief Master.

The Chairperson indicated that the Committee would return from its constituency break on 31 August.

Mr Goga highlighted that the LSSA previously sent a letter to the Minister of Justice, where it outlined all of the material problems it has encountered during its interactions with the office. This, he said, would be submitted to the Committee.

The Chairperson asked what the Minister’s response was to the letter.

Mr Goga said that the LSSA has not received a response. He felt that the issues faced by the Office of the Chief Master deserved the highest possible attention, as it is the public that is being affected.

The Chairperson agreed.

Mr Goga said that the various Masters offices across the country were not functioning as they should, which indicated that there were leadership issues. Political will, he stressed, was required to resolve the issues.

Mr Dyantyi mentioned that further discussions on the challenges faced should be addressed at the planned meeting with both the LSSA and the Master’s Office.

Adv Breytenbach agreed that the Master’s Office was not functioning at all. Due to the effect it has on citizens, she called for the Committee to prioritise the matter.

The Chairperson assured Members that the matter will be attended to. He asked for the LSSA to submit the problem statement by 20 July.

WLC Presentation

Adv Bronwyn Pithey (Lawyer at the WLC) and Ms Arethra Louw (Litigation Secretary at the WLC) briefed the Committee on the WLC’s submission.

Adv Pithey pointed out that the WLC’s submission focused on two clauses.

Ms Louw informed Members that the WLC is an African Feminist Legal Centre that advances women’s rights and equality through strategic litigation, advocacy training and education. The organisation’s primary aim is to develop feminist jurisprudence, policy and legislation, that recognises and advances women’s rights to substantive equality in South Africa.

Thereafter, she submitted that the WLC welcomed and supported the repeal of Clause 35, which relates to the common law crime of defamation, as it noted the effects it has had on a high number of women. However, it was concerned that the transitional period, as set out in Section 36, still left the door open for those already accused of the common law crime to be targeted, leaving many women with a criminal record.

Criminal defamation, she continued, undermined the constitutional right to free speech.

Adv Pithey submitted that the WLC was, broadly, in support of the proposed additions of 57(b) and 57(c) to Section 10 of the CPA but had its reservations. The three so-called Gender-Based Violence (GBV) Bills that were before the Committee made amendments to the CPA in relation to prosecutor and police bail. The WLC believed that the wording used in those provisions should be included in Sections 57(b) and 57(c).

While the WLC supported the 57(b) proposed that certain offences will not result in a criminal conviction, it remained concerned that others would still result in one. As such, it recommended that those accused, as per 57(b), should be excluded if they are convicted of offences against a person in a domestic relationship, as defined in Section 1 of the Domestic Violence Act.

(See Presentation)

Discussion

Ms Maseko-Jele thanked the organisation for the work it has done to address infringements made on women’s rights.

Mr Dyantyi asked why the organisation had referred to the three GBV Bills as ‘so-called’.

Adv Pithey clarified that it was commonly used to collectivise the three bills, and not to undermine them.

The Chairperson thanked all the organisations for their submissions on the JMAB. Their participation enhanced members’ understanding of the bill and assisted in crafting bills and making the bills better. Public consultation is an important process in our constitutional democracy. People should not vote and wait for five years. They must be active and partake in decisions that changed and impacted their lies. This is an important contribution.

This concluded the public hearings.

He outlined that when the Committee returns from its constituency period, the Department will respond to the submissions. The Committee will have to address six other outstanding bills before the end of October so that they can be referred to the NCOP and be passed before the end of the Sixth Parliament.

He warned Members that it will be a tough term.

Tomorrow’s meeting, he told Members, would take place virtually as the Committee could not secure a venue.

The Committee Secretary reminded the Committee that it still had to adopt two outstanding reports.

The Chairperson indicated that the Committee would only deal with the report on the guidelines as it will be serving before the House the next day.

Committee report on amendments to practical guidelines for employees for approval in terms of Section 10(4)(b) of the Protected Disclosures Act

The Chairperson referred to the report, noted it had been sent to Members and asked if it could be taken as read.

One Member requested time to read the report.

The Committee paused briefly to allow this.

On resumption, the Committee went through the document.

The Chairperson requested a mover for the adoption of the report.

Dr Newhoudt-Druchen moved for the adoption of the report.

Ms K Ramolobeng (ANC) seconded the mover for the adoption of the report.

The report was duly adopted.