Judicial Matters Amendment Bill: briefing

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
22 February 2005
JUDICIAL MATTERS AMENDMENT BILL: BRIEFING

Chairperson: Ms F Chohan-Khota (ANC)

Documents handed out:
Judicial Matters Amendment Bill [B2 - 2005]
Further Amendment: Clause 9 (see Appendix 1)
Documents relevant to the Judicial Matters Amendment Bill: Contents Page (see Appendix 2)

SUMMARY
The Department briefed the Committee on the provisions of the Judicial Matters Amendment Bill, which in a single Bill, covered a variety of amendments to laws administered by the Department. The following issues were raised by the Committee, among others:
- the status of the Chief Master within the Department’s organogram;
- the importance of ensuring that the debt collectors register was accessible to the public;
- the proposed code of good administrative conduct; and
- consistency throughout the law on the definition of ‘inter-sexed’.

MINUTES
Announcements
The Chairperson welcomed Ms Zelna Jansen, who had been appointed as the second Clerk to the Committee. On the 24th they would be discussing certain reports received from the Minister requesting the Committee to take a resolution suspending certain Magistrates for misconduct. Due to the sensitivity of the matter, the joint sitting of this Committee and the Select Committee on Security and Constitutional Affairs, would be held behind closed doors. She thereafter asked Mr Rudman, Department: Director of Legislation, to briefly give the Committee an indication as to those Bills which the Department intended to table before the Committee during this year.

Mr Rudman said the most important new bills would be the legislation to repeal the Black Administration Act and the South African Justice Training College Bill.

Judicial Matters Amendment Bill
Mr L Basset (Department: Legal Drafter) took the Committee through the Bill, clause by clause and noted that the Bill was mostly technical in nature and it amended all those Acts administered by the Department, which did not require individual legislation. He referred the Committee to the Explanatory Memorandum at the end of the Bill and pointed out that the objects of the Bill were very comprehensive and detailed.

Clauses 1, 2, 5, 6, 8, 10-13 and 17
Mr Basset read through these clauses.

Dr T Delport (DA) asked the Department to submit a written response explaining the present legal position in so far as S2(1)(b)(i) of Clause 2 is concerned.

Mr Basset noted that he would confer on the matter and then submit a response.

Ms S Camerer (DA) asked the Department to further explain in its response why the provision about the Chief Master’s responsibility to take necessary steps in bringing about uniformity in practice and procedures had been left out in this Bill.

Mr B Magwanishe (ANC) believed that the position of the Chief Master would be equivalent to that of Deputy Director-General but the provision seemed to equate the Chief Master with the Director-General.

The Chairperson asked if Mr Magwanishe was proposing that the Chief Master should be under the direction and control of the Director-General to avoid operational problems.

Mr Magwanishe (ANC) said that this would be proper as the Director-General is the Head of the Department.

Mr Basset said he would also look at Mr Magwanishe’s suggestion and thereafter provide his response.

The Chairperson said that she understood the basis for this provision, however she was concerned with the implementability of S299A(4)(e)(ii) in Clause 5. It would not be appropriate to include a provision which would not be feasible to implement. She thus called on the Department to look at this matter and report on its findings. She also raised concern about the amendment proposed in S13B(2) of Clause 6. Before any extension could be considered in exceptional cases it was appropriate that the timeframe - for which the course in question would run - be designated first.

Mr Delport (DA) pointed out that the Act governing the establishment of the proposed legal practice management course was not yet in operation. He proposed that S13B(2)(b) be deleted since the powers had not yet been conferred to the law councils.

The Committee unanimously agreed that the proposal in S13B(2)(b) be deleted.

The Chairperson acknowledged the reasoning for S12(2)(a) of Clause 11 proposing the use of the website as against the Gazette, however she was concerned about the minimal number of people who were able to access the internet in South Africa. She proposed that an alternative be devised: the Council should also be required to publish such a register in national newspapers at least once in every two or three year period.
Further she proposed that the legislation should also require the Council to publish the places for inspecting such register at least annually in national newspapers.

Mr Basset noted that the Department would, after consultation with the Council, commence working on this and thereafter report its findings to both the Council and the Committee.

Mr L Landers (ANC) noted that the Magistrates Court should also be considered as a possible place for the inspection of such a register.

The Chairperson asked that the Department should consider that possibility taking into account issues of cost and administration involved in the process. Commenting on the provisions of Clause 12, she noted that S16A(a) was loosely constructed and asked for it to be tightened up. She also asked Mr Basset to find out what reasonable expenses, apart from bank charges, could be deducted by the debt collector from the interest accrued in the trust account as noted in S20(3) in Clause 13.

Clause 3: Amendment of Section 370 of the Companies Act, No 61 of 1973
Mr Basset noted that this provision had been omitted in Act 16 of 2003 and they were now simply rectifying that error.

Dr Delport (DA) asked the Department to prepare a written submission explaining what is the law with regard to the appointment of liquidator taking into account the amendment proposed in Clause 3 that such appointment should in accordance with the policy determined by the Minister.

Mr Basset noted that he would confer on the matter and submit a response.

Ms Camerer (DA) asked who had the jurisdiction between the Justice Department and the Department of Trade and Industry to deal with company law matters.

Mr Basset replied that the Justice Department is only responsible for the Companies Act chapters which deal with liquidation, and the rest of the Act is administered by the Department of Trade and Industry.

Clause 4: Amendment of Section 276 of the Criminal Procedure Act, No 51 of 1977
This substitutes "intends" with "obliged" since the law made it clear that correctional supervisions are competent sentences for all offences, except for those mentioned in the Minimum Sentence Act.

The Chairperson asked whether would it be possible for the Courts to substitute the minimum sentence with correctional supervision, after it has applied it.

Mr Basset said that could not be done since the Courts are obliged to impose a minimum sentence whenever that becomes applicable.

Clause 7: Substitution of Section 13B of Right of Appearance in Courts Act, No 53 of 1979
Mr Basset noted that this provision was as a result of the High Court decision in the Free State. In this case the Court held that an attorney who had been granted the right of appearance in terms of S4 could only appear in the Court which granted such right and not in other courts.

Mr J Van der Merwe (IFP) asked whether the reference to High Court in this instance also include the Supreme Court of Appeal and the Constitutional Court.

Mr Basset acknowledged the importance of determining this. They would look at the matter taking into account the provisions of the 1995 Act and the new terminology regarding court structure.

The Chairperson proposed that in so doing the Department should also consider the wording used in the Advocates Admission Act where it deals with persons admitted as advocates.

Clause 9: Amendment of Section 1 of Debt Collectors Act, No 114 of 1998
Mr Basset pointed out that this proposal had now been replaced by a new one as it did not clearly capture what the Department intended. He referred Members to the document entitled "Further Amendment", containing the new proposal to Clause 9.

Clause 14: Substitution of Section 10 of Promotion of Administrative Justice Act , No 3 of 2000
Mr Basset said that the intent was to delete the provisions of S10(1)(e) and reinsert them as a new S10(5A) with the intent of creating a practical code for good administrative conduct. He noted that the three year period mentioned in S10(6) would start in July this year.

The Chairperson said that the proposed code of good administrative conduct would not have the same status as the regulation passed by Parliament, she thus asked the Department to explain the effect which an approval by Parliament would have in this regard.

Mr Basset noted that the Department would confer on the matter and respond accordingly.

Clause 15: Amendment of Section 1 of Promotion of Equality and Prevention of Unfair

Discrimination Act, No 4 of 2000
Mr Basset noted that this provision came as the result of the concern raised by the Committee with regard to the adequate protection of inter-sex people by the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act. While definitely confident that the Act really protects the position of inter-sex people, however in order to ensure legal certainty in this regard the Department thus proposed the insertion of this amendment.

Ms Camerer proposed that since the definition of intersex was being provided for the first time in our law it would thus be proper if were to be provided in all relevant legislation so as to ensure consistency in our law.

Clause 16: Amendment of Section 10 of Implementation of the Rome Statute of the International

Criminal Court Act, No 27 of 2002
Mr Basset said that they had been advised that S10(5) might be flawed as it did not contain express provision for an order for the surrender of the person to the Court and for committal to prison pending such surrender. Thus this provision creates legal certainty and obliges the magistrate to specifically make such an order.

Further amendments to the Bill
Mr Basset explained that there would be three further amendments that the Department wanted to insert into the tabled Bill. One would deal with the provisions of S5 of the Maintenance Act and provide that when the Minister appoints maintenance investigators, they should be regarded as public servants. The second one would amend S20 of the Debtors Collectors Act to require the Debt Collectors trust account be audited and a report thereof be provided. The third would deal with S9 of the Magistrates Courts Act to ensure legal certainty in those cases where a magistrate parts with a case because s/he has been appointed to the Bench.

The Chairperson asked the Department to provide the Committee with such proposed further amendments so that Members could consider them as they deliberate on the Bill.

The meeting was adjourned.

Appendix 1:
CLAUSE 9

1. Clause rejected

NEW CLAUSE

1.That the following be a new Clause:

Amendment of section 1 of Act 114 of 1998

9. Section 1 of the Debt Collectors Act, 1998, is hereby amended by the substitution in the definition of "debt collector" for paragraph (c) of the following paragraph:

"(c) a person who, as an agent or employee of a person referred to in paragraph (a) or (b) or as an agent of an attorney, collects the debts on behalf of such person, excluding an employee whose duties are purely administrative, clerical or otherwise subservient to the actual occupation of debt collector:".

Appendix 2:

CONTENTS OF BUNDLE

1. Judicial Matters Amendment Bill, 2005
2. Judicial Matters Second Amendment Act, 2003

3. Extract of Implementation of the Rome Statute of the International Criminal Court, 2002

4. Extract of Promotion of Equality and Prevention of Unfair Discrimination Act, 2000
5. Alteration of Sex Description and Sex Status Act, 2003

6. Promotion of Administrative Justice Act, 2000

7. Debt Collectors Act, 1998

8. Special Investigating Units and Special Tribunals Act, 1996

9. Right of Appearance in Courts Act, 1995

10. Extract of Judicial Matters Second Amendment Act, 2003 (s13B of Attorney's Act, 1979)

11. Attorney's Act, 1979

12. Extract of Judicial Matters Second Amendment Act, 2003 (s299A of Criminal Procedure Act, 1977)

13. Extract of Criminal Procedure Act, 1977 (s276)
14. Extract of Companies Act, 1973 (s370)

15. Extract of Administration of Estates Act, 1965