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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
15 March 2005
JUDICIAL MATTERS AMENDMENT BILL: DELIBERATIONS
Chairperson: Ms F Chohan-Khota (ANC)
Judicial Matters Amendment Bill [B2 - 2005]
Portfolio Committee Amendments to Judicial Matter Amendment Bill
Working document of the Judicial Amendment Bill
The Department briefed the Committee on proposed amendments to the Bill. Most of the amendments were aimed at issues raised by the Committee in previous meetings. There was a suggestion that the practice management course should be made part of the curriculum offered by the Schools for Legal Practice. Not every magistrate who had vacated the office of the magistrate should be compelled to continue with proceedings already started prior to vacating office.
There would be a Chief Master who would have control over all the Masters. The Chief Master would be subject to the control, direction and supervision of the Minister of Justice. There was a concern that the independence of the Masters Office could be compromised should the Minister have control over the Chief Master.
Mr L Bassett (Departmental Legal Drafter) took the Committee through the Bill and the proposed amendments.
Long title of the Act
Mr Bassett said that the Committee had indicated that the legislation should use the wording of the Admission of Advocates Act. A person who had been given the right of appearance in the High Court should be allowed to appear in any court in the Republic. The long tittle was amended to accommodate the request.
One of the purposes for amending the Debt Collectors Act, 1999, was to "provide for the manner in which interest on money paid into trust accounts of debt collectors must be dealt with". This was deleted and replaced with " to further regulate the provisions relating to trust accounts of debt collectors".
The extension of the period of time within which the code of good administrative conduct had to be made was added as another purposes of amending the Promotion of Administrative Justice Act. The code should be made within 42 months.
New Clause: Amendment of section 9 of Act 32 of 1944, as substituted by section 2 of Act 8 of 1967 and amended by section 4 of Act 53 of 1970, section 8 of Act 102 of 1972, section 11 of Act 29 of 1974, section 24 of Act 94 of 1974, section 1 of Act 28 of 1981, section 2 of Act 34 of 1986, section 17 of Act 90 of 1993, section 3 of Act 104 of 1996, section 3 of Act 66 of 1998, section 1 of Act 62 of 2000 and section 1 of Act 28 of 2003.
This amendment was inserted before clause one of the Bill.
Mr Bassett said that problems had arisen in practice with regard to situations wherein a Magistrate, who had since been appointed to a position of a judge or vacated office, had heard part of a case and witness had presented evidence. It was important to ensure that the former magistrate continued to hear the matter as if nothing had changed. The proposed clause 7(d) would refer to benefits and not salary or compensation.
Mr J Jeffrey (ANC) said that the clause was peremptory. He found the use of the word "shall" in paragraph (a) problematic. The person contemplated in the clause had no choice but to dispose of the proceedings. There was no possibility for using other options to ensure that the proceedings were completed. He asked what would happen in cases wherein the person referred to was genuinely unavailable. He also asked if the clause covered cases wherein a Magistrate had been dismissed.
The Chairperson did not think that someone who had been dismissed was still a magistrate.
Mr Bassett replied that the vacation of the office of magistrate did not include removal from office.
Mr Jeffrey said that the clause should be clearly drafted. It could be necessary to include a clause that would exclude magistrates who had been removed from office. One could have a situation wherein a magistrate had resigned in order to avoid disciplinary proceedings against him or her. Such people would have vacated the office of the magistrate, as they were not dismissed. One did not have such people to be able to come back into the system and continue with the proceedings.
The Chairperson said that the problem was that magistrates often left many outstanding cases upon their appointment as judges. In some of those cases one could find that a number of witnesses had already been heard. Some people just resigned and the Department had to come up with expensive acting appointments as a solution to the problem. The magistrates who had heard the cases where appointed on a contractual basis and some cases tended to drag for too long. The proposed amendment was designed to address this problem.
Mr Jeffrey asked what would happen if the person was medically boarded or had left the country. Was it the intention of the clause that the proceedings should be put on hold until the person had returned to the country? The clause could have some unforeseen and unintended consequences.
The Chairperson asked if retirement was equivalent to vacation of office.
Mr J van der Merwe (IFP) asked if there would be a retrial should the person not be in a position to hear the case. It was important to know if the provision was intended to force even those who could not continue to hear the matter to continue to do so.
The Chairperson said that most of the people contemplated in the amendment were willing to continue with the proceedings because they would be paid for doing so. Some people might not want to continue with the proceedings because they would only be paid for the hours worked. One did not what a magistrate who had resign due to fear of disciplinary proceedings to be able to continue with the proceedings. The circumstances of each case would be very important. It was important to include a proviso that would serve to exclude certain people.
The Committee agreed that the drafters should look at the issue and see if they could not redraft the clause.
Clause 1: Amendment of section 1 of Act 66 of 1965, as amended by section 1 of Act 54 of 1970, section 1 of Act 79 of 1971, section 1 of Act 49 of 1996, section 26 of Act 57 of 1988 and section 1 of Act 20 of 2001.
Clause 2: Amendment of section 2 of Act 66 of 1965, as amended by section 2 of Act 79 of 1971, section 35 of Act 47 of 1997, section 2 of Act 20 of 2001 and section 14 of act 16 of 2003.
Clause 3: Amendment of section 370 of Act 61 of 1973
Mr Bassett said that the Committee had not requested any changes to the above clauses. However, there were some questions raised about them. The clauses dealt with the Chief Master. In terms of clause 2(b) the Chief Master was subject to the control, direction and supervision of the Minister, was the executive officer of the Masters' offices and exercised control, direction and supervision over all the Masters. Appointments in terms of the proposed clause 3 should be made in accordance with the policy determined by the Minister.
The Chairperson person said that the question was about the historical position and what the amendment intended to achieve.
Mr Bassett replied that provisions of clause 3 were not unusual in statute books. The Basic Conditions of Employment Act of 1997, section 2 of the Deeds Registry Act, and the Animal Health Act of 2002 had similar provisions. Section 3(5) of the Criminal Procedure Act (CPA) originally had a similar provision. The concept of the Chief Master was not new. The Master in the Pretoria office traditionally functioned as a Chief Master prior 1994. This was not a statutory appointment but an administrative or organisational appointment. The Chief Master functioned without and statute and had not control over the Masters. The person acted as a coordinator and sought to bring about uniformity. This situation was unsatisfactory and a Deputy Director General was placed in charge of the affairs of all Masters' offices shortly after 1994. This was an attempt to facilitate transformation and address other problems in the Masters' offices. This was done in terms of public service prescripts and organisational powers given to the Deputy Director-General. The position of the Chief Master was created in terms of the Judicial Matters Amendment Act of 2003. This Act and the Bill were intended to address issues of accountability, transparency and improved service delivery. The laws that governed the way in which the Masters performed their functions were not amended.
The Chief Master would hold the position of a Deputy Director-General, be a public servant and be subject to the Public finance Management Act (PFMA). The Chief Master occupied a statutory office and the duties of the office linked the occupant to the Minister.
Ms S Camerer (ANC) was surprised that Mr Bassett had referred to the original section 3(5) of the CPA. It was not desirable to draft laws along the lines of the apartheid legislation. The problem was that the Chief Master would be under the direction, control and supervision of the Minister. This implied that the Minister could overturn decisions made by the Masters. There had been endless reports of finger pointing at Mr P Maduna, the former Minister of Justice. It was alleged that had had on numerous occasions overturned the decisions of the Masters and persuaded them to appoint a certain Mr Motala as a liquidator.
The Chairperson said that the clause was about the Chief Master and not the Masters. It was intended to streamline and modernise the offices of the Masters. The Chairperson said that the Minister appointed the Masters.
Ms Camerer said that she was worried about the political control over the Masters. There was a lot of money involved in the execution of the Masters' functions.
The Chairperson said that the Minster had control and supervision over the Chief Master and not the Master. The Chief Master did not appoint liquidators.
Mr van der Merwe had no problem with the creation of the position of the Chief Master. He was uncomfortable with encroaching into the terrain of the judiciary. He asked if the Masters formed part of the judiciary.
Mr Bassett replied that the Masters' offices were not part of the judiciary.
The Chairperson added that the Judicial Services Commission (JSC) appointed judges. The Masters were appointed by the Minister and were regulated in terms of the public service conditions of service. They had traditionally played an administrative function. The Masters used to appoint their friends as liquidators and used the same people to the exclusion of other. There were no policy regulations in terms of which they had to operate. Hence they were able to do as they pleased with impunity. The Department was not seeking to take the powers of the Masters away. It intended to appoint the Chief Master in order to ensure transparency. The Chief Master would not take over the powers of the Masters.
Ms Camerer said that the Constitution provided that the independence of the 'courts' as opposed to the 'judiciary' had to be respected. The Masters' Offices were very part of the court system. She was worried with control, direction and supervision even if directed to the Chief Master.
The Chairperson said that the amendment was intended to restructure the Masters’ offices and ensure transparency. There was no intention to give direct control to the Minister or the Director General over the Masters.
Ms Camerer said had no problem with the wording of the clause. She felt that the drafter should not have referred the Committee to the original section 3(5) of the CPA.
Mr Bassett said that he had referred to the section because it allowed the Minister to reverse any decision by another person. He was trying to show that this clause had nothing like that.
Ms Camerer said that the words "control, direction and supervision" could imply the reversal of a decision.
Mr Bassett replied that if that was the intention the clause would have specifically said so.
Mr van der Merwe said that it was surprising that Ms Camerer was appalled by mere reference to section 3(5) of the CPA whereas she was a prosecutor and willingly served under the Act. She was also a Member of Parliament for the old National Party.
Ms Camerer said that she was of the team that got rid of the section and had agreed with the change.
Clause 5: Amendment of section 299A of Act 51 of 1971, as inserted by section 6 of Act 55 of 2003
Mr Basset Section 299A of the CPA gave complainants in criminal matters the right to have a say when the accused was to be released on parole or correctional supervision. When the Select Committee on Safety dealt with the Act there was a concern about how to keep the identity and whereabouts of the complainants confidential and how to deal with a situation wherein the complainant was not in court when the accused was sentenced. Section 299A provided that the court should explain to a complainant who was present at sentencing that he or she the right to have a say when it came to parole or correctional supervision. The Select Committee was worried about complainants who might not be present during sentencing procedures. Clause 5 was aimed at addressing those concerns.
The Chairperson said that the original provision was concerned with the most serious crimes. The judge or presiding officer was compelled to advise complainants or relatives, the case of murder, that they could address the parole Board when decision for parole was made. An obligation to inform people who were absent about sentencing procedures should be placed on presiding officers. She suggested that the clause should be deleted.
Mr van der Merwe added that the investigating officers could assist in locating the relevant people.
The Chairperson said that there should be a court order to compel investigating officers to locate the people.
Clause 6: Substitution of section 13B of Act 53 of 1979, as inserted by section 8 of Act 55 of 2003
Mr Bassett said that clause provided for completion of a practice management course within a certain period. The legal profession had requested for some flexibility around the attendance of the course. They had asked for an extension period within which the course had to be completed and an exemption to some people. He proposed the deletion of reference to time in the clause.
Mr van der Merwe said that candidate attorney attended classes and wrote admission examinations. He asked why this course was to be added given that the people had already received their law degrees, attended the School for Legal practice and written admission examination. He wondered why the course was not added to the courses that candidate attorney did at the School for Legal Practice. He also asked if attendance at the School for Legal Practice did not give the Candidate Attorneys the required expertise.
Mr Bassett replied that the proposed amendment came from the legal profession itself. It was felt that attendance at the School for Legal Practice was not enough. The proposed amendment was focussed on running an office.
The Chairperson said that it was found that some people had problems with applying proper office management. The intention was that new attorneys, in particular, should go through a practice management course.
Mr van der Merwe said that an attorney had to submit an application for admission to the Law Society and the Society could refuse an application if it was not satisfied that the person had the necessary competency.
Mr J Sibanyoni (ANC) said that some attorney were not trained at the Schools for Legal Practice but by sole practitioners who did not have time to train them in basic management skills.
The Chairperson said that candidate could not write admission examinations unless they had completed courses offered in the Schools for Legal Practice. She also wondered why the practice management course was not made part of the curriculum in the Schools for Legal Practice. The Committee had passed the provision that provided for the course in 2003 but the legal profession had not yet implemented the course. It seemed that there was no sense of urgency about the course and this was a cause for concern.
Clause 7: Amendment of section 4 of Act 62 of 1995
Mr Bassett said that there was a judgement in the Free State Province to the effect that a person who had been given the right of appearance could only appear in the court in which that right was given. The purpose of the amendment was to allow such a person to appear in any court within the country.
Mr van der Merwe said that he was admitted as an attorney in the former Transvaal. He asked if the effect of the amendment would be that he could appear in any court in the country.
The Chairperson agreed.
Clause 9: Amendment of section 1 of Act 114 of 1998
Mr Bassett said that the clause sought to amend the definition of a debt collector. There was a gap in the Act and agents of attorney did not have to register with the Council for Debt Collectors. They could carry out the debt collecting business without being subject to the provision of the Act. The amendment was to ensure that all who carried out the business of debt collecting were covered by the Attorneys Act or debt Collectors Act.
Clause 11: Amendment of section 12 of Act 114 of 1998
The Chairperson asked if the words "and whose registration has not been cancelled or withdrawn" in clause 12 (1)(a) were necessary. She could not see a situation wherein a person whose registration had been cancelled, disapproved or withdrawn could be in a possession of a valid certificate. She suggested that the words should be deleted.
Mr Bassett agreed that the words were not necessary. He would consult the State Law Advisor on the deletion of the words.
Clause 15: amendment of section 1 of Act 4 of 2000
Mr Bassett said that there was a problem of language used in the clause. He proposed that sex should include "a congenital sexual differentiation which is atypical, to whatever degree".
The Chairperson did not like the proposed amendment. It was not clear that the proposed amendment referred to intersex. She recommended that the original wording should be retained.
The meeting was adjourned.