Judicial Matters Amendment Bill: finalisation

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
24 August 2005
JUDICIAL MATTERS AMENDMENT BILL: FINALISATION

Chairperson: Kgoshi L Mokoena (ANC)

Documents handed out:
Judicial Matters Amendment Bill [B2B-2005] as amended by the Portfolio Committee on Justice
Questions from Honourable T Manyosi

SUMMARY
The Committee adopted the Bill as passed by the National Assembly. It instructed the Department to investigate the possibility of bringing attorneys who did debt collection work under the scope of the Debt Collectors Act. Members were concerned that some citizens would not have access to the register of debt collectors.

MINUTES
The Chairperson said that the Department had been requested to answer certain questions that had been sent to it in writing. He invited Members to raise any questions before formal deliberations on the Bill. He read the motion of desirability of the Bill and the Committee agreed that the Bill was desirable. The Department was represented by Mr L Basset (Legal Drafter) and Ms K Pillay (Director: Legislation Unit).

Response to Black Sash input on the Bill
Mr S Shiceka (ANC) (Gauteng) asked the Department to respond to the issues that had been raised by the Black Sash.

Mr Basset explained that the Black Sash had limited itself to Clause 10 which dealt with the Debt Collectors Act. Clause 10 sought to amend the definition of a debt collector. They welcomed the proposed amendment but noted that in practice, some people did not register as debt collectors but still did debt collection and claimed to be agents of attorneys. Clause 10 provided that agents of attorneys were also debt collectors and should register as such. The Black Sash was of the opinion that this did not go far enough. They raised the question why attorneys were treated differently from debt collectors. Attorneys who did debt collection did not have to register as debt collectors in terms of the Debt Collectors Act. They fell under the Attorneys Act and were regulated in terms of this Act. The Black Sash argued that attorneys who did debt collection should also fall under the Debt Collectors Act. The fee that attorneys charged was higher than the fee that debt collectors could charge under the Debt Collectors Act. The fee charged by attorneys needed to be limited.

Mr Bassett said that the Department was doing something about the issue. The Portfolio Committee on Justice had, by way of a resolution, requested the Department to initiate an investigation to see if attorneys who did debt collection should not be brought under the scope of the Debt Collectors Act. The Department had started the investigation.

Response to questions from Mr A Manyosi (ANC, Eastern Cape)
"Why is the part-heard case not started de novo by a completely different Magistrate since the Accused may question or raise the possibility of prejudice or unfair trial resulting from being tried by a person who has ceased to be a Magistrate or competent judicial officer?"

Mr Basset replied that the concern raised was possible in some cases. The problem was that the magistrate who had since been promoted to a judge might already have heard numerous witnesses and to start the proceedings de novo would be expensive and traumatic for witnesses. Imagine if a witness in a rape case was to testify for a second time. It was a matter of expediency that the magistrate in question should be deemed to continue holding the office of a magistrate in order to finalise the case. There were also magistrates who had resigned for various reasons. Such magistrates normally held the Department to ransom in that they demanded huge payments for finalising part-heard cases. The amendment would address this situation.

"Would it not be appropriate, more convenient and engender more certainty if such Magistrates were to be entitled to such benefits as would be applicable if he/she still served as a Magistrate? Would that not make more legal sense and clarity?"

Mr Basset replied that perhaps there might more legal sense and clarity particularly in the case where a magistrate had not become a judge. He was of the view that the remuneration of such a magistrate would probably be along the lines of the remuneration to which magistrates who were still in office were entitled. The remuneration still had to be determined by notice in the Government Gazette. The answer was not easy as far as judges were concerned. A judge’s salary or remuneration could not be reduced. It would be problematic if the magistrate who had since become a judge were to be on a magistrate’s salary. It would mean that a judge would be receiving a salary lower than what was payable to a judge. This was the reasoning behind the amendment that a magistrate who had since become a judge would be entitled to the benefits pertaining to a judge.

"Specifically what would be regarded as a similar qualification or a qualification of a higher standard, and the level of experience that would render the course unnecessary?"

Mr Basset replied that the Department had inserted section 13B of the Attorneys Act at the request of the attorneys’ profession. It required all newly admitted attorneys to complete a compulsory legal practice management course. The profession asked for some flexibility relating to the application of the provision. Clause 6 of the Bill provided for such flexibility. Some people could be exempted from attending the course if, for instance, the attorney had a qualification similar to or of a higher standard than that attainable on completion of the course or had a level of experience that would render the completion of the course unnecessary. One might find an attorney who had an MBA for instance. The question would be why should such a person be subjected to the course. One might also find a person who had been in a management post for more than ten years.

"What test would be applied to establish whether the level of experience renders the course unnecessary?"

Mr Basset replied that he had unsuccessfully tried to consult with the Law Society of South Africa. A person who was in possession of an MBA, for instance, had a level of experience that would render the completion of the course unnecessary. The Council of the Law Society could exempt such a person from the course. Section 74 of the Attorneys Act was amended to allow the Council of the Law Society to make rules relating to the completion of the course. Uniformity would probably be built into the rules that the Councils of the different provinces could make. He hoped that the Law Society of South Africa would coordinate the process to ensure consistency between provinces.

"What is the position with regards to the completion of articles? That is, in the case, for example, of a person who, after completion of a relevant qualification, has undergone the (6 months) practical course or training?"

Mr Basset replied that the course would be obligatory even though a person had completed articles.

"What happens in the event of the cost of recovering the debt exceeding the debt itself? What recourse is there to cushion such a situation?"

Mr Basset replied that the latest regulations to the Debt Collectors Act were published on 29 July 2005. They provided that the total amount to be recovered should not exceed the capital amount of the debt or R600, whichever would be the lesser.

Discussion
Mr A Manyosi said that the first question had been provoked by the knowledge of a case that was continuing. The magistrate had ceased to be a magistrate and the case had been started de novo by another magistrate. The question around the remuneration of a magistrate was not referring to a magistrate who had since become a judge.

Mr Basset said that Clause 9 required all people who held the office of a magistrate to finalise any part-heard cases. However, it made provision for an exemption. The Minister of Justice, after consultation with the Chief Justice, could exempt a magistrate from continuing with the case. A magistrate might be so sick that he or she could not continue hearing the case. In some cases it might not be in the interest of justice for a particular magistrate to continue hearing the case.

Mr M Mzizi (IFP) (Gauteng) agreed that it was very expensive and torturous to start a case de novo. The promotion of magistrates did not happen overnight. The magistrate would normally be informed of the possibility of a promotion in advance. This gave such a person an opportunity to finalise all partly heard matters or postpone all new cases. A magistrate might be transferred to another court but would still be required to finalise his or her cases. In cases where a magistrate had vacated the office, it might not be preferable for the person to continue with the case. The case could then start de novo. He felt that a client was charged double in cases where attorneys became debt collectors as well. There was a need for some kind of regulation of this matter.

Mr Basset took notice of the Member’s views. Attorneys who did debt collecting were subjected to certain codes and regulations pertaining to the profession. There were certain fee levels that they were not allowed to exceed. There was regulation but, like in every profession, there were some people who did not stick to the rules. The same applied to debt collectors in terms of the Debt Collectors Act.

The Chairperson asked how one could identify a real debt collector. Mr Basset replied that the amendments in Clause 12 were aimed at addressing the problem but were still not a perfect solution. The Council for Debt Collectors should keep a register of all registered debt collectors. Such a register should be as widely available as possible. A person could check if a person was a debt collector. The registrar must publish the information of the Council’s website and it must be submitted to Parliament. It should also be available for inspection by members of the public at a prescribed place and time. The place and time would be determined in regulations that still had to be drafted. There was a further amendment that would require the registrar to publish a notice in the Gazette and a national newspaper every year indicating where the register was available for inspection. The original section required the registrar to publish the notice in the Gazette annually. The Council had to pay for the publication and this was expensive, as it had to rely on membership fees. They had requested a change in the clause. This was the reason why it now provided that the register should be published on the website. This still did not help the person on the street.

The Chairperson agreed that it was not very helpful. Some people did not have access to the Internet. Mr Basset said that the Committee might want to pass a resolution regarding the publication of the register.

Mr Mzizi asked for the meaning of a ‘national newspaper’. Afrikaners would want the notice published in an Afrikaans newspaper. Debt collectors did not start out of the blue collecting debts. It should start from a hearing and there should be a court order empowering the plaintiff to go and recover the debt. In the absence of a court order authorising the collection, most people would often ask the basis on which a person was collecting the debt. People should be educated and insist that debt collectors should produce the orders in terms of which they were collecting the debt.

The Chairperson said that most people normally got scared when visited by debt collectors. They did not have time to ask if a person was a real debt collector. Interest normally escalated because people did not even bother to ask questions.

Mr Manyosi said that he was tempted to suggest that the Bill should be renamed "Judicial Matters Consolidation Bill" because it consolidated different issues from different legislation. He asked why the Department was not "tampering" with the Attorneys Act because it had tampered with a number of other laws.

Mr Basset reiterated that the Department was investigating the possibility of bringing attorneys who did debt collecting under the Debt Collectors Act. The proposed amendments to the Debt Collectors Act were necessary for the purposes of the Act. The Attorneys Act did not have the problems that the Department intended to rectify by amending the Debt Collectors Act. For instance, there was no problem with the definition of an attorney.

The Chairperson said that the Law Society could admit a lawyer before the mandatory period. How long was the period? In healthcare, doctors were forced to do community service before they could practise. He wondered what message was being sent if some people could be exempted from the management course.

Mr Basset said that this would be dealt with by way of subordinate legislation. The Act was silent on the length of the course. However, it would not be over a long period of time. The Council of each province would make its own rules. A distinction should be drawn between community service for doctors and the legal practice management course. The person would have been already admitted as an attorney. The course was not to be seen as community service.

The Chairperson said that the Bill provided that a person’s registration as a debt collector could be terminated at the person’s request. The Bill would provide for termination should the person behave inappropriately.

Mr Basset replied that the Act was strange in that it made provision for the withdrawal of the registration if the debt collector was found guilty of a crime involving dishonesty, or if he/she had not paid his/her fees. In practice, debt collectors resorted to not paying their fees as a way of getting out of the profession. Their registration would consequently be withdrawn. The Bill would make it possible for them to normally get out of the profession instead of doing it through the back door.

The Chairperson said that Clause 8 of the Bill authorised the Head of the Special Investigations Unit to delegate his or her powers to any person to do anything. South Africa had in the recent past seen "FBI-style" raids on people’s houses.

Mr Basset replied that the clause dealt with the Special Investigation Unit (SIU) and this was different from the Scorpions. The request for the provision had come from the Head of the SIU.

The Chairperson put the Bill before the Committee clause by clause. The Committee adopted the Bill as passed by the National Assembly.

The meeting was adjourned.