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JUSTICE PORTFOLIO COMMITTEE
11 May 1998
MAGISTRATES AMENDMENT BILL [B92-97]; JUDICIAL MATTERS AMENDMENT BILL [B95-97]: DELIBERATIONS
Documents handed out:
Proposed amendments to Magistrates Amendment Bill [B92-97] as of 11/5/98
Proposed amendments to Judicial Matters Amendment Bill [B95-97] Fifth draft
Magistrates Amendment Bill [B92-97]
The law advisor started by going through the amendments. The committee proceeded to voting on the clauses:
clause 1 agreed
clause 2 agreed
clause 3 (as inserted) agreed
clause 4 agreed
clause 5 (which is clause 3 of the previous draft) agreed
clause 6 (as inserted) agreed
** clause 4 of the previous draft will revert to the 2nd Judicial Matters Bill
clause 7 (clause 5 in the previous draft) agreed
At this stage the question was asked as to why the option of imprisonment for magistrates refusing to appear before the commission was removed.
Mr de Lange (Law Advisor) replied that the Public Servants Act had been changed to remove the option of imprisonment and it was therefore felt that it would be unfair to act more strongly against magistrates than against public servants.
Mr de Lange (Chair - ANC) objected as this left the legislation "toothless".
Mr Mahlangu (ANC) said that he could see as a viable reason for removing the clause that a magistrate sent to prison may be unfortunate enough to meet someone he had sentenced there!
Mr de Lange (ANC) replied that this possibility should serve as a good reason not to allow themselves to end up in prison.
Mr Hofmeyer (ANC) also expressed reservations. He felt that it might be valid where a magistrate had been charged by the Magistrates’ Commission, but not where he or she had merely been asked to appear in order to explain themselves.
Mr de Lange (ANC) replied that the provision did not only refer to magistrates, but "persons" and was therefore applicable to, for example, witnesses as well. If any person chose not to attend when requested to do so, the commission should have more than the option of imposing a fine at its disposal.
Mr Hofmeyr felt that in the light of this, the option of imprisonment was perhaps not inappropriate, but emphasised that the regulations of the Magistrates’ Commission needed to be drafted appropriately.
Ms Camerer (NP) agreed that the need for this provision would not arise often, but in those rare instances it should have "teeth".
Mr de Lange (ANC) suggested that s6 be left out until regulations had been drafted. This was agreed.
clause 7 agreed
The long title was agreed on (as inserted).
The committee was unable to vote on the Bill, as there were not enough members present.
Judicial Matters Amendment Bill [B95-97]
Ms Camerer (NP) asked why it had been necessary to remove the provision requiring a regional magistrate to have first served as a magistrate.
Mr de Lange (Chair - ANC) replied that firstly, appointments are made by the Magistrates’ Commission and that secondly, this allowed for the appointment of Magistrates from outside the profession.
Mr de Lange (law advisor) agreed, emphasising that the second was the most important reason.
The Law Advisor told the committee that all amendments discussed previously had been inserted. In this respect he referred to document JUD 35.
The inserts to follow clause 8 and 11 consisted of mostly technical changes to the bail law, especially bringing the Afrikaans text into line with the English.
Specifically, in s9(a)(ii) the words "...for the purposes of his/ her trial or his or her release..." were removed, because it was felt that if an order for further detention was not made, the person must in any event be released.
With regard to s11(b) Mr Oosthuizen (law advisor) pointed out that "law" would be taken to refer also to common law and that the Afrikaans text had used the word "wetsbepaaling".
Mr de Lange (Chair) said that it must include the common law and that the Afrikaans text should refer to "regsbepaaling".
Sections 12 - 14 consisted of technical changes and corrections.
It was pointed out that following input from the Human Rights Committee, clause 13 had been held over to the 2nd Judicial Matters Bill, which would allow for further consideration.
s20 was inserted because the Recognition of Foreign Legal Qualifications and Practice Act 1993 had been extended for 6 months and not the requisite year, thereby invalidating it. The provision is necessary to validate actions to 1/3/98. The law advisor confirmed that there were no applications outstanding in this respect.
s23(b)(10) provides for the court to apply another sentence instead of the death sentence, where applicable.
Mr Hofmeyr (ANC) asked whether s73(3) applied to all advocates and whether it relates only to contingency fees.
Mr Oosthuizen (law advisor) replied that it relates to all contingency disputes relating to all lawyers.
Mr de Lange (Chair) asked Mr Oosthuizen to check that it does in fact relate to all lawyers.
Mr Hofmeyr queried the use of "overreached" in the passive voice in s 73(4)(d). This will be changed to the active voice.
Mr de Lange (chair) asked that the words "incorrect and improper" be added to the grounds on which the Master may act in terms of s73(5). He felt that this was broader and more objective than the existing provisions of bad faith, negligence and unreasonableness. It was important, he said to include these to strengthen the provision, as it is the final check and balance.
Mr Hofmeyr asked whether costs which did not go through the taxing master were excluded.
Mr Oosthuizen said that it did not and that references in subsection 3 to the taxing master would be removed.
Mr Hofmeyr then asked whether the Master would be able to override an award of costs made by the court.
Mr Oosthuizen replied that the Master could do so insofar as it related to the sequestration of an estate.
Mr Hofmeyr suggested that it might be unreasonable to give the Master this power where a trustee had litigated, lost and had costs awarded against him.
Mr de Lange pointed out that the Master would only have this power where the costs had been unreasonable etc.
It was pointed out that the Nedlac proposals have been held over to the 2nd Judicial Matters Bill.
Mr Oosthuizen drew the committee’s attention to s16 and pointed out that this excluded and would therefore make illegal, inhouse security such as that employed by the mining houses and Eskom. He proposed that the section be drafted so as to empower the Minister to exclude these people from the application of the section. The only problem is that it falls under the Ministry of Safety and Security.
Mr de Lange (chair) suggested that this was not something with which this Bill could deal and that the committee should pass a resolution to this effect, asking the Minister of Safety and Security to deal with the matter and to revert back to the committee. Mr Hofmeyr pointed out that this would take a long time and that in the meantime s16 could not be passed. He suggested that a temporary exemption, at the discretion of the Minister of Justice or Safety and Security be passed. This would apply only to specific organisations for a specified period.
Ms Camerer (NP) asked whether this was not a very odd, untidy and unpredictable way to legislate.
Mr de Lange (chair) responded that the legislation as it stood would apply to the vast majority of people and that the committee was attempting to make provision for a small minority.
Mr Oosthuizen pointed out that the Constitution requires all armed organisations to be established by legislation.
Mr de Lange (chair) replied that he thought this related only to paramilitary organisations, not private security companies. He suggested that the matter be held over to the 2nd Judicial Matters Bill.
The meeting closed. Voting on these two bills is on 13/5/98.