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JUSTICE PORTFOLIO COMMITTEE
28 July 1998
MAGISTRATE COURTS AMENDMENT BILL; DEBT COLLECTORS BILL: DISCUSSION
Documents handed out:
Summary of Submissions on the Magistrates Courts' Amendment Bill
Summary of Submissions on the Debt Collectors Bill
Magistrates Courts' Amendment Bill
Case of Ntokozo Gambushe vs State
Case of State vs Sheriff Scott
The meeting was alternatively chaired by Ms Ngwane and Mr De Lange (Chairperson of Justice Committee). Mr Johan de Lange (Departmental law advisor) reviewed the comments made in the Summary of Submissions on Magistrate Courts Amendment Bill. These documents were accepted with limited discussions. This was followed by a review of comments in the Summary of Submissions pertaining to the Debt Collectors Bill.
Magistrates Courts' Amendment Bill
The meeting opened with a brief explanation from Mr Johan de Lange on the following documents and submissions:
MCA 12 State vs Sheriff Scott
MCA 13 Gambushe vs State
MCA 14 93 ter Magistrate may be assisted by assessors.
MCA 8 JOASA (Mr D Van der Merwe) opposed to the provisions of the Bill.
MCA 9 Professor C Murray/Dr J Seekings (submission part of a research project on lay assessors).
MCA 10 Pastor James Dowd – submissions concerns sentencing process.
A question was put regarding a statement of intent: can this be interpreted as law. Ms Jana (ANC) explained that to be accessible to people there should be a statement of intent as is used in Australia. Mr de Lange explained that this would serve little purpose.
Miss Ngwane asked if assessors have a say in sentencing, that is, whether they could overrule magistrates. She also suggested that it was important to have a criteria of selection regarding appointment of assessors
Debt Collectors Bill
The Summary of Submissions on the Debt Collectors Bill [B102-97] was reviewed:
Mr Johan de Lange read Clause 1 and the comment by Mr K Daly of the Council of South African Banks (COSAB). This comment has been submitted to the state law advisor as it is felt that "factoring arrangement" must be clearly defined
Mr Gibson (DP) felt that the Act could be circumvented because any collecting agency can enter into a "factoring arrangement".
The Chairperson stated that one has to apply to be a debt collector.
Mr Johan de Lange stated that a number of companies setting up one company to do all their debt collecting for them should not be allowed as debt collecting either.
The Chairperson felt that the industry needs to be regulated. There must be rules to protect the public.
Miss Ngwane (ANC) raise the concern that if a person buys over a debt from another person, this act should also fall under the Act.
General discussion ensued on whom is excluded why is it that an ordinary person who sets him or herself up as a debt collector is not part of the regulations.
Mr Johan de Lange’s opinion was that it is difficult to relate to the main principle of this Bill. Only attorneys are allowed to recover costs. The debt collector's occupation is not as controlled as an attorney's (and in any case the industry has mushroomed). Even large companies like Edgars must also abide by rules and regulations.
Mr De Lange (Chairperson) reiterated the need for public protection and he requested the law advisor to contact Mr Daly of COSAB for further discussions.
The committee were referred to the submissions by the Chief Justice and Association of Law Societies.
In clause 3 (2)(a) the Chairperson suggested more discussion around the appointment of a judge on the Council, and also the appointment of retired magistrates.
Mr Gibson wanted to know whom in the composition of the Council represents consumer interest as there is no specific body .
Mr Johan de Lange reported that there is some dissent between the debt collectors and the Law Society and that a mediator should be appointed.
Mrs Camerer (NP) asked why there is no representation of debt collectors on the executive committee S 5(1)
The Chairperson requested Mr Johan to draft an alternative to S 5(1)
There were no comments on Clause 7 and 9. On clause 8(1) and clause 10 the house was referred to the Association of Law Societies' submission.
Concerning Clause10 (a), Ms Camerer (NP) wanted to know what if a debt collector is convicted of some dismeanour can they be disbarred?
The Chairperson wanted to know about future convictions? It was suggested that this must be discussed again.
Concerning Clause 11(1) the Chairperson suggested a need for updated information with the keeping of such a register on a yearly or six monthly basis.
Miss Ngwane suggested that if someone withdraws from the register, then that person must surrender his/her certificate and be de-registered.
The Chairperson asked Mr Johan de Lange to redraft on publication
The Chairperson enquired about personal identification in terms of public protection, and he asked Mr de Lange to investigate this.
Advocate O’Malley (IFP) queried the use of the word "discretion", and Mr de Lange stated that in some cases discretion is needed. It was suggested that this clause be discussed further in conjunction with clause 18.
Mrs Botha asked whether insolvency should be included in the discussion. She said if one becomes an unrehabilitated solvent at the time of being a debt collector can that person remain as one?
Mr Johan de Lange told the house that he will have to look at this.
The question raised with regard to this clause was why does this apply to only the Council - what about other interested bodies?
The law advisor is to look into this clause.
The meeting was adjourned for lunch.
Clause 15(2) was considered and the law advisor read comments from some of the submissions on it. He suggested that the one year imprisonment should be increased to three years and the fine to be not greater than R10 000.
The Chairperson suggested that subsection 2 of this clause should be a separate section and he disagreed with the suggestion by the law advisor but agreed with the draft which says imprisonment should be one year. His reasoning was based on the consideration of cases where a person fails to submit the certificate due to forgetfulness. He also suggested that if a person acts as a debt collector when he is not registered, he is committing an offence and must be punished.
No comments, but on clause 17(4) the Chairperson suggested that the words "any other code of conduct" are not clear and they should be deleted. The law advisor agreed with the Chairperson and added that clause 18 (1)(f) also refers to conduct and therefore conduct not mentioned in clause 17 can be deemed to be under s18(1)(f).
A member of the committee raised a question based on clause 17(2): what is the rationale, when referring to the code of conduct, of "subject to the approval of the Minister". Mr Johan de Lange could not respond to this. He told the committee that he would go to the Commission report and look into it.
Comments from the Chief Justice were presented. The Chairperson commented on the problem between clause 18 and 13 because each clause depended on the existence of each other and were referring to each other. He suggested that these clauses should be combined. In clause 18(2) the words "by a committee of member" or " by a person nominated by it" were said to be controversial by the Chairperson and Ms Ngwane. They requested clarification. The law advisor suggested that they mean one member, that is, a member from the Council. The Chairperson was satisfied with the response and seconded the comment by the Chief Justice as this was clear that there were no powers given to a member not belonging to the Council.
Regarding s18(6) the Chief Justice’s comment was suggested. The Chairperson emphasized that the power to withdraw should be separated from 18(3)(a) and become 18(3)(b).
Clause 18(4) was clarified and the committee agreed that it refers to the suspension of the punishment.
It was suggested by the Chairperson that s18(5) should be put after (6), that is, after jurisdiction because it is in the middle of nowhere and the suggestion was accepted. It was also suggested that the meaning of s18(5)(b) must be investigated as it seems that it concentrates on certain jurisdictions of the court and not to magistrate jurisdiction, and it was also said that (6) shall be fixed like (2).
On 19(a) and (b) there were no comments.
Referring to the comment by the Chief Justice it seemed as if he wanted remuneration of debt collectors to be clear and the Chairperson suggested that this was clear as it said in the Act s19 (1) that debt collector shall not recover from a debtor any amount …" therefore there is no need for clarity. Johan suggested that words on 19(1)(b) "necessary expense and costs.." should be replaced by word called tariff amounts. The Chairperson responded on this and held that this would be unnecessary as it would mean the same thing
On 19(2) Willie raise a question about what happens when clerk of court takes the bill . Does it go for review or appeal? Johan responded and said that the clerk of the court just mart the bill and he doesn’t think that they go for review or appeal.
19(3) no comment
19(4) The Chairperson asked the law advisor to find out about credit bureaus as he cannot understand the clause without understanding them. No one in the committee knew how credit bureaus apply or fit in with this clause so there was not much discussion on this issue. The Chairperson wanted to know if the credit bureaus fall under the definition of debt collectors and the committee suggested that it did not.
It was asked when comparing s19(4) and 19(1)(b), whether one of the two clauses should be left out but there was no clear decision taken.
Comments by the Association of Law Societies and Mr Daly of COSAB were presented. The Chairperson did not oppose the comments and he asked for more information on the fidelity fund or a structure similar to a fidelity fund as a resolution to the Bill.
It was suggested that the words "annual audit certificates" should be added.
The Chairperson (Mr de Lange) excused himself as he was called to attend a meeting with the Minister and Miss Ngwane had to take over as the Chairperson of the meeting.
No comments in the submissions.
It was suggested that s23(3) be separated but the law advisor responded that this will be impossible as this clause deals with provisions.
There were no controversial issues. Clarity was sought on the powers delegated to the Director General: can he also delegate the powers delegated to himself, to other people. The law advisor said that the Director General cannot delegate further.
It was emphasized by the Chairperson (Ngwane) that the word "rules" used in the section refers to the rules in the Magistrates Courts Act and that there has been a technical error made in that the Debt Collectors Act is not 1997 but 1998.
The meeting was adjourned.
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