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JUSTICE PORTFOLIO COMMITTEE
3 August 1998
MAINTENANCE BILL; SHERIFFS AMENDMENT BILL, WITNESS PROTECTION AND SERVICES BILL: DISCUSSION
Documents handed out
Sheriffs Amendment Bill: Amendments Agreed To (Draft 1)
Witness Protection And Services Bill With Proposed Amendments (Wit10)
Mr de Lange (Chair - ANC) started the meeting by commenting that the draft Organised Crime Bill had been distributed to members and that this seemed to be in an advanced stage. He said that the Committee would try to arrange for briefings this week. The Chair also expressed disquiet at the limited number of submissions that have been received to date in respect of the Domestic Violence, Maintenance, Public Protectors, Assessors and other Bills. He excused the committee clerk, Mr Kali, from the meeting and asked him to call all relevant stakeholders to ensure that submissions are made.
Maintenance Bill [B72-98]
Mr Bassett (Law Advisor), who drafted the Bill, gave the briefing. He started by saying that the South African Law Commission (SALC) was currently investigating a complete overhaul of the Judicial Maintenance System. The SALC report is expected later in 1998. It is suggested that practical short term measures be taken in the interim, where these are urgently needed, can be easily implemented and are not controversial. This is the same process which has been followed successfully by the United Kingdom and Australia.
Mr Basset went on to highlight the main areas of change involved:
where a maintenance respondent fails to appear a default order can now be made
garnishee orders will be made as a matter of course
the respondent should show cause why a garnishee order should not be made; where this is done, the court must specify how payment is to be made, taking the wishes of the applicant into account
the court must enforce arrears payments
dedicated Maintenance Investigators with the same powers as Sheriffs are created by statute
Mr Bassett said that a concern which had been raised was the question of why the legislature was re-enacting the legislation and not merely making an amendment. The reason, he said, was because the legislature wanted to send a signal that the country is entering a new stage in respect of maintenance which will be sensitive and fair, focusing on recovery and enforcement. The current legislation is also very clumsy. The new Bill has a new format and includes a section on interpretation, an index and so on. It is also gender neutral.
He then went on to briefly discuss the clauses affected.
Deals with the appointment of Maintenance Investigators who will assist and work under the supervision of Maintenance Officers.
Gives the Maintenance Investigator authority to take statements under oath, investigate the earnings of a defaulter etc, under the supervision of a Maintenance Officer.
Is a re-enactment of the current s7(a) and gives the Maintenance Officer the power to summon persons with relevant information to appear before a magistrate. This is similar to s205 of the Criminal Procedure Act.
Contains the core common law principles in respect of parents' duty to support their children.
Obliges the Maintenance Officer to make a garnishee order except where not practical, appropriate or where there is no employer. It also makes it illegal for an employer not to comply.
Allows for default orders to be served on respondents who do not appear at a hearing to which they have been duly summoned. The respondent has 20 days in which to apply to court for the order to be set aside.
Mr Basset said that the Law Advisors had suggested that the matter of arrear maintenance be put on hold until its relationship to s65 of the Magistrates Act, dealing with unpaid debt, could be properly considered.
The Chair then opened the floor for questions.
Ms Camerer (NP) asked how the restatement of the provision empowering Maintenance Officer’s to extend the scope of their investigations would increase and ensure the use of this power. Mr Bassett responded by saying that other than putting the provision closer to the front of the Act, it was hoped that by establishing Maintenance Investigators, investigations would be more thorough, necessitating a wider scope.
Mr Green (ANC) pointed out that s6 seems to be based on the assumption that a parent would initiate the application on the child’s behalf. What of instances where both parents are neglecting to maintain their child? Mr Bassett referred Mr Green to the Child Care Act which makes it an offence for parents to neglect their children. Prof. B van Heerden is currently involved with a related project and it was suggested that Mr Green speak with her.
Mr Nel (ANC) asked whether the Bill had been put on the Parliamentary Website yet, as he wished to elicit submissions from various people. Mr Bassett responded that it had been distributed to various role-players and that he would arrange for it to be put on the SALC website.
Ms Camerer (NP) expressed concern about the training of Maintenance Investigators. She pointed out that at present there is one working in Johannesburg and another working part-time in Port Elizabeth. Where, she asked, would funding be coming from?
Mr de Lange (Chair - ANC) suggested that this was a question which could be addressed at the discussion stage.
Mr Hofmeyer said that he was happy with the changes made and the user-friendly style. He felt however that the question of how garnishee orders would be ordered and whether it was up to the respondent or not to show why it should not be ordered, needed to be tightened up.
Mr O’ Malley (IFP) noted that the provisions relating to the respondent's duty to support a first family, in preference to a second, had been left out. Mr Bassett said that this was however still a common law principle, aimed at preventing people from saying that they could not afford to support their first family as they now had a second family to support.
Mr de Lange (Chair - ANC) found this position unacceptable and suggested that the legislature would have to change it. On the whole, he said, he was happy with the layout of the Bill and the addition of a principled preamble. He requested that urgent submissions be sought so that public hearings can commence in the week 17 August.
Sheriffs Amendment Act [B2-98]
Mr de Lange (Law Advisor) took the committee through the changes.
This change was formally proposed by the Sheriff’s Board to amend s32 of the Act. It deals with the provision of Fidelity Fund certificates to acting sheriffs. These are currently renewed every six months, where in practise it is taking up to two years for acting sheriffs to become full sheriffs. The board therefore requested that the renewal period be increased to one year.
Deals with admission of guilt fines where sheriffs are guilty of misconduct. Mr de Lange said that he planned to redraft completely the existing s45 as follows:
s45(1) a sheriff may be charged by notice in writing of improper conduct. It was noted that currently any person may submit a complaint to the board, but if they did not wish to act it was unclear whether the board could do so. This will change with the new provision.
45(2)(b)&(c) the board may prescribe a fine in respect of admission of guilt.
45(2)(d) a register is to be kept of fines paid, which will be submitted to Parliament with the annual report
Mr de Lange (Law Advisor) pointed out that there are various degrees of misconduct, the most prevalent being the submission of false returns by the sheriffs. This, he said, is a criminal offence and should not be open to an admission of guilt fine.
Mr Landers (ANC) queried the position of repeat offenders. Mr de Lange (Chair - ANC) suggested that committee members would be able to pick this up from the report; furthermore it is possible for the Minister to make a "three strikes and you’re out" type of provision in the regulations.
Mr O’ Malley asked what the rationale was for allowing the Minister in s45(3) to withdraw charges against a person. Mr de Lange (Law Advisor) answered that it was so that the Board, once it had laid a charge, could not withdraw it. The final say lies with the Minister.
This is consequential to s46 and charges the Board with the duty to investigate a case where an admission of guilt fine has not been paid.
Makes it an offence to impersonate a sheriff or "any other specialised functionaries".
Is a savings clause. It is unusual in that it attempts to facilitate the smooth dissolution of the existing board. The Minister is therefore given discretion to remove any member. At present anyone appointed to the Board serves for three years, the current term expiring early next year. The savings clause provides that on commencement of the Act the new Board will take over.
Mr de Lange (Chair - ANC) pointed out the need to ensure that this transition is made smoothly. Furthermore, he said, that it should be ensured that where a member was removed, they had to be replaced.
Mr de Lange (Law Advisor) went on to say that in terms of clause 6 the Board can appoint independent persons to conduct inquiries. It was felt that this was better than allowing the Board to charge, investigate, hear and sentence a person. There might, he said, be an administrative objection to this, along the lines of the End Conscription Campaign case in the 1980’s where the court found that the Defence Force could not be prosecutor and judge.
Mr de Lange (Chair - ANC) said that while this was to some extent valid, he did not wish to have firms of attorneys getting rich out of hearing disciplinary matters for the Board. It was pointed out however that this was not state money.
Mr Solomons (ANC) asked whether the use of "strong-arm tactics" had been made an offence. Mr de Lange (Law Advisor) said that they were looking for a suitable way to include it.
Mr de Lange (Chair - ANC) raised the question of whether deputies and assistants were required. He suggested that the structure as described in s3(4)(a) was adequate in that it provided for staff and not titles.
Regarding the Human Rights Committee’s concern that people be qualified and not lay persons, Mr Labuschagne said that he had copied s3(4)(b) from the OSEA Act. This puts a duty on state departments, persons, bodies and institutions to submit a list of persons suitably qualified and available when requested to do so.
Mr de Lange (Chair - ANC) pointed out that a mechanism was also needed for the director to reject anyone he did not find suitable, to prevent the Programme from ending up with the lame ducks of every department.
The meeting adjourned for lunch.
It was clarified in clause 5 that the Bill does not give power to be delegated to subordinates in cases of appointment of witness protection officers. That the Act substitutes panel by witness protection officer(s) in clause 8.
Concerning s10(5) the committee felt that the issue of insurance policies was a problem as they cannot be transferred, unlike bank accounts which can be transferred. Johan promised the committee that this issue will be considered as it had not been discussed and that he intended to speak to the Department of Home Affairs about this.
One of the members of the committee proposed an amendment in the Bill dealing with the identity of the person. He felt that the AFO system which is used in identifying finger prints is also problematic and wanted to know whether it can be used in cases of death and birth identity. He asked the drafters to liase with the Home Affairs Department for this.
Miss Ngwane wanted to know whether the Home Affairs Department was consulted when this Bill was drafted. The law advisor responded that the person who was supposed to be involved in the discussions was not present during the drafting process.
A question was raised in s10(4) on what would constitute "a threat to the life of an applicant". The chairperson suggested this to be left for discussion by the drafters as there was no response.
One of the committee members wanted to know whether s10(6) means a person should settle all his debts and conclude any business activities (whether by selling all stock which he had if he was a businessman) or what as this was not clear from the Bill. Further does it mean that a person must put all his assets in a trust while he is using another identity or what. The chairperson wanted to know the international experience regarding this and whether the committee should be guided by it. The law advisor was not in a position to answer the above question but promised to consult other drafters for this.
It was asked what would happen if a person is relocated and he commits an offence. Can he be liable at state expense or what as he is maintained by the state. The chairperson said that that person would be fully liable and the state cannot pay legal costs for him, therefore he should pay it himself.
Regarding s10(9) it was suggested that cancellation of relocation has to be done only once it is confirmed that it is true (that a person has committed the offence) and not at the time that the information is received as it might turn out to be false.
On clause 11(5) Johan was of the opinion that the director general has to be given discretion. Miss Ngwane wanted to know what would happen if he sees no reasons for alterations and refused to cause such alteration to be authorised. The chairperson suggested that the director general of Home Affairs has to be given narrow discretion and not wide. Therefore he must believe on the reasons which should be given by him that there is no need for alteration. The committee suggested that the director general of the Witness Protection should be the one who makes decision and then if s/he fails the Director general of Home Affairs may do that .The committee didn’t understand why the Home Affairs should have a discretion on this.
Johan responded to this and said that this is so because the Home Affairs are involved with the registration of names and births of this witnesses and therefore that is the reason they were given this discretion
Ngwane emphasised on behalf of the committee that it was the committee’s opinion to cooperate with other departments and not to give them discretion. Now how come are they given discretion over the justice department because it has been clearly said that in the event of identity changes the home Affairs will be required to assist but they can only deal with that and not being given discretion to decide.
Shirley Campher wanted to know how does the American system do in handling a situation like this. She said that we can’t have a director of witness protection telling the Home Affairs what to do. There must be a cabinet decision with the Minister.
The chairperson asked Johan to try and find out from other drafters as this problem will lead to an interpretation that the home Affairs are entitled to all information of which this is impossible as it will seem that more people are involved of which the committee is against this. He suggested that this is decision to be done by the Justice department who will take final decision.
The whole committee suggested that this discretion must be taken out from the Home Affairs.
On clause 12 it was said that the "cancellations" mentioned refers to the possible cancellation of the new identity and not to impossible cancellations like where a person has been done face lifting.
Clause 13 it was said that additions to this clause are to be expected as it is not clear. It was said that Clause 13 and 9 are contradicting because at first clause 9 did not give any power to anyone to communicate with the witness and now in clause 13 it gives power to a judge how does this happens.
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