A summary of this committee meeting is not yet available.
JUSTICE PORTFOLIO COMMITTEE
7 September 1998
CRIMINAL PROCEDURE AMENDMENT BILL [B59-98]; MAINTENANCE BILL [B72-98]: DISCUSSION
Documents handed out:
Criminal Procedure Amendment Bill - Draft 2 : CRP24
Draft Resolution of the Portfolio Committee on Justice in Respect of the Criminal Procedure Amendment Bill - CRP23
Summary of Submissions on Maintenance Bill
The minutes for the first part of the meeting dealing with Criminal Procedure Amendment Bill will be made available later.
The committee deliberated the changes to the Preamble in the Maintenance Bill in order to make it clear that the Bill not only focuses on child maintenance, but all forms of maintenance. Thereafter the committee discussed the practicality of the new wider definition of "income" and deliberated the possible problems with a change in the definition of "maintenance order" to include orders for payments that are not of a periodical nature (for example, medical expenses).
Clauses 1 to 6 were then looked at.
Mr Basset stated that although the Bill is seen to focus on maintenance of children, it however deals with all forms of maintenance. The chairperson suggested that a further paragraph be included in the preamble that will make it clearer that the Bill aims to capture all forms of maintenance. Mr Hofmeyr agreed that the preamble should be altered in order to indicate more clearly that it deals with all forms of maintenance. He however suggested that this could be achieved by extending paragraphs 4 and 5 of the preamble and not necessarily a new paragraph. The committee agreed that paragraphs 2 and 3 deal with maintenance of children, while elsewhere in the Bill it refers to all forms of maintenance. It was agreed that the preamble should be changed in some way to make this objective stronger.
ARRANGEMENT OF SECTIONS
The chairperson is of the view that setting out the sections of the Bill in the Arrangement of Sections is a very good idea and should be followed in future even though the Law Commission does not approve of it.
The committee decided that "parent" and "child" do not have to be defined in the Bill (as was suggested in the submission of the Law Society of South Africa), because it is dealt with in the common law.
Mr Basset informed the committee that with the help of the Law Commission a definition of "income" was included in the definitions under 1(ii). According to the chairperson this is a very wide definition, allowing the court to take a wide range of income into account when deciding on what the maintenance should be. He however stressed that some of these sources of income that are taken into account when deciding on the maintenance amount, may cause practical problems with the issue of a garnishee order, but that those problems should be addressed when the committee discusses the garnishee order.
Ms Camerer wanted to know whether medical aid contributions received by a parent will be included under income. According to the chairperson this would probably resort under 1(ii)(a). The chairperson also stressed that the list of sources of income does not in any way derogate from the generality of it.
Mr Oosthuisen raised a problem that might occur with the issue of garnishee orders when once-off payments to a parent are seen as income. In response to Mr Oosthuisen the chairperson said that the definition of income will arise only on two occasions namely (a) when the court has to decide what the maintenance will be and (b) when the garnishee order is made. The wide definition of income that allows for once-off payments to be seen as income may only create practical difficulties when issuing a garnishee order. The chairperson again stressed that those difficulties should be resolved when dealing with the garnishee order in the Bill, rather than with the definition of income.
In section 1(v) it is suggested that the definition of "maintenance order" be changed by deleting the word "periodical" in front of payment. This would mean that a maintenance order does not only have to be an order for periodical payments. This would allow for the court to include an order for payment of medical expenses as a maintenance order. According to Mr Smith of the Law Commission it was not previously possible for a court to make a maintenance order that included an order for payment of medical expense, because of the word "periodical" in the previous definition of "maintenance order". The payment of medical expenses does not occur monthly or very regularly and is not seen as periodical. In a 1992 court case of Schmidt vs Schmidt the court tried to get around this problem by interpreting "periodical" very widely. Deleting it from the definition would make maintenance orders wider and create more flexibility for the courts. Orders for payment of medical expenses will also be included.
Ms Camerer suggested that the word "periodical" not be deleted totally and proposed that it reads "any order for the payment, including periodical payment".
Mr Oosthuisen however did not agree with the new change that is suggested, because in the new Section 16 there is distinguished between a maintenance order in 16(a)(i) and an order for lying-in expenses (medical payments) in 16(a)(ii). According to him a maintenance order is for periodical payments and it differs from other orders including orders for payment of medical expenses.
According to the chairperson this still does not explain why it would create a problem if maintenance orders are expanded by not restricting it solely to orders for periodical payments. According to him it would create much more flexibility. According to Mr Hofmeyr and Ms Camerer difficulties would occur with the issuing of a garnishee order if an order for payment of lying-in expenses are included as maintenance order, because of the practical difficulties of deducting variable amounts from the salary. The chairperson agrees that it is not practical to include a payment for lying-in expenses in the garnishee order. He however said that it is not a problem to have the payment of lying-in expenses as part of the total maintenance order. It should just be stated that the payment of lying-in expenses will not be effected by means of a garnishee order. Only the periodical payments that form part of the maintenance order should be effected through garnishee orders.
Mrs Camerer suggested that the problem be solved by stating that garnishee orders will not be for variable amounts. The chairperson requested Mr Oosthuisen to identify problems that arise in the Bill due to the new change to the definition of "maintenance order" and that if such problems arises that it be dealt with in the Bill and not by keeping the old definition.
There was some discussion over whether clause 2 was sufficiently clear in its intention NOT to mean that the High Court becomes a maintenance court. The drafters are to change the wording to reflect the simpler proposition that unless the context indicates the contrary, a reference court will mean any court.
The concern expressed in a submission about the access of rural communities to maintenance courts if they remain situated in the magistrates courts, was not accepted. It was decided that this was not a matter for legislation and it was accepted as a fact that rural communities will remain isolated and marginalised.
In Clause 4, dealing with maintenance officers, the issue of having dedicated maintenance officers who are specially trained was stressed as an important one to be reflected in the legislation. The need for a simplified maintenance enquiry procedure was also stressed. This should however be done in consultation with the Public Prosecutors, who in most courts are also the maintenance officers. Subsection one must remain however, to accommodate the future family courts when presumably there will be a specialised maintenance court.
Mr O’Malley raised the issue of the Minister’s discretion in such an appointment and was concerned that this would leave some courts without maintenance officers, should the discretionary term be allowed to remain. He submitted that there should be a duty to appoint maintenance officers. Mr Oosthiuzen said that the intention was that each court have at least one maintenance offer. It was decided that the wording did not reflect this clearly and the drafters were instructed to ensure that the wording reflects the intention that each court have a maintenance officer.
The practical problems of lack of expertise and specialisation when having prosecutors functioning as maintenance officers was acknowledged by Mr de Lange.
Clause 5 is a new clause which provides for maintenance investigators. There are two options proposed by the drafters. (In the document that contains proposed amendments to the Bill [MAN 47] Mr Smit’s draft is the more extensive version (see underlined text) and Mr Oosthuizen’s is the text in square brackets. Mr Smit favours the approach of setting out in details what the investigators would do, whereas Mr Oosthuizen’s approach is to set out general powers and then deal with functions under clause 7.)
The issue of what is meant by "appointment" of investigators was discussed. Mr Basset confirmed that the intention was not to limit investigators to being officials of the Department of Justice, but that this function could well be contracted out on the same basis as the Sheriff of the Court receives its mandate.
The need for a budgetary allocation for the investigators was stressed as this has implications for implementation, an issue that was stressed in the Submissions.
Regarding the specific powers of the maintenance officers, Mr Smit submitted that he favoured allowing a wide variety of information as this would aid in the establishing of the financial position of the parties involved. Mr Oosthuizen was concerned about the problems of privacy and secrecy codes of organisation such as banking institutions being violated by this type of enactment. Mr Smit argued that the intention was to assist the investigator in providing the maintenance officer with important information which would avoid long delays and ultimately save costs and expedite the whole process.
Mr Nel raised the issue of what kind of information is being requested over and above what can be obtained as a matter of course in any event. It was decided that a Resolution would be drafted that would reflect what kind of information was to be made available and that the purpose was to assist maintenance officers in performing their tasks properly.
The remainder of the discussion focussed on why clause 5 and 7 were separated. Mr Hofmeyr suggested that the drafting be done in a chronological way, that is, first discuss appointment and then powers. Mr Mzizi raised the issue that the intention was to simplify the procedure and in fact what is drafted seems too long and theoretical. There was then some discussion over whether the procedure should be left to regulations which would delay the Act’s implementation or whether procedures should form part of the legislation. It was decided that there should be a uniform procedure required but that the specifics be left to the regulations as the current system would remain in place.
The last hour of the meeting was not monitored.
Mr Mahlangu (ANC) was concerned about section 6 (Complaints relating to maintenance) and the Enquiry by Maintenance Court in section 10 which he sees this as a long process as the matter has to go back if it is not resolved. He felt that there should be an alternative procedure to shorten this. He added that in practice a complaint is lodged at the maintenance office and a complainant does not have to return later, therefore why not use a procedure similar to the previous one (i.e. the clerk can take the complaint if the maintenance officer is busy in court).
The chairperson corrected Mr Mahlangu and said that the words in section 6 "is lodged with" are used and they mean that the officer does not have to take the complaint personally but that sometimes it can be lodged with him. He said that it is clear that the maintenance officer can be lodged with the complaint but the maintenance officer does not have to take the complaint personally. Mr Mahlangu continued and said that in a matter where the lodging is not done properly therefore the officer will have to take the complain. He suggested that section 6(1) be changed to "provision for and steps to be taken for making a complaint will be prescribed" so that the legislation is clear.
The chairperson wanted clarity on the existence of the maintenance officer. The drafter, Mr Oosthuizen, said that the maintenance officer is required because there are questions to be responded to. The chairperson suggested that 6(2) to add 6(1) provision for taking down complaint that it will be prescribed, he then asked if the house has a problem with that. The house seem to agree as there was no objection.
One of the drafters suggested this proposal be put in the regulations. Mr Hofmeyr was concerned with the regulations and implementation and he suggested the phrase "Minister may prescribe the way or procedure for taking down a complaint".
The drafter promised to fill in the suggestion in the regulations, and he confessed that he was the one who drafted the clause and by doing it in this way he was trying to make it shorter. The committee wanted the procedure to be set out in the regulation and that it must be clear and broad.
Submissions on clause 6 were considered and the proposal from the Black Sash for the explanation of "good cause" alternatively the proposal of the use of "material change in the circumstances" of the party was considered. A National Party committee member said that he did not understand the section and that he thought that the words "to the effect" shows that this is not a clause where the court decides but is to be used where there is a provision to be used to decide [he tried to discuss "good cause" in his view, but I could not understand what he was saying]. The chairperson said that if we change for "effective" to "good cause" then that will mean that we are changing to high test, and the question is whether we should raise the test to high test. Nel expressed that when it comes to holding enquiry the clause refer back to (a) and there is no reflection of (b) in the body of the sentence.
Oosthuizen said that there is no problem in substituting (a) but discharging maintenance order is a problem. He was told by the chairperson to insert word "with a view to enquire into either (a), (b)" in the end of the sentence, and he said that he would like to go with the Black Sash’s suggestion because its not what the court does.
On the submission by the SAHRC they raise concern on the use of "may", and the discretion in which a maintenance officer has in instituting and enquiry. The chairperson in response to this suggested that "may" has to be there, and that a standard should be set for use of discretion by the maintenance officer because every NGO seem to have a problem with discretion given to him/her. There were also suggestions to create a test in that clause. It was suggested that an option of "shall prima facie" be put in the clause as possibility and not to remove may.
It was very difficult to understand the meeting as it seem that everybody was dull and more especially the three drafters. It was only the chairperson who was not dull, and you could here each and every word he says. I tried to talk to one of the IFP member to ask the chairperson to tell them to raise their voice as I could not here them and therefore could not have a proper report. This chap talked to the chairperson and I was only told to come forward if I could not here them, anyway it was late and I did not grasp anything as I had to leave.
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