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SECURITY AND JUSTICE PORTFOLIO COMMITTEE
2 September 1998
DELIBERATIONS AND VOTE ON THE ATTORNEY AMENDMENT BILL, MAGISTRATE AMENDMENT BILL AND SHERIFF AMENDMENT
Documents handed out
Amendments by the Select Committee on Security and Justice (NCOP) to the Sheriffs Amendment Bill [B2B - 98]
Amendments agreed to by the Portfolio Committee on Justice (NA) on the Magistrate's Courts Amendment Bill [B33-98]
Attorney Amendment Bill [B7B-98]
The committee was supposed to be voting on the Bills but there was no quorum only 8 members attended (including 2 drafters) and the secretary of the committee
Sheriff Amendment Bill [B2B-98]
Amendments proposed by this committee to the Sheriffs Amendment Bill (see document) were considered and the committee agreed to them with no further amendments though with a resolution. They agreed to vote on the Bill on Monday as there was no quorum.
Magistrates Amendment Bill [B92B - 97]
The document on this Bill was considered clause by clause and questions were raised. A question was raised on the issue of the committee deciding on the functions of the magistrate and where one can appeal over the magistrate. The response was that if a person wants to appeal over a magistrate, the Magistrates Commission must be approached, alternatively the Department of Justice if the complaint is on the judicial powers of a magistrate. It was also suggested that the regional offices would be able to help.
On the issue of resolutions, these will be drafted by the law advisers. It was also said that on the resolutions the issue of provincial boundaries being overlapped should also be considered. The chairperson (Mr M Moosa) said that the Minister should be informed that as if he decides on local boundaries, the police boundaries must be the same for the better administration of justice. The drafter argued that "similar" rather than "same" should be used.
The chairperson took into consideration his argument and he said that desirability on this issue of boundaries must be expressed, and that the level of demarcation must be sort out and fall in line with that boundary of level of dermacation because it makes no sense to be different. This is to be included in the draft of resolution and the drafter said that he'll show them the draft on resolution on Monday.
ATTORNEY AMENDMENT BILL [B7-98]
Mr Labaschagne was called to read the document handed out on this Bill. He wanted to know whether he should go through the amendments and discuss it and vote, and the house said that he should not go through as there are few changes.
Mr Labaschagne clarified that the state advisor appealed on to the amendment of the Short title. The chairperson wanted to know if there is an Act called "Rules of Court" as mention in the amended short title. The response to this was no, and he continued and asked how do we have this "Rules of Court" in the amendment Bill if there is no Act called the "Rules of Court". He said that we can use the Attorney Amendment Act Rule if we cannot use Attorney Amendment Bill. Labaschagne said that the reason we are having this "Rules of Court" in the Bill is because that state advisor asked for it. The chairperson wanted to know where will the "amendments" go, and he said that it will remain in the Principle Act. He said that clause 6 remains a substantial clause and that these amendments form part of clause 6. Therefore they will remain part of the principle Act.
The chairperson wanted to know if everybody was happy with this amendment of the Short title, and there was no response from the house. Labaschagne said that if they can come up with suggestions relating to this he will take them into consideration, because he thought that this amendment will be accepted. The house felt that it will vote for this amendment on Monday when there is full quorum.
The chairperson wanted to know if Labaschagne had something to say on the Schedule and he said that the procedure for the Schedule was written on the presence of the judges and the draft of the Schedule was based on the Acts received. Therefore everything is possible to be in order.
The chairperson thanked him on that and he asked whether he has a report on the Witness Protection Bill which has been discussed by the Justice Portfolio Committee. Labaschagne said that the only problem which they had with that Bill was clause 14 and they will continue with it. The chairperson asked whether Jonny De Lange told him that the Justice Committee and this Committee will be working together because of the changes this committee wants to make. Labaschagen continued updating the committee about the discussions on the Witness Protection Bill and he said that today they were discussing about the procedure on protection of minors in that they cannot enter into agreement. This provision has been reformulated to such an extent that the document which has to be submitted to the judge should not be called a protection agreement. On the issue of the days for review of application which has been refused by the Director he told him that the NP said that it must be 2 days instead of 7days. The chairperson wanted to know what did the ANC said, and he said that De Lange was satisfied with the 7 days on the provision because in practice it would be difficult to complete the document in 7 days than if we say 2 days - 2 days will be fine if it is expressed that unless it will be extended where necessary. The chairperson said that we'll engage a discretion on this and wanted to know whether there is anything more on the Witness Protection.
The chairperson thanked Mr Labaschagne and he called Mr De Lange to give report on the next bill.
MAGISTRATE'S COURTS AMENDMENT BILL [B33-98]
Mr De Lange told the house that this Bill is to be debated on the National Assembly next week Wednesday, and he go briefly through the amendments. Before that one of the members wanted to know if that was accepted by the National Assembly anonymously, and he said yes.
He talked about reservation on the wording of this clause.
The whole clause has been deleted and replaced by the new clause.
New clause - 93ter
93ter (3) deals about the discretion of the magistrate. It also mentions the role of the assessor in trial is to make a decision of facts and the role of assessor in sentencing as an advisory capacity.
93ter (4) deals with guidelines changes which are not find in the Bill but in the Principle Act (check document). A question was raised on these guidelines in (v) whether the magistrate has to ask the accused person before he summons him - the member wanted to know what is the exact implication of this sub clause. The response by Mr De Lange was that this sub clause deals with appointment in full discretion of magistrate, and that these are the first guidelines on what the judicial officer should do. He said that the Committee felt that the magistrate should ask the accused representative what his views are. Another question was - what happens when the magistrate arrives and he finds an assessor which s/he doesn't like, and the response to this was that the committee (Justice) didn't arrive to this point, therefore there is no response to it. The chairperson wanted to know if the assessors are people who are familiar with the legal system, and De Lange said that he is satisfied that they will be appointed in terms of the regulations and the magistrate won't have a chance to ask as to the one is (could not understand what he was referring to, but he was trying to say that it won't be possible that they should know the system) and the chairperson commented and said that this is a nice, and beautiful law but that he feels that it is not going to work.
93ter (5) - on this clause the house was referred to page 4 of the bill for clarification. It was said that clause (3) was split up and what used to be in (3) is contained in (5), (6) and (7). The chairperson said that we need to take into account the views of the community but he also felt that this has been done in (6).
93ter (6) the chairperson was not satisfied with the use of the word "thereat". At first he wanted its meaning, and it was said that this word means "there at that proceedings". Still he did not like it, he asked if there is no other word to be used instead of this word as he does not see a need for it. He also proposed that it be deleted as it makes no sense to him. The house felt that this will be debated on the 09/09 (the date in which this bill will be debated in the National Assembly) and therefore to vote for this bill on the 10/09 - his proposal will therefore be considered on the day of the debate.
93ter (8) and (9) it was said that these clause were taken from the Nkambushe judgement where it was laid down. A member of the committee from the committee (NP member) felt that (9)(b) was essential as it shows that the judicial officer will make it clear what the law is.
93ter (10) - it was said that this sub clause is important. The chairperson felt that s147 of the Criminal Procedure Act is relevant here, and when the assessor is unable to act, or do not obey order of court or is absent - that the magistrate should carry on without him. It was said that this sub clause deal with recussal of assessor and that (10)© was taken from Malindi judgement. The house felt that "bias" revolved around perception.
93ter (11) -The chairperson suggested that there should be a penalty provision for in cases where assessor decides to leave the job because they find another better job. De Lange said that this has been dealt with in the Regulation. The chairperson argued that this must be stated in the Principle Act and it must be put as "Assessors without good reason fails to undertake his duty commits and offence provided that he has accepted to undertake the duty, and has started perfoming the duty for a certain period.". The chairperson express the reason for his proposal is that those who agreed to assess must take responsibility. De Lange said that this suggestion/proposal will be drafted.
93ter (12) deals with review procedure. It was said that this sub clause overlap with section 304 of the Criminal Procedure Act and that it is almost in abandon of caution. Chairperson said that many cases will be held on regional but (12) is precautionary as most of these cases (98%) there’ll be representation.
The chairperson suggested it must be included in the provision that even civil liability will also amounts to liability under 3(1)©.
A question was raised on what criteria will be used to choose the assessors – whether they must have legal background or not? The response from De Lange was that yes they should have one but that this issue has been left open, and that the community should be involved in this process. Another question was whether there is any provision to stop assessors from corruption e.g. getting bribery? The response was that as we know that bribery is a corruption in this country it is also regarded as an offence even if it is committed by assessor despite the fact that there is no provision in the bill – but generally it is an offence. The recussal provision in the bill goes the same way with this issue of corruption although it is not expressly dealt with.
Another question was whether the same people who have been chosen as assessors can be chosen again when their term has elapsed, and the response was that the department of justice is not trying to create an occupation of assessors and they cannot form a union or can’t write a letter stating that they are assessors – and that the idea of this is not to use the same people but to train people and not keep them again and again. The idea is to allow the assessors to work for one or two month or to use even retire people
The compulsory offences are to be read with the new clause on page 6 (i.e. clause 5 which deals with transitional provision)
The chairperson made a summary on this bill that there are only three amendments and they are: "thereat", offence, and the technical amendment. He asked De Lange to come on Monday and give a briefing on what the Justice committee has finished on the Bills.
Meeting adjourned for Monday next week (07-09-98)
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