A summary of this committee meeting is not yet available.
JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
12 October 2001
CONSTITUTIONAL AMENDMENT BILL: DELIBERATIONS; CRIMINAL PROCEDURE AMENDMENT BILL: PUBLIC HEARINGS
Chairperson: Adv De Lange (ANC)
Documents Handed Out:
Constitution of the Republic of South Africa Amendment Bill, 2001 (certified, now B68-2001)
Criminal Procedure Second Amendment Bill [B45-2001]
Submission by the South African Human Rights Commission (SAHRC)
Submission by National Directorate of Public Prosecutions (NDPP)
The Committee deliberated on the Constitutional Amendment Bill and discussed a memorandum drafted by Adv de Lange, incorporating the various views placed before him by the Committees.
With respect to the Criminal Procedure Second Amendment Bill both the National Directorate of Public Prosecutions and the South African Human Rights Commission were generally in favour of the Bill but also had a number of small concerns. The NDPP argued that the Bill would need to be implemented incrementally due to lack of capacity and expertise at those levels where the provision would most be used. The SAHRC on the other hand were concerned that in the provisions relating to sentence and plea bargaining the rights and interests of the victims were not taken as seriously as they would have liked them to have been.
With respect to the proposed Constitutional Amendment Bill the Chair discussed the serious time constraints facing the Committee in finalising the Bill. In passing the Constitutional Amendment Bills, he said that broadcast consensus was sought amongst Committee members. In the case of some amendments there will be repercussions if the Bill is not passed by the end of the year, stated Advocate de Lange.
He had perused all submissions and suggestions placed before him by the various Committees. In an attempt to finalise views, he suggested that a package proposal be placed before him by Committee Members to determine how issues are to be dealt with and the alternatives available.
Two issues required most consideration in the Bill, namely (i) the procedural aspect; and (ii) the substantive aspect. With respect to the latter, due to the delay in the tagging of the First Constitutional Amendment Bill process, problems were inevitable. The Committee would therefore have to tackle this aspect first before initiating any further procedure.
In assessing the Constitutional Amendment Bill, Adv de Lange stated that Section 74 of the Constitution dealt with municipalities as a separate sphere of government and not as a provincial power. This, he believed, was the key procedural issue which required debate.
Regarding the substantive aspect of the Bill, Adv de Lange recommended that further consultation and research be conducted by the State Law Advisors as he foresaw numerous problems. He stressed that the spirit of consensus and consultation regarding Constitutional issues was extremely important.
He noted that the Department had admitted to having conducted consultations in certain cases, but not in others. In addition no attempt had been made on the Department’s behalf to openly obtain the views of the public and society at large. Adv de Lange urged that the Department adheres to this recommendation and enforces its practice. He added that failure to do so would create distrust amongst society because of the manner in which legislatures may have handled the issues.
Borrowing by Municipalities
Continuing on substantive issues, Adv de Lange referred to a memorandum drafted by him in which he attempted to collate the views placed before him by the various Committee members. He referred to Section C relating to the "borrowing powers of municipalities". In terms of Section 230 of the Constitution, which deals with Provincial and Municipal loans, this relates only to National legislation and not Provincial legislation. He then referred to an opinion drafted by Advocate Trengrove, which expressly stated that if a loan is signed under national legislation, the Executive of that Municipality would then be bound.
However, the problem exists that in terms of Section 230 of the Constitution, the binding of further legislative powers is prohibited. Should this procedure be effected, it would be unconstitutional.
Adv de Lange suggested that one way to overcome this problem was for the State Law Advisors to draft a clause similar to that of Section 230 of the Constitution.
Regarding Section D of the memorandum, which dealt with "interventionist powers into the affairs of Municipalities", he stated that the reason the Department required the passing of this Clause was contained in Chapter 11 of the Municipal Management Bill. He believed that the Clause created a judicial intervention amongst varying levels of government and that it allowed an administrator to enforce and enact legislative administrative and judicial functions.
Adv de Lange continued by stating that the Constitution prohibited the passing on of municipal powers to other persons or regulatory bodies. It was therefore a requirement that a Clause be drafted to effect this provision so as to give meaning to the Clause in the Bill and the Section in the Constitution, respectively.
Adv de Lange asked that they be allowed further consultation and research on the issue of interventions.
The next issue for discussion concerned "monetary bills". The question arose whether this incorporated the division revenue as per the definition of the term "monetary bills". Adv de Lange stated that on consultation on this matter with the Minister of Finance, it was agreed that the term "monetary bill" expressly and tacitly implied the inclusion of the division of revenue. However, an issue of concern raised at the public hearings was whether or not Chapter 13 of the Constitution should also be regarded as a monetary bill. It was suggested that this matter be discussed and proceeded with at a later stage.
With comment to Clause 9 of the Bill relating to "equitable shares" it was agreed that the Clause not be proceeded with.
Adv de Lange in discussing the Justice issue advised that the Minister had agreed that the following Clauses be passed, namely:
i) Clauses 1 to 4
ii) Clauses 6 to 8
iii) Clauses 11 to 14
iv) Clauses 16 to 19
Tenure of Judges
In dealing with the "tenure of Constitutional Court judges" he advised that the legal fraternity were divided regarding the proposed amendment of Section 176(1). Additionally that the three benches in Cape Town, Pretoria and Johannesburg disagreed with the proposed amendment.
Adv de Lange suggested that the way in which this problem could be overcome was by obtaining political consensus, alternatively that a compromise be agreed upon by the various political parties.
In continuing the debate on Section 176(1) of the Bill, Adv de Lange advised that the Final Constitution permitted a judge to be appointed for non-renewable term of office of years, before obtaining a pension. Now, however, all the principles as contained in the Judges Renumeration Act would apply retrospectively to the Constitutional Court Act whilst sustaining the provisions of the Tenure Act. In simple English this would mean that any judge who has reached the age of 70 years, but has not yet served his full term of office, will be allowed continued office upon expiry of his term. If, however, a judge has already held office for a period of 12 years, but has not yet attained the age of 70 years, he would be required to withdraw or terminate his office.
Ms S Camerer (NNP) expressed the opinion that the tenure of Constitutional Court judges be entrenched in the Constitution and not in the Rules of Parliament as presently provided.
Mr J Jeffrey (ANC) commented that the understanding of the issue around Constitutional Court judges related to the principle and not the wording contained in the Bill.
Dr Delport (DP) referred to Section 176 of the Bill, stating that the Constitutional aspect of legislation cannot be undermined. He suggested that the words "except in special circumstances" be added to the proposed amendment.
The Chair agreed with this view.
Mr Landers (ANC) stated that due to the fact that the Financial and Fiscal Commission was a regulatory body of finance, the essence of Section 220 of the Constitution needs to be retained. If not, it will fall foul of objectivity.
The Chair agreed.
Mr Molewa (ANC) asked who would be responsible for deciding whether a judge could retain office or not, once his term of office has expired.
The Chair referred Mr Molewa (ANC) to the words "discharged from active service…" as contained in Clause 176 of the Constitution. He added that it could also be left to the discretion of a judge to decide this factor.
Mr Swart (UDM) advised that the Minister of Finance use the example of the Minister of Transport increasing a levy. Would this then be considered a transport bill or a monetary bill?
The Chair referred Mr Swart to the definition of the term "money bill" contained in the Bill. In terms of the Constitution, all monetary bills must be introduced by the Minister. All the Bill now simply does is to classify and define what is meant by the term "money bill". For this reason, all bills relating to Finance are not incorporated into the definition of the Bill, but instead under Chapter 13 of the Constitution.
The Chair intervened and apologised to the Committee for failing to include the issue of Deputy Ministers in his memorandum. Nonetheless, he verbally notified the Committee that two issues needed to be added, namely:
- that the Deputy Minister is to be made accountable to Parliament for his actions.
- that Deputy Ministers be allowed to participate and partake in the proceedings of Parliament by having speaking rights only and not voting rights.
Mr Jeffrey (ANC) interjected and advised that no provision had been made in the Bill for Deputy Ministers to sit in Parliament or even to address Parliament.
The Chair concurred and informed the State Law Advisors that a Clause should be drafted to give effect to this provision. Additionally, this provision, once drafted, should be placed in the resolution and not form part of the amendments.
The Chair urged the State Law Advisors to attend promptly to the Bill without due delay and drafts should be made available by Monday 22 October 2001 for discussion by the Committee.
Institution of Legal Proceedings against Organs of State Bill
At the commencement of proceedings, it was unclear to the Chair whether or not to proceed with the presentation due to the lack of response by Committee members and the failure to reach a quorum. It was suggested by the State Law Advisors, Advocate De Lange and Advocate Labuschagne that they nevertheless be allowed to brief the Chair and those present so as to give the Committee a fair idea of the progress made in the Bill to date, to which the Chair agreed.
At the commencement of the presentation, Advocate De Lange noted that the Bill had been passed by the National Assembly on the 28 September 2001. However, a number of grievances and concerns have been raised by various other Committees. He then handed over to Advocate Labuschagne to continue with the presentation.
Background to the legislation
Adv Labuschagne stated that the technicality and complexity of the Bill hampered its finalisation. In October 1985, the Law Commission submitted a paper to the Justice Portfolio Committee to amend all relevant provisions regarding prescription and the lapsing of time periods within which to inform or institute legal proceedings against an organ of state. However, as a result of numerous objections raised by certain organs of state, the Bill was never produced in Parliament.
In 1995, the Law Commission submitted a supplementary Bill containing a vast number of legislative changes, which was subsequently passed by Parliament in September 1999. The Portfolio Committee then redrafted the Bill, which was passed by the National Assembly in September 2000.
Adv Labuschagne noted that the reason for the delay in finalising this Bill was based on the controversial constitutional court judgement in the Moise case which had only been brought to the National Assembly’s attention after the Bill had been passed. The Committee at the time then recommended that the Bill be kept in abeyance pending the outcome of the Constitutional Court’s judgement in the Moise matter.
Adv Labuschagne outlined Clause 1 (1)(vii)(a), (b), (c), (d), explaining that the definition of the term "organs of state" incorporated national and provincial departments and a municipality. Also any functionary or institution exercising a power in terms of the Constitution as well as a Commissioner for the South African Revenue Services. Another important feature of the Bill was that the definition of "debt" expressly excluded debts arising out of contractual liabilities.
Clause 2(1) and Clause 2(2)(a) and (b) dealing with the prescription of debts, the amendment and repeal of laws as well as transitional arrangements were comprehensively explained to the Committee.
Clause 2(3) of the Bill, it was advised by Advocate Labuschagne, aimed at applying the Prescription Act to debts incurred prior to and after the enactment of the Bill. The aim and purpose of Clause 4(a) and (b) was to allow the expired portion of the prescription period of a debt to be deducted from the period of prescription as contemplated in terms of the Prescription Act.
In concluding the discussion on Clause 2 of the Bill, Advocate Labuschagne advised that although this Clause was of a very technical nature, its important aspect was that it contained the transitional periods of new debts after the commencement of the Bill.
As regards Clause 3 of the Bill it imposed a duty on a party to notify an organ of state of its intention to institute legal proceedings in writing and within a period of six months. It also allowed for a creditor to apply for condonation should the aforementioned requirements not have been complied with.
Clause 4 and 5
Adv Labuschagne advised that the content of Clause 4 of the Bill dealing with the service of notice and Clause 5 of the Bill dealing with the service of process were self-explanatory and proved non-problematic. This ended his explanation of the proposed amendments to the Bill.
According to Adv De Lange one of the prevalent issues was that laws to be amended and repealed contained two objectionable views: firstly, the rules regarding prescriptive periods for an ordinary person and an organ of state was significantly different. And secondly, limitations were imposed on members of the public who wished to institute legal proceedings against an organ of state. He added that due to the vast mass of State administration, an organ of state must be placed in a position to decide sufficiently whether to impose legal proceedings or to settle out of Court.
Mr Lever (DP) asked firstly if Clause 3(3)(a) applied mutatis mutandis to Clause 2. The content of Clause 2 dealt with claims of a delictual nature. Hence, it would only be fair and equitable that a claimant should have had some kind of knowledge of the debt. And, that this requirement of a claimants knowledge and awareness be read simultaneously with the content of Clause 3(3)(a) of the Bill. Was this intended at the time of drafting these Clauses?
Advocate Labuschagne stated that he was unclear as to the answer and requested that he be allowed to research this aspect and revert to the Committee at a later stage.
Secondly he asked what was meant by "good cause" as contained in Clause 4(b)(ii) of the Bill.
Regarding Mr Lever’s (DP) question on the term "good cause", Advocate Labuschagne advised that he foresaw no problems herewith and that it should be retained. This view was confirmed by the Portfolio Committee on its last meeting.
Thirdly, why was Clause 2 included at the commencement of the Bill and not at the end. He stated that his opinion was based on the view that Clause 2 of the Bill contained exceptions and therefore would best be placed at the end of the Bill.
Advocate Labuschagne advised that this particular section did not contain exceptions, instead its function was to regulate the prescription period of debts and the repeal of laws. It was not intended to be a sole conditional clause in the Bill. Additionally, that the placement of this Clause in the Bill had been done at the request of the Portfolio Committee.
The Chair then asked the Committee if there was any urgency in finalising the Bill and what the initial reaction of the Portfolio Committee was to the Constitutional Court’s ruling in the Moise case.
Advocate De Lange replied that firstly there was no urgency in finalising the Bill and secondly that the Portfolio Committee had required a summary of the Moise judgement. Apart from this, the Portfolio Committee had raised a number of other issues which required adjustments in the Bill and which was still to be decided upon.
The Chair then stated that the definition of "debt" as contained in Clause 1(1)(iii) appeared to be problematic. An issue raised by the Portfolio Committee surrounding this definition was its failure to include debts arising from all causes of actions as contained in the Prescription Act. This was an issue that required review.
Mr Lever (DP) asked if in interpreting the Court would still be obliged to apply its own common law principles. Adv Labuschagne responded that when a court has to interpret a debt, it will do so by referring to Clause 2 and Clause 3.
Mr Lever (DP) why the State should be afforded special considerations since the justification of this Bill was based on the Moise matter? Adv De Lange once again emphasised that the personnel administration of an organ of state was mammoth in fulfilling this task.
Mr Lever (DP) asked if this Bill was a real necessity and expressed the opinion that it afforded organs of state an unfair advantage. Advocate De Lange’s response to this question was that the merit of the Bill should be reviewed.
The Chair interjected and asked if it was advisable to continue with discussions and finalise the Bill or should the State Law Advisors be allowed to reconsider and research issues raised.
Advocate De Lange supported the second option and advised that the State Law Advisors be allowed to draft a supplementary report to be placed before the Committee at a later stage. Mr Lever (DP) supported this view.
The Chair advised that a number of issues in the Bill needed reconsideration and rethinking so as to give the Committee a clear guideline of what the Bill aimed to achieve.
The Chair asked the State Law Advisors to approach the Committee upon its completion of the final draft of the Bill.
Criminal Procedure Amendment Bill: National Directorate of Public Prosecutions
The NDPP commenced the submissions on the Criminal Procedure Amendment Bill, represented by Dr de Oliviera.
The first issue raised was whether the new plea bargaining Section had been placed correctly within the Criminal Procedure Act. Dr de Oliviera said that there were those who felt that instead of having a Section 105A, the provision should be enacted as a subsection to Section 112.
Here Adv de Lange asked if there would have to be any consequential amendments if the new Section was indeed moved to be a subsection of S112. Dr de Oliviera replied that there would be no such need.
On Section 105A(8) Dr de Oliviera submitted that the use of the word ‘appropriate’ was inappropriate. This was because of the fact that the word appropriate bore with it a considerable subjective element. To remedy this a better provisions should be put in place to do away with such subjectivity.
On Subsection 105A(8)(a)(ii) Dr de Oliviera submitted that the provision was unnecessary and that the court should just enter a plea of not guilty rather than providing for this additional step.
Dr de Oliviera called for the phasing in of the Act. He submitted that in drafting the amendments the Minister could provide which courts and jurisdictions in respect of which these new provisions could apply. The reason for such a course of action is that the courts would need to ready themselves. Another reason was the prevalence of inexperience n lower courts. Here prosecutors had little experience and would struggle to negotiate sentences befitting certain crimes. Furthermore if these provisions were allowed to apply generally, then accused people would raise their right to enter into plea bargaining proceedings.
For this reason, Dr de Oliviera said the NDPP would like to try the new legislation at levels where there were prosecutors with more experience.
Adv de Lange asked how such a staggered implementation would be drafted.
Dr de Oliviera submitted that it could be done in terms of courts or places.
Adv de Lange’s opinion on the matter differed. He was of the opinion that the staggered implementation would have to done with respect to different prosecutors. In this manner only certain nominated prosecutors would be empowered with the capacity to enter into such agreements. This position would be a better one because it distinguished on a logical basis between prosecutors who had the experience to bargain effectively and those that did not. Differentiation on such a basis was more logical than a geographical differentiation that could bear no logical relationship to the differentiation in the first place.
Dr de Oliviera said this could be done, but it would require that the NDPP expressly be given the power to make such nominations. Adv de Lange told the SAHRC that this would be contained in the directives. In light of his last statement Adv de Lange then realised that the directives would have to exist before the Bill was enacted.
Dr de Oliviera, concerned, told Adv de Lange that the directives of the NDPP were confidential. Adv de Lange understood the situation but added that these directives could not, and would not, be confidential. To remedy the situation, some of the NDPP’s directives would remain confidential and others would be public knowledge.
Adv de Lange then raised the matter of minimum sentences. This term was actually a misnomer. Certain crimes bring with them an absolute minimum sentence. In the event that an accused is convicted of an offence which carries with it a minimum sentence, then the court may not impose a sentence less than the stipulated minimum sentence, unless there are compelling reasons. Adv de Lange asked Dr de Oliviera what he felt would be the effect of the Bill on the minimum sentence provisions.
Dr de Oliviera submitted that no plea bargaining agreements should be entered into in the case of an offence that carries with it a minimum sentence. Dr de Oliviera said that he however had some additional concerns in this area. He illustrated his concern by referring to firearms. Dr de Oliviera reminded that in the case of a fire arm the court was obliged to declare the fire arm forfeit. Also in relation to driver’s license, a court had the discretion to revoke a license. The question was could these powers be removed through the bargaining process. Namely, could the prosecutor in his agreement reach an agreement that would allow the accused to keep his firearm? The most problematic of these examples was correctional supervision. Correctional supervision was a possible sentence, but only in suitable circumstances. To provide for correctional supervision it first had to be established whether the accused or convicted was suited for correctional supervision. Despite this it might be necessary for correctional supervision to the be the result of the sentencing bargaining process.
In light of the Dr de Oliveira’s comments Adv de Lange asked whether the position relating to provisions such as those just mentioned would be changed by the Bill. Dr de Oliviera said he was unsure, but whatever the position was or would be, it must be expressly provided for. Adv de Lange said that the current position was that bargaining in all its forms could take place, but would not be binding on the court until confirmed by that court.
South African Human Rights Commission
Treatment of victims and survivors
The SAHRC’s main concern was the matter in which the rights of victims and survivors had been dealt with. Despite their feelings that there was something lacking in this respect, the SAHRC agreed with the Bill in principle.
Commissioner Jody Kollapan reasoned that there was a trend in South Africa towards a victim-centered approach. The victim’s charter bore testimony to this development. This document set service standards and informed victims as to what kind of service they could expect. An important document tells victims what their involvement in the proceedings will be and how their interests will be taken into consideration.
Mr Kollapan also reminded the Committee that there was now a sentencing framework. This framework provided for minimum sentences and a general sentencing framework. It also provides for the development of sentencing guidelines. In respect of all these matters the SAHRC submitted that the interests of victims and survivors were not taken into consideration enough.
Mr Kollapan told the Committee that these types of agreements had taken place up to now on a limited basis. It is obvious from exiting examples that the interests of victims do get marginalised. For this reason Mr Kollapan said that retention of Subsections (i), (ii) and (iii) in Section 105 would be necessary and submitted further that in his opinion the provisions would not provide room for litigation.
However, Mr Kollapan was not satisfied with the test in Subsection (iii) saying that it should also have regard for the nature and seriousness of the offence. He called for a stricter test.
Adv de Lange said he had read about the Victim’s charter. He had no problem with it and was a strong supporter of it and the overall promotion of a victim centered approach. He did not want to be misunderstood when he said that he did not know how the Minister planned to implement it but he knew that it would cause a lot of problems. One such problem would be in the example of an alteration of charges. If this were to happen then the victim would have to be consulted. The additional administrative burden that this would impose would be crippling. Adv de Lange emphasised his point by reminding that the Committee had just heard from the NDPP who called for a staggered implementation of the Bill because the NDPP would not have the capacity or expertise to implement the new system everywhere all at once. If this were the case with the NDPP then how would it be possible to implement the Victim’s Charter all at once?
Mr Kollapan conceded that this would indeed be hard and therefore they would not be able to implement the ideal situation immediately. This would however be remedied if there was a reasonability element. Namely that the NDPP could take those steps that could be reasonably expected of them. A provision such as this would send a message to victims to that their rights were being looked after. He reminded Members that the Victims Charter did not create rights but simply provided a set of service standards that a victim could expect.
Adv de Lange seeking clarity on the SAHRC’s position asked whether consultation with victims should be preemptory, specifically in relation to more serious offences. Before allowing Mr Kollapan and opportunity to answer, Adv de Lange reminded that a position like this would create a huge administrative problem and could override the original reason for the amendment. One such problem would be locating or identifying the victims of crimes.
Mr Kollapan said this could be done where it was reasonable to do so, with due regard to the nature and seriousness of the crime.
Dr J T Delport (DP) asked whether the availability of the victim would also be a factor. Mr Kollapan was apprehensive about the inclusion of this as factor.
Mr Kollapan continued with his discussion adding that the SAHRC felt the accused should also always sign the plea or sentence agreement, regardless of whether or not they are legally represented.
The SAHRC submitted that previous convictions should always play a role in the plea or sentencing bargaining process. Mr Kollapan submitted that he had practical experience in the field, and knew that often prosecutors would tell the court that they were simply ‘not aware’ of previous convictions. The criminal in sentenced only to later find out that they are an habitual criminal
Adv de Lange agreed that this was a valid concern but asked what a court could do if it had already decided on and agreed upon a sentence only to find out afterwards that there were previous convictions.
Mr Kollapan said that his submission in this respect was a broad one that was meant only to highlight a problem.
Adv de Lange told the SAHRC that he did not want to seem adversarial. On their study tour, the Committee had seen that courts lacked the capacity to do many things that it should ordinarily do. Accessing information about previous convictions was one such thing.
Mr A Nel (ANC) then made the point that SAP 69 forms, namely requests for a read out of previous convictions, takes up to six weeks to get to the requestor.
Mr Kollapan told the Committee that the courts were moving towards a two-week wait for information such as this. A group at Rhodes University, sponsored by Business SA, was working on a system that would readily provide information on a number of matters. These included previous convictions, outstanding warrants of arrest and whether or not an individual was out on bail.
Adv de Lange then asked the SAHRC how they felt about the call for staggered implementation, favoured by the NDPP because of lack of skills at the basic prosecutorial level.
Mr Kollapan was unsure that the NDPP’s concerns were valid. His reason for this was that there was some oversight in the lower courts. This would mean that the inexperienced prosecutors, unable to effectively bargain a suitable sentence, would be overseen by a more senior more experienced prosecutor, who could assist and make recommendations in such matters. Another concern was that at that basic level, the prosecutors were handling small matters such as petty theft and shoplifting. It was precisely these matters for which this mechanism would be needed. Fast-tracking those matters would be the most feasible way of freeing up the courts to deal with the backlog.
Ms F I Chohan-Kota (ANC) asked if the SAHRC wanted victims to have the power to veto whether or not the accused could enter into a plea or sentencing agreement. Mr Kollapan felt that it would not be a good idea to give victims a veto right because victims were often emotional and would therefore rarely consent to such an agreement and rather go for the possible maximum sentence. Such a provision would thus go against the purpose of the Bill.
The meeting was adjourned.
Report of the Portfolio Committee on Justice and Constitutional Development on the Limitation of Legal Proceedings against Government Institutions Bill [B65—99] (National Assembly—section 75), dated 20 September 2000, as follows:
The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Limitation of Legal Proceedings against Government Institutions Bill [B65—99] (National Assembly—section 75), referred to it, submits the Institution of Legal Proceedings against Organs of State Bill [B65B—99] (National Assembly—section 75).
The Portfolio Committee wishes to report further, as follows:
1. During its deliberations on the Bill, the Committee's attention was drawn to the fact that certain provisions of existing laws provide for different—
(a) notice periods for the institution of legal proceedings; and
(b) prescription periods,
in respect of certain debts arising from delictual or contractual liability. The Committee expressed the view that some of those provisions could possibly be unconstitutional.
In order to create uniformity, the Committee deemed it appropriate to repeal existing provisions providing for different notice periods, whether they are possibly unconstitutional or not, and to substitute them with a uniform notice period which will apply in respect of the institution of all legal proceedings against organs of state, as defined in the Bill, arising out of a debt. The Committee, however, further deemed it appropriate to retain certain existing provisions which, for specific reasons, provide for notice periods that differ from the uniform period envisaged by the Bill. By defining debt as "any debt arising from any unlawful act or omission for which an organ of state is liable for payment of damages, including delict or liability without fault in terms of a statutory provision, but does not include a debt arising from a breach of contract", the Bill will not apply in respect of debts arising from contractual liability.
In order to create further uniformity, the Committee deemed it appropriate to repeal certain existing provisions, whether they are possibly unconstitutional or not, which provide for specific prescription periods in respect of certain debts arising from delictual or contract liability. The Committee, however, further deemed it appropriate to retain certain existing provisions which, for specific reasons, provide for prescription periods that differ from the period provided for by the Prescription Act, 1969 (Act No. 68 of 1969). The effect of the repeal of the above-mentioned provisions is that the prescription of all debts arising from delictual or contractual liability will, after the commencement of this Bill and unless otherwise provided for by an existing provision, be regulated by the Prescription Act, 1969.
Due to the fact that no comprehensive review of the provisions providing for different prescription periods has been done and due to a lack of time, the Committee was not in a position to deal with the harmonisation of such different prescription periods on the strength of comprehensive research. Furthermore, because the main object of the Bill is to harmonise, and create uniformity in respect of, the provisions of existing laws providing for different notice periods, the Committee is of the view that the Bill is not the appropriate mechanism to deal with the harmonisation of provisions providing for different prescription periods. The Committee therefore recommends that the Minister for Justice and Constitutional Development be requested to request the Chairperson of the South African Law Commission to consider the possibility of including an investigation into the harmonisation of the provisions of existing laws providing for different prescription periods in the Law Commission's programme.
2. The Bill, as introduced into Parliament, provides for the repeal of section 44 of the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993), which provides that "a right to benefits in terms of this Act shall lapse if the accident in question is not brought to the attention of the commissioner or of the employer or mutual association concerned, as the case may be, within 12 months after the date of such accident". Although the Committee considered the repeal or amendment of the said section 44, it expressed the view that it had insufficient time to consider the repeal or amendment of that section properly and any possible consequential amendments to the said Act which might emanate from such repeal or amendment. In the light thereof the Committee recommends that the Department of Labour be requested—
(a) to investigate the repeal or amendment of section 44 with the view to bringing the provisions thereof into line with the provisions of the Bill and to identifying possible consequential amendments to the above-mentioned Act emanating from such repeal or amendment; and
(b) where necessary, to submit draft amendments regarding the matter in question to Parliament for its consideration.
3. The Committee's attention was also drawn to section 23 of the Road Accident Fund Act, 1996 (Act No. 56 of 1996), which provides for the prescription of the right to claim compensation from, among others, the Road Accident Fund, established under section 2(1) of that Act, in respect of "loss or damage arising from the driving of a motor vehicle in the case where the identity of either the driver or the owner thereof has been established". The Committee considered the possibility of repealing the said section 23 and including the Road Accident Fund in the definition of "organ of state" so as to make the provisions of the Bill applicable to that Fund. The Committee is aware of the Road Accident Fund Commission which has been established to "inquire into and to make recommendations regarding a reasonable, equitable, affordable and sustainable system for the payment by the Road Accident Fund of compensation or benefits, or a combination of compensation and benefits, in the event of the injury or death of persons in road accidents in the Republic". It has been brought to the Committee's attention that the Road Accident Fund Commission is required to submit its Report to the President during the course of 2001. In the light of the above the Committee decided against the repeal of the above-mentioned section 23 and the inclusion of the Road Accident Fund in the definition of "organ of state". The Committee recommends that the Department of Transport be requested—
(a) to consider and evaluate any recommendations regarding the matter in question as contained in the Report by the Road Accident Fund Commission; and
(b) where necessary, to submit legislative proposals regarding the matter in question to Parliament for its consideration.
4. The Committee's attention was also drawn to the fact that the Legal Succession to the South African Transport Services Act, 1989 (Act No. 9 of 1989), contains certain provisions providing for specific notice periods in respect of claims for compensation for livestock killed or injured by a train or for property destroyed or damaged by a fire caused by a burning object coming from a locomotive or train. Due to a lack of time, the Committee was not in a position to consider the repeal or amendment of those provisions properly for purposes of uniformity. The Committee therefore recommends that the Department of Transport be requested—
(a) to investigate the repeal or amendment of the above-mentioned provisions with the view to bringing them into line with the provisions of the Bill; and
(b) where necessary, to submit legislative proposals regarding the matter in question to Parliament for its consideration.
5. The Committee's attention was drawn to section 59 of the South African National Roads Agency Limited and National Roads Act, 1998 (Act No. 7 of 1998), which provides for notice periods for the institution of legal proceedings against, among others, the South African National Roads Agency Limited (the Agency) or an employee of the Agency for any damage or loss allegedly suffered by a person as a result of any act with regard to a national road which allegedly was performed or omitted by, among others, the Chief Executive Officer or any of the other employees of the Agency acting in the performance of their duties. Although the Bill, as introduced into Parliament, did not provide for the amendment or repeal of the said section 59, the Committee deemed it appropriate to include an amendment of that section in the Bill so as to make the uniform notice period envisaged by the Bill applicable to legal proceedings emanating from the provisions of the above-mentioned Act as well. The Committee also noted that section 59(3) of the above-mentioned Act provides that "[n]either the Agency nor ..... any person who operates or has constructed a national road, will be liable for any damage or loss suffered by any person through the use of any part of the national road other than the roadway or as a result of the closure or deviation of a national road under this Act." Although the Committee effected consequential amendments to section 59(3), as a result of the repeal of section 59(1) and (2) of the above-mentioned Act, the Committee does not express any views on the constitutionality of the said section.
6. The Committee expresses its concern that it has to amend the Black Administration Act, 1927 (Act No. 38 of 1927), on a piecemeal basis. It was brought to the Committee's attention that on 5 September 2000 the High Court of Pretoria in the case of D E Moseneke and Others v The Master of the High Court (Case No. 20006/2000) declared the provisions of clause 3(1) of the Regulations promulgated in terms of the above-mentioned Act to be invalid, unconstitutional and of no force and effect. In the light of the above, the Committee recommends that each National or Provincial Department, which is responsible for the administration of specific sections of the above-mentioned Act, be requested to review the sections which it administers with the view to bringing those sections in line with the Constitution. The Committee further requests that each of the Departments concerned must submit a report to the Committee on its progress in the above regard within three months after the adoption of this report.
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