ATC061021: Report on Judicial Matters Amendment Bill

Justice and Correctional Services

1.       Report of the Portfolio Committee on Justice and Constitutional Development on the Judicial Matters Amendment Bill [B 48-2008] (National Assembly –  section 75), dated 21 October 2006:

 

The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Judicial Matters Amendment Bill [B 48-2008] (National Assembly – section 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, reports the Bill with amendments [B 48A – 2008].

 

The Committee further reports as follows:

 

Introduction

 

The Bill contains 40 clauses which provide for proposed amendments to more than 10 different pieces of legislation. The amendments are primarily aimed at addressing certain problems that have arisen in practice or to give effect to certain Constitutional Court judgments.

 

Whilst many of the amendments are self explanatory, others are of a more substantial nature and may require further elucidation or discussion.

 

Concealment of birth

 

The Bill amends section 113 of the General Laws Amendment Act, 1935, which criminalises the act of disposing a child’s body with the intention of concealing its birth, irrespective of whether the child died before, during or after the birth.

 

The Committee is of the view that the deletion of the reverse evidentiary burden of proof will bring the section in line with constitutional jurisprudence.

 

The Committee noted the concerns raised by the Women’s Legal Centre with regards to the original section being open to abuse. The Committee therefore welcomes the insertion of the requirement that the decision whether or not to prosecute such offences is made by Director of Public Prosecutions as an additional safeguard and wishes to emphasise the need for sensitivity when prosecuting women under this section.

 

The Committee also received a number of submissions that drew its attention to the plight of infants who are abandoned, as well as proposed concrete suggestions on how this problem should be addressed, including the need to identify places of safety where newborn infants can be cared for.  Although many Committee members agreed with the submissions made, this particular clause cannot address the issue of counseling for pregnant women and places of safety as these fall under the areas of competency of the hDepartments of Health and Social Development respectively. However, the Committee will refer the concerns raised to the Portfolio Committee on Health and the Portfolio Committee on Social Development.

 

During the Committee deliberations, the question was raised whether the term “child” should be amended to “newly born baby”.  However, we were advised that there is existing case law which refers to, and further elucidates, what the term “child” refers to in matters such as these.

 

In addition the question was raised whether or not subsection (3) (in other words, the new subsection (2)) should also be deleted. 

 

The Committee advised against any unforeseen consequences and requested the Department of Justice and Constitutional Development to consult with the National Prosecuting Authority on the issues raised in paragraphs 3.5 and 3.6 above and report back to the Committee within 12 months.

 

Admission of guilt fines

 

The Bill amends sections 55, 56, 57 and 57A of the Criminal Procedure Act relating to the payment of admission of guilt fines. These amendments  allow the Minister to determine the offences for which admission of guilt fines may be set, as well as the amounts payable in respect of each of these offences. The provision in effect repeals the power of magistrates to determine admission of guilt fines for their magisterial districts. The Committee has proposed that the Minister must submit any determinations to Parliament for its approval.

 

The Committee received a number of submissions on the proposed amendment to these sections and agrees that, since an admission of guilt fine may have far-reaching implications, more needs to be done to inform an accused person of the implications of paying an admission of guilt fine, as well as of his or her right to legal representation.

 

Therefore, the Committee requests the Department of Justice and Constitutional Development to investigate the feasibility of including information on the written notice or the summons that alerts the accused person of his or her right to legal representation.

 

Same sex domestic partnerships

 

The Bill, as introduced, contained an amendment that intended to give effect to the decision of the Constitutional Court in Gory v Kolver NO and Others, which held that section 1 of the Intestate Succession Act, 1987, discriminated against those in same sex partnerships.

 

Several submissions objected to the proposed amendments. In particular, it was argued that the proposed changes would create a situation that unfairly favours unmarried same-sex partners over those in heterosexual permanent partnerships.

 

The Committee was informed by the Department of Justice and Constitutional Development that the Department held further subsequent discussions with officials of the South African Law Reform Commission responsible for investigating same-sex unions and domestic partnerships, as well as the relevant officials of the Department of Home Affairs, who are responsible for promoting the draft legislation on domestic partnerships.

 

The Department established that proposed legislation dealing with domestic partnerships is forthcoming and that this will comprehensively address the right to succession in respect of all unregistered domestic partnerships, whether same-sex or heterosexual.

 

In light of the above developments it was decided to remove the proposed amendment from this Bill as it will most likely be comprehensively dealt with in the new proposed domestic partnerships legislation.

 

 

Extension of statutory periods

 

The Bill extends the statutory periods in which the rules of procedure for the Promotion of Access to Information Act, 2000, and rules of judicial review for the Promotion of Administrative Justice Act, 2000, must be made. The amendments also remove any uncertainty by inserting wording similar to that contained in the Rules Board for Courts of Law Act in terms of which rules of court are made subject to the approval of the Minister. 

 

The Committee notes that the rules for both of these Acts have been outstanding for quite some time and that Parliament has already previously extended the relevant statutory deadlines. The Committee finds this regrettable, as the absence of these rules impacts on the effective implementation of these Acts, which lie at the heart of our constitutional democracy.

 

Amendments to sections 42, 50 and 62 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act were inserted during the Committee’s deliberations and extends the statutory period for the establishment of a Register for sex offenders until 30 June 2009, adjusts the time in which the Heads of the relevant departments must forward necessary information to the Registrar and extend s the timeframes  for the adoption and tabling by the Minister of the policy framework to 31 March 2009.

 

The Committee was informed by the Department that the need to extend these deadlines is as a result of complications in the implementation of the legislation, particularly relating to the difficulties associated with putting in place information technology and other systems of an inter-sectoral nature, as well as delays in securing of the necessary budget.

 

The Committee was further informed that the establishment of the Register is receiving urgent attention.  However difficulties have been experienced when planning for the implementation of the Register, which have given rise to the request for an extension of the current date of 16 December 2008, by when the Register is to have been established.  Furthermore, the establishment of the Register has enormous cost implications for the role playing Departments, not only the Department of Justice and Constitutional Development, including the National Prosecuting Authority, but also the SAPS and the Departments of Correctional Services and Health. 

 

In this regard mention was made of IT systems, which have to be upgraded and business and administrative processes that must be aligned in order to give effect to the requirements of the Act and which also need to interface with each other.  The budgetary requirements for this purpose could only be requested from Treasury and allocated once the Bill became law, giving rise to an unavoidable delay.

 

The Committee was also informed that the register provisions require two broad categories of persons to be included, namely those persons who are convicted when the Register is established and those persons who were convicted in the past before the Register was established.  The capturing of all information of accused/convicted persons must be vetted with fingerprints.  This process is particularly onerous for several reasons, for example, fingerprints need to be vetted and the data must be captured.  Because systems in place to date have been manual systems, dockets must be drawn physically. Because this Chapter of the Act also envisages “clearance certificates” being required for employees who work with children, for instance teachers, health care professionals and child care workers, the volume of persons who must be vetted with their fingerprints taken for this purpose, is enormous.

 

The Committee found the Department’s explanations of the delays to be reasonable. Given the importance of the proper implementation and effective working of the Criminal Law (Sexual Offences and Related Matters) Amendment Act the Committee was prepared to grant the extensions as proposed in the amendments.

 

 

Report to be considered.

 

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