ATC161201: Interim report of the Portfolio Committee on Justice and Correctional Services on the Courts of Law Amendment Bill [B 8-2016] (National Assembly – section 75), dated 1 December 2016

Justice and Correctional Services

Interim report of the Portfolio Committee on Justice and Correctional Services on the Courts of Law Amendment Bill [B 8-2016] (National Assembly – section 75), dated 1 December 2016

The Portfolio Committee on Justice and Correctional Services (the Committee), having considered the Courts of Law Amendment Bill [B 8-2016], (the Bill) referred to it and classified by the Joint Tagging Mechanism (JTM) as a section 75 Bill, reports as follows:

 

1. The Courts of Law Amendment Bill was referred to the Committee on 11 May 2016. The Bill was advertised for public comment in various newspapers and in all official languages. Public hearings on the Bill took place at Parliament on 31 August 2016.
    
2. The Bill seeks to amend the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944) largely to address abuses in the civil debt recovery system and to provide for the rescission of judgment where the judgment debt has been settled. It also amends the Superior Courts Act, 2013 (Act No. 10 of 2013) by inserting a new section 23A, which provides for the rescission of judgment with the consent of the judgment creditor and where the judgment debt has been settled.
    
3. While deliberating on the Bill, the Committee was informed that the Legal Aid Clinic at the University of Stellenbosch had brought an application in the High Court, which was appealed to the Constitutional Court on behalf of some of their clients who are low wage earners and were subject to exploitative lending practices and debt collection procedures. The application sought to have certain parts of section 65J(2) of the Magistrates’ Courts Act, 1944  declared unconstitutional, as they fail to provide for judicial oversight over the issue of an emoluments attachment order against a judgment debtor. The application further sought an order declaring an emoluments attachment order, which is obtained with the written consent of a debtor in a jurisdiction that is alien to the judgement debtor, invalid on the basis that it was not permitted by legislation.
    
4. The Constitutional Court handed down its judgment in University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and Others; Association of Debt Recovery Agents NPC v University of Stellenbosch Legal Aid Clinic and Others; Mavava Trading 279 (Pty) Ltd and Others v University of Stellenbosch Legal Aid Clinic and Others [2016] ZACC 32 (the Stellenbosch case) on 13 September 2016. The effect of the order is that from the date of the judgment no emoluments attachment order may be issued unless the court has authorised the issuing of such an order after satisfying itself that it is just and equitable and that the amount is appropriate, notwithstanding the judgement debtor’s consent to an emoluments attachment order or the judgement debtor’s compliance with the requirements where an instalment order has already been made. 
    
5. As the essence of the judgment of the Constitutional Court is that an emoluments attachment order must be authorised by the court, the Committee had either to keep the provisions of the Bill intact and add the words “after satisfying itself that it is just and equitable that an emoluments attachment order be issued and that the amount is appropriate”, or retain the provisions of the Magistrates’ Courts Act sought to be deleted in the Bill and add thereto the order as given by the Court.
   
   The Committee is of the view that the first option is more appropriate because the Bill should ensure that any possible abuse of emoluments attachment orders is minimised. The Committee believes that guidance should also be given to the courts as to what factors could be considered to make a “just and equitable” order.  Consequently, the Committee proposes to amend section 55 which deals with the recovery of debts by inserting a new section 55A.  The Committee feels that presiding officers should be provided with guidance regarding the factors that should, at a minimum, be taken into account to make a just and equitable order.
    
6. Rule 286(4)(c) of the National Assembly Rules provides that “the committee, if the bill amends provisions of legislation, must, if it intends to propose amendments to other provisions of that legislation, seek the permission of the Assembly to do so”. The Bill, as introduced and referred to the Committee, did not amend section 55 of the Magistrates’ Courts Act. The Committee, therefore, requests the Assembly’s permission to amend section 55 by the insertion of section 55A.

 

Report to be considered.