JUDICIAL MATTERS AMENDMENT BILL BRIEFING TO THE PORTFOLIO

JUDICIAL MATTERS AMENDMENT BILL BRIEFING TO THE PORTFOLIO COMMITTEE ON JUSTICE AND CORRECTIONAL SERVICES ON 23 NOVEMBER 2016

Purpose • The Bill seeks to amend numerous Acts of Parliament and is intended to address practical and technical issues which hamper the smooth administration of justice. • Amendments may be categorised in two categories, namely those that effect technical amendments and those that effect amendments which are more substantial in nature.

CLAUSE 1 Amends section 9 of Magistrates’ Courts Act, 1944, to further regulate the benefits of magistrates who are required to dispose of proceedings which were not disposed of (part heard matters) when they vacate office. The current section does not cater for “ex-magistrates” to be remunerated for all their expenses incurred in finalising part heard matters, for instance travelling expenses, loss of income and research that is required and other preparations relating to the cases in question. The amendment facilitates the payment of these expenses and avoids the situation where these ex-magistrates sometimes do not return to deal with unfinished business, to the detriment of the administration of justice.

Clauses 2, 28, 29 and 31 These clauses are intended to eliminate unnecessary administrative processes when it comes to the designation and training of judicial officers for purposes of presiding in – (a) civil matters in regional courts as provided for in the Magistrates’ Courts Act, 1944; and (b) matters arising from the application of the Promotion of Access to Information Act, 2000, the Promotion of Administrative Justice Act, 2000, and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000. These clauses amend the Acts in question by doing away with the requirement of having to compile and update lists of trained and designated judicial officers for purposes of these Acts but retains the concept of specialised training.

Clause 3 • Various default judgments are obtained against Government departments due to the fact that departments fail to oppose litigation against them. In most instances this happens because court process is served on persons who fail to bring this to the attention of the persons who are supposed to deal with litigation against the State. • Clause 3 aims to amend the State Liability Act, 1957, to address this state of affairs by further regulating the service of court process on State departments in order to ensure that both the department in question and the State Attorney have timeous knowledge of any pending litigation against the department concerned.

Clause 4 • The failure by departments to defend actions results in warrants or writs of execution against property being issued against departments, despite the safety measures provided for in section 3(4) of the State Liability Act, 1957. • Clause 4 aims to complement the amendments proposed by clause 3, by providing a further safety measure to departments by requiring that the clerk or registrar of the court may only issue a warrant of execution or writ of execution in terms of section 3(6) where default judgments have been granted, if they are satisfied that section 3(4), referred to above, has been complied with.

Clause 5 amends section 4 A of the State Liability Act dealing with definitions in order to bring these definitions in line with other legislation and the amendments proposed in clause 3. Clauses 32 and 33 • These clauses have similar objectives as the amendments proposed to the State Liability Act, 1957, and aim to amend the Institution of Legal Proceedings against certain Organs of State Act, 2002, to ensure that the service of court process against the SAPS is dealt with timeously and that service of court process against all organs of state is in accordance with the State Liability Act.

Clauses 32 and 33 cont. • These clauses address current inadequacies which give rise to the State having to pay unnecessary costs in litigation. Clause 6 • This clause amends section 103 of the Administration of Estates Act, 1965, which empowers the Minister to make certain regulations relating to the administration of deceased estates. • Existing regulations in this regard, which require revision, were made under the authority of an enabling provision in the Attorneys, Notaries and Conveyancers Admission Act, 1934.

Clause 6 cont. • If the current regulations are to be revised, an enabling provision to deal with regulations is better placed in legislation dealing with the administration of deceased estates than in legislation regulating attorneys since administration of deceased estates is no longer the exclusive preserve of attorneys. Clauses 7 and 16 These clauses amend the South African Law Reform Commission Act, 1973 (clause 7), and the Rules Board for Courts of Law Act, 1985 (clause 16), so as to further regulate the constitution of the South African Law Reform Commission and the Rules Board for Courts of Law.

Clauses 7 and 16 cont. These clauses make it clear that a judge who is discharged from active service (retired judge) can also be appointed to serve on these two important statutory bodies. Clauses 8, 9, 10, 11, 12 and 13 These clauses amend the Criminal Procedure Act, 1977, so as to further regulate the prescription of the right to institute prosecutions by adding the offence of torture as an offence which does not prescribe (clause 8); to provide for a less invasive process to ensure the availability of a witness, who is about to abscond, to give evidence in proceedings involving an offence referred to in Part III

Clauses 8, 9, 10, 11, 12 and 13 cont. of Schedule 2 (clause 9); to further regulate the competency of witnesses to give evidence due to their state of mind (clause 10); and to effect technical corrections (clauses 11, 12 and, 13). Clause 14 • The Attorneys Act, 1979, provides that a candidate attorney may only be engaged or retained by a person practising the profession of attorney who has practised as a professional assistant in a firm of attorneys or at a professional company for a period of five years within the preceding six years. • In terms of the current provisions, if the abovementioned attorney is promoted to a director or partner, that attorney, becomes disqualified from engaging or retaining that candidate attorney.

Clause 14 cont. • This may lead to a situation that the candidate attorney may have to interrupt his or her articles of clerkship and enter into a new contract of articles of clerkship with a new principal. • The proposed amendment aims to ensure that such an attorney may retain the candidate attorney. Clause 15 • The Minister of Justice is currently empowered to make rules relating to small claims courts. • Clause 15 amends the Small Claims Courts Act, 1984, so as to give the Rules Board for Courts of Law the power to make rules, instead of the Justice Minister.

Clauses 17, 18 , 19, 20 and 21 These clauses amend the Sheriffs Act, 1986, so as to • provide for the appointment of a sheriff to serve as sheriff in another area, if challenges are experienced in getting a sheriff appointed for the latter area (clause 17); • further regulate the allocation of areas for sheriffs (clause 18); • allow for the transfer of certain unclaimed moneys in the trust accounts of sheriffs to the Fidelity Fund for Sheriffs (clauses 19 and 20); and • allow the Fidelity Fund to assist poor litigants with the payment of costs for the execution of small claims court judgments (clause 21). These amendments will facilitate the appointment of sheriffs in rural areas and will allow monies in the Fidelity Fund for Sheriffs to be used for indigent persons so that they can execute judgments of small claims courts in their favour.

Clauses 22 and 23 amend various outdated references in the Magistrates Act, 1993, and clause 22 also aims to further regulate the composition of the Magistrates Commission by specifically including a head of a regional division, as a member of the Magistrates Commission. Clause 24 Extends the age of retirement of magistrates from 65 years to 70 years. This extension of retirement age will bring the position of magistrates in line with that of judges but does still give magistrates an option to retire at any time between 65 and 70 years. The benefits of this are considerable, among others, the retention of institutional knowledge and experience.

Clause 25 Amends the Criminal Law Amendment Act, 1997, to provide that rape or compelled rape of an older person is subject to a sentence of life imprisonment. Clause 26 Amends the National Prosecuting Authority Act, 1998, to provide for the establishment of offices of the prosecuting authority at local seats of Divisions of the High Court. Clause 27 Amends the Debt Collectors Act, 1998, to further regulate the powers of the Council for Debt Collectors allowing the Council, among others, to acquire immovable property.

Clause 30 Includes “HIV/AIDS status” as a prohibited ground (of unfair discrimination) in section 1 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000. Clause 34 • The Prevention and Combating of Trafficking in Persons Act, 2013 aims to deal with all aspects relevant to human trafficking and has amended certain sections of the Children’s Act, 2005, in order to remove references to child trafficking. • Section 141(1)(c) of the Children’s Act still contains provisions which deal with trafficking in children. • Clause 34 therefore aims to delete section 141(1)(c).

Clauses 35, 36 and 37 These clauses amend the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (SOA), to further provide that the particulars of a person who is convicted of child pornography as contemplated in section 24 B of the Films and Publications Act, 1996, must be included in the National Register for Sex Offenders (clause 35); to further regulate the inclusion of the particulars of convicted persons in the National Register for Sex Offenders who were convicted before the commencement of the SOA (clause 36); and to further regulate the designation of sexual offences courts (clause 37). At present the SOA requires all historic information regarding sexual offenders to be included in the Register. Clause 36 limits this to historical information for a period of 5 years before the commencement of the Act in order to alleviate practical challenges.

Clause 37 amends section 55 A of the SOA. The amendments are mostly technical in nature and seek to clarify some uncertainties regarding its application. Of importance is the insertion of new subclauses (6), (7), (8) and (9). The new subclause (6) requires regulations which will set out the facilities, measures, services and requirements in respect of sexual offences courts. The proposed new subclauses (7), (8) and (9) will ensure that sexual offences cases receive priority in sexual offences courts, in accordance with directives issued by the heads of court and by requiring the involvement and oversight by the Chief Justice. Clause 38 Amends the Prevention and Combating of Trafficking in Persons Act, 2013, so as to • bring the penalty which may be imposed for a contravention of section 6 of the Act in line with the Immigration Act, 2002; and • provide that the particulars of a person who committed offences under the Act for purposes of sexual exploitation be included in the National Register for Sex Offenders.

Clause 39 • Section 44 of the Superior Courts Act, 2013 allows for the transmission of process by facsimile, as well as such other means as allowed in terms of the rules of court. • In some quarters, section 44 is interpreted as allowing for the electronic service of process which, in turn, has led to criticism of the Board for its failure to develop rules allowing such service. • The proposed amendment aims to substitute section 44 in order to make it clear that the electronic transmission of process cannot in itself constitute service (or execution) of such process, and that the transmitted copy of that process must be served or executed in the same manner as would have been the case with the original document.

Clause 40 Corrects a cross reference in section 6(1)(b) of the Legal Aid South Africa Act, 2014. Clause 41 • The clause amends section 9 of the Legal Aid South Africa Act, 2014, which limits the terms of office of the three managers of Legal Aid South Africa to serve on the Board to two terms even if they are still in the employ of Legal Aid South Africa. • This is not an advisable situation as they will have to be replaced by managers that do not report to the CEO. • The proposed amendment to section 9 will ensure that the managers who are most suited to serve on the Board are able to do so beyond two terms.

Clause 42 contains the short title and commencement. Some of the provisions will be put into operation on a date fixed by the President by proclamation in the Gazette, namely clause 19, 20, 21, 24 and 37. This is necessary because they require the preparation and promulgation of regulations or other preparatory initiatives. THANK YOU