JUDICIAL MATTERS AMENDMENT BILL, 2015 BRIEFING TO THE SELECT COMMITTEE ON SECURITY AND...

JUDICIAL MATTERS AMENDMENT BILL, 2015BRIEFING TO THE SELECT COMMITTEE ON

SECURITY AND CONSTITUTIONAL DEVELOPMENT ON 28 OCTOBER 2015

Amendment of section 9(5) of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944) : Clause 1 of the Bill

Section 9 of the Act deals with the appointment of judicial officers (magistrates). Currently section 9(5) provides for the appointment of acting magistrates for a period not exceeding three months. Clause 1 amends section 9(5) of the Act in order to allow the Minister to appoint a person to act in the place of any magistrate, additional magistrate or assistant magistrate who is not available, in any vacant office of magistrate, or as a magistrate in addition to any magistrate of a regional division or a district for a maximum period of 12 months. The amendment is intended to address practical challenges currently being experienced by the Magistrates Commission in filling a vacant post of a magistrate within three months. The 12 month period is more in line with the appointment process. It will also assist in attracting persons who are prepared to act as magistrates since they will invariably be appointed to act for a longer period at a stretch.

Repeal of section 384 of the Criminal Procedure Act, 1955 (Act No. 56 of 1955) : Clause 2 of Bill

Section 384 of this 1955 Act deals with binding over of persons to keep

the peace (also known as peace orders). It was previously used in

disputes between family members or disputes between neighbours. This

procedure has fallen into disuse in many parts of the Republic and has

largely been superseded by the provisions of and remedies provided for

in, the Protection from Harassment Act, 2011 and the Promotion of

Equality and Prevention of Unfair Discrimination Act, 2000. The

Magistrates Commission agrees that it should be repealed and that the

other two Acts should rather be used to deal with any disturbance of the

peace.

Substitution of section 1 of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975) : Clause 3 of Bill

Currently section 1 of this Act provides that if a debt bears interest and the rate at which the interest is to be calculated is not governed by any other law or by an agreement or a trade custom or in any other manner, such interest shall be calculated at the rate prescribed under subsection (2) by the Minister of Justice, after consultation with the Minister of Finance.

The prescribed rate of interest and the standard interest rate should, in the view of National Treasury, be similar and based on the same market principles. National Treasury therefore proposed that the interest rate in this Act should be based on the repo rate plus 350 basis points (3,5%) and be adjusted whenever the repo rate changes.

Clause 3 gives effect to this proposal of National Treasury. The proposed amendment will ensure that the prescribed rate is in line with the repo rate determined by the South African Reserve Bank, from time to time, and reflects prevailing market conditions. The Justice Minister will publish the new interest rate by notice in the Gazette whenever a change in the prime rate is announced by the Governor of the SA Reserve Bank.

Amendment of section 13 of the Magistrates Act, 1993 (Act No. 90 of 1993) : Clause 4 of the Bill

Section 13 of the Magistrates Act, 1993, deals with vacation of office by magistrates. Section 13(5)(a)(ii) provides that the Minister may, at the request of a magistrate, allow the magistrate to vacate office for any reason which the Minister deems sufficient. In terms of section 13(5)(c)(ii) if a magistrate is allowed to vacate his or her office for a reason which the Minister deems sufficient as contemplated in section 13(5)(a)(ii), that magistrate is deemed to have been retired in accordance with section 16(4) of the Public Service Act, 1994, and is entitled to such pension benefits as he or she would have been entitled to under the pensions Act applicable to him or her if he or she had so retired. This is regardless of the fact that he or she has not reached the age of retirement. Section 16(4) provides that an official who has reached the age of 60 years may, subject to the approval of the relevant executive authority, be retired from the public service.

Currently, when a magistrate is appointed as a judge, section 13(5)(c)(ii) of the Magistrates Act referred to above, is applied. This section, as pointed out above, provides that if a magistrate is allowed by the Minister to vacate his or her office, he or she is deemed to have been retired in accordance with section 16(4) of the Public Service Act, 1994.

Amendment of section 13 of the Magistrates Act, 1993 (Act No. 90 of 1993) : Clause 4 of the Bill contd

If the retiring magistrate has not reached retirement age, the State must make a contribution to the pension fund. This is because section 17(4) of Government Employees Pension Law, 1996 provides that “if any action taken by the employer or if any legislation adopted by Parliament places any additional financial obligation on the Fund, the employer or the Government or the employer and the Government, as the case may be, shall pay to the Fund an amount which is required to meet such obligation”. It should also be borne in mind that, in practice, the former magistrate, having been appointed as a judge, will receive a judge’s salary for life in terms of the Judges’ Remuneration and Conditions of Employment Act, 2001.

The proposed amendments in clause 4 are therefore intended to prevent unintended and undue financial implications that may be imposed on the State in the event of a magistrate being appointed as a judge and that magistrate has not reached the age of retirement as provided for in section 19 of the Government Employees Pension Law, 1996.

Amendment of section 13 of the Magistrates Act, 1993 (Act No. 90 of 1993) : Clause 4 of the Bill contd

Clause 4 therefore seeks to insert new subsections (5A) and (5B) in section 13 of the Act. In essence, they provide that a magistrate who is allowed to vacate his or her office when he or she is appointed as a judge, is entitled to the payment of his or her accumulated actuarial interest in the Government Employees Pension Fund, as well as the payment of all accumulated leave. The magistrate is given two options, namely to have the payments made into a designated preservation fund until the magistrate attains the age of 55 years (retirement age) or to have the payments made directly to him or her. The second option has tax implications for the magistrate in question.

Amendment of section 36 of the Judicial Service Commission Act, 1994 (Act No. 9 of 1994) and sections 1 and 13 of the South African Judicial Education

Institute Act, 2008 (Act No. 14 of 2008): Clauses 5, 16, 17 and 18 of the Bill

The Judicial Service Commission Act, 1994, is being amended by making the Secretary-General of the Office of the Chief Justice the accounting officer for purposes of the Judicial Service Commission, in the place of the Director-General: Justice and Constitutional Development. In similar vein, the South African Judicial Education Institute Act, 2008, is being amended by making the Office of the Chief Justice responsible for the South African Judicial Education Institute, and also making Secretary-General of the Office of the Chief Justice the accounting officer of the South African Judicial Education Institute, in the place of the Director-General: Justice and Constitutional Development. These amendments will enhance the independence of the Office of the Chief Justice. See clause 5 of the Bill, which amends section 36 of the Judicial Service Commission Act, 1994, and clauses 16,17 and 18 which amend sections 1, 12 and 13 of the South African Judicial Education Institute Act, 2008.

Amendment of sections 1 and 91A of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000), sections 1 and 9A of the Promotion of Administrative Justice Act,

2000 (Act No. 3 of 2000) and sections 16 and 31 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000) : Clauses 6, 7, 8, 9, 10

and 11 of the Bill

The amendments contained in clauses 6 to 11 have the same aim and are similar in nature. They are also intended to enhance the independence of the Office of the Chief Justice and form part of the Department’s initiative to transfer functions relating to the judiciary from the Department to the judiciary, where they belong. These amendments relate to the training and designation of magistrates who are required to deal with matters arising from the application of the Promotion of Access to Information Act, 2000 (PAIA), the Promotion of Administrative Justice Act, 2000 (PAJA) and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (PEPUDA).



and 11 of the Bill contd

These 3 Acts were put on the Statute Book in 2000, that is before regional magistrates’ courts were given jurisdiction to deal with civil and family related matters by the Jurisdiction of Regional Courts Amendment Act, 2008. At present these 3 Acts therefore only allow district magistrates’ courts to deal with matters arising out of their application. The amendments in the clauses under discussion also extend the application of these Acts to regional courts. This is done by amending the definition of “court” in the 3 Acts to include regional courts, that is in clauses 6, 8 and 10. Consequential amendments in this regard are also to be found in all these clauses. Motivation for this extension includes the following:

(a)Many district court magistrates who received training in the past on the 3 Acts have since been appointed as regional court magistrates.

(b)The workload of the High Court will be reduced if jurisdiction is extended to include regional courts.

(c)The extension of jurisdiction will enhance access to justice and it will be less costly for litigants.




All three Acts require the Chief Justice, in consultation with the Judicial Service Commission and the Magistrates Commission, to develop the content of the training courses. In all three Acts the Chief Justice must, in consultation with the Judicial Service Commission, the Magistrates Commission and the Minister, implement the training courses. In all three Acts the Minister must table a report in Parliament relating to the content and implementation of the training courses. These Acts were enacted before the establishment of the South African Judicial Education Institute. The South African Judicial Education Institution Act, 2008 (the SAJEI Act), now mandates the Institute to deal with the education of judicial officers.




In terms of section 10(2)(b)(iii) of this Act, the Council of the Institute “must establish and maintain contact with the Judicial Service Commission, the Magistrates Commission, Heads of Court, the organised legal profession, academics and other individuals and entities with an interest in judicial education.”. Section 15 of this Act requires the Council to “prepare and submit to the Minister an annual report”. The annual report must, among others, include feedback on the activities undertaken in terms of the Institute’s functions set out in the Act. The Minister must table the annual report in Parliament. In terms of section 7 of the SAJEI Act, the Chief Justice is chairperson of the Council of the Institute and both the Judicial Service Commission and Magistrates Commission are represented on the Council. This being the case, the question is raised whether the requirements in the three Acts, specifically requiring the involvement of the Chief Justice, the Judicial Service Commission and the Magistrates Commission in the development of the training courses, are really necessary. This boils down to unnecessary administration and it is proposed that the three Acts be amended.




Clause 7 amends section 91A of the PAIA, dealing with the designation and training of magistrates by –

(a) transferring the current responsibilities of the Director-General: Justice and Constitutional Development relating to the compiling and keeping a list of trained magistrates for purposes of the PAIA, to the Magistrates Commission;

(b) transferring the responsibility of developing the contents of the training courses, from the Chief Justice in consultation with the Judicial Service Commission and the

Magistrates Commission, to the South African Judicial Education Institute; and

(c) deleting the requirement that the Minister must table a report in Parliament relating to the contents and implementation of the training courses, since these

issues can be dealt with in the reports the South African Judicial Education Institute is required to submit to the Minister and Parliament.

The proposed amendments are intended to ensure that the structures within the judiciary itself take responsibility for the designation of presiding officers to deal with matters arising out of the application of this Act and that the South African Judicial Education Institute takes responsibility for the training of judicial officers.




The other clauses in this regard contain similar amendments to those discussed above, in respect of -

(a) Sections 1 and 9A of the PAJA; and

(b) sections 16 and 31 of PEPUDA.

It should, however, be pointed out that, in line with the comments received from the Office of the Chief Justice, clause 10, which seeks to amend section 16 of PEPUDA, provides for two separate lists to be compiled: The Office of the Chief Justice will compile the list of trained judges and the Magistrates Commission will compile the list of trained magistrates.

Amendment of sections 7 and 14 of the Judges’ Remuneration and Conditions of Employment Act, 2001 (Act 47 of 2001) : Clauses 12 and 13 of the Bill

Clauses 12 and 13 of the Bill amend sections 7 and 14 of the Judges’ Remuneration and Conditions of Employment Act, 2001, by making the Secretary-General of the Office of the Chief Justice responsible for the general administration of this Act in the place of the Director-General: Justice and Constitutional Development.

These amendments are intended to give effect to the initiative in terms of which responsibilities in terms of this Act, which currently resort under the Department, are transferred to the Office of the Chief Justice where they correctly belong.

Amendment of section 65 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act 32 of 2007) : Clause 14 of the Bill

Clause 14 proposes amendments to section 65(3) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (the Sexual Offences Act). Section 65 of this Act sets out the responsibilities, functions and duties of the Intersectoral Committee for the Management of Sexual Offence Matters. This Committee consists of the Director-General: Justice and Constitutional Development (Chairperson), the National Commissioner of the South African Police Service (SAPS), the National Commissioner of Correctional Services, the Directors-General of the Departments of Social Development and Health and the National Director of Public Prosecutions (the NDPP). This Committee is responsible for developing and compiling a draft national policy framework for consideration and adoption by the relevant Ministers. Section 65(3) provides that the Justice Minister must, after consultation with the Cabinet members responsible for safety and security, correctional services, social development and health and the NDPP, submit reports each year to Parliament by each Department or institution which is represented on the Intersectoral Committee. Clause 14 requires the individual roleplaying Ministers (the Cabinet members responsible for the administration of justice, safety and security, correctional services, social development and health) to submit separate reports to Parliament by no later than 30 September of each year on the implementation of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, by the Departments or institutions that fall within their portfolios. Clause 14 also requires the Ministers in question to report on the implementation of this Act to a committee or committees of Parliament, sitting jointly or separately as determined by Parliament.

Amendment of section 65 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act 32 of 2007) : Clause 14 of the Bill contd

This amendment also addresses an uncertainty when these reports are to be submitted to Parliament. At present there are different interpretations when the reports must be submitted. Clause 14 now requires the roleplaying Ministers to submit their individual reports to Parliament by no later than 30 September of every year, that is the same time as annual reports of Departments must be submitted to Parliament. Because these particular reports should be dealt with collectively or jointly in a relevant Parliamentary Committee, usually in the Justice Portfolio Committee, and in order not to interrupt or disturb this important facet of accounting, clause 14 also requires each roleplaying Minister to report to a committee or committees of Parliament, sitting jointly or separately, as determined by Parliament. It is important that the Justice Portfolio Committee which was responsible for the promotion of the Act in Parliament, is able to retain its oversight function on the implementation of the legislation as a whole, but the amendment does provide flexibility, allowing Parliament to possibly also refer the reports to the line function Parliamentary committees should it so wish.

Amendment of section 66 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007): Clause 15 of the Bill

Section 66 of the Sexual Offences Act places an obligation on the Department of Health, the NPA and SAPS to develop training manuals. In terms of section 66(5)(b) the Cabinet members concerned must table a report in Parliament every 12 months relating to the implementation of these training courses. In practice the Departments’ annual reports already include reports on training. Therefore, to avoid an unproductive duplication of reporting, clause 15 deletes section 66(5)(b). Clause 14(b) adds a new section 65(4) that provides that the individual reports of the Ministers referred to above, must contain a report on the implementation of training courses.

Amendment of section 96 of the Child Justice Act, 2008 (Act 75 of 2008): Clause 19 of the Bill

Clause 19 of the Bill amends section 96(3) of the Child Justice Act, 2008, which is exactly the same as section 65(3) of the Sexual Offences Act, in exactly the same manner as clause 14 does as discussed above.

Amendment of section 98 of the Child Justice Act, 2008 (Act 75 of 2008): Clause 20 of the Bill

Clause 20 of the Bill amends the transitional arrangements contained in section 98 of the Child Justice Act, 2008. The amendment is intended to make it clear that the provisions of section 87 of the Child Justice Act, dealing with the expungement of certain criminal records of children, apply retrospectively. The general rule is that statutes regulate future events and conduct and are construed as applying only on cases or facts that came into existence after they were passed. In other words, there is a presumption against retrospectivity. If a statute or provision thereof is to apply retrospectively, this intention must be expressed clearly in the statute or provision.

Section 87 of the Child Justice Act is intended to allow children who have committed less serious offences to have their criminal records expunged if a period of five years, in the case of offences referred to in Schedule 1 to the Child Justice Act, or a period of ten years, in the cases of offences referred to in Schedule 2 to the Child Justice Act, has elapsed and the child has not been convicted of a similar or more serious offence during that period. The intention of this provision is give persons who were children when they committed offences of a less serious nature, an opportunity to wipe the slate clean and rid themselves of the negative implications of having a criminal record.

Amendment of section 98 of the Child Justice Act, 2008 (Act 75 of 2008): Clause 20 of the Bill contd

It has been argued that this provision only applies prospectively because there is no clear indication that it applies retrospectively. This means section 87 of the Child Justice Act can only be used for the expungement of criminal convictions and records of children whose convictions occurred after 1 April 2010, that is the date when the Child Justice Act came into operation. This, in turn, means that children who committed offences before that date do not qualify to have their records expunged in terms of the Child Justice Act. This was not the intention of the Legislature and it is recommended that the Child Justice Act be amended to broaden the ambit of the provision in question, in the best interests of children.

Amendment of section 15 of the Prevention and Combating of Trafficking in Persons Act, 2013 (Act 7 of 2013): Clause 21 of the Bill

Clause 21 amends section 15(1) of the Prevention and Combating of Trafficking in Persons Act, 2013. This section deals with protective measures in respect of foreign victims of trafficking. Section 15(1) provides that the Director-General: Home Affairs may issue a foreigner in respect of whom—

(a) a report has been made to a police official as provided for in section 19; and

(b) the National Commissioner of the South African Police Service has, in writing,

confirmed to be a person who might be able to assist in a police investigation

relating to an offence under Chapter 2,

a visitor’s visa in terms of section 11(1)(a) of the Immigration Act to remain in the Republic for a recovery and reflection period not exceeding three months for the purpose of accessing the programmes referred to in section 26 of the Act with the view to enabling the foreigner to make informed decisions regarding his or her cooperation with law enforcement and prosecuting authorities in the investigation and prosecution of a case of trafficking in persons as referred to in section 16(1)(b). The Department of Home Affairs, when preparing regulations to be made by the Minister of Home Affairs, as required by this Act, raised the question whether this provision is also applicable in the case where a foreign victim of trafficking is in possession of a valid visitor’s visa. The amendment therefore intends clarifying this uncertainty by limiting the application of the subsection to cases where the foreign victim of trafficking is not in possession of a valid visitor’s visa or if his or her visa is about to expire.

Clause 21 of the Bill amends section 15(1) of the Prevention and

Combating of Trafficking in Persons Act, 2013, in order to make it clear

that a visitor’s visa only needs to be granted to a foreign victim of

trafficking in persons if that victim is not in possession of a valid visa or if

the visa is about to expire and also if such person is cooperating with the

authorities in respect of trafficking in persons.

Amendment of section 43 of the Prevention and Combating of Trafficking in Persons Act, 2013 (Act 7 of 2013): Clause 22 of the Bill

Clause 22 of the Bill amends section 43(2) of the Prevention and

Combating of Trafficking in Persons Act, 2013, by adding a new provision

that the Minister of Home Affairs must make regulations regarding the

manner in which a visitor’s visa may be extended or withdrawn.

The new provision is aligned to, and enhances, section 16(1)(c) of the said

Act, which stipulates that the Director-General: Home Affairs may extend

or withdraw a visitor’s visa if requested to do so by the National

Commissioner of the SAPS or the National Director of Public

Prosecutions.

Clause 23 of the Bill

• Clause 23 contains the short title and date of commencement.

JUDICIAL MATTERS AMENDMENT BILL, 2015 BRIEFING TO THE SELECT COMMITTEE ON SECURITY AND...

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