REPUBLIC OF SOUTH AFRICA
JUDICIAL MATTERS SECOND AMENDMENT BILL, 2003
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(DRAFT)
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(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)
[B - 03]
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pn300503
GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions from existing enactments.
___________ Words underlined with a solid line indicate insertions in existing enactments.
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B I L L
To amend the Insolvency Act, 1936, so as to regulate agreements providing for termination and netting; to amend the Prevention of Counterfeiting of Currency Act, 1965, so as to further regulate the onus on an accused person; to amend the Criminal Procedure Act, 1977, so as to regulate pre-trial services in respect of bail proceedings and to further provide for correctional supervision as a sentencing option; to amend the Attorneys Act, 1979, so as to provide for the mandatory attendance of a legal practice management course by attorneys and sole practitioners; to amend the Divorce Act, 1979, so as to further regulate the endorsement of pension benefits in the records of pension funds in respect of the division of assets and maintenance of parties; to amend the Sheriffs Act, 1986, so as to effect a name change; to amend the Maintenance Act, 1998, so as to further regulate proceedings at a maintenance enquiry and to extend maintenance orders to include maintenance orders by High Courts and Divorce Courts in certain circumstances; to amend the Domestic Violence Act, 1998, so as to provide for the consideration by a court of the report and recommendations of a Family Advocate; to amend the Promotion of Access to Information Act, 2000, so as to extend the period within which the South African Human Rights Commission must compile a guide to assist persons who wish to gain access to information; to amend the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, so as to further regulate the publication of a notice altering the boundaries of an equality court; to amend the Cross-Border Insolvency Act, 2000, so as to regulate the position of legal proceedings when a notice designating a State for purposes of the Act is withdrawn; and to amend the Judges' Remuneration and Conditions of Employment Act, 2001, so as to address a problem relating to the payment of pensions to widows of judges who retired in terms of the Judges' Pensions Act, 1978.
BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:—
Substitution of section 35B of Act 24 of 1936, as amended by section 1 of Act 32 of 1995
1. The following section is hereby substituted for section 35B of the Insolvency Act, 1936:
Agreements providing for termination and netting
"35B. (1) Subject to the provisions of subsection (2) in this section—
"agreement" means—
(a) an agreement which provides that if the estate of a party to the agreement is sequestrated before that party has performed fully in terms of the agreement, or in terms of one or more agreements with the same counterparty—
(i) all unperformed obligations of the parties in terms of the agreement or agreements—
(aa) terminate or may be terminated; or
become or may become due immediately;
the values of the unperformed obligations are determined or may be determined; and
the values are netted or may be netted, so that only a net amount (whether in the currency of the Republic or any other currency) is payable to or by a party; or
(b) any agreement declared by the Minister after consultation with the Minister of Finance, by notice in the Gazette to be an agreement for the purposes of this section;
"unperformed obligation" includes an obligation of a party to an agreement to return to the other party assets, whether tangible or intangible, in which ownership has been transferred to the first-mentioned party as security for the latter party’s prospective liability under the agreement;
"market value" means a value determined without reference to the ability of the debtor to perform.
(2) In this section "agreement" does not include—
(a) a transaction contemplated in section 35A;
(b) a netting arrangement as contemplated in the National Payment Systems Act, 1998 (Act No. 78 of 1998); or
(c) any agreement declared by the Minister after consultation with the Minister of Finance, by notice in the Gazette, not to be an agreement for the purposes of this section.
(3) Upon the sequestration of the estate of a party to an agreement all unperformed obligations arising out of such agreement or all such agreements between the same parties shall, notwithstanding any conflicting rule of the common law, be automatically terminated as at the date of sequestration, the values shall be calculated at market value at that date and the net amount shall be payable.
(4) Section 341(2) of the Companies Act, 1973, (Act No. 61 of 1973), and sections 26, 29 and 30 of this Act shall not apply to property disposed of in terms of an agreement.".
Amendment of section 4 of Act 16 of 1965, as amended by section 4 of Act 18 of 1996
2. Section 4 of the Prevention of Counterfeiting of Currency Act, 1965, is hereby amended by the substitution for subsection (2) of the following subsection:
"(2) If in any prosecution for a contravention of paragraph (d), (j) or (l) of section two the question arises whether any person had lawful authority or excuse for possessing or doing any thing referred to in the said paragraphs, [the onus of proving that such was the case shall be on the accused] in the absence of evidence to the contrary which raises reasonable doubt, proof that such was the case shall be sufficient evidence of the absence of lawful authority or excuse.".
Amendment of section 60 of Act 51 of 1977, as substituted by section 3 of Act 75 of 1995 and amended by section 4 of Act 85 of 1997, section 5 of Act 34 of 1998 and section 9 of Act 62 of 2000
3. Section 60 of the Criminal Procedure Act, 1977, is hereby amended by the insertion after paragraph (d) of subsection (2) of the following paragraph:
"(e) must take any pre-trial services report which is available into consideration regarding the desirability of releasing such person on bail.".
Amendment of section 276 of Act 51 of 1977, as amended by section 3 of Act 107 of 1990, section 41 of Act 122 of 1991, section 18 of Act 139 of 1992, section 20 of Act 116 of 1993, section 2 of Act 33 of 1997 and section 34 of Act 105 of 1997
4. Section 276 of the Criminal Procedure Act, 1977, is hereby amended¾
(a) by the substitution for subsection (3) of the following subsection:
"(3) Notwithstanding anything to the contrary in any law contained, the provisions of subsection (1) shall not be construed as prohibiting the court [¾
(a)] from imposing imprisonment together with correctional supervision[; or
(b) from imposing the punishment referred to in subsection (1)(h) or (i) in respect of any offence]."; and
(b) by the addition of the following subsection:
"(4) A court convicting any person of any offence, other than an offence in respect of which any law prescribes a minimum punishment, may sentence such person to¾
(a) correctional supervision as referred to in subsection (1)(h); or
(b) imprisonment from which such person may be placed under correctional supervision as referred to in subsection (1)(i).".
Insertion of section 13B in Act 53 of 1979
5. The following section is hereby inserted in the Attorneys Act, 1979, after section 13A:
"Certain attorneys to complete training in legal practice management
"13B. After the commencement of the Judicial Matters Second Amendment Act, 2003, every attorney who, for the first time, practises as a partner in a firm of attorneys or who practises for his or her own account, must—
within the period determined by the council of the province in which he or she practises as contemplated in section 74(1)(dA); and
after payment of the fee prescribed in terms of section 80,
complete a legal practice management course approved by the council of the province in which he or she practises as contemplated in section 74(1)(dA).".
Amendment of section 74 of Act 53 of 1979, as amended by section 26 of Act 87 of 1989 and section 18 of Act 115 of 1993
6. Section 74 of the Attorneys Act, 1979, is hereby amended by the addition to subsection (1) of the following paragraph after paragraph (d):
"(dA) legal practice management courses to be completed by attorneys who practise as partners in firms of attorneys or who practise for their own account and the period within which such courses must be completed as contemplated in section 13B;".
Amendment of section 80 of Act 53 of 1979, as amended by section 10 of Act 108 of 1984, section 19 of Act 115 of 1993 and section 12 of Act 104 of 1996
7. Section 80 of the Attorneys Act, 1979, is hereby amended by the addition to subsection (1) of the following paragraph:
"(i) the attendance of legal practice management courses as contemplated in section 13B.".
Amendment of section 7 of Act 70 of 1979, as amended by section 36 of Act 88 of 1984, section 2 of Act 3 of 1988, section 2 of Act 7 of 1989 and section 9 of Act 44 of 1992
8. Section 7 of the Divorce Act, 1979, is hereby amended by the substitution for subparagraph (ii) of paragraph (a) of subsection (8) of the following subparagraph:
"(ii) the registrar of the court in question forthwith cause an endorsement to be made in the records of that fund that that part of the pension interest concerned is so payable to that other party;"
Amendment of section 1 of Act 90 of 1986, as amended by section 1 of Act 74 of 1998
9. Section 1 of the Sheriffs Act, 1986, is hereby amended by the substitution for the definition of ‘Board’ of the following definition:
"’Board’" means the South African Board for Sheriffs [established by section 7] referred to in section 7(2), and includes, for the purposes of Chapter IV (excluding section 52), a disciplinary committee;".
Substitution of section 7 of Act 90 of 1986
10. The following section is hereby substituted for section 7 of the Sheriffs Act, 1986:
"Establishment of South African Board for Sheriffs
7. (1) There is hereby established a board to be known as the South African Board for Sheriffs and which shall be a juristic person.
(2) As from the date of the commencement of the Judicial Matters Second Amendment Act, 2003, the Board referred to subsection (1) shall be known as the South African Board for Sheriffs.".
Substitution of long title of Act 90 of 1986
11. The following long title is hereby substituted for the long title to the Sheriffs Act, 1986:
"To provide for the appointment of sheriffs, the establishment of a South African Board for Sheriffs and a Fidelity Fund for Sheriffs, the regulation of the conduct of sheriffs, and matters connected therewith.".
Amendment of section 10 of Act 99 of 1998
12. Section 10 of the Maintenance Act, 1998, is hereby amended by the
insertion after subsection (1) of the following subsection:
"(1A) Where circumstances permit, a maintenance court may, at any time during the enquiry, cause an investigation to be carried out by a Family Advocate of the High Court in whose area of jurisdiction that maintenance court is, which the said maintenance court may deem necessary with regard to the welfare of any minor or dependent child affected by such enquiry, whereupon the provisions of the Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987), apply with the changes required by the context.".
Amendment of section 16 of Act 99 of 1998 13. Section 16 of the Maintenance Act, 1998, is hereby amended by the substitution for paragraph (a) of subsection (2) of the following paragraph:
"(2) (a) Any court –
(i) that has at any time, whether before or after the commencement of this Act, made a maintenance order under subsection (1)(a)(i) or (b)(i);
(ii) that makes such a maintenance order; or
(iii) that convicts any person of an offence referred to in section 31(1),
shall, subject to paragraph (b)(i), make an order directing any person, including any administrator of a pension fund, who is obliged under any contract, to pay any sums of money on a periodical basis to the person against whom the maintenance order in question has been or is made, to make on behalf of the latter person such periodical payments form moneys at present or in future owing or accruing to the latter person as may be required to be made in accordance with that maintenance order if that court is satisfied –
(aa) in the case of subparagraph (i), after hearing such evidence, either in writing or orally, as that court may consider necessary;
(bb) in the case of subparagraph (ii), after referring to the evidence adduced at the enquiry or the application for an order by default, as the case may be; or
(cc) in the case of subparagraph (iii), after referring to the evidence at the trial,
that it is not impracticable in the circumstances of the case.".
Amendment of section 26 of Act 99 of 1998, as amended by section 18 of Act 42 of 2001
14. Section 26 of the Maintenance Act, 1998, is hereby amended—
(a) by the substitution for paragraph (a) of subsection (1) of the following paragraph:
"(a) against whom any maintenance order has been made [under this Act] has failed to make any particular payment in accordance with that maintenance order; or "; and
(b) by the substitution for paragraph (a) of subsection (2) of the following paragraph:
"(a) If any maintenance order [made under this Act] or any order made under section 16(1)(a)(ii), 20 or 21(4) has remained unsatisfied for a period of ten days from the day on which the relevant amount became payable or any such order was made, as the case may be, the person in whose favour any such order was made may apply to the maintenance court where that person is resident—
(i) for the authorisation of the issue of a warrant of execution referred to in section 27(1)".
(ii) for an order for the attachment of emoluments referred to in section 28(1); or
(iii) for an order for the attachment of any debt referred to in section 30(1).".
Amendment to section 5 of Act 116 of 1998
15. Section 5 of the Domestic Violence Act, 1998, is hereby amended by the insertion after subsection (1) of the following subsection:
"(1A) Where circumstances permit, a court may, when considering an application as contemplated in subsection (1), cause an investigation to be carried out by a Family Advocate of the High Court in whose area of jurisdiction that court is, which the said court may deem necessary with regard to the welfare of any minor or dependent child affected by the proceedings in question, whereupon the provisions of the Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987), apply with the changes required by the context.".
Amendment of section 10 of Act 2 of 2000, as amended by section 24 of Act 42 of 2001
16. Section 10 of the Promotion of Access to Information Act, 2000, is hereby amended by the substitution for subsection (1) of the following subsection:
"(1) The Human Rights Commission must, within [18] 30 months after the commencement of this section, compile in each official language a guide containing such information, in an easily comprehensible form and manner, as may reasonably be required by a person who wishes to exercise any right contemplated in this Act.".
Amendment of section 16 of Act 4 of 2000, as substituted by section 1 of Act 52 of 2002
17. Section 16 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, is hereby amended by the addition after paragraph (d) of subsection (1) of the following paragraph:
"(e) the publication of a notice referred to in paragraph (c) does not affect any proceedings which have been instituted but not yet completed at the time of such publication.".
Amendment of section 2 of Act 42 of 2000
18. Section 2 of the Cross-Border Insolvency Act, 2000, is hereby amended by the addition of the following subsection:
"(5) Where the Minister withdraws a notice in terms of subsection (3), such withdrawal will not affect any pending legal proceedings and such pending legal proceedings must be proceeded with as if such notice had not been withdrawn.".
Amendment of section 16 of Act 47 of 2001
19. Section 16 of the Judges' Remuneration and Conditions of Employment Act, 2001, is hereby amended –
(a) by the substitution for paragraphs (b) and (c) of subsection (4) of the following paragraphs:
"(b) After [the commencement of this section] 3 May 2002, any surviving spouse of a retired judge referred to in paragraph (a) shall be paid with effect from the first day of the month immediately succeeding the day on which the retired judge dies or died, an amount equal to [one half] three quarters of the amount to which his or her deceased spouse would have been entitled under paragraph (a).
(c) Any surviving spouse of a judge who retired in terms of the Judges' Pensions Act, 1978, and who, [at the commencement of this section] on or after 3 May 2002, receives a pension in terms of the said Act, is, from [the date of commencement of this section] 3 May 2002 or such later date as may be applicable, entitled to an amount equal to [one half] three quarters of the amount to which his or her deceased spouse would have been entitled under paragraph (a.)" and
(b) by the addition of the following paragraphs to subsection (4):
"(d) The amounts payable to a surviving spouse contemplated in paragraphs (b) and (c) shall be payable until the death of such spouse.
(e) The amounts payable to persons in terms of this subsection shall be adjusted whenever the annual salary payable to Constitutional Court judges or judges is increased.
(f) During the application of this subsection, no person may be paid an amount which is less than that which he or she receives before any adjustment is made as contemplated in this subsection.".
Short title
20. This Act is called the Judicial Matters Second Amendment Act, 2003.
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