SUMMARY OF COMMENTS ON THE SHERIFFS AMENDMENT BILL [B 2-98]

A. Comments were received from the following parties:
* Association of Law Societies of the RSA SHR1
* Board for Sheriffs SHR2
* South African Institute of Sheriffs SHR3

B. Clause-by-clause analysis

Clause 2
SHR3: Section 3(2) of the principal Act provides as follows:
(2) The Minister may describe one or more areas within the jurisdiction of a lower or superior court and allocate any such area to a sheriff of that court.
In terms of the amendment contained in clause 2, the Minister will be able to appoint more than one sheriff for an area referred to in the above provision. The Institute is concerned that the Minister should make such a decision only "after he is properly appraised of all the considerations relevant to the making of the decision and the impact I of the decision on the service that will be rendered in a particular area" (page 5, par 4). After a comprehensive discussion of the issues which the Minister should take into account, the Institute indicates that it has no objection to the Bill "as long as the proposed section 3(2)(a) envisages a consultation with the Board taking place which consultation encompasses a determination of the economic viability of a post to be created as well as a consideration of the consequences of making an appointment of more than one sheriff in an area" (page 14, par 1). During the public hearing on the Bill, Adv Hellens (on behalf of the Institute) proposed that such an appointment should be made "in consultation" with the Board. In this regard the Institute also raises the following points:
* If more than one sheriff is appointed for any area, the danger exists that they
may attach the same goods. In order to avoid this, a central register needs to be created in which the sheriffs should note the attachment of any goods. (Page 14, par 2 - 3)
* Attorneys should not be allowed to selectively perform the "lucrative work" of the sheriffs. (Page 15, par 4)
* If clause 2 is intended as a disciplinary measure, it should clearly state this. (Page 15, par 5)
* Competition between sheriffs should not lead to the disappearance of the "smaller sheriffs". (Page 1 7, par 3)
(The Institute also raises a number of other points pertaining to the proposed performance of sheriffs' work by attorneys.)

CLAUSE 4
SHR1: This clause should specifically provide for the appointment of attorneys to be nominated by the provincial law societies, as attorneys directly instruct sheriffs, understand their work and are the main users of their services.

SHR2: During the public hearings Mr Stemmet proposed that the words "one from each of the provinces of the Republic, as the case may be" (page 4 of the Bill, lines 46 -47) should be omitted. He also held the view that it is not necessary that pr6vision should specifically be made for the appointment of attorneys to the Board.

CLAUSES 9 AND 10
SHR1: The ALS refers to a letter by Mr Du Plessis to a Departmental Working Group on Rationalisation of the Sheriffs' Profession, wherein it is (amongst others) proposed that attorneys should be allowed to serve all court documents and other process, including summonses, warrants and orders. These proposals are supported by the ALS. (A copy of the letter is attached to SHR1.) The ALS consequently submits that, if attorneys are authorised to serve documents as proposed in that letter, attorneys should be exempted from the provisions of section 30 of the principal Act. The same argument is applicable in respect of clause 10 (section 33).

SHR2: During the public hearings on the Bill, Mr Stemmet indicated that, should the above proposal by the ALS be followed, he will agree with the amendments proposed by the ALS in respect of clauses 9 and 10, provided that the public must be protected by "some or other scheme", such as the Fidelity Fund for attorneys.

SHR3: During the public hearings, the Institute opposed the above-mentioned proposal by the ALS (contained in the said letter). Should the public be covered by (wrongful) actions by attorneys, the Institute's objection falls away. (However, it is clear from the written submission by the Institute, that it is not in favour of attorneys performing any functions of sheriffs.)

CLAUSE 15
SHR2: The proviso in the proposed paragraph (gA) refers to "any legal practitioner or his or her employees". (Page 12 of the Bill, lines 31 - 32.) Section 3(b) of he Magistrates' Courts Amendment Act, 1997 (Act 81 of 1997) empowers attorneys and candidate attorneys to serve certain documents. It is submitted that it may be appropriate the follow the same wording in clause 15.

GENERAL
The letter by Mr Du Plessis (attached to SHR1) contains a series of proposals, linked to various statements of intent regarding subsquent actions by the attorneys profession. The legislative proposals contained in the letter can be summarised as follows:
(i) Attorneys and their employees should be allowed to serve all court documents.

(ii) Attorneys, their employees and all sheriffs should be allowed to serve documents outside their areas, provided that there should be no penalty to the client or debtor.

(iii) Section 53 of the principal Act should be repealed. (In terms of section 53 no sheriff may, without the approval of the Minister, perform remunerative work outside the office of sheriff.)

(iv) Any number of sheriffs, or partnerships of sheriffs, must be allowed as a right to practise in a particular area.

(v) Any person who wishes to be appointed as a sheriff must obtain a prescribed qualification.