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REPUBLIEK VAN SUID-AFRIKA

hh010800

JUDICIAL MATTERS AMENDMENT BILL

[B 63—2000]

1. That the following be a new Clause:

9. Section 50 of the Criminal Procedure Act, 1977, is hereby amended—

(a) by the substitution for subsection (3) of the following subsection:

"(3) Subject to the provisions of [subsections (6) and (7)] subsection (6), nothing in this section shall be construed as modifying the provisions of this Act or any other law whereby a person under detention may be released on bail or on warning or on a written notice to appear in court."; and

(b) by the substitution in subsection (6) for paragraph (c) of the following paragraph:

"(c) The bail application of a person who is charged with an offence referred to in Schedule 6 shall be considered by a regional court: Provided that [an attorney-general or a prosecutor authorised thereto by him or her may,] where such court is [, due to exceptional circumstances,] for any reason—

(i) not available; or

(ii) not able in the circumstances,

to consider the application, whether in general or in any particular case, a Director of Public Prosecutions or a prosecutor authorised thereto in writing by him or her may direct that such bail application shall be considered by any other available lower court within the area of jurisdiction of such regional court.".

9. Section 50 of the Criminal Procedure Act, 1977, is hereby amended—

(a) by the substitution for subsection (3) of the following subsection:

"(3) Subject to the provisions of [subsections (6) and (7)] subsection (6), nothing in this section shall be construed as modifying the provisions of this Act or any other law whereby a person under detention may be released on bail or on warning or on a written notice to appear in court.";

(b) by the substitution in subsection (6) for paragraph (c) of the following paragraph:

"(c) (i) The bail application of a person who is charged with an offence referred to in Schedule 6 [shall] must be considered by a [regional] magistrate's court: Provided that [an attorney-general] the Director of Public Prosecutions concerned, or a prosecutor authorised thereto in writing by him or her may, [where such court is, due to exceptional circumstances, not available, whether in general or in any particular case, direct that such bail application shall be considered by any other available lower court within the area of jurisdiction of such regional court] if he or she deems it expedient for the administration of justice in a particular case, direct that the application must be considered by a regional court.

(ii) In considering whether it would be expedient for the administration of justice to direct that an application must be considered by a regional court, the Director of Public Prosecutions or the prosecutor must take into account—

(aa) whether the nature of the alleged offence, or the circumstances under which the offence was allegedly committed, is likely to induce a sense of shock or outrage in the community where the offence was committed;

(bb) whether the application relates to a case of exceptional public interest;

(cc) whether the consideration of the application by a regional court might substantially expedite or delay the disposal of the application; or

(dd) any other factor which in the opinion of the Director of Public Prosecutions or prosecutor should be taken into account."; and

(c) by the deletion of subparagraph (iii) of subsection (6)(d).

CLAUSE 9

1. On page 6, in line 29, to omit "and (7)" and to substitute "[and (7)]".

Clause rejected.

1. That the following be a new clause:

18. Section 1 of the Attorneys Act, 1979, is hereby amended—

(a) by the insertion after the definition of "articles of clerkship" of the following definition:

"'attend', for purposes of Chapter I, includes participation in a distance education course approved by the provincial law societies, and 'attended' and 'attending' have a corresponding meaning;"; and

(b) by the substitution for the definition of "law clinic" of the following definition:

"''law clinic' means a centre for the practical legal education of students in the faculty of law at a university in the Republic, and includes a law centre controlled by, or which is, a non-profit making organization which, subject to section XX, provides legal services to the public free of charge;".

NEW CLAUSE

1. That the following be a new clause:

19. The following section is hereby inserted after section XXX of the Attorneys Act, 1979:

XX. (1) Notwithstanding the provisions of section 83(6) and section 9(2) of the Admission of Advocates Act, 1964 (Act No. 74 of 1964), whenever in any judicial proceedings or any dispute in respect of which legal services are rendered to a litigant or other person by a law clinic, costs become payable to such litigant or other person in terms of a judgment of the court or a settlement or otherwise, it shall be deemed that such litigant or other person has ceded his or her rights to such costs to the law clinic.

(2) If a litigant or person referred to in subsection (1) or the law clinic rendering legal services to such person has, at any time before payment of the costs deemed in terms of subsection (1) to be ceded to the law clinic, whether before or after costs become payable, given the person by whom the costs are to be paid at his or her last known address and the registrar or clerk of the court concerned, notice in writing that legal services are being or have been rendered by the law clinic, the law clinic may proceed in its own name to have such costs taxed, where appropriate, and to recover them, without being substituted on the record of the judicial proceedings concerned, if any, for the said litigant or other person.

(3) The costs referred to in subsection (1) shall be calculated and the bill of costs concerned, if any, shall be taxed as if the litigant or person to whom legal services were rendered by the law clinic, actually incurred the costs of obtaining the services of the attorney or advocate acting on his or her behalf in the proceedings or dispute concerned.".

1. That the following be new clauses:

22. Section 1 of the Rules Board for Courts of Law Act, 1985, is hereby amended by the deletion of the definition of "Supreme Court".

23. Section 3 of the Rules Board for Courts of Law Act, 1985, is hereby amended by the substitution in subsection (1) for paragraphs (a) and (b) of the following paragraphs, respectively:

"(a) a judge of the Supreme Court of Appeal or a High Court, whom the Minister designates as the [chairman] chairperson;

(b) a judge or retired judge of the Supreme Court of Appeal or a High Court, whom the Minister designates as the [vice-chairman] vice-chairperson;".

24. Section 6 of the Rules Board for Courts of Law Act, 1985, is hereby amended—

(a) by the substitution in subsection (1) for the words preceding paragraph (a) of the following words:

"The Board may, with a view to the efficient, expeditious and uniform administration of justice in the Supreme Court of Appeal, the High Courts and the lower courts, from time to time on a regular basis review existing rules of court and, subject to the approval of the Minister, make, amend or repeal rules for the Supreme Court of Appeal, the High Courts and the lower courts regulating—";

(b) by the substitution in subsection (1) for paragraph (p) of the following paragraph:

"(p) the custody and disposal of records or minutes of evidence and proceedings in the Supreme Court of Appeal and the High Courts;";

(c) by the substitution in subsection (1) for paragraph (t) of the following paragraph:

"(t) generally any matter which may be necessary or useful to be prescribed for the proper despatch and conduct of the functions of the Supreme Court of Appeal, the High Courts and the lower courts in civil as well as in criminal proceedings."; and

(d) by the substitution for subsection (2) of the following subsection:

"(2) (a) Different rules may be made in respect of the Supreme Court of Appeal, the High Courts and the lower courts and in respect of different kinds of proceedings.

(b) The Board may, with the approval of the Minister, make different rules in respect of—

(i) [different divisions of] the Supreme Court of Appeal and the High Courts;

(ii) the different High Courts; or

(iii) the lower courts in different magisterial districts,

which shall be of force for the period or periods determined by the Board.".

25. Section 8 of the Rules Board for Courts of Law Act, 1985, is hereby amended by the substitution for subsection (1) of the following subsection:

"(1) A member of the Board who is a judge of the Supreme Court of Appeal or a High Court shall be entitled to such allowance for travelling and subsistence expenses incurred by him or her in the performance of his or her functions in terms of this Act as the Minister with the concurrence of the Minister of Finance may determine.".

26. The following long title is hereby substituted for the long title of the Rules Board for Courts of Law Act, 1985:

27. The Rules Board for Courts of law Act, 1985, is hereby amended—

(a) by the substitution for the expression "chairman", wherever it occurs in sections 4(1) and (3), 5(3) and 5A(1) and (2) of the expression "chairperson";

(b) by the substitution for the expression "vice-chairman", wherever it occurs in sections 4(1) and (3), 5(3), and 5A(1) of the expression "vice-chairperson";

(c) by the substitution for the expression "he", wherever it occurs in sections 3(1A) and 4(1) of the expression "he or she";

(d) by the substitution for the expression "his", wherever it occurs in sections 3(2), 5(2), 5A(4) and 8(2) of the expression "his or her"; and

(e) by the substitution for the expression "him", wherever it occurs in sections 5(1) and (2) and 8(2) of the expression "him or her".

NEW CLAUSE

1. That the following be a new Clause:

32. Section 8 of the Special Investigating Units and Special Tribunals Act, 1996, is hereby amended by the substitution for subsection (2) of the following subsection:

"(2) A Special Tribunal shall have jurisdiction to adjudicate upon any civil dispute brought before it by a Special Investigating Unit or any interested party as defined by the regulations, emanating from the investigation by such Special Investigating Unit, including the power to—

(a) issue suspension orders, interlocutory orders or interdicts on application by such Unit or party; [and]

(b) make any order which it deems appropriate so as to give effect to any ruling or decision given or made by it; and

(c) make any order which it deems appropriate as to costs.".

1. That the following be new Clauses:

33. Section 51 of the Criminal Law Amendment Act, 1997, is hereby amended by the substitution for subsection (1) of the following subsection:

"(1) Notwithstanding any other law but subject to subsections (3) and (6), a High Court shall—

(a) if it has convicted a person of an offence referred to in Part I of Schedule 2; or

(b) if the matter has been referred to it in terms of section 52(1) after the person concerned has been convicted of an offence referred to in Part I of Schedule 2,

sentence the person to imprisonment for life.".

34. Section 52 of the Criminal Law Amendment Act, 1997, is hereby amended—

(a) by the substitution for subsection (1) of the following subsection:

"(1) If a regional court, [after it has convicted an accused of an offence referred to in Schedule 2] following on—

(a) a plea of guilty; or

(b) a plea of not guilty,

(i) Part I of Schedule 2; or

(ii) Part II, III or IV of Schedule 2 and the court [but before sentence,] is of the opinion that the offence [in respect of which the accused has been convicted] concerned merits punishment in excess of the jurisdiction of a regional court in terms of section 51(2),

the court shall stop the proceedings and commit the accused for sentence in terms of section 51(1) or (2), as the case may be, by a High Court having jurisdiction.";

(b) by the substitution for the words following upon subparagraph (ii) of paragraph (b) of subsection (2) of the following words:

"the Court shall make a formal finding of guilty and sentence the accused as contemplated in section 51(1) or (2), as the case may be.";

(c) by the substitution in paragraph (b) of subsection (3) for the words preceding the proviso of the following words:

"The High Court shall, after considering the record of the proceedings in the regional court, sentence the accused in terms of section 51(1) or (2), as the case may be, and the judgment of the regional court shall stand for this purpose and be sufficient for the High Court to pass sentence as contemplated in section 51(1) or (2), as the case may be:"; and

(d) by the substitution for subparagraphs (i) and (ii) of paragraph (e) of subsection (3) of the following subparagraphs, respectively:

"(i) confirm the conviction and thereupon impose a sentence as contemplated in section 51(1) or (2), as the case may be;

(ii) alter the conviction to a conviction of another offence referred to in Schedule 2 and thereupon impose a sentence as contemplated in section 51(1) or (2), as the case may be;".

CLAUSE 25

Clause rejected.

1. On page 2, in the eleventh line, after "definition" to insert:

and to substitute another; to provide for the recovery of costs by law clinics;:

2. On page 2, in the twelfth line, after "Control;" to insert:

to amend the Rules Board for Courts of Law Act, 1985, so as to delete a certain definition; to further regulate the powers of the Rules Board for Courts of Law; and to effect certain technical changes;

3. On page 2, in the seventeenth line, after "provision" to insert:

to amend the Special Investigating Units and Special Tribunals Act, 1996, so as to further regulate the powers and functions of a Special Tribunal;

4. On page 2, in the eighteenth line, after the first "to" to insert:

further regulate the imposition of minimum sentences for certain serious offences; and to