REPUBLIC OF SOUTH AFRICA

JUDICIAL MATTERS AMENDMENT BILL

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(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B 63-2000]

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REPUBLIEK VAN SUID-AFRIKA

WYSIGINGSWETSONTWERP OP GEREGTELIKE

AANGELEENTHEDE

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(MINISTER VIR JUSTISIE EN STAATKUNDIGE ONTWIKKELING)

[W 63-2000]

Hh010800b

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

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:—

1. Section 9 of the Magistrates' Courts Act, 1944, is hereby amended by the substitution in subsection (2) for paragraph (a) of the following paragraph:

"(a) [No] A person [holding any appointment under subsection (1) shall perform the functions of a] appointed as judicial officer [in any magistrate's court, unless he has taken] under this section shall, before commencing with his or her functions in terms of this Act for the first time, take an oath or [made] make an affirmation subscribed by him or her, in the form set out below[, namely—]:

'I, ...........................................................................................................................

(full name)

do hereby swear/solemnly [and sincerely] affirm [and declare that whenever I may be called upon to perform the functions of] that in my capacity as a judicial officer [in any magistrate's court] I will be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice [and, as the circumstances of any particular case may require], in accordance with the Constitution and the law [and customs of the Republic of South Africa or of the territory of South-West Africa].' ".

2. Section 37 of the General Law Amendment Act, 1955, is hereby amended by the substitution for subsection (1) of the following subsection:

"(1) (a) Any person who in any manner, otherwise than at a public sale, acquires or receives into his or her possession from any other person stolen goods, other than stock or produce as defined in section one of the Stock Theft Act, 1959, without having reasonable cause [, proof of which shall be on such first-mentioned person,] for believing at the time of such acquisition or receipt that such goods are the property of the person from whom he or she receives them or that such person has been duly authorized by the owner thereof to deal with or to dispose of them, shall be guilty of an offence and liable on conviction to the penalties which may be imposed on a conviction of receiving stolen property knowing it to have been stolen except in so far as the imposition of any such penalty may be compulsory.

(b) In the absence of evidence to the contrary which raises a reasonable doubt, proof of such possession shall be sufficient evidence of the absence of reasonable cause.".

3. Section 13 of the Stock Theft Act, 1959, is hereby repealed.

4. The following section is hereby substituted for section 14 of the Stock Theft Act, 1959:

14. Notwithstanding anything to the contrary in any law, any magistrates' court may, in respect of an offence under this Act—

(a) where the court is not a court of a regional division, impose a fine or imprisonment for a period not exceeding three years; or

(b) where the court is a court of a regional division, impose a fine or imprisonment for a period not exceeding fifteen years.".

5. Section 12 of the Supreme Court Act, 1959, is hereby amended by the substitution in subsection (1) for paragraph (bA) of the following paragraph:

"(bA) the Chief Justice or, in his or her absence, the senior available judge of the appellate division may direct that an appeal in a criminal or civil matter [, save a criminal matter arising out of proceedings instituted before a special criminal court constituted under section 148 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977),] be heard before a court consisting of three judges;".

6. Section 72 of the Administration of Estates Act, 1965, is hereby amended by the substitution in subsection (1)(a) for subparagraph (ii) of the following subparagraph:

"(ii) by the mother of [an illegitimate] a minor born out of wedlock who has not been so deprived of the guardianship of such minor or of her parental powers over him or her; or".

7. Section 1 of the Criminal Procedure Act, 1977, is hereby amended by the deletion of the definition of "special superior court".

8. 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) 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 or necessary for the administration of justice in a particular case, direct in writing that the application must be considered by a regional court."; and

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

9. Section 60 of the Criminal Procedure Act, 1977, is hereby amended—

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

"(a) An accused who is in custody in respect of an offence shall, subject to the provisions of section 50(6) [and (7)], be entitled to be released on bail at any stage preceding his or her conviction in respect of such offence, [unless] if the court [finds that it is in the interests of justice that he or she be detained in custody] is satisfied that the interests of justice so permit."; and

(b) by the substitution in subsection (4) for the words preceding paragraph (a) of the following words:

"The interests of justice do not permit the release from [refusal to grant bail and the] detention of an accused [in custody shall be in the interests of justice] where one or more of the following grounds are established:".

10. Section 148 of the Criminal Procedure Act, 1977, is hereby repealed.

11. Section 315 of the Criminal Procedure Act, 1977, is hereby amended by the substitution for subsection (1) of the following subsection:

"(1) In respect of appeals and questions of law reserved in connection with criminal cases heard by a provincial or local division [or a special superior court], the court of appeal shall be the Appellate Division of the Supreme Court (in this Chapter referred to as the Appellate Division), except in so far as subsection (3) otherwise provides.".

12. Section 316(1) of the Criminal Procedure Act, 1977, is hereby amended by the deletion of paragraph (a).

13. Section 317 of the Criminal Procedure Act, 1977, is hereby amended by the deletion of subsection (3).

14. Section 319 of the Criminal Procedure Act, 1977, is hereby amended by the substitution for subsection (3) of the following subsection:

"(3) The provisions of sections 317(2), [(3),] (4) and (5) and 318(2) shall apply mutatis mutandis with reference to all proceedings under this section.".

15. Schedule 2 to the Criminal Procedure Act, 1977, is hereby amended by the substitution in Part II for the—

(a) ninth offence of the following offence:

"Theft, whether under the common law or a statutory provision, receiving stolen property knowing it to have been stolen, fraud, forgery or uttering a forged document knowing it to have been forged, in each case if the amount or value involved in the offence exceeds [two hundred rand] R2 500."; and

(b) eleventh offence of the following offence:

"Any offence under any law relating to the illicit—

(a) possession of—

(i) dagga exceeding 115 grams; or

(ii) any other dependence-producing drugs; or

(b) conveyance or supply of dependence-producing drugs.".

16. Schedule 7 to the Criminal Procedure Act, 1977, is hereby amended by the substitution for the ninth offence of the following offence:

"Theft and any offence referred to in section 264(1)(a), (b) and (c), if the amount involved in the offence [exceeds R200,00 but] does not exceed R20 000,00.".

17. 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;".

18. 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) (a) A litigant or person referred to in subsection (1) or the law clinic rendering legal services to such litigant or person may, at any time before payment of the costs referred to in subsection (1), give notice in writing to—

(i) the person liable for such costs; and

(ii) the registrar or clerk of the court concerned,

(b) Where notice has been given as contemplated in paragraph (a), the law clinic concerned 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 litigant or person referred to in subsection (1).

(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.

(4) This section shall only be applicable in respect of judicial proceedings instituted, or disputes arising, after the commencement of the Judicial Matters Amendment Act, 2000.".

19. Section 28 of the Attorneys Act, 1979, is hereby amended by the substitution in subsection (1) for paragraph (b) of the following paragraph:

"(b) [two] three members of each society elected annually by the council of the society.".

20. The following section is hereby substituted for section 33 of the Attorneys Act, 1979:

33. [Eight] Ten members of the board of control shall constitute a quorum for any meeting thereof.".

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

22. 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;".

23. 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.".

24. 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.".

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

26. 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".

27. Section 5 of the Game Theft Act, 1991, is hereby amended by the substitution for subsection (1) of the following subsection:

"(1) Any person who under the pretext of this Act wrongfully and maliciously arrests any person or causes him or her to be arrested or effects any search shall be guilty of an offence and liable on conviction to a fine [not exceeding R4 000] or [in default of payment to] imprisonment for a period not exceeding [twelve months or to both such fine and such imprisonment] three years.".

28. Section 6 of the Game Theft Act, 1991, is hereby amended by the substitution for paragraphs (a) and (b) of the following paragraphs, respectively:

"(a) where the court is not a court of a regional division, a fine [not exceeding R8 000] or [in default of payment imprisonment not exceeding two years or both such fine and such imprisonment in the case of a first conviction and in the case of a second or further conviction,] imprisonment for a period not exceeding three years; or

(b) where the court is a court of a regional division, a fine [not exceeding R40 000] or [in default of payment] imprisonment for a period not exceeding [ten] fifteen years [or both such fine and such imprisonment].".

29. (1) Section 3 of the Magistrates Act, 1993, is hereby amended by the substitution in subsection (1)(a) for subparagraph (xi) of the following subparagraph:

"(xi) four [senators] permanent delegates to the National Council of Provinces and their alternates designated together by the [Senate] Council [by resolution adopted by a majority] with a supporting vote of at least [two thirds of all its members] six provinces; and".

(2) Any person designated as a member of the Magistrates Commission in terms of section 3(1)(a)(xi) of the Magistrates Act, 1993 (Act No. 90 of 1993), prior to the commencement of this Act, must be regarded as having been so designated in terms of that section as amended by subsection (1).

30. Section 6 of the Magistrates' Courts Amendment Act, 1993, is hereby repealed.

31. Section 5 of the Special Investigating Units and Special Tribunals Act, 1996, is hereby amended by the addition of the following subsection:

"(9) Any member of a Special Investigating Unit who is qualified and admitted as an advocate or an attorney, may perform such work in any court of law on behalf of a Special Investigating Unit as is by law, custom or practice performed by advocates and attorneys.".

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.".

33. Section 51 of the Criminal Law Amendment Act, 1997, is hereby amended—

(a) 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 in terms of section 52(1) been referred to it for sentence 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.";

(b) by the substitution in subsection (2) for the words preceding paragraph (a) of the following words:

"Notwithstanding any other law but subject to subsections (3) and (6), a regional court or a High Court, including a High Court to which a matter has in terms of section 52(1) been referred for sentence, shall in respect of a person who has been convicted of an offence referred to in—";

(c) by the substitution in subsection (2) for paragraph (a) of the following paragraph:

"(a) [if it has convicted a person of an offence referred to in] Part II of Schedule 2, sentence the person, in the case of—";

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

"(b) [if it has convicted a person of an offence referred to in] Part III of Schedule 2, sentence the person, in the case of—";

(e) by the substitution in subsection (2) for paragraph (c) of the following paragraph:

"(c) [if it has convicted a person of an offence referred to in] Part IV of Schedule 2, sentence the person, in the case of—"; and

(f) by the substitution in subsection (8) for paragraph (b) of the following paragraph:

"(b) a correctional official of the Department of Correctional Services or a person authorised under the Correctional Services Act, [1959 (Act No. 8 of 1959)] 1998 (Act No. 111 of 1998).".

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] as contemplated in section 51(1) or (2), as the case may be, by a High Court having jurisdiction.";

(b) by the substitution in subsection (2)(b) for the words following upon subparagraph (ii) 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 subsection (3)(b) 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] as contemplated in 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 in subsection (3)(e) for subparagraphs (i) and (ii) 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;".

35. Section 53 of the Criminal Law Amendment Act, 1997, is hereby amended—

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

"(2) The period referred to in subsection (1) may be extended by the President, with the concurrence of Parliament, by proclamation in the Gazette for [one year] two years at a time."; and

(b) by the addition of the following subsection:

"(4) Sections 51 and 52 shall not derogate from the provisions of section 89(2) of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944).".

36. Schedule 2 to the Criminal Law Amendment Act, 1997, is hereby amended by the substitution in Part I for subparagraph (ii) of paragraph (b) of the first offence of the following subparagraph:

"(ii) robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act, 1977; or".

37. (1) This Act is called the Judicial Matters Amendment Act, 2000 [, and comes into operation on a date fixed by the President by proclamation in the Gazette].

(2) The provisions of section 35(a) must be regarded as having come into operation on 16 March / 1 May 2000.