MEMORANDUM ON THE OBJECTS OF THE JUDICIAL MATTERS AMENDMENT BILL, 2002

1. PURPOSE OF THE BILL
The main object of the Bill is to encompass in a single Bill a variety of amendments which do not require individual Amendment Bills. These amendments, mainly, rectify certain provisions and are also aimed at supplementing certain lacunae which have arisen in practice. The Bill also contains certain amendments intended to bring certain provisions into line with certain Constitutional Court’s judgements.

2. OBJECTS OF THE BILL
The objects of the clauses of the Bill are briefly explained below.

2.1 Clauses1 and 2 aim to amend sections 49 and 99 of the Insolvency Act, 1936 (Act 24 of 1936), respectively, by inserting appropriate references to the Commissioner for the South African Revenue Service and to the Unemployment Insurance Contributions Act, 2002 (Act No. 4 of 2002).

2.2 Clause 3 substitutes section 36 of the Magistrates’ Court Act, 1944 (Act 32 of 1944), by granting the court the power to rescind or vary any judgement if the person in whose favour the judgement was granted has agreed in writing that the judgement be rescinded or varied. Rule 49(5) of the Magistrates’ Court Rules has a similar provision. In the case of Venter vs Standard Bank of South Africa 1999(3) SA 278(W), the High Court held that Rule 49(5) is ultra vires since it provides for a right of rescission not provided for in the Magistrates’ Court Act, 1944. This amendment will ensure that the benefits of this Rule are still available to the defendants, many of whom are illiterate and who are often subject to exploitation by unscrupulous persons. The amendment will also bring the provisions of Rule 49(5) into line with the judgement in Venter’s case.

2.3 In the light of the Constitutional Court’s judgement in S vs Manamela 2000(3) SA 1 (CC), clause 4 amends section 3 of the Stock Theft Act, 1959 (Act No. 57 of 1959), in order to bring the provisions thereof into line with the Constitution.

2.4 Various courts have interpreted the provisions of section 1 of the General Law Amendment Act, 1962 (Act No.93 of 1962), differently. This section provides that a person who has "sole" custody of his or her minor child in terms of an order of court, and who contrary to such order and without reasonable cause, refuses the child's other parent access to the child or prevents such other parent from gaining access to the child, is guilty of an offence. These provisions also criminalise the failure of a "sole" custodian parent to notify the non-custodian parent of any change in the address of the "sole" custodian parent. Clause 5 amends section 1 by deleting the word "sole", so as to remove the restriction that the use of the word "sole" places on the effective application of this section.

2.5 Clause 7 amends the section 2 of the South African Law Commission Act, 1973 (Act No. 19 of 1973), so as to effect a name change. This will reflect that the Commission deals to a large extent with law reform. Clause 8 amends section 3 of that Act so as to facilitate the appointment of one or two more full time members to the Commission. Further, Clause 9 amends section 7 of the Act so as to bring the Commission’s reporting obligations into line with those of the Public Finance Management Act, 1999 (Act No.1 of 1999). Clauses 6, 10 and 11 effect consequential amendments to the South African Law Commission Act, 1973.

2.6 In Parbhoo and Others vs Getz NO and Another 1997(4) SA 1095 (CC), the Constitutional Court found that section 415(3) of the Companies Act, 1973 (Act No.61 of 1973), read with section 415(5), violated the right not to be compelled to give self-incriminating evidence as entrenched in section 35 of the Constitution. Clause 12 amends the said section 415 so as to bring the provisions thereof into line with the Constitutional Court’s order. The provisions of section 417 of the Act have the same effect as those of section 415. Clause 13 amends this section in order to bring the provisions thereof into line with the Constitution.

2.7 Sections 77 and 78 of the Criminal Procedure Act, 1977 (Act 51 of 1977), deal with the capacity of an accused person to understand criminal proceedings and mental illness or mental defect and criminal responsibility, respectively. The amendments proposed by clauses 14 and 15 of the Bill to those sections are consequential in nature and give effect to changes brought about by the new Mental Health Care Act, 2002.

2.8.1 Clause 16 inserts a new section 40B in the Attorney’s Act, 1979 (Act No.53 of1979), which allows the Board of Control of the Fidelity Fund to enter into a contract with a company carrying on professional indemnity insurance business for the provision of group professional indemnity insurance to practitioners.

2.8.2 Clause 17 amends section 43 of the Attorneys Act, 1979, so as to make provision for every attorney to pay an amount determined by the Board, in respect of the cost of group professional indemnity insurance, annually when such attorney applies for fidelity fund certificate or at a time determined by Board of Control. It also makes provision for a practitioner to pay a non-refundable amount as may be fixed by the Board of Control. Clauses 18 and 19 effect technical changes to that Act.

2.9 The Judicial Matters Amendment Act, 2001 (Act No.42 of 2001 amended section 63 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), by the inserting section 63B. A provision similar to the one in section 63B of the Criminal Procedure Act, 1977 is contained in section 81(4) of the Correctional Services Act, 1998(Act No.111 of 1998). The said section 81(4) is therefore deleted by Clause 20 of the Bill.

2.10 Clause 21 amends section 1 of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000), so as to provide for the substitution of the definition of "court" in order to make it clear that the designation of presiding officers is left to the heads of courts alone.
3. DEPARTMENTS/BODIES/PERSONS CONSULTED
Due to the nature of the amendments contained in the Bill, no extensive consultation is required.
4. IMPLICATIONS FOR THE PROVINCES
None.
5. FINANCIAL IMPLICATIONS FOR THE STATE
The proposed amendments (in clauses 7 and 8) purporting to effect a name change and increase the number of Commissioners of the South African Law Commission will only be applied if and when sufficient funds are available.
6. PARLIAMENTARY PROCEDURE
In the opinion of the Department and the State Law Advisers this Bill should be dealt with in terms of the procedure established by section 75 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.