ANNEXURE "A"
REPUBLIC OF SOUTH AFRICA
JUDICIAL MATTERS AMENDMENT BILL
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(As introduced)
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(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)
[B - 2002]
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Tr020702
GENERAL EXPLANATORY NOTE
[ ] Words in bold in square brackets indicate omissions from existing enactments.
___________ Words underlined with a solid line indicate insertions in existing enactments.
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BILL
To amend the Insolvency Act, 1936, so as to effect certain textual corrections; to amend the Magistrates' Courts Act, 1944, so as to further regulate the rescission of judgements; to amend the Stock Theft Act, 1959, so as to repeal certain obsolete provisions; to amend the General Law Further Amendment Act, 1962, so as to repeal an obsolete provision; to amend the South African Law Commission Act, 1973, so as to effect a name change; to further regulate the appointment of members of the Commission; and to further regulate requirements in respect of the reports of the Commission; to amend the Companies Act, 1973, so as to further regulate the summoning and examination of persons as to the affairs of a company and the examination of directors and others at meetings; to amend the Criminal Procedure Act, 1977, so as to further regulate applications for the discharge of State patients; to amend the Attorneys Act, 1979, so as to empower the Fidelity Fund to levy premiums on practitioners for the provision of professional indemnity insurance cover; to amend the Correctional Services Act, 1998, so as to effect a technical correction; to amend the Promotion of Access to Information Act, 2000, so as to amend a definition; and to provide for matters connected therewith.
BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:—
Amendment of section 49 of Act 24 of 1936, as amended by section 21 of Act 6 of 1963, section 12 of Act 99 of 1965 and section 1 of Act 49 of 1996
1. Section 49 of the Insolvency Act, 1936, is amended by the substitution for subsection (1) of the following subsection:
"(1) Nothing in this section shall be construed as preventing the [Secretary for Inland Revenue] Commissioner for the South African Revenue Service from proving in the manner provided in this Act a claim against the estate of a partnership in respect of any sum referred to in paragraph (b) of section one hundred and one, or any interest due on such sum.".
Amendment of section 99 of Act 24 of 1936, as substituted by section 5 of Act 6 of 1972 and amended by section 6 of Act 62 of 1973, section 9 of Act 29 of 1974, section 69 of Act 85 of 1974, section 50 of Act 103 of 1978, section 3 of Act 139 of 1992 and section 3 of Act 122 of 1998
2. Section 99 of the Insolvency Act, 1936, is amended—
(a) by the substitution in subsection(1)(b) for subparagraph (v) of the following subparagraph:
"(v) has under the provisions of the Sixth Schedule to the said Act deducted or withheld from any insurance benefit under any insurance policy, in respect of the liability of any person for normal tax, but did not pay to the [Secretary for Inland Revenue] Commissioner for the South African Revenue Service prior to the sequestration of the estate, and any interest payable under that Act in respect of such amount in respect of any period prior to the date of sequestration of the estate:"; and
(b) by the substitution for paragraph (e) of subsection (1) of the following paragraph:
"(e) any amount which in terms of the Unemployment Insurance Contributions Act, [1966 (Act No. 30 of 1966)] 2001 (Act No 4 of 2001), was, immediately prior to the sequestration of the estate, due to the Unemployment Insurance Fund by the insolvent in his capacity as an employer, in respect of any contribution, penalty or other payment; and".
Substitution of section 36 of Act 32 of 1944
Courts Act, 1944:
"What judgments may be rescinded
36. (1) The court may, upon application by any person affected thereby, or, in cases falling under paragraph (c), suo motu—
(a) rescind or vary any judgment granted by it in the absence of the person against whom that judgment was granted;
(b) rescind or vary any judgment granted by it which was void ab origine or was obtained by fraud or by mistake common to the parties;
(c) correct patent errors in any judgment in respect of which no appeal is pending;
(d) rescind or vary any judgment in respect of which no appeal lies.
(2) The court may on request by any person affected thereby rescind or vary any judgment where the plaintiff in whose favour a default was granted has agreed in writing that the judgment be rescinded or varied.".
Substitution of section 3 of Act 57 of 1959
4. The following section is substituted for section 3 of the Stock Theft Act, 1959:
"Absence of reasonable cause for believing stock or produce properly acquired
3. (1) 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 stock or stolen produce 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 stock or produce is the property of the person from whom he or she acquires or receives it or that such person has been duly authorized by the owner thereof to deal with it or dispose of it shall be guilty of an offence.
Substitution of section 1 of Act 93 of 1962
5. The following section is substituted for section 1 of the General Law Further Amendment Act, 1962:
"Failure to comply with order of court relating to access to children or to notify change of address of parent having custody of child
1. (1) Any parent having [the sole] custody of his or her minor child in terms of an order of court, who contrary to such order and without reasonable cause refuses the child's other parent access to such child or prevents such other parent from having such access, shall be guilty of an offence and liable on conviction to a fine [not exceeding two hundred rand] or to imprisonment for a period not exceeding one year or to such imprisonment without the option of a fine.
(2) Any parent having [the sole] custody of his or her minor child in terms of an order of court whereby the other parent is entitled to access to such child shall upon any change in his or her residential address forthwith in writing notify such other parent of such change.
(3) Any person who fails to comply with the provisions of subsection (2) shall be guilty of an offence and liable on conviction to a fine [not exceeding one hundred rand] or to imprisonment for a period not exceeding three months.
[(4) Notwithstanding anything to the contrary contained in any other law, a magistrate's court shall have jurisdiction to impose any penalty prescribed by this section.]".
Amendment of section 1 of Act 19 of 1973, as amended by section 1 of Act 49 of 1996
6. Section 1 of the South African Law Commission Act, 1973, is amended by the substitution for the definition of "Commission" of the following definition:
"'Commission' means the South African Law Reform Commission established by section 2.".
Substitution of section 2 of Act 19 of 1973
7. The following section is substituted for section 2 of the South African Law Commission Act, 1973:
"Establishment of Commission
2. (1) There is hereby established a body to be known as the South African Law Commission.
(2) As from the date of the commencement of the Judicial Matters Amendment Act, 2002, the Commission referred to in subsection (1) shall be known as the South African Law Reform Commission.".
Amendment of section 3 of Act 19 of 1973, as amended by section 1 of Act 85 of 1984, section 4 of Act 18 of 1996, section 4 of Act 18 of 1997 and section 4 of Act 42 of 2001
8. Section 3 of the South African Law Commission Act, 1973, is amended by the substitution in subsection (1)(a) for subparagraph (ii) of the following subparagraph:
"(ii) [six] not more than eight persons who appear to the President to be fit for appointment on account of the tenure of a judicial office or on account experience as an advocate or as an attorney or as a professor of law at any university, or on account of any other qualification relating to the objects of the Commission.".
Amendment of section 7 of Act 19 of 1973, as amended by section 3 of Act 85 of 1984
9. Section 7 of the South African Law Commission Act, 1973, is amended by the substitution for subsection (2) of the following subsection:
"(2) The Commission shall [annually not later than the first day of March] within five months of the end of a financial year of the Department of Justice and Constitutional Development submit to the Minister a report on all its activities during [the previous] that financial year.".
Substitution of section 10 of Act 19 of 1973
10. The following section is substituted for section 10 of the South African Law Commission Act, 1973:
"Short title
(1) This Act [shall be] is called the South African Law Reform Commission Act, 1973 [, and shall come into operation on a date determined by the State President by proclamation in the Gazette].".
Substitution of long title of Act 19 of 1973
11. The following long title is substituted for the long title of the South African Law Commission Act, 1973:
"To establish a South African Law Reform Commission; and to provide for matters incidental thereto.".
Amendment of section 415 of Act 61 of 1973
12. Section 415 of the Companies Act, 1973, is amended by the substitution for subsection (5) of the following subsection:
"(5) Any evidence given under this section shall not be admissible in proceedings instituted against the person who gave that evidence or the body corporate of which he or she is or was an officer, except in respect of any answer to any question put to a person in criminal proceedings against the person who gave such answer where that person is charged for an offence relating to the administering or taking of an oath or the administering or making of an affirmation or the giving of false evidence or the making of a false statement in connection with such questions and answers or a failure to answer lawful questions fully and satisfactorily.".
Amendment of section 417 of Act 61 of 1973, as amended by section 9 of Act 29 of 1985
13. Section 417 of the Companies Act, 1973, is amended—
(a) by the substitution for paragraph (b) of subsection (2) of the following paragraph:
"(b) Any such person may be required to answer any question put to him or her at the examination, notwithstanding that the answer might tend to incriminate him or her [, and any answer given to any such question may thereafter be used in evidence against him]."; and
(b) by the addition in subsection (2) of the following paragraph:
"(c) Any answer to any question put to a person under paragraph (b) may not be used in proceedings against the person who gave such answer, except in criminal proceedings where that person is charged for an offence relating to the administering or taking of an oath or the administering or making of an affirmation or the giving of false evidence or the making of a false statement in connection with such questions and answers or a failure to answer lawful questions fully and satisfactorily.".
Amendment of section 77 of Act 51 of 1977, as amended by section 10 of Act 33 of 1986, section 9 of Act 51 of 1991, section 42 of Act 129 of 1993 and section 3 of Act 68 of 1998
14. Section 77 of the Criminal Procedure Act, 1977 is amended by the substitution for paragraph (a) of subsection (6) of the following paragraph:
"(a) If the court which has jurisdiction in terms of section 75 to try the case, finds that the accused is not capable of understanding the proceedings so as to make a proper defence, the court may, if it is of the opinion that it is in the interests of the accused, taking into account the nature of the accused's incapacity contemplated in subsection (1), and unless it can be proved on a balance of probabilities that, on the limited evidence available the accused committed the act in question, order that such information or evidence be placed before the court as it deems fit so as to determine whether the accused has committed the act in question and the court shall direct that the accused—
(i) in the case of a charge of murder or culpable homicide or rape or a charge involving serious violence or if the court considers it to be necessary in the public interest, where the court finds that the accused has committed the act in question, or any other offence involving serious violence, be detained in a psychiatric hospital or a prison pending the decision of a judge in chambers in terms of section [29 (1) (a)] 47of the Mental Health Care Act, [1973 (Act 18 of 1973)] Act no…… of 2002; or
(ii) where the court finds that the accused has committed an offence other than one contemplated in subparagraph (i) or that he or she has not committed any offence—
(bb) be treated as an outpatient in terms of section 7 of that Act, pending discharge by a hospital board in terms of section 29 (4A)(a) of that Act or an order that he or she shall no longer be treated as an outpatient],
and if the court so directs after the accused has pleaded to the charge, the accused shall not be entitled under section 106 (4) to be acquitted or to be convicted in respect of the charge in question.".
Amendment of section 78 of Act 51 of 1977, as amended by section 11 of Act 33 of 1986, section 9 of Act 51 of 1991, section 43 of Act 129 of 1993 and section 5 of Act 68 of 1998
15. Section 78 of the Criminal Procedure Act, 1977, is amended by the substitution for subsection (6) of the following subsection:
"(6) If the court finds that the accused committed the act in question and that he or she at the time of such commission was by reason of mental illness or [mental defect] intellectual disability not criminally responsible for such act—
(a) the court shall find the accused not guilty; or
(b) if the court so finds after the accused has been convicted of the offence charged but before sentence is passed, the court shall set the conviction aside and find the accused not guilty,
by reason of mental illness or [mental defect] intellectual disability, as the case may be, and direct—
(i) in a case where the accused is charged with murder or culpable homicide or rape or another charge involving serious violence, or if the court considers it to be necessary in the public interest that the accused be—
(aa) detained in a psychiatric hospital or a prison pending the decision of a judge in chambers in terms of section [29 (1) (a)] 47 of the Mental Health Care Act, [1973 (Act 18 of 1973] 2002(Act No….. of 2002);
(bb) admitted to and, detained [and treated] in an institution stated [in the order in terms of Chapter 3] and treated as if he or she were an involuntary mental care health user contemplated in section 37of the Mental Health Care Act, [1973 (Act 18 of 1973)] 2002
[, pending discharge by a hospital board in terms of section 29 (4A)(a) of that Act];
[(cc) treated as an outpatient in terms of section 7 of that Act pending the certification by the superintendent of that institution stating that he or she need no longer be treated as such;]
(dd) released subject to such conditions as the court considers appropriate; or
(ee) released unconditionally;
(ii) in any other case than a case contemplated in subparagraph (i), that the accused—
(aa) be admitted to and, detained [and treated] in an institution stated in the order [in terms of Chapter 3] and treated as if he or she were an involuntary mental health care user contemplated in section 37 of the Mental Health Care Act, [1973 (Act 18 of 1973)] 2002; [, pending discharge by a hospital board in terms of
section 29 (4A)(a) of that Act;
(bb) be treated as an outpatient in terms of section 7 of that Act pending the certification by the superintendent of that institution stating that he or she need no longer be treated as such;]
(cc) be released subject to such conditions as the court considers appropriate; or
Insertion of section 40B in Act 53 of 1979
16. The following section is inserted in the Attorneys Act, 1979, after section 40A:
"Insurance contracts for the purpose of professional indemnity to practitioners
40B. The Board of Control may in its discretion enter into a contract with a company or scheme referred to in subsection (a) of section 40A or any company carrying on professional indemnity insurance business in the Republic for the provision of group professional indemnity insurance to practitioners to the extent and in the manner provided for in such contract.".
Substitution of section 43 of Act 53 of 1979
17. The following section is substituted for section 43 of the Attorneys Act,1979:
"Contributions to fund by practitioners
43. (1) (a) Subject to the provisions of this section, every practitioner, practising on his or her own account or in partnership, shall annually when he or she applies for a fidelity fund certificate, pay [the amount of R20, or such greater amount as may be fixed by the board of control from time to time,] to the fund –
(i) such amount as may be fixed by the board of control from time to time in respect of the cost of group professional indemnity insurance arranged by the board of control pursuant to the provisions of section 40B;
(ii) such other non-refundable amount as may be fixed by the board of control from time to time.
(b) Any practitioner referred to in paragraph (a) who commences to practise on or after 1 July in any year shall in respect of that year pay half of the contribution which is payable in terms of that paragraph for that year.
[(2) When the board of control or a society on behalf of the board of control gives notice in writing to any practitioner who is liable to pay a contribution referred to in subsection (1), that the amount of the fund, including the investments thereof, and after deduction of the amount of all unpaid claims and other liabilities outstanding against the fund, is R1 000 000, or exceeds that amount, such practitioner shall, subject to the provisions of subsection (3), as from a date determined by the board of control and specified in such notice, no longer be required to pay the annual contribution referred to in subsection (1).
(3) When the board of control or a society on behalf of the board of control gives notice in writing to a practitioner referred to in subsection (2) that the amount of the fund, including the investments thereof, and after deduction of the amount of all unpaid claims and other liabilities outstanding against the fund, is less than R1 000 000, the provisions of subsection (1) shall, as from a date determined by the board of control and specified in such notice, again apply in respect of such practitioner, and any notice referred to in subsection (2) shall lapse.
(4) A practitioner who applies under section 42 for the first time for a fidelity fund certificate while the provisions of subsection (1) do not apply to a practitioner referred in subsection (2) by virtue of the provisions of the latter subsection, shall pay a single contribution of R50 to the fund: Provided that the provisions of subsection (3) shall apply mutatis mutandis in respect of such practitioner.]
[(5)](3) [Notwithstanding the provisions of subsection (2),] The board of control may require a practitioner in respect of whom the fund has been applied as a result of any of the circumstances referred to in section 26, to pay [the] an additional annual contribution [referred to in subsection (1)] to the fund of such amount [for such period] as the board of control may determine for such a period as the board of control may determine.
[(6)](4) (a) A practitioner who is not in possession of a fidelity fund certificate and who intends to commence to practise on his or her own or in partnership, shall, before commencing so to practise, give notice of such intention to the secretary of the society of the province in which he or she intends to practise, and he or she shall thereupon become liable to pay to the fund the amount of the contribution referred to in subsection (1) [or (4)] and (2)[, as the case may be].
(b) Any practitioner who is in possession of a fidelity fund certificate but who intends to commence to practise for his or her own account or in partnership in the area of jurisdiction of any provincial division other than that in which he or she usually practices for his or her own account or in partnership, shall give notice of such intention to the secretary of the other society concerned.
[(7)](5) All contributions payable under this section shall be paid to the society, and every society shall remit the contributions to the board of control within seven days of receipt thereof.
Substitution of section 44 of Act 53 of 1979
"Board of control may refund contributions in certain cases
44. If any practitioner in respect of whom no claim has been made under this Act or in respect of whom such claim has not been sustained, dies or ceases to practise, the board of control may in its discretion, if it is satisfied that no claim is likely to be made, pay to him or her, or to his or her estate, a sum not exceeding the aggregate amount of his or her contributions to the fund prior to the date of commencement of this section.".
Amendment of section 45 of Act 53 of 1979, as amended by section 3 of Act 80 of 1985 and section 20 of Act 87 of 1989
19. Section 45 of the Attorneys Act, 1979, is amended—
(a) by the substitution in subsection 1 for paragraph (d) of the following paragraph:
"(d) premiums payable in respect of contracts of insurance entered into by the board of control in terms of section 40 and 40B;"; and
(b) by the substitution in subsection 1 for paragraph (h) of the following paragraph
"(h) in the discretion of the board of control, the premium or any portion thereof payable in respect of [a professional indemnity] any group insurance policy of any kind taken out in favour of practitioners;".
Amendment of section 81 of Act 111 of 1998, as amended by section 30 of Act 33 of 2001
20. Section 81 of the Correctional Services Act, 1998, is amended by the deletion of subsection (4).
Amendment of section 1 of Act 2 of 2000, as amended by section 21 of Act 42 of 2001
21. Section 1 of the Promotion of Access to Information Act, 2000, is amended by the substitution for the words preceding item (aa) of paragraph (b)(ii) of the definition of "court" of the following words:
"a Magistrate's Court, either generally or in respect of a specified class of decisions in terms of this Act, designated by the Minister, by notice in the Gazette, and presided over by a magistrate designated in writing by the [Minister] head of an administrative region defined in section 1 of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944), after consultation with the Magistrates Commission, within whose area of jurisdiction—".
Short title
22. This Act is called the Judicial Matters Amendment Act, 2002.