The main purpose of the Bill is to encompass in a single Bill a variety of amendments to laws administered by the Department of Justice and Constitutional Development and which amendments do not require individual Amendment Acts. These amendments mainly address certain problem areas which have arisen in practice. The Bill also contains certain amendments which are of a more substantial nature.

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

2.1 Clause 1 amends the Administration Amendment Act, 1929 (Act No. 9 of 1929), so as to provide for the appointment of presiding officers of Divorce Courts. The amendment is necessary so as eliminate any uncertainty in the interpretation of the provisions relating to the appointment of presiding officers of these Courts, be it in a permanent, acting or temporary capacity.

2.2 Clause 2 substitutes section 35B of the Insolvency Act, 1936 (Act No. 24 of 1936), which deals with agreements on informal markets. Section 35B allows for post-insolvency netting or set-off in respect of unperformed obligations of parties arising from agreements which fall within the definition of ‘‘master agreement’’ contained in the amendment or obligations in respect of assets transferred as collateral security. Netting involves the setting off of obligations under transactions, one obligation against another so that payments between the relevant parties are made on a net rather than a gross basis. A concern was raised that the provisions of section 35B fall short of expectations and that many of the international banks and securities firms operating in South Africa are still constrained in the taking on of larger exposures because of legal concerns regarding the ambit and effectiveness of the current section 35B. The proposed amendment will allow for agreements that provide for termination and netting of specified obligations. Market participants require certainty regarding the effect of netting in order to adjust their market positions without delay. The proposed subclause (4) accordingly makes provision that netting after the commencement of liquidation will not be void and that dispositions without value, voidable preferences and undue preferences cannot be set aside. However, collusive transactions and fraudulent dispositions can still be set aside.

2.3 Clause 3 seeks to amend section 4 of the Prevention of Counterfeiting of Currency Act, 1965 (Act No. 16 of 1965), by addressing the evidentiary burden of proof that is placed on accused persons, to bring it in line with constitutional jurisprudence.

2.4 It is proposed that section 60 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), be amended by adding a new subsection (2A) which compels the court, before reaching a decision on any bail application, to take a pre-trial services report into account, if such a report is available (Clause 4). The purpose of the pre-trial services report is to assist the court in making a decision regarding the release of a person on bail.

2.5 Subsection (3) was inserted in section 276 of the Criminal Procedure Act, 1977, by the General Law Amendment Act, 1992 (Act No. 139 of 1992), to confirm that correctional supervision may be imposed for statutory offences. Although the Supreme Court of Appeal has stated authoritatively that correctional supervision is a competent sentencing option in the case of statutory offences, there are examples where section 276 has been interpreted in the High Courts to exclude correctional supervision as a sentencing option where the relevant statutory provisions do not expressly provide for correctional supervision as a sentencing option. The amendment in clause 5 aims to establish legal certainty regarding correctional supervision as a sentencing option in respect of all offences, except where a court is to impose a sentence in terms of section 51(1) or (2), read with section 52, of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997).

2.6 Clause 6 inserts a new provision in the Criminal Procedure Act, 1977, thereby imposing a duty on the court, at sentencing stage, to inform a complainant or relative of a complainant in a murder case of his or her right to make representations to a Parole Board when the parole of the prisoner is considered. It also spells out what is expected of the victim.

2.7 It is proposed in clause 7 that the Criminal Procedure Act, 1977, be amended to provide that the National Director of Public Prosecutions must, within a specific time, submit a report to the Minister responsible for the administration of justice containing particulars in respect of each accused whose trial has not yet commenced and who has been in custody for a particular period, which report must be tabled in Parliament.

2.8 The proposed amendments to the Attorneys Act, 1979 (Act No. 53 of 1979), will make it compulsory for all newly admitted attorneys, whether they are practising as a partners in an existing firm of attorneys or whether they are practising on their own account, to complete a legal practice management course. The aim is to reduce the number of claims against attorneys which arise as a result of a lack of management and administrative skills.

2.9 Section 7(8) of the Divorce Act, 1979 (Act No. 70 of 1979), allows a court when, granting a decree of divorce, to make an order that any part of a pension interest which is due to the other party, be paid to such person when the pension benefits accrue in respect of that member. This subsection presently empowers a court, when making such an order, to make an order that an endorsement is to be made in the records of that fund that that part of the pension interest concerned is so payable to that other party. The proposed amendment to this Act places a duty on the registrar of the divorce court to ensure that the endorsement takes place as soon as possible since the Act is at present silent on this aspect and it has happened in practice at times that no endorsement has ever taken place, to the detriment of the other party.

2.10 Certain amendments to the Sheriff’s Act, 1986 (Act No. 90 of 1986), are proposed to reflect the change in name of the Board for Sheriffs in order to accord the Board its national status.

2.11 The proposed amendment to the Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987), empowers the Minister of Justice to prescribe by regulation the circumstances in which a Family Advocate may be requested to carry out an investigation as discussed in paragraph 2.12 below.

2.12 It is proposed in clause 16 that a maintenance court, where circumstances permit, e.g. the availability of a Family Advocate, may, in prescribed circumstances, request a Family Advocate to investigate and report on the welfare of any minor or dependent child affected by a maintenance inquiry. The proposed amendment extends the current role of the Family Advocate as provided for in the Mediation in Certain Divorce Matters Act, 1987. The main role of the Family Advocate at present is to inquire into and report and make recommendations to the court on any matter concerning the welfare of children in divorce-related proceedings and, where requested by the court, to adduce evidence in court and to cross-examine witnesses. The amendment contained in this clause extends the current functions of Family Advocates to maintenance inquiries. In similar vein, an amendment to the Domestic Violence Act, 1998 (Act No. 116 of 1998), extends the present role of Family Advocates to domestic violence proceedings (Clause 19).

2.13 Section 16(2) of the Maintenance Act, 1998 (Act No. 99 of 1998), envisages a maintenance court making an order, in appropriate cases, against any person who is under a contractual obligation to pay money on a periodical basis to any person who has a maintenance obligation, to pay such money to the maintenance beneficiary on behalf of the person who has such maintenance obligation. The proposed amendment in clause 17 eliminates any uncertainty about whether pension funds can be ordered to make payments in terms of section 16(2) of the Maintenance Act, 1998.

2.14 Section 26 of the Maintenance Act, 1998, provides, among others, for circumstances where a person against whom a maintenance order has been granted, fails to make any particular payment in accordance with that maintenance order, that such order would be enforceable in respect of the arrear amount by execution. The amendments in clause 18 are necessary to ensure that these provisions are also applicable in respect of maintenance orders made by the High Courts and Divorce Courts.

2.15 Section 10 of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000), provides that the South African Human Rights Commission must, within 18 months after the commencement of that section, compile, in each official language, a guide containing such information as may be required by a person who wishes to exercise any right contemplated in that Act. The time frames for public and private bodies to publish their manuals have been extended on two occasions, making it impossible for the SA Human Rights Commission to compile its guide within 18 months after the commencement of section 10. It is proposed that this section be amended to extend the period in which the SA Human Rights Commission must compile a guide.

2.16 Section 12 of the Promotion of Access to Information Act, 2000, provides for certain public bodies or officials to be exempt from the application of the Act. The proposed amendment to this section will exclude the Judicial Service Commission from the application of this Act in respect of a record regarding the nomination, selection or appointment of a judicial officer or any other person by the Judicial Services Commission in terms of any law. This principle is also applicable to the amendments of section 44 of the Act and section 1 of the Promotion of Administrative Justice Act, 2000.

2.17 The proposed amendments to section 79 of the Promotion of Access to Information Act, 2000, will extend the period in which the Rules Board for Courts of Law may make rules of procedure. It is proposed that the period be extended from one year to four years so that the Board can complete this task within the prescribed legislative time frame. These amendments also eliminate any uncertainty regarding the institution of legal proceedings in terms of the Act in a court.

2.18 The Promotion of Access to Information Act, 2000, currently contains no sanction for public or private bodies who fail to produce a manual, as required in terms of the Act. The Act is being amended to provide that an information officer is guilty of an offence and liable on conviction to a fine, or to imprisonment for a period not exceeding two years, if that information officer willfully or in a grossly negligent way fails to comply with the provisions of section 14. A similar amendment provides that a head of a private body is guilty of an offence and liable on conviction to a fine, or to imprisonment for a period not exceeding two years, if that head of a private body willfully or in a grossly negligent way fails to comply with the provisions of section 51. (Clause 24). In similar vein, section 92 of the Act is being amended to allow for regulations which criminalise the failure to comply with those regulations dealing with these manuals.

2.19 The proposed amendments in clause 27 to the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000) extend the period in which the Rules Board for Courts of Law may make rules of procedure. The period has been extended from one year to three years so that the Board can complete this task within the prescribed legislative time frame. These amendments also eliminate any uncertainty regarding the institution of legal proceedings in terms of the Act in a court.

2.20 The proposed amendment to section 16 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000), provides that the publication of a notice by the Minister, altering the boundaries of an equality court, does not affect any legal proceedings which have been instituted but not yet completed at the time of such publication.

2.21 Section 17(1)(a) of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, provides that the Director General may, for every equality court, appoint or designate one or more officers in the Department as clerks of an equality court. The proposed amendment to this section will allow the Director General to delegate this power to an officer employed by the Department.

2.22 The Department was requested to investigate the possibility of creating a mechanism in the Cross-Border Insolvency Act, 2000 (Act No. 42 of 2000), to regulate legal proceedings which are pending at the time when the Minister withdraws a notice in terms of which a State has been designated as a country for purposes of this Act. The proposed amendment to this Act gives effect to this request.

2.23 Clauses 31 and 33 have been inserted to address a technical problem that arose during the enactment of the Judicial Officers (Amendment of Conditions of Service) Act, 2003 (Act No. 28 of 2003).

2.24 The proposed amendment to the Judges’ Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of 2001), contained in clause 32 addresses problems regarding the application of section 16(4). Section 16(4) of this Act deals with the position of retired judges and surviving spouses of judges who retired under the provisions of the Judges’ Pensions Act, 1978 (Act No. 90 of 1978). The pensions payable to these retired judges or to surviving spouses of such retired judges deteriorated over time to such an extent that these pensioners are in a very unfavourable position when compared to judges and surviving spouses of retired judges who fall under the scope of the Judges' Remuneration and Conditions of Employment Act, 1989, and the above-mentioned new 2001 Act. When attempting to apply these provisions in practice, the National Treasury experienced difficulties since some of the surviving spouses would have received less than what they are currently receiving. The proposed amendment intends to address this difficulty.

The following persons were consulted in respect of particular amendments:

The Banking Council of South Africa and Financial Services Board in respect of clause 2;

The Law Society of South Africa in respect of clauses 8, 9 and 10;

The National Prosecuting Authority in respect of clauses 5, 6 and 7;

Department of Correctional Services in respect of clause 6;

The Office of the Family Advocate in respect of clauses 11, 15, 16, 17, 18 and 19;

Board for Sheriffs in respect of clauses 12, 13 and 14;

South African Human Rights Commission in respect of clause 20; and

The National Treasury in respect of clauses 2 and 32.

None.

An additional amount of R4,4 million has been allocated by the Family Court Project for the current financial year for the Office of the Family Advocate to carry out substantive legal services in existing Family Court pilot sites, including those which will emanate from the extension of the role of the Family Advocate. It is estimated that the implementation of the proposed amendments relating to the payment of pensions will be approximately R2 million, considerably less than the R4 million originally set aside when the Judges’ Remuneration and Conditions of Employment Act, 2002, was enacted.

The State Law Advisers and the Department of Justice and Constitutional Development are of the opinion that the Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.