Report of the Portfolio Committee on Justice and Constitutional Development on the Judicial Matters Amendment Bill, 2005 [B 2 - 2004] (National Assembly - sec 75), dated 13 April 2005:

The Portfolio Committee on Justice and Constitutional Development, having considered the subject matter of the Judicial Matters Amendment Bill [B 2 - 2005] (National Assembly – sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, endorses the classification of the Bill and reports the Bill with amendments [B 2A -2005].

The Committee wishes to report further, as follows:

Clause 5 of the Bill, as introduced into Parliament, is intended to amend the provisions of section 299A of the Criminal Procedure Act, 1977 (Act 51 of 1977), which enables complainants or relatives of a deceased complainant in respect of certain serious crimes to make representations to a Parole Board when the accused person in the case in question, at a later stage, is being considered for release on parole or correctional supervision. The section currently requires a judicial officer, when sentencing an accused person to prison, to inform the complainant or relative of the complainant who is in court at the time of sentencing, of this right to make representations to the Parole Board. The section also currently requires the Commissioner of Correctional Services to issue directives regarding the manner and circumstances in which a complainant or relative may exercise this right. Clause 5 of the Bill provides that the Commissioner of Correctional Services -

1. must issue directives in order to ensure that the identity and whereabouts of the complainant or relative of the deceased complainant are kept confidential; and
2. may issue directives in order to provide for prescripts on how a complainant or relative who was not in court when the court sentenced the person in question, may be informed of his or her right as contemplated in section 299A.

The Committee raised the questions whether -

(i) the issue of confidentiality should not be addressed in section 299A itself and not in directives; and

(ii) the Department of Correctional Services is the appropriate institution to inform a complainant or relative of a deceased complainant of the right to make representations to the Parole Board and whether the court is not the appropriate mechanism to deal with this issue by possibly ordering the prosecutor in the case or the investigating officer to inform the complainant or relative, as the case may be.

The Committee consequently requests the Department to investigate these issues further and to revert to the Committee at a later stage with appropriate amendments, possibly in a further Judicial Matters Amendment Bill.

Clause 9 of the Bill, as introduced into Parliament, intends to amend the definition of "debt collector" in section I of the Debt Collectors Act, 1998 (Act 114 of 1998). The broad aim of this Act is to protect the public from irregular practices in the debt collecting industry. The Act consequently requires all persons who carry on the business of debt collecting to register as such, with the exclusion of attorneys and employees of attorneys who do debt collecting and who are regulated by the Attorneys Act. All these other persons who do debt collecting are debt collectors for purposes of the Act and must register as such; they are subject to the prescripts of the Act. The definition of a debt collector at present reads as follows:

(a) a person, other than an attorney or his or her employee or a party to a factoring arrangement, who for reward collects debts owed to another on the latter's behalf;

(b) a person who, other than a party to a factoring arrangement, in the course of his or her regular business, for reward takes over debts referred to in paragraph (a) in order to collect them for his or her own benefit;

(c) a person who, as an agent or employee of a person referred to in paragraph (a) or

(b) collects the debts on behalf of such person, excluding an employee whose duties are purely administrative, clerical or otherwise subservient to the actual occupation of debt collector;";

Section 8(1) of the Debt Collectors Act, 1998, reads as follows;

"As from a date Fixed by the Minister in the Gazette, no person, excluding an attorney or an employee of an attorney, shall act as a debt collector unless he or she is registered as a debt collector in terms of this Act and, in the case of a company or close corporation carrying on business as a debt collector, unless, in addition to the company or close corporation itself, every director of the company and member of the close corporation and every officer of such company or close corporation, not being himself or herself a director or member but who is concerned with debt collecting, as the case may be, is registered as a debt collector.".

Clause 9 of the Bill intends amending paragraph (c) of the definition of debt collector in order to close a gap that has come to the fore in practice where agents of attorneys carry on debt collecting work but do not register as required by the Act. Some of these agents unfortunately do not always stay within the prescripts of the Act and subject members of the public to abusive practices which the Act is intended to prevent.

While the Committee agrees with the proposed amendment, it raises the question whether the time has not arrived for all debt collectors to be regulated by a single statute and not by two statutes as is the situation at present where attorneys who do debt collecting are subject to the Attorneys Act, 1979 and where other persons who do debt collecting are subject to the Debt Collectors Act, 1998.

The Committee consequently requests the Department to undertake an investigation in this regard, by considering the viability of all debt collectors, attorneys included, falling under the ambit of a single statute, by consulting widely with interested parties and by reverting to this Committee with a draft Bill to this effect.

Report to be considered.