2. OBJECTS OF BILL

The objects of the respective clauses of the Bill are explained below.

2.1 Clause 1 seeks to amend the Magistrates Courts Act, 1944, (Act No. 32 of 1944), in order to address the situation where a magistrate vacates the office of magistrate but still has part heard cases to be finalised in the Magistrates Court It also deals specifically with instances where a magistrate vacates the office of magistrate and is appointed as a judge.

2.2 The Judicial Matters Amendment Act, 2003 (Act No. 16 of 2003), amended section 2 of the Administration of Estates Act, 1965 (Act No. 66 of 1965), to provide for the appointment of a Chief Master. In terms of the amendment, the Chief Master is the executive officer of all the Masters' offices in order to promote uniformity in respect of practice and procedure of the various offices. The question has been raised whether the amendment goes far enough in ensuring that the Chief Master has effective control over the various Masters and their activities and whether the Minister has effective control over the Chief Master. The amendments proposed in clauses 2 and 3 seek to eliminate any uncertainty in this regard.

2.3 The Judicial Matters Amendment Act, 2003, also amended certain sections of the Companies Act, 1973 (Act No. 61 of 1973), so as to enable the Cabinet member responsible for the administration of justice to determine policy for, and further regulate, the appointment of liquidators, provisional liquidators, co-liquidators and provisional judicial managers by the Masters of the High Courts. Section 370 of the Companies Act, 1973, should also have been amended consequentially but was inadvertently omitted from the Judicial Matters Amendment Act, 2003. Clause 4 of the Bill corrects this omission.

2.4 Clause 5 seeks to amend section 276 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), that deals with the nature of punishments which may be imposed by our courts. In terms of section 51 of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), a court is obliged to impose a minimum sentence under certain circumstances. The current wording in the proviso to section 276(3) of the Criminal Procedure Act, 1977, could be interpreted to indicate that the court has a discretion in this regard by the use of the wording, "where a court intends imposing a sentence contemplated" in section 51 of the Criminal Law Amendment Act, 1997. The proposed change of wording is intended to reflect the legal position more clearly.

2.5 Clause 6 seeks to amend section 13B of the Attorneys Act, 1979 (Act No. 53 of 1979), which was inserted in that Act at the request of the legal profession. Section 13B requires all attorneys who, for the first time, intend to practise on their own account or as a partner, to complete a mandatory legal practice management course approved by the council of the law society in their area of jurisdiction. When consulting the profession on the implementation of this provision the profession requested a further amendment to allow for some flexibility in respect of the attendance requirement, for instance where a person has worked in a management capacity in a law firm for years or has an MBA.

2.6 Clause 7 seeks to amend section 4 of the Right of Appearance in Courts Act, 1995 (Act No. 62 of 1995), by allowing any attorney who has been granted the right of appearance in terms of that Act to appear in a High Court, to appear in any court in the Republic and not only in the Court in which he or she was granted the right of appearance.

2.7 Clause 8 seeks to insert a new section in the Special Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of 1996), which will allow the Head of a Special Investigating Unit to delegate certain of his or her powers and functions to a member of a Special Investigating Unit. This will facilitate the smooth functioning of Special Investigating Units.

2.8 Section 5 of the Maintenance Act, 1998 (Act No. 99 of 1998), provides that the Minister or any officer of the Department authorised thereto in writing by the Minister, may appoint, in the prescribed manner and on the prescribed conditions, one or more persons as maintenance investigators of a maintenance court to exercise or perform any power, duty or function conferred on or assigned to maintenance investigators by or under the Maintenance Act. Clause 9 has been inserted to allow public servants to be appointed as maintenance investigators as well.

2.9 Clauses 10, 11, 12, 13 and 14 seek to amend the Debt Collectors Act, 1998 (Act No. 114 of 1998).

2.9.1 Clause 10 seeks to amend the definition of "debt collector". At present s debt collector is defined as follows:

"debtor collector means’

(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;",

The Debt Collectors Council has established that some debt collectors refuse to register with the Council. They argue that they provide administrative functions for an attorney and that the attorney will then deal with the processing of the documents and the courts. In this manner neither the attorney nor the debt collector is registered in terms of the Debt Collectors Act, 1998, and the Council has no control over the activities of such a person who performs exactly the same functions as the agent or employee of a debt collector registered in terms of the Act. Such an agent will be able to do as he or she likes and the Council will not be able to act against him or her. The proposed amendment of the definition in Question seeks to address this possible gap that has been identified.

2.9.2 Clause 11 merely seeks to rectify an incorrect reference in section 10 of the Debt Collectors Act, 1998.

2.9.3 Clause 12 proposes the substitution of section 12 of the Debt Collectors Act, 1998, which deals with the register of debt collectors kept by the Debt Collectors Council. In terms of this section the Council must keep a register of the names and prescribed particulars of every debt collector whose application for registration has been approved or whose registration has been withdrawn or disapproved. The Council must also publish the register of debt collectors in the Gazette annually. The register must be updated every second month, it must be made available for inspection by the public at prescribed places and times and must be submitted to Parliament within 14 days after the publication thereof in the Gazette. The register, in its present format, contains particulars of "active" debt collectors, that is the particulars of persons whose application for registration as a debt collector has been approved, as well as particulars of "non-active" debt collectors, in other words the particulars of those persons whose applications or registrations have either been withdrawn or disapproved. It is proposed in clause 12 that the Council should keep two registers, namely one containing the particulars of "active" debt collectors and the other the particulars of "non-active" debt collectors. The other amendments proposed arise from a request of the Debt Collectors Council indicating that it will be very expensive to publish the registers in the Gazette, as is currently required. It is therefore suggested that the requirement to publish in the Gazette be deleted and replaced with the requirement that the register of "active" debt collectors be published on the Council's website, a much less expensive option. However, in order to make the registers accessible to the person in the street, it is proposed that the registers should be available for public inspection at prescribed places. This clause also requires the Debt Collectors Council to publish a notice in the Gazette and in a national newspaper once a year, setting out the prescribed places and particulars where the register is available for inspection by the public.

2.9.4 The Debt Collectors Act, 1998, at present only makes provision for the withdrawal of the registration of a person as debt collector, for instance if a debt collector is convicted of a "dishonesty" offence, improper conduct, becomes insolvent, becomes of unsound mind or if a debt collector does not pay his or her prescribed fees. If a debt collector no longer wishes to practise as a debt collector there is no mechanism in the Act in terms of which he or she can request that his or her registration be cancelled. The Debt Collectors Council can merely withdraw the registration of the person concerned if he or she fails to pay the prescribed fees, after the person has given notice that he or she no longer wishes to practise as a debt collector. Clause 13 seeks to address this problem.

2.9.5 Clause 14 seeks to amend section 20 of the Debt Collectors Act, 1998, which regulates the trust accounts of debt collectors. In terms of this section every debt collector who practises for his or her own account must open and maintain a separate trust account at a bank and must deposit therein all money received or held by him or her on behalf of any person as soon as possible after receipt thereof. The money so deposited must, together with the interest, be paid within a reasonable or agreed time to the person on whose behalf the money was received or held. Any interest must be paid in accordance with the prescribed regulations. The Debt Collectors Council has received numerous requests from debt collectors and auditors alike to amend these provisions to bring them more into line with the trust account provisions of attorneys, estate agents and sheriffs, which require attorneys, estate agents and sheriffs to pay interest earned in their trust accounts to their respective Fidelity Funds, unless the person on whose behalf the money is held or received requests otherwise.

The legislation regulating these three "professions" also, in some way or other, makes provision for the "professionals" in question to be re-imbursed from the interest accrued on the trust account for expenses incurred in respect of that trust account. The debt collectors and many of their auditors point out that it is very difficult and in many cases virtually impossible to work out the interest involved in every case unless the debt collectors have special and very expensive IT programmes which are capable of doing such calculations. The interest earned in many instances often amounts to a few cents and the costs involved in returning the interest exceeds the amount of interest owed. The amendments proposed are intended to bring the relevant provisions more in line with similar provisions relating to trust accounts in other legislation. Clause 14 also seeks to insert in section 20 provisions relating to the auditing of a debt collector's accounting records.

2.10 Clause 15 seeks to amend section 10 of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000). This section deals with regulations which the Minister may make to give meaningful effect to the Act. The Minister must, by regulation, prepare a code of good administrative conduct in order to provide administrators with practical guidelines and information aimed at the promotion of an efficient administration and the achievement of the objects of the Act. The Portfolio Committee on Justice and Constitutional Development deliberately intended this Code not to have the binding force of law, but to be used as a practical guide. The State Law Advisers have expressed the opinion that a practical code, which is nothing more than a practical guide, should not have the force of law which subordinate legislation (regulations) has. In terms of the proposed amendment the code of good administrative conduct will be published by notice in the Gazette and not be made by regulation in order to give effect to Parliament's intention. In addition, clause 15 seeks to extend the period of time within which the code of good administrative conduct must be made.

2.11 Clause 16 seeks to amend section 1 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000). A concern has been raised that a person who is intersexed might be vulnerable as a result of the conventional or ordinary understanding of the words "sex" and "gender" (two of the prohibited grounds of unfair discrimination contained in section 9 of the Constitution), being filtered through into the law, leaving these persons unprotected. While it may be argued that the said Act will protect a person who is intersexed from unfair discrimination on the strength of the definition of "prohibited grounds" in section 1 thereof, which includes "sex" and "gender", as well as any other ground where the discrimination in question "causes or perpetuates systemic disadvantage, undermines human dignity or adversely affects the equal enjoyment of a person's rights and freedoms in a serious manner", the opinion is held that the amendments proposed in this clause will eliminate any uncertainty in this regard and focus the minds of those who apply this legislation in practice in the event of a person who is intersexed seeking relief.

2.12 Clause 17 seeks to amend section 10 of the Implementation of the Rome Statute of the International Criminal Court Act, 2002 (Act No. 27 of 2002). Section 10 sets out the procedure to be followed after the arrest of a person in South Africa who is wanted by the International Criminal Court for a crime contemplated in the Act for purposes of surrendering that person to the International Criminal Court. Such a person must be brought before a magistrate who must hold an inquiry in order to establish whether the warrant of arrest applies to the arrested person, whether the person has been arrested in accordance with the procedures laid down by domestic law and whether the rights of the person as contemplated in Chapter 2 of the Constitution have been respected. In terms of section 10(5), if the magistrate is satisfied that these requirements have been met and that the person may be surrendered to the International Criminal Court for prosecution in the Court, for the imposition of a sentence by the Court for a crime in respect of which the person has already been convicted or to serve a sentence already imposed by the Court, "the magistrate must issue an order committing that person to prison pending his or her surrender to the Court" It has been pointed out that this provision may be flawed to the extent that it makes no explicit provision for an order for the surrender of a person to the Court but merely envisages an order committing a person to prison pending his or her surrender to the Court. Clause 17 therefore proposes an amendment to section 10 in order to create legal certainty in this regard.

2.13 Section 22 of the Judicial Matters Second Amendment Act, 2003, amended section 44(4) of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000). In terms of the amended section 44(4) a record may not be refused insofar as it consists of an account or a statement of reasons required to be given in accordance with section 5 of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000), except if the record relates to a decision referred to in paragraph (gg) of the definition of "administrative action" in section 1 of the Promotion of Administrative Justice Act, 2000, regarding the nomination, selection or appointment of a judicial officer or any other person by the Judicial Service Commission in terms of any law. Section 5 of the Promotion of Administrative Justice Act, 2000, provides that any person whose rights have been materially and adversely affected by an administrative action and who has not been given reasons for the action may, within 90 days after the date on which that person became aware of the action, request written reasons for the action. However, paragraph (gg) of the definition of "administrative action" already provides that "a decision relating to any aspect regarding the nomination, selection or appointment of a judicial officer or any other person by the Judicial Service Commission in terms of any law" is not an administrative action. The amendment to section 44(4) of the Promotion of Access to Information Act, 2000, was therefore unnecessary in the first place and clause 18 seeks to repeal section 22 of the Judicial Matters Second Amendment Act, 2003, since it has not been put into operation yet.

3. CONSULTATION

The following persons were consulted: The legal profession in respect of clause 6, the legal profession and judiciary in respect of clause 7, the Special Investigating Unit in respect of clause 8, the Council for Debt Collectors in respect of clauses 10, 11, 12, 13 and 14, the South African Human Rights Commission, the Commission on Gender Equality, the South African Law Reform Commission, the Equality Review Committee and an intersexual person in respect of clause 16.

4. IMPLICATIONS FOR PROVINCES

None.

5. FINANCIAL IMPLICATIONS FOR STATE

None

6. PARLIAMENTARY PROCEDURE

6.1 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.

6.2 The State Law Advisers are of the opinion that it is not necessary to refer this Bill to the National House of Traditional Leaders in terms of section 18(1)(a) of the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003), since it does not contain provisions pertaining to customary law or customs of traditional communities