SOUTH AFRICAN BOARD FOR SHERIFFS
PROPOSED AMENDMENTS: INCREASE OF PENALTY/FINES IMPOSED ON SHERIFFS BY THE BOARD

• Section 45 (2) (b): "The Board may, if it believes that on conviction of the sheriff a fine not exceeding the prescribed amount will be imposed upon him or her, afford the sheriff an opportunity to admit his/her guilt in respect of the charge and to pay the fine determined by the Board in the said notice on or before the date specified in the notice without appearing before the Board."
• Regulation 11A (a): For the purposes of section 45 (2) (b) of the Act, the Board shall determine a fine not exceeding R1 500.00.

1.2 SECTION 49 (1) (b) FINES: DETERMINATION OF MAXIMUM AMOUNT OF FINE

"Under the powers vested in me by Section 49 (1) (b) of the Sheriffs Act 90 of 1986, I Abdullah Mohamed Omar, Minister of Justice, hereby, for the purposes of the said section determine the amount of the fine to be R10 000."

2. RESEARCH CONDUCTED ON SIMILAR INSTITUTIONS

2.1 Debt Collectors Act 114 of 1998: Regulations No. R185 Of 2003:

"Maximum amount of fine

The Council (Debt Collectors Council) may, for the purposes of section 15(3)(c) of the Ac impose a fine not exceeding an amount of R100 000."

2.2 Estate Agency Affairs Act Of 1976, Chapter III: General Provisions, Section 30 of Conduct Deserving of sanction by estate agents:

SOUTH AFRICAN BOARD FOR SHERIFFS

"When any estate agent is found guilty of conduct deserving of sanction by the board or a committee of inquiry, the board or the committee of inquiry (as the case may be) may-

b) impose on such estate agent a fine not exceeding R25 000 or such higher amount as may be prescribed by the Minister by notice in the Gazette in order to counter the effect of inflation. and which is payable to the board:"

2.3 The Law Society of the Cape of Good Hope Rules: Rule 15.9.3

"Pursuant to section 72(1) of the Attorney Act No 53 of 1979, the maximum amount of the fines which may be imposed in respect of a person found guilty of unprofessional or dishonourable or unworthy conduct shall be -

a) In the case of a practitioner - R10 000"

2.4 Health Professions Act, 1974 (Act No. 56 Of 1974) Regulations No. R1356 of 2002 relating to the Suspension of Practitioners

"Any person who infringes or fails to comply with an order made in terms of sub regulation (2) shall be guilty of an offence and liable on conviction in a court of law to a fine not exceeding R5 000."

2.5 Public Accountants and Auditors Act 80 Of 1991 Section 27 (3)

"Any person who contravenes or fails to comply with any provision of this Act, shall be guilty of an offence and. where no other penalty is prescribed. liable on conviction to a fine not exceeding R4 000.00"

3 INCREASE OF THE MAXIMUM FINES/PENALTIES

3.1 Amendment of Regulation 11A (a) relating to Section 45 (2) (b) in relation to admission of guilt

3.1.1 Currently, Regulation 11A prescribes that the maximum amount that can be imposed by the Board on admission of guilt by the sheriff, without a hearing being held as being R1 500.

3.1.2 The following amendment is suggested:

• The removal of R1 500, and the insertion of not less that R25 000 and not exceeding R50 000, thus to read as follows;

"For the purpose of section 45 (2 (b) of the Act the Board shall determine a fine not less that R25 000 and not exceeding R50 000. "

3.2 Amendment of the maximum fine/ penalty imposed by a Disciplinary Committee in terms of Section 49 (1) (b) as prescribed by the Minister

3.2.1 The Minister in Regulation No.255 prescribes that the maximum amount that can be imposed by the Board in terms of Section 49 (1) (b) as being R 10 000.

3.2.2 The following amendment is suggested:

• The removal of R10 000, and the insertion of R50 000, thus to read as follows;

"Under the powers vested in me by Section 49 (1) (b) of the Sheriffs Act 90 of 1986, /, Minister of Justice, hereby, for the purposes of the said section determine the amount of the fine to be R50 000"

4. COMMENTS

It should be noted that the profession with the highest fine/penalty is the Debt Collectors profession. This profession became aligned with the Department of Justice as its main stakeholder in 1998 when their Act was passed and the Debt Collectors Council was established as a result thereof, with the sole mandate of regulating the profession. The maximum fine for transgressions of improper conduct in this regard is R100 000. Followed by the Estate Agencies profession at the maximum of R25 000. The Estate Agencies profession is aligned to the Department of Trade and Industry as its main stakeholder and is regulated by the Estate Agencies Board. Arguably, the Debt Collectors profession and the Estate Agencies profession are some of the most appropriately regulated professions in South Africa. This could perhaps be attributed to the very stringent remedies in place for anyone who neglects to comply with their code of conduct Le. maximums of R100 000 and R25 000 respectively. Whilst we agree that the notion that the imposition of a fine/penalty should be seen as a corrective measure rather than a punitive one, the setting of a high benchmark for fines/penalties has proven to be a deterrent rather than an incitement. The rationale behind this is that it would be unthinkable for any reasonable person to risk being subjected to the payment of an exorbent penalty amount, rather than steering clear of unbecoming conduct that will put his/her reputation at stake.

Therefore, in line with the objectives of our Strategic Planning Minute-Knysna, that of remaining relevant to our main stakeholder (DOJCD), this amendment will assist in portraying that the SABFS is serious about its core business, which is to regulate the sheriffs profession and enhancing the civil justice system.