REPUBLIC OF SOUTH AFRICA

Document Sample
REPUBLIC OF SOUTH AFRICA Powered By Docstoc
					                          REPUBLIC OF SOUTH AFRICA




                     JUDICIAL MATTERS AMENDMENT BILL




                                    ____________


(As introduced in the National Assembly (proposed section 75); explanatory summary of

 Bill published in Government Gazette No. ………….. of …………. 2011) (The English

                           text is the official text of the Bill)

                                    ____________




        (MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT)




[B —2011]




_______________________________________________________________
                                          2




GENERAL EXPLANATORY NOTE:


[        ] Words in bold type in square brackets indicate omissions from existing

           enactments

_________ Words underlined with a solid line indicate insertions in existing

           enactments



___________________________________________________________________



                                      BILL



    To amend—

     o     the Magistrates’ Courts Act, 1944, so as to bring the Afrikaans text

           relating to causes of action over which magistrates’ courts have

           jurisdiction in line with that of the English text; and to further

           regulate the jurisdiction of magistrates’ courts in line with a decision

           of the Constitutional Court;

     o     the Criminal Procedure Act, 1977, so as to effect technical

           corrections; and to further regulate the provisions relating to the

           expungement of certain criminal records;

     o     the Small Claims Courts Act, 1984, so as to further regulate the

           appointment of commissioners;

     o     the Special Investigating Units and Special Tribunals Act, 1996, so as

           to further regulate the litigation functions of a Special Investigating
                                 3



    Unit; and to provide for the secondment of a member of a Special

    Investigating Unit to another State institution;

o   the Criminal Law Amendment Act, 1997, so as to exclude persons

    under the age of 18 years from the operation of that Act;

o   the National Prosecuting Authority Act, 1998, so as to further

    regulate the remuneration of Deputy Directors and prosecutors;

o   the Maintenance Act, 1998, so as to further regulate the area of

    jurisdiction of a maintenance court; to further regulate the

    circumstances under which maintenance orders may be granted by

    default; to clarify the legal position relating to the amendment of a

    maintenance order made by a High Court by a subsequent order

    made by a maintenance court; to further regulate the transfer of

    maintenance orders; to increase the penalties for certain offences; to

    create certain new offences; and to further regulate the conversion

    of criminal proceedings into maintenance enquiries;

o   the Domestic Violence Act, 1998, so as to further regulate the powers

    of members of the South African Police Service in domestic violence

    matters;

o   the Prevention of Organised Crime Act, 1998, so as to make it clear

    that the Administration of Estates Act, 1965, applies to a curator

    bonis appointed under Chapter 6 of the said Act;

o   the Promotion of Access to Information Act, 2000, so as to extend

    the time periods within which to bring court applications;

o   the Regulation of Interception of Communications and Provision of

    Communication-related Information Act, 2002, so as to amend
                                4



    certain definitions; to provide that the designated judge may

    consider applications for the issuing of archived communication-

    related directions; to provide that electronic communication service

    providers, other than mobile cellular electronic communication

    service providers, must electronically record and store information

    relating to customers; and to further regulate the provisions relating

    to penalties;

o   the National Credit Act, 2005, so as to determine the jurisdiction of

    magistrates’ courts for the purposes of debt review proceedings;

o   to amend the Children's Act, 2005, so as to allow for information in

    the National Child Protection Register to be made available in the

    case of applications for the expungement of certain criminal records;

o   the Criminal Law (Sexual Offences and Related Matters) Amendment

    Act, 2007, so as to allow for information in the National Register for

    Sex Offenders to be made available in the case of applications for

    the expungement of certain criminal records; and to further regulate

    the issuing of directives by the National Director of Public

    Prosecutions;

o   the Child Justice Act, 2008, so as to further regulate the evaluation of

    the criminal capacity of a child; to further regulate the reporting of

    any injury sustained or severe psychological trauma suffered by a

    child while in police custody; to further regulate the holding of

    preliminary inquiries; to provide for the delegation of certain powers

    and assignment of certain duties by the Cabinet member responsible

    for social development in respect of the accreditation of diversion
                                           5



             programmes and diversion service providers; to effect certain textual

             corrections; to repeal provisions that make the Criminal Law

             Amendment Act, 1997, applicable to persons under the age of 18

             years; and to further regulate the expungement of records of certain

             convictions of children;

      o      the Reform of Customary Law of Succession and Regulation of

             Related Matters Act, 2009, so as to effect certain textual corrections;

     to establish the Limpopo High Court, Polokwane and the Mpumalanga High

      Court, Nelspruit; and

     to provide for matters connected therewith.



PARLIAMENT of the Republic of South Africa enacts as follows:—




Amendment of section 29 of Act 32 of 1944, as substituted by section 7 of Act 31

of 2008




      1.     Section 29 of the Magistrates‘ Courts Act, 1944, is hereby amended—

(a)   by the substitution in subsection (1) for paragraph (e) of the Afrikaans text of the

      following paragraph:

      "(e)   aksies gebaseer op of wat ontstaan uit ‗n kredietooreenkoms soos

             omskryf in artikel 1 van die ―National Credit Act, 2005‖ (Wet No. 34 van

             2005)[, waar die vordering of die waarde van die goed in geskil nie

             die bedrag wat die Minister van tyd tot tyd by kennisgewing in die

             Staatskoerant bepaal, te bowe gaan nie];"; and
                                              6



(b)   by the substitution for subsection (1A) of the following subsection:

                           "(1A) The       Minister may determine different amounts

      contemplated in subsection (1)(a), (b), (d), [(e),] (f) and (g) in respect of courts for

      districts and courts for regional divisions.".



Amendment of section 30 of Act 32 of 1944, as amended by section 4 of Act 19 of

1963 and section 11 of Act 53 of 1970



      2.     Section 30 of the Magistrates‘ Courts Act, 1944, is hereby amended—

(a)   by the substitution for subsection (1) of the following subsection:

                            "(1)   Subject to the limits of jurisdiction prescribed by this

      Act, the court may grant against persons and things orders for [arrest tanquam

      suspectus de fuga,] attachments, interdicts and mandamenten van spolie."; and

(b)   by the deletion of subsection (3).



Substitution of section 30bis of Act 32 of 1944, as inserted by section 8 of Act 80

of 1964



      3.     The following section is hereby substituted for section 30bis of the

Magistrates‘ Courts Act, 1944:



      "Attachment to found or confirm jurisdiction



             30bis. The court may order attachment of [person or] property to found or

      confirm jurisdiction against any person who does not reside in the Republic, in
                                             7



       respect of an action within its jurisdiction, where the claim or the value of the

       matter in dispute amounts to at least [forty rand] R2500, exclusive of any costs

       in respect of the recovery thereof, and may grant an order allowing service of any

       process in such action to be effected in such manner as may be stated in such

       order.".



Amendment of section 38 of Act 51 of 1977, as substituted by section 99 of Act 75

of 2008



       4.     Section 38 of the Criminal Procedure Act, 1977, is hereby amended by the

substitution for subsection (1) of the following subsection:

                            "(1)   Subject to section 4(2) of the Child Justice Act, 2008

      (Act No. 75 of 2008), the methods of securing the attendance of an accused who

      is eighteen years or older in court for the purposes of his or her trial shall be

      arrest, summons, written notice and indictment in accordance with the relevant

      provisions of this Act.".



Amendment of section 73 of Act 51 of 1977, as amended by section 2 of Act 86 of

1996 and section 99 of Act 75 of 2008



       5.     Section 73 of the Criminal Procedure Act, 1977, is hereby amended by the

substitution for subsection (3) of the following subsection:

                            "(3)   In addition to the provisions of sections 3(g), 38(2),

      44(1)(b) and 65 of the Child Justice Act, 2008 (Act No. 75 of 2008), relating to the

      assistance of an accused who is under the age of eighteen years by his or her
                                            8



      parent [or], an appropriate adult or a guardian at criminal proceedings, any

      accused who, in the opinion of the court, requires the assistance of another

      person at criminal proceedings, may, with the permission of the court, be so

      assisted at such proceedings.".



Amendment of section 271B of Act 51 of 1977, as inserted by section 3 of Act 65

of 2008



      6.     Section 271B of the Criminal Procedure Act, 1977, is hereby amended—

(a)   by the substitution in subsection (1)(a) for the words preceding subparagraph (i)

      of the following words:

      "Where a court has imposed any of the following sentences on or has made any

      of the following orders in respect of a person convicted of an offence, the criminal

      record of that person, containing the conviction and sentence or order in

      question, must, subject to paragraph (b) and subsection (2) and section 271D, on

      the person's written application, be expunged after a period of 10 years has

      elapsed after the date of conviction for that offence, unless during that period the

      person in question has been convicted of an offence and has been sentenced to

      a period of imprisonment without the option of a fine:";

(b)   by the insertion in subsection (1)(a) of the following subparagraph after

      subparagraph (vi):

             "(viA) an order in terms of section 290(1)(a) or (b) as that section was

                    before it was repealed by section 99 of the Child Justice Act, 2008

                    (Act No. 75 of 2008);"; and
                                            9



(c)   by the substitution in subsection (1)(a) for subparagraph (vii) of the following

      subparagraph:

             "(vii) a sentence of correctional supervision, referred to in section

                    276(1)(h) or a sentence referred to in section 276(1)(i); or".



Amendment of section 271C of Act 51 of 1977, as inserted by section 3 of Act 65

of 2008



      7.     Section 271C of the Criminal Procedure Act, 1977, is hereby amended—

(a)   by the substitution in subsection (1) for paragraph (c) of the following paragraph:

      "(c)   a contravention of section 5(1), read with section 5(2), [or] section 6, read

             with section 6(2), section 9(3), section 9(3)bis(a), read with section 9(3)(c),

             section 10(1), read with section 10(4), section 11(1), read with section

             11(2)(a), section 12(1), read with section 12(2), section 12(3), section

             15(1), read with section 15(3), section 29(1), read with section 29(9) and

             section 29(12), section 31(1), read with section 31(2), section 35(1), read

             with section 35(4), section 35(5), section 35(6), section 40(3), section

             43bis or section 44, of the Blacks (Urban Areas) Consolidation Act, 1945

             (Act No. 25 of 1945);"; and

(b)   by the insertion in subsection (1) after paragraph (k) of the following paragraph:

             "(kA) a contravention of section 14, section 20(2), section 20A(4) or

                    section 26(2) of the Black Labour Act, 1964 (Act No. 67 of 1964);".



Insertion of sections 271DA and 271DB in Act 51 of 1977
                                            10



      8.     The following sections are hereby inserted in the Criminal Procedure Act,

1977, after section 271D:



      "Revoking of certificate of expungement erroneously issued



             271DA.         (1)   Where       the    Director-General:    Justice      and

      Constitutional Development, in terms of section 271B(2) or 271C(3), or the

      Minister, in terms of section 271C(5)(b), has issued a certificate of expungement

      and it subsequently appears that the applicant did not qualify for the

      expungement of his or her record, the Director-General must—

      (a)    inform the applicant of the information that has come to his or her attention

             and that he or she or the Minister intends to revoke the certificate of

             expungement;

      (b)    afford the applicant an opportunity to furnish written reasons to him or her

             or the Minister within 90 working days after the applicant has been

             informed of the decision why his or her record should be expunged;

      (c)    inform the applicant within 30 working days after a decision is made of—

             (i)    his or her or the Minister‘s decision; and

             (ii)   the reasons for revoking the certificate of expungement; and

      (d)    inform the head of the Criminal Record Centre of the South African Police

             Service within 14 working days after the decision was made to revoke the

             certificate and to reinstate the convictions and sentences in question.

                            (2)   The Director-General or the Minister must revoke the

      certificate of expungement if no or insufficient reasons are furnished pursuant to

      the opportunity referred to in subsection (1)(b).".
                                           11




      Delegation of powers and assignment of duties by Director-General



             271DB.       (1)    The Director-General: Justice and Constitutional

      Development may delegate any power or assign any duty conferred upon or

      assigned to him or her in terms of section 271B(2) or (3) or 271C(3) or (4) to an

      employee of the Department of Justice and Constitutional Development at the

      rank of Deputy Director-General.

                          (2)    A delegation or assignment in terms of subsection

      (1)—

      (a)    is subject to any limitation, condition and direction which the Director-

             General may impose;

      (b)    must be in writing; and

      (c)    does not divest the Director-General of the responsibility concerning the

             exercise of the power or the performance of the duty.

                          (3)    The Director-General may—

      (a)    confirm, vary or revoke any decision taken in consequence of a delegation

             or assignment in terms of this section, subject to any rights that may have

             accrued to a person as a result of the decision; and

      (b)    at any time, in writing, withdraw a delegation or assignment.".



Amendment of section 276A of Act 51 of 1977, as inserted by section 42 of Act

122 of 1991 and amended by section 46 of Act 129 of 1993, section 21 of Act 87 of

1997, section 68 of Act 32 of 2007 and section 99 of Act 75 of 2008
                                            12



       9.     Section 276A of the Criminal Procedure Act, 1977, is hereby amended—

(a)    by the substitution in subsection (1) for paragraph (b) of the following paragraph:

       "(b)   for a fixed period not exceeding three years, or in the case of a conviction

              for any offence referred to in the Criminal Law (Sexual Offences and

              Related Matters) Amendment Act, 2007 (Act No. 32 of 2007), for a fixed

              period not exceeding five years."; and

(b)    by the substitution in subsection (2) for the words preceding paragraph (a) of the

       following words:

              "Punishment shall, subject to the provisions of section [75] 77 of the Child

              Justice Act, 2008 (Act No. 75 of 2008), only be imposed under section

              276(1)(i)—".



Amendment of section 309 of Act 51 of 1977, as amended by section 17 of Act 105

of 1982, section 8 of Act 107 of 1990, section 51 of Act 129 of 1993, section 13 of

Act 75 of 1995, section 2 of Act 33 of 1997, section 2 of Act 76 of 1997, section 38

of Act 105 of 1997, section 2 of Act 42 of 2003, section 6 of Act 38 of 2007, section

13 of Act 66 of 2008 and section 99 of Act 75 of 2008



       10.    Section 309 of the Criminal Procedure Act, 1977, is hereby amended by

the substitution in subsection (1) for paragraph (a) of the following paragraph:

       "(a)   Subject to section 84 of the Child Justice Act, 2008 (Act No. 75 of 2008),

              any person convicted of any offence by any lower court (including a

              person discharged after conviction) may, subject to leave to appeal being

              granted in terms of section 309B or 309C, appeal against such conviction

              and against any resultant sentence or order to the High Court having
                                            13



              jurisdiction: Provided that if that person was sentenced to imprisonment

              for life by a regional court under section 51(1) of the Criminal Law

              Amendment Act, 1997 (Act No. 105 of 1997), he or she may note such an

              appeal without having to apply for leave in terms of section 309B:

              Provided further that the provisions of section 302(1)(b) shall apply in

              respect of a person who duly notes an appeal against a conviction,

              sentence or order as contemplated in section 302(1)(a).".



Amendment of section 309B of Act 51 of 1977, as inserted by section 3 of Act 76

of 1997, substituted by section 3 of Act 42 of 2003 and amended by section 99 of

Act 75 of 2008



       11.    Section 309B of the Criminal Procedure Act, 1977, is hereby amended by

the substitution in subsection (1) for paragraph (a) of the following paragraph:

       "(a)   Subject to section 84 of the Child Justice Act, 2008 (Act No. 75 of 2008),

              any accused, other than a person referred to in the first proviso to section

              309(1)(a), who wishes to note an appeal against any conviction or against

              any resultant sentence or order of a lower court, must apply to that court

              for leave to appeal against that conviction, sentence or order.".



Amendment of section 309D of Act 51 of 1977, as inserted by section 3 of Act 76

of 1997, substituted by section 3 of Act 42 of 2003 and amended by section 99 of

Act 75 of 2008
                                             14



       12.    Section 309D of the Criminal Procedure Act, 1977, is hereby amended by

the substitution in subsection (1) for paragraph (a) of the following paragraph:

       "(a)   An accused, other than a child contemplated in the Child Justice Act, 2008

              (Act No. 75 of 2008), and referred to in the first proviso to section

              309(1)(a), or an accused who is unrepresented at the time he or she is

              convicted and sentenced, must be informed by the presiding officer of his

              or her rights in respect of appeal and legal representation and of the

              correct procedures to give effect to these rights.".



Amendment of section 9 of Act 61 of 1984, as amended by section 5 of Act 92 of

1986, section 1 of Act 63 of 1989, section 4 of Act 18 of 1996 and section 4 of Act

26 of 1999



       13.    Section 9 of the Small Claims Courts Act, 1984, is hereby amended by the

insertion in subsection (1) after paragraph (b) of the following paragraph:

       "(c)   A commissioner appointed in terms of paragraph (a) in respect of a

              specific court shall be deemed to be appointed for any court established

              under section 2 in the province in question.".



Substitution of long title to Act 74 of 1996



       14.    The following long title is hereby substituted for the long title to the Special

Investigating Units and Special Tribunals Act, 1996:
                                            15



"To provide for the establishment of Special Investigating Units for the purpose of

investigating serious malpractices or maladministration in connection with the

administration of State institutions, State assets and public money as well as any

conduct which may seriously harm the interests of the public[,] and for the

purpose of instituting civil proceedings on behalf of State institutions for the

recovery of any damages or losses which have been suffered and the prevention

of potential damages or losses which may be suffered by such State institutions;

to provide for the establishment of Special Tribunals so as to adjudicate upon

civil matters emanating from investigations by Special Investigating Units; and to

provide for matters incidental thereto.".



Amendment of section 2 of Act 74 of 1996, as amended by section 36 of Act 12 of

2004



       15.    Section 2 of the Special Investigating Units and Special Tribunals Act,

1996, is hereby amended by the substitution in subsection (1) for paragraph (b) of the

following paragraph:

"(b)   establish one or more Special Tribunals to adjudicate upon [justiciable] civil

[disputes] proceedings emanating from any investigation of any particular Special

Investigating Unit".



Amendment of section 3 of Act 74 of 1996, as amended by section 1 of Act 2 of

2001
                                            16



       16.    Section 3 of the Special Investigating Units and Special Tribunals Act,

1996, is hereby amended by the addition of the following subsection:

                            "(6)   The Head of a Special Investigating Unit may, on

such conditions as he or she may deem fit and if the member consents, second a

member, either for a particular task or for a specified period, to the service of a State

institution on condition that the rights, privileges and service benefits and conditions of

the member are not adversely affected by such secondment.".



Amendment of section 4 of Act 74 of 1996



       17.    Section 4 of the Special Investigating Units and Special Tribunals Act,

1996, is hereby amended—

(a)   by the substitution in subsection (1) for paragraphs (b) and (c) of the following

      paragraphs, respectively:

      "(b)   to collect evidence regarding acts or omissions which are relevant to its

             investigation [and, if applicable, to institute proceedings in a Special

             Tribunal against the parties concerned];

      (c)    if applicable, to [present evidence in] institute and conduct civil

             proceedings [brought before] in a Special Tribunal for the recovery of any

             damages or losses and the prevention of potential damages or losses or

             any other relief to which the State institution concerned is entitled;"; and

(b)    by the addition of the following subsection:

                     "(3)   Where it is relevant to an investigation, a Special

      Investigating Unit may, of its own accord, institute and conduct any civil
                                             17



      proceedings in a Special Tribunal for the protection of any interests relating to its

      functions in terms of this Act.".



Amendment of section 5 of Act 74 of 1996, as amended by section 31 of Act 62 of

2000 and section 2 of Act 2 of 2001



      18.    Section 5 of the Special Investigating Units and Special Tribunals Act,

1996, is hereby amended—

(a)   by the substitution for subsection (5) of the following subsection:

                    "(5)     [A] Notwithstanding any other law to the contrary and for

      the purposes of performing its functions in terms of this Act, a Special

      Investigating Unit may institute and conduct civil proceedings in a Special

      Tribunal [if, arising from its investigation, it has obtained evidence

      substantiating any allegation contemplated in section 2(2)] or any court of

      law in any part of the Republic—

      (a)    of its own accord and in its own name in order to protect any interests

             relating to its functions in terms of this Act; or

      (b)    at the request and on behalf of the State institution concerned for the

             recovery of damages or losses and the prevention of potential damages or

             losses or any other relief to which that State institution is entitled.";

(b)   by the substitution for subsection (7) of the following subsection:

                    "(7)    If, during the course of an investigation, any matter comes to

      the attention of the Head of the Special Investigating Unit which, in his or her

      opinion, justifies the institution of [legal] civil proceedings by a State institution
                                            18



       against any person, he or she may bring such matter to the attention of the state

       attorney or the State institution concerned, as the case may be."; and

(c)    by the substitution for subsection (9) of the following subsection:

                     "(9)   (a)    Any member of a Special Investigating Unit who is

       qualified and admitted as an advocate or an attorney, may perform such work in

       a Special Tribunal or in any court of law in any part of the Republic on behalf of a

       Special Investigating Unit or a State institution as is by law, custom or practice

       performed by advocates and attorneys.

                            (b)    The provisions of the Admission of Advocates Act,

       1964 (Act No. 74 of 1964), Attorneys Act, 1979 (Act No. 53 of 1979), and Right of

       Appearance in Courts Act, 1995 (Act No. 62 of 1995), in respect of duties and

       functions and rights and privileges of an advocate or attorney, as the case may

       be, apply with the changes required by the context to an advocate or attorney

       performing his or her duties and functions and exercising his or her rights and

       privileges in terms of this Act except where this Act provides otherwise.".



Amendment of section 8 of Act 74 of 1996, as amended by section 32 of Act 62 of

2000



       19.    Section 8 of the Special Investigating Units and Special Tribunals Act,

1996, is hereby amended by the substitution in subsection (2) for the words preceding

paragraph (a) of the following words:

       "A Special Tribunal shall have jurisdiction to adjudicate upon any civil [dispute]

       proceedings brought before it by a Special Investigating Unit or any interested
                                            19



       party as defined by the regulations, emanating from the investigation by such

       Special Investigating Unit, including the power to—".



Amendment of section 51 of Act 105 of 1997, as substituted by section 1 of Act 38

of 2007



       20.    Section 51 of the Criminal Law Amendment Act, 1997, is hereby amended

by the substitution for subsections (5) and (6) of the following subsections, respectively:

                     "(5)   [(a)   Subject to paragraph (b), the] The operation of a

       minimum sentence imposed in terms of this section shall not be suspended as

       contemplated in section 297(4) of the Criminal Procedure Act, 1977 (Act No. 51

       of 1977).

                            [(b)   Not more than half of a minimum sentence

       imposed in terms of subsection (2) may be suspended as contemplated in

       section 297(4) of the Criminal Procedure Act, 1977, if the accused person

       was 16 years of age or older, but under the age of 18 years, at the time of

       the commission of the offence in question.]

                     (6)    This section does not apply in respect of an accused person

       who was under the age of [16] 18 years at the time of the commission of an

       offence contemplated in subsection (1) or (2).".



Amendment of section 18 of Act 32 of 1998



       21.    Section 18 of the National Prosecuting Authority Act, 1998, is hereby

amended by the substitution for subsection (1) of the following subsection:
                                              20



                            "(1)   (a)      Subject to the provisions of this section, any

       Deputy Director or prosecutor shall be paid a salary in accordance with the scale

       determined from time to time for his or her rank and grade by the Minister after

       consultation with the National Director and the Minister for the Public Service and

       Administration, and with the concurrence of the Minister of Finance, by notice in

       the Gazette: Provided that such determination is not required in respect of any

       cost of living adjustment of such scale.

                                   (b)      Cost of living adjustments of the scale

       determined by the Minister in terms of paragraph (a) shall be effected in

       accordance with the cost of living adjustments determined for legally qualified

       personnel in the Public Service.".



Amendment of section 6 of Act 99 of 1998



       22.    Section 6 of the Maintenance Act, 1998, is hereby amended by the

substitution for subsection (2) of the following subsection:

                            (2)    After investigating the complaint, the maintenance

      officer may institute an enquiry in the maintenance court within the area of

      jurisdiction in which the person to be maintained, or the person in whose care the

      person to be maintained is, resides, carries on business or is employed with a

      view to enquiring into the provision of maintenance for the person so to be

      maintained.".



Amendment of section 18 of Act 99 of 1998
                                              21



       23.      Section 18 of the Maintenance Act, 1998, is hereby amended by the

substitution in subsection (1) for paragraphs (a) and (b) of the following paragraphs,

respectively:

       "(a)     that any person against whom an order may be made under section 16

                (1)(a) or (b)—

                (i)    has knowledge of a subpoena issued under section 9; or

                (ii)   has appeared before the court and was warned by the court to

                       appear at a later date, time and place before the court; and

       (b)      that he or she has failed to appear before the maintenance court on the

                date and at the time and place—

                (i)    specified in such subpoena; or

                (ii)   in accordance with a warning referred to in paragraph (a)(ii),".



Amendment of section 22 of Act 99 of 1998



       24.      Section 22 of the Maintenance Act, 1998, is hereby amended by the

substitution for the words following paragraph (b) of the following words:

       "the maintenance order shall cease to be of force and effect only insofar as the

       court expressly, or by necessary implication, replaced that order or part thereof

       and the maintenance officer shall forthwith give notice of the decision to the

       registrar or clerk of the court in the Republic where the maintenance order was

       issued or where the sentence concerned was imposed, as the case may be, who

       shall deal with the relevant records or registers in the prescribed manner.".
                                            22



Amendment of section 23 of Act 99 of 1998



       25.    Section 23 of the Maintenance Act, 1998, is hereby amended by the

substitution for subsection (1) of the following subsection:

                            "(1)   Subject to the directions prescribed in connection with

      the transfer of maintenance orders, the maintenance officer [may] shall, in

      writing, direct the clerk of the court where a maintenance order was made to

      transmit the maintenance order, together with the prescribed records, to the clerk

      of the maintenance court within the area of jurisdiction of which the person in

      whose favour the maintenance order was made, or the person in whose care that

      person is, resides, carries on business or is employed.".



Amendment of section 31 of Act 99 of 1998



       26.    Section 31 of the Maintenance Act, 1998, is hereby amended by the

substitution for subsection (1) of the following subsection:

                            "(1)   Subject to the provisions of subsection (2), any

      person who fails to make any particular payment in accordance with a

      maintenance order shall be guilty of an offence and liable on conviction to a fine

      or to imprisonment for a period not exceeding [one year] three years or to such

      imprisonment without the option of a fine.".



Substitution of section 35 of Act 99 of 1998
                                            23



      27.    The following section is hereby substituted for section 35 of the

Maintenance Act, 1998:



      "Offences relating to maintenance enquiries



             35.    Any person      who    wilfully interrupts   the   proceedings   at   a

      maintenance enquiry or who wilfully hinders or obstructs the maintenance court

      in the performance of the maintenance court's functions at the enquiry shall be

      guilty of an offence and liable on conviction to a fine or to imprisonment for a

      period not exceeding [six months] one year or to both [such] a fine and such

      imprisonment.".



Amendment of section 38 of Act 99 of 1998



      28.    Section 38 of the Maintenance Act, 1998, is hereby amended by the

substitution for the words following paragraph (b) of the following words:

      "shall be guilty of an offence and liable on conviction to a fine or to imprisonment

      for a period not exceeding [six months] two years.".



Substitution of section 39 of Act 99 of 1998



      29.    The following section is hereby substituted for section 39 of the

Maintenance Act, 1998:



      "Offences relating to notice of change of address
                                            24




              39.    Any person who refuses or fails to give notice of any change of his

       or her place of residence or employment as required by section 16(4) shall be

       guilty of an offence and liable on conviction to a fine or to imprisonment for a

       period not exceeding [six months] one year.".



Insertion of section 39A in Act 99 of 1998



       30.    The following section is hereby inserted in the Maintenance Act, 1998,

after section 39:



       "Offences relating to maintenance investigators



              39A.          (1)    Any person who wilfully hinders or obstructs a

       maintenance investigator in the exercise of his or her powers or the performance

       of his or her duties shall be guilty of an offence and liable on conviction to a fine

       or to imprisonment for a period not exceeding one year.

                            (2)    Any person who has not been appointed as a

       maintenance investigator in terms of this Act and who—

       (a)    performs any function entrusted to a maintenance investigator by or under

              any law;

       (b)    holds himself or herself out as a maintenance investigator; or

       (c)    pretends to be or makes use of any name, title or addition or description

              creating the impression that he or she is a maintenance investigator or is

              recognised by law as such,
                                            25



       shall be guilty of an offence and liable on conviction to a fine or to imprisonment

       for a period not exceeding two years.".



Amendment of section 41 of Act 99 of 1998



       31.    Section 41 of the Maintenance Act, 1998, is hereby amended by the

substitution for the words following paragraph (b) of the following words:

       "it appears [to the court] on good cause shown that it is desirable that a

       maintenance enquiry be held, [or when the public prosecutor so requests,

       the court shall] the court may, of its own accord or at the request of the public

       prosecutor, convert the proceedings into such enquiry.".



Insertion of section 3A in Act 116 of 1998



       32.    The following section is hereby inserted in the Domestic Violence Act,

1998, after section 3:



       "Entering of private dwelling for purposes of obtaining evidence



                     3A.   (1)    If a member of the South African Police Service

       receives a report that an offence containing an element of violence has allegedly

       been committed during an incident of domestic violence and the member

       reasonably suspects that a person who may furnish information regarding that

       alleged offence is in any private dwelling, that member may, despite the proviso

       to section 26 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), without a
                                            26



      warrant enter those premises for the purposes of interrogating that person and

      obtaining a statement from him or her: Provided that the member—

      (a)    must first audibly demand admission to the dwelling and must notify the

             purpose for which he or she seeks to enter that dwelling; and

      (b)    may, if an occupier of the dwelling does not provide admission to the

             dwelling, use such force as may be reasonably necessary to overcome

             any resistance against entry to the dwelling, including the breaking of any

             door or window of that dwelling.

                          (2)       A member of the South African Police Service who,

      under the pretext of subsection (1), enters a private dwelling—

      (a)    without a reasonable suspicion that a person who may furnish information

             regarding an alleged offence containing an element of violence that has

             allegedly been committed during an incident of domestic violence is in that

             private dwelling; or

      (b)    for another reason than to interrogate a person and obtain a statement

             from him or her,

      is guilty of an offence and liable on conviction to a fine or imprisonment for a

      period not exceeding six months.".



Amendment of section 42 of Act 121 of 1998, as amended by section 7 of Act 38

of 1999



      33.    Section 42 of the Prevention of Organised Crime Act, 1998, is hereby

amended by the addition of the following subsection:
                                           27



                           "(3)   Save as is otherwise provided in this Chapter, the

      provisions of the Administration of Estates Act, 1965 (Act No. 66 of 1965), shall

      apply with the changes required by the context in respect of a curator bonis

      appointed under this Chapter.".



Amendment of section 77 of Act 121 of 1998, as amended by section 79 of Act 38

of 2001



      34.    Section 77 of the Prevention of Organised Crime Act, 1998, is hereby

amended by the substitution in subsection (1) for paragraph (a) of the following

paragraph:

      "(a)   with regard to the fees referred to in [section] sections 28(3)(c) and

             42(2);".



Amendment of section 77 of Act 2 of 2000



      35.    Section 77 of the Promotion of Access to Information Act, 2000, is hereby

amended by the substitution in subsection (5)(c) for subparagraphs (i) and (ii) of the

following subparagraphs, respectively:

             "(i)   within [60] 180 days; or

             (ii)   if notice to a third party is required by subsection (4)(a)(ii), within

                    [30] 180 days,".



Amendment of section 78 of Act 2 of 2000
                                             28



      36.    Section 78 of the Promotion of Access to Information Act, 2000, is hereby

amended—

(a)   by the substitution in subsection (2) for the words following paragraph (d) of the

      following words:

             "may, by way of an application, within [30] 180 days apply to a court for

             appropriate relief in terms of section 82."; and

(b)   by the substitution in subsection (3) for the words following paragraph (c) of the

      following words:

             "may, by way of an application, within [30] 180 days apply to a court for

             appropriate relief in terms of section 82.".



Amendment of section 82 of Act 2 of 2000



      37.    Section 82 of the Promotion of Access to Information Act, 2000, is hereby

amended by the deletion of the word "or" at the end of paragraph (c), the insertion of the

word "or" at the end of paragraph (d) and the addition of the following paragraph:

      "(e)   condoning non-compliance with the 180 day period within which to bring

             an application where the interests of justice so require.".



Amendment of section 1 of Act 70 of 2002, as amended by section 97 of Act 36 of

2005 and section 1 of Act 48 of 2008



      38.    Section 1 of the Regulation of Interception of Communications and

Provision of Communication-related Information Act, 2002, is hereby amended—

(a)   by the substitution for the definition of "activate" of the following definition:
                                              29



             " 'activate' means to allow access to the electronic communication

             system of [the] an electronic communication service provider [who

             provides a mobile cellular electronic communications service] and

             'activated' has a corresponding meaning;";

(b)   by the substitution for the definition of "electronic communication service

      provider" of the following definition:

             " 'electronic communication service provider' means any—

             (a)    person       who      provides    an       electronic   [communication]

                    communications service under and in accordance with [a] an

                    electronic    [communication]       communications       service   licence

                    issued to such person under Chapter 3 of the Electronic

                    Communications Act [, and includes any person who provides—

                    (i)    a local access communication service, public pay-

                           telephone service, value-added network service or

                           private electronic communication network as defined in

                           the Electronic Communications Act; or

                    (ii)   any other electronic communication service licensed] or

                    who is deemed to be licensed or exempted from being licensed as

                    such in terms of the Electronic Communications Act; and

             (b)    [Internet service provider] person or category of persons who

                    are, by notice in the Gazette, declared an electronic communication

                    service provider for the purposes of this Act by the Minister in

                    consultation       with   the    Cabinet     member     responsible    for

                    communications;"; and
                                             30



(c)   by the substitution for the definition of "internet service provider" of the

      following definition:

             "   'internet     service    provider'     means   any    [person]    electronic

             communication service provider who provides access to [, or any other

             service related to,] the Internet [to another person, whether or not

             such access or service is provided under and in accordance with an

             electronic communication service licence issued to the first-

             mentioned         person     under       Chapter   3     of   the    Electronic

             Communications Act];".



Amendment of section 19 of Act 70 of 2002



      39.    Section 19 of the Regulation of Interception of Communications and

Provision of Communication-related Information Act, 2002, is hereby amended—

(a)   by the substitution for subsection (1) of the following subsection:

                              "(1)   If only archived communication-related information is

      required, an applicant may apply to the designated judge, a judge of a High

      Court, a regional court magistrate or a magistrate for the issuing of an archived

      communication-related direction.";

(b)   by the substitution for subsection (3) of the following subsection:

                              "(3)   Notwithstanding section 12 or anything to the contrary

      in any other law contained, the designated judge, a judge of a High Court, a

      regional court magistrate or a magistrate may, upon an application made to him

      or her in terms of subsection (1), issue an archived communication-related

      direction.";
                                            31



(c)    by the substitution in subsection (4) for the words preceding paragraph (a) of the

       following words:

              "An archived communication-related direction may only be issued if it

              appears to the designated judge, judge of a High Court, regional court

              magistrate or magistrate concerned, on the facts alleged in the application

              concerned, that there are reasonable grounds to believe that—"; and

(d)    by the substitution for subsection (8) of the following subsection:

                             "(8)   A designated judge must keep all copies of

       applications and archived communication-related directions issued by him or her

       or submitted to him or her in terms of subsection (7), or cause it to be kept, for a

       period of at least five years.".



Substitution of section 39 of Act 70 of 2002 as amended by section 97 of Act 36 of

2005



       40.    The following section is hereby substituted for section 39 of the Regulation

of Interception of Communications and Provision of Communication-related Information

Act, 2002:



       "Information to be obtained and kept by certain electronic communication

       service providers



                      39.    (1)    From the date of commencement of section 40 of the

       Judicial Matters Amendment Act, 2011, an electronic communication service

       provider, other than an electronic communication service provider who provides a
                                       32



mobile cellular electronic communications service, shall not activate the

electronic communications service of a customer who enters into a contract with

an electronic communication service provider for the provision of such service

unless subsection (2) has been complied with.

                      (2)    From the date of commencement of section 40 of the

Judicial Matters Amendment Act, 2011, an electronic communication service

provider referred to in subsection (1) must, subject to subsection (4), at own cost

implement a process to record and store, and must record and store—

(a)     the logical or virtual electronic communications identity number assigned

        to a customer;

(b)     in the case of a natural person, the full names and surname, identity

        number and at least one address of such person; or

(c)     in the case of a juristic person—

        (i)    the full names, surname, identity number and an address of the

               authorised representative of the juristic person; and

        (ii)   the name and address of the juristic person and, where applicable,

               the registration number of the juristic person.

                      (3)    (a)     For the purposes of subsection (2), an

electronic communication service provider referred to in subsection (1) must, in

the manner provided for in paragraph (b), verify—

(i)     the full names, surname, identity number and identity of the person

        referred to in subsection (2)(b) and (c)(i);

(ii)    the name and, where applicable, the registration number of the juristic

        person;

(iii)   the address of the person referred to in subsection (2)(b) and (c); and
                                         33



(iv)    the authority of the representative of a juristic person.

                               (b)    An electronic communication service provider

referred to in subsection (1) must verify—

(i)     the information referred to in paragraph (a)(i) by means of an identification

        document;

(ii)    the information referred to in paragraph (a)(ii) by means of documentation,

        including a registration document, founding statement, document issued

        by the South African Revenue Service or any other similar document;

(iii)   the address referred to in paragraph (a)(iii) by means of documentation,

        including a bank statement, a municipal rates and taxes invoice, telephone

        or cellular phone account of not older than three months, or any other

        utility bill or an account of a retailer of not older than three months, or an

        existing lease, rental or credit sale agreement, insurance policy, a current

        television licence or a new motor vehicle licence document; and

(iv)    the authority of the representative of the juristic person by means of a

        letter of authority or an affidavit.

                       (4)     (a)    An electronic communication service provider

referred to in subsection (1) must ensure that—

(i)     the process referred to in subsection (2);

(ii)    the information recorded and stored in terms of that subsection; and

(iii)   the facility in or on which the information is recorded and stored,

are secure and only accessible to persons specifically designated by that

electronic communication service provider.

                               (b)    The Minister may, in consultation with the

Cabinet member responsible for communications, by notice in the Gazette,
                                          34



determine security standards relating to the matters contemplated in paragraph

(a).

                      (5)     (a)        An applicant may, for the purposes of making

an application for the issuing of a direction, in writing, request an electronic

communication service provider referred to in subsection (1) to—

(i)    confirm that the person specified in the request is or was a customer of

       that electronic communication service provider; and

(ii)   provide the applicant with the information recorded and stored in terms of

       subsection (2).

                              (b)        An electronic communication service provider

referred to in subsection (1) who receives a request referred to in paragraph (a)

must immediately comply with that request if the person specified in the request

is or was a customer of the electronic communication service provider

concerned.

                      (6)     If    an     employee   or   agent   of   an   electronic

communication service provider referred to in subsection (1) knows or suspects

that an identification document submitted for verification as referred to in

subsection (3) is false, he or she must, within 24 hours, report the matter to a

police official at any police station.

                      (7)     The information recorded and stored in terms of

subsection (2) must be stored by an electronic communication service provider

referred to in subsection (1) for a period of five years after—

(a)    a customer has cancelled his or her contract with the electronic

       communication service provider; or
                                               35



      (b)    the electronic communication service provider has ended the electronic

             communications service provided to the customer.".



Amendment of section 51 of Act 70 of 2002, as amended by section 97 of Act 36

of 2005 and section 3 of Act 48 of 2008



      41.    Section 51 of the Regulation of Interception of Communications and

Provision of Communication-related Information Act, 2002, is hereby amended—

(a)   by the substitution in subsection (3)(a) for subparagraph (i) of the following

      subparagraph:

             "(i)     contravenes or fails to comply with section 7(2), 8(3), 28(1)(b) or

                      (2)[,] or 30(1) [or 39(4)];";

(b)   by the substitution in subsection (3)(a) for subparagraph (iii) of the following

      subparagraph:

             "(iii)   contravenes or fails to comply with section 7(5), 8(5) [, 39(1) or (2)]

                      or 42(2); or";

(c)   by the substitution in subsection (3A) for paragraph (b) of the following

      paragraph:

      "(b)   section 39(1), (2), (3), (4) or any determination made thereunder, (5) or (7)

             or section 40(1), (2), (3), (4) or any determination made thereunder, (6),

             (7), (9) or (10); or"; and

(d)   by the substitution for subsection (3C) of the following subsection:

                             "(3C) An employee or agent of an electronic communication

      service provider who fails to comply with section 39(6) or 40(8), is guilty of an
                                             36



       offence and liable on conviction to a fine or imprisonment for a period not

       exceeding 12 months.".



Amendment of section 86 of Act 34 of 2005



       42.    Section 86 of the National Credit Act, 2005, is hereby amended by the

addition of the following subsection:

                            "(12) A Magistrate's Court has jurisdiction to consider a

      referral made to it in terms of subsection (8)(b) or an application made to it in

      terms of subsection (9), if the consumer resides, carries on business or is

      employed in the magisterial district of that Court, irrespective of the monetary

      value of the over-indebtedness of the consumer.".



Amendment of section 138 of Act 34 of 2005



       43.    Section 138 of the National Credit Act, 2005, is hereby amended by the

addition of the following subsection:

                            "(3)   (a)     A consent order in terms of section 86(8)(a)

       must be filed at the Magistrate's Court in the district where the consumer resides,

       carries on business or is employed.

                                   (b)     The manner in which the order must be filed

       must be prescribed but only after consultation with the Cabinet member

       responsible for the administration of justice.".



Amendment of Table of Contents of Act 38 of 2005
                                            37




       44.    The Table of Contents of the Children‘s Act, 2005, is hereby amended by

the insertion after the heading to section 128 of the following heading:

              "128A. Enquiries for purposes of expungement applications in terms of

                     Criminal Procedure Act, 1977".



Insertion of section 128A in Act 38 of 2005



       45.    The Children‘s Act, 2005, is hereby amended by the insertion after section

128 of the following section:



       "Enquiries for purposes of expungement applications in terms of Criminal

       Procedure Act, 1977



                     128A. (1)     For the purposes of section 271B of the Criminal

       Procedure Act, 1977 (Act No. 51 of 1977), the Director-General: Justice and

       Constitutional Development may enquire from the Director-General whether or

       not the name of a particular person has been included in the Register or whether

       or not the name and any information relating to that person has been removed

       from the Register in terms of section 128.

                            (2)    The Director-General must respond to such enquiry in

       writing within 21 working days and indicate whether or not the name of the

       person concerned has been recorded in the Register or whether or not that

       person‘s name and information relating to that person has been removed from

       the Register in terms of section 128.".
                                          38




Amendment of Index to Act 32 of 2007



      46.    The Index to the Criminal Law (Sexual Offences and Related Matters)

Amendment Act, 2007, is hereby amended by the insertion after the heading of section

44 of the following heading:

             "44A. Enquiries for purposes of expungement applications in terms of

                    Criminal Procedure Act, 1977".



Insertion of section 44A in Act 32 of 2007



      47.    The following section is hereby inserted in the Criminal Law (Sexual

Offences and Related Matters) Amendment Act, 2007, after section 44:



      "Enquiries for purposes of expungement applications in terms of Criminal

      Procedure Act, 1977



             44A. (1)      For the purposes of section 271B of the Criminal Procedure

      Act, 1977 (Act No. 51 of 1977), the Director-General: Justice and Constitutional

      Development may enquire from the Registrar whether or not the name and

      particulars of a person are contained in the Register and whether or not that

      person‘s name and particulars have been removed from the Register in terms of

      section 51(1) or (3)(c), as the case may be.

                    (2)    The Registrar must respond to such enquiry in writing within

      21 working days and must indicate whether or not the name and particulars of
                                              39



      the person concerned are contained in the Register or whether or not that

      person‘s name and particulars have been removed from the Register in terms of

      section 51(1) or (3)(c), as the case may be.".



Amendment of section 66 of Act 32 of 2007



      48.     Section 66 of the Criminal Law (Sexual Offences and Related Matters)

Amendment Act, 2007, is hereby amended by the deletion in subsection (2)(a) of

subparagraph (ix).



Amendment of section 11 of Act 75 of 2008



      49.     Section 11 of the Child Justice Act, 2008, is hereby amended—

(a)   by the substitution for subsections (2) and (3) of the following subsections,

      respectively:

                             "(2)   In making a decision regarding the criminal

      capacity of the child in question—

      (a)     (i)     the inquiry magistrate, for purposes of diversion; or

      [(b)]   (ii)    if the matter has not been diverted, the child justice court, for

                      purposes of plea and trial,

              must consider the assessment report of the probation officer referred to in

              section 40 and all evidence placed before the inquiry magistrate or child

              justice court prior to diversion or conviction, as the case may be, which

              evidence may include a report of an evaluation referred to in subsection

              (3); and
                                            40



      (b)    the inquiry magistrate or the child justice court must consider the

             cognitive, moral, emotional, psychological and social development of the

             child.

                           (3)     An inquiry magistrate or child justice court may, on

      own accord, or on the request of the prosecutor or the child‘s legal

      representative, order an evaluation of the criminal capacity of the child referred to

      in subsection (1), in the prescribed manner, by a suitably qualified person[,

      which must include an assessment of the cognitive, moral, emotional,

      psychological and social development of the child]."; and

(b)   by the insertion after subsection (4) of the following subsection:

                           "(4A) The provisions of section 77(2), (3) and (4) of the

      Criminal Procedure Act apply with the changes required by the context to a

      report referred to in subsection (4).".



Amendment of section 28 of Act 75 of 2008



      50.    Section 28 of the Child Justice Act, 2008, is hereby amended by the

substitution in subsection (2)(b) for the words preceding subparagraph (i) of the

following words:

      "In the event of a report being made as referred to in paragraph (a), that report

      must, in the prescribed manner, as soon as is reasonably possible, be submitted

      to the [National] Provincial Commissioner of Police concerned and a copy of the

      report must be submitted simultaneously to the National Commissioner of Police,

      indicating—".
                                            41



Amendment of section 43 of Act 75 of 2008



       51.    Section 43 of the Child Justice Act, 2008, is hereby amended—

(a)    by the deletion in subsection (1) of the word "and" at the end of paragraph (a)

       and the insertion after paragraph (a) of the following paragraph:

       "(aA) must be presided over by a magistrate of the district within which the child

              is alleged to have committed the offence; and"; and.

(b)    by the insertion after subsection (1) of the following subsection:

                            " (1A) Section 90 of the Magistrates' Court Act, 1944 (Act

       No. 32 of 1944), applies with the changes required by the context to subsection

       (1)(aA).".



Amendment of section 56 of Act 75 of 2008



       52.    Section 56 of the Child Justice Act, 2008, is hereby amended by the

addition of the following subsection:

                            "(4)   (a)    The Cabinet member responsible for social

       development may delegate any power or assign any duty conferred or imposed

       upon him or her by this section to any member of an Executive Council of a

       province responsible for welfare services, except the powers and duties referred

       to in subsection (2)(a).

                                   (b)    A delegation or an assignment in terms of

       paragraph (a)—

       (i)    is subject to any limitation, condition and direction that the Cabinet

              member responsible for social development may impose;
                                            42



       (ii)    must be in writing; and

       (iii)   does not divest the Cabinet member responsible for social development of

               the responsibility concerning the exercise of the power or the performance

               of the duty.

                                     (c)   The Cabinet member responsible for social

       development may—

       (i)     confirm, vary or revoke any decision taken in consequence of a delegation

               or assignment in terms of this section, subject to any rights that may have

               accrued to a person as a result of the decision; and

       (ii)    at any time withdraw a delegation or assignment.".



Amendment of section 65 of Act 75 of 2008



       53.     Section 65 of the Child Justice Act, 2008, is hereby amended by the

substitution for subsection (3) of the following subsection:

                              "(3)   The parent of a child, an appropriate adult or a

       guardian who has been warned by an inquiry [or a guardian] magistrate to

       attend proceedings in terms of section 49(2), must attend the proceedings,

       unless he or she has been exempted in terms of subsection (5).".



Substitution of section 75 of Act 75 of 2008



       54.     The following section is hereby substituted for section 75 of the Child

Justice Act, 2008:
                                           43



      "Sentences [involving] of correctional supervision



                    75.    A child justice court that convicts a child of an offence may

             impose a sentence [involving] of correctional supervision[—

      (a)    in the case of a child who is 14 years or older, in terms of section

             276(1)(h) or (i) of the Criminal Procedure Act; or

      (b)    in the case of a child who is under the age of 14 years, in terms of]

             envisaged in section 276(1)(h) of the Criminal Procedure Act.".



Amendment of section 77 of Act 75 of 2008



      55.    Section 77 of the Child Justice Act, 2008, is hereby amended—

(a)   by the deletion of subsection (2);

(b)   by the substitution in subsection (3) for the words preceding paragraph (a) of the

      following words:

             "A child who is 14 years or older at the time of being sentenced for the

             offence [, and in respect of whom subsection (2) does not apply,] may

             only be sentenced to imprisonment, if the child is convicted of an offence

             referred to in—";

(c)   by the substitution for subsection (4) of the following subsection:

                           "(4)   A child referred to in subsection (3) may be sentenced

      to a sentence of imprisonment—

      (a)    for a period not exceeding 25 years;

      (b)    envisaged in section 276(1)(i) of the Criminal Procedure Act; or
                                            44



       (c)    together with a sentence of correctional supervision imposed in terms of

              section 75."; and

(d)    by the substitution for subsection (5) of the following subsection:

                            "(5)   A child justice court imposing a sentence of

       imprisonment must [antedate the term of imprisonment by] take into account

       the number of days that the child has spent in prison or a child and youth care

       centre prior to the sentence being imposed.".



Amendment of section 78 of Act 75 of 2008



       56.    Section 78 of the Child Justice Act, 2008, is hereby amended by the

substitution for subsection (1) of the following subsection:

                            "(1)   [Subject to section 77(2), the] The provisions of

      section 297 of the Criminal Procedure Act apply in relation to the postponement

      or suspension of passing of sentence by a child justice court in terms of this Act.".



Amendment of section 87 of Act 75 of 2008



       57.    Section 87 of the Child Justice Act, 2008, is hereby amended by the

addition of the following subsections after subsection (6):

                            "(7)   Where      the      Director-General:     Justice   and

      Constitutional Development, in terms of subsection (2), or the Minister, in terms

      of subsection (3), has issued a certificate of expungement and it subsequently

      appears that the applicant did not qualify for the expungement of his or her

      record, the Director-General must—
                                      45



(a)    inform the applicant of the information that has come to his or her attention

       and that he or she or the Minister intends to revoke the certificate of

       expungement;

(b)    afford the applicant an opportunity to furnish written reasons to him or her

       or the Minister within 90 working days after he or she is informed of the

       decision, why his or her record should be expunged;

(c)    inform the applicant within 30 working days after a decision is made of—

       (i)    his or her or the Minister‘s decision; and

       (ii)   the reasons for revoking the certificate of expungement; and

(d)    inform the head of the Criminal Record Centre of the South African Police

       Service, within 14 working days after the decision was made, to revoke

       the certificate and to reinstate the convictions and sentences in question.

                      (8)   The Director-General or the Minister must revoke the

certificate of expungement if no or insufficient reasons are furnished pursuant to

the opportunity referred to in subsection (7)(b).

                     (9)    (a)    The       Director-General:     Justice      and

Constitutional Development may delegate any power or assign any duty

conferred upon or assigned to him or her in terms of subsection (2) to an

appropriately qualified official in the employ of the Department of Justice and

Constitutional Development at the rank of Deputy Director-General.

                            (b)    A delegation or assignment in terms of

paragraph (a)—

(i)    is subject to any limitation, condition and direction which the Director-

       General may impose;

(ii)   must be in writing; and
                                                46



       (iii)      does not divest the Director-General of the responsibility concerning the

                  exercise of the power or the performance of the duty.

                                      (c)    The Director-General may—

       (i)        confirm, vary or revoke any decision taken in consequence of a delegation

                  or assignment in terms of this subsection, subject to any rights that may

                  have accrued to a person as a result of the decision; and

       (ii)       at any time, in writing, withdraw a delegation or assignment.".



Amendment of section 97 of Act 75 of 2008



       58.        Section 97 of the Child Justice Act, 2008, is hereby amended by the

substitution for subsection (3) of the following subsection:

                               "(3)   (a)    The Cabinet member responsible for the

      administration of justice must by notice in the Gazette—

       [(a)](i)         determine the persons or the category or class of persons who are

                        competent to conduct the evaluation of the criminal capacity of a

                        child referred to in section 11(3); and

       [(b)](ii)        in consultation with the Cabinet member responsible for finance,

                        determine the allowances and remuneration of those persons.

                                      (b)    Different categories or classes of persons may

       be determined for the purposes of the different aspects of development of a child

       referred to in section 11(2)(b).

                                      (c)    Different allowances and tariffs of remuneration

       may be determined for the persons referred to in paragraph (a), according to

       their calling, occupation and stations in life.".
                                             47




Substitution of section 100 of Act 75 of 2008



       59.    The following section is hereby substituted for section 100 in the

Setswana text of the Child Justice Act, 2008:



       "Setlhogo se se khutshwane le tshimilogo



                      100.   Molao ono, o bidiwa [Child Justice Act] Molao wa

       Bosiamisi wa Ngwana, 2008, mme o simolola go tsengwa tirisong ka kgwedi ya

       Moranang ngwaga wa 2010, kgotsa letlha lengwe le lengwe pele ga foo, le le

       beilweng ke Moporesidente ka go itsise batho semmuso mo Kuranteng ya

       Molao.".



Amendment of section 3 of Act 11 of 2009



       60.    Section 3 of the Reform of Customary Law of Succession and Regulation

of Related Matters Act, 2009, is hereby amended by the substitution for subsections (2)

and (3) of the following subsections, respectively:

                             "(2)   For the purposes of this Act and in the application of

       section 1(1)(c) of the Intestate Succession Act, the following subparagraph must

       be regarded as having been added to that section:

             '(iii)   where the intestate estate is not sufficient to provide each surviving

                      spouse and woman referred to in paragraphs (a), (b) and (c) of

                      section 2(2) of the Reform of Customary Law of Succession and
                                     48



              Regulation of Related Matters Act, [2008] 2009, with the amount

              fixed by the Minister, the estate shall be divided equally between

              such spouses;‘.

                     (3)    In the determination of a child‘s portion for the

purposes of dividing the estate of a deceased in terms of the Intestate

Succession Act, paragraph (f) of section 1(4) of that Act must be regarded to

read as follows:

'(f)   a child‘s portion, in relation to the intestate estate of the deceased, shall

       be calculated by dividing the monetary value of the estate by a number

       equal to the number of children of the deceased who have either survived

       the deceased or have died before the deceased but are survived by their

       descendants, plus the number of spouses and women referred to in

       paragraphs (a), (b) and (c) of section 2(2) of the Reform of Customary

       Law of Succession and Regulation of Related Matters Act, [2008] 2009'.".
                                             49



Limpopo High Court, Polokwane



       61.    (1)    The Limpopo High Court, Polokwane, is hereby established.

              (2)    The Limpopo High Court, Polokwane, is seated at Polokwane, and

its area of jurisdiction is in respect of the magisterial districts of Bochum, Bolubedu,

Ellisras, Letaba, Lulekani, Malamulele, Mankweng, Mokerong, Namakgale, Naphuno,

Nebo, Phalaborwa, Phalala, Pietersburg, Potgietersrus, Praktiseer, Moutse, Ritavi,

Sekgosese, Sekhukhuneland, Seshego, Thabazimbi, Thabamoopo, Warmbaths and

Waterberg in the Province of Limpopo.

              (3)    The Limpopo High Court, Polokwane, functions in terms of, and is

subject to, all laws governing the composition, functioning and powers of those High

Courts falling within the ambit of the Supreme Court Act, 1959 (Act No. 59 of 1959), of

the Republic of South Africa.

              (4)    All proceedings pending in the North Gauteng High Court, Pretoria,

at the time of the commencement of this section, must be continued as if this section

had not been enacted, but that Court may, if it is in the interests of justice, order that

any such proceedings must be transferred to and disposed of by the Limpopo High

Court, Polokwane.



Mpumalanga High Court, Nelspruit



       62.    (1)    The Mpumalanga High Court, Nelspruit, is hereby established.

              (2)    The Mpumalanga High Court, Nelspruit, is seated at Nelspruit, and

its area of jurisdiction is in respect of the magisterial districts of Amersfoort, Barberton,

Belfast, Bethal, Carolina, Eerstehoek, Ermelo, Lydenburg, Nelspruit, Nkomazi, Nsikazi,
                                           50



Piet Retief, Pilgrim‘s Rest, Volksrust, Wakkerstroom, Waterval Boven and White River

in the Province of Mpumalanga.

              (3)   The Mpumalanga High Court, Nelspruit, functions in terms of, and

is subject to, all laws governing the composition, functioning and powers of those High

Courts falling within the ambit of the Supreme Court Act, 1959 (Act No. 59 of 1959), of

the Republic of South Africa.

              (4)   All proceedings pending in the North Gauteng High Court, Pretoria,

at the time of the commencement of this section, must be continued as if this section

had not been enacted, but that Court may, if it is in the interests of justice, order that

any such proceedings must be transferred to and disposed of by the Mpumalanga High

Court, Nelspruit.



Short title and commencement



       63.    (1)   This Act is called the Judicial Matters Amendment Act, 2011.

              (2)   Sections 10 and 11 are deemed to have come into operation on 1

April 2010.

              (3)   Section 60 is deemed to have come into operation on 20

September 2010.

              (4)   Sections 43, 49, 50, 52, 58, 61 and 62 come into operation on a

date fixed by the President by proclamation in the Gazette.
                                            51



                                                                                  ca020211



MEMORANDUM ON THE OBJECTS OF THE JUDICIAL MATTERS AMENDMENT

BILL, 2011



1.     PURPOSE OF BILL



The primary aim of the Judicial Matters Amendment Bill, 2011 (the Bill), is to amend

numerous Acts, most of which are administered by the Department of Justice and

Constitutional Development (the Department) and are intended to address practical and

technical issues of a non–contentious nature.



2.     OBJECTS OF BILL



2.1    Section 29 of the Magistrates‘ Courts Act, 1944 (Act No. 32 of 1944), sets out the

causes of action in respect of which magistrates‘ courts have jurisdiction in civil matters.

Section 29(1)(e) provides that these courts have jurisdiction over actions on or arising

out of any credit agreement, as defined in section 1 of the National Credit Act, 2005 (Act

No. 34 of 2005), with no limit on the amount in dispute. The Afrikaans text of this

provision, however, is not in line with the English text and gives the Minister of Justice

and Constitutional Development a discretion to place a monetary limit on the amounts

over which magistrates‘ courts have jurisdiction in disputes of this nature. Clause 1(a)

addresses this disparity. Clause 1(b) is consequential in nature.
                                             52



2.2    On 24 August 2010 the Constitutional Court in the case of Tatiana Malachi v

Cape Dance Academy International and Others declared the procedure of arrest

tanquam suspectus de fuga in terms of section 30(1) and (3) of the Magistrates' Courts

Act, 1944, to be unconstitutional and invalid. The purpose of the arrest procedure is to

prevent a person, who owes a creditor R40 or more, and against whom a creditor

intends to institute, or has already instituted, an action, from fleeing from the jurisdiction

of the court to avoid or delay payment of the claim. The object of the arrest is not to

force the debtor to pay the claim. The object is to ensure that he or she remains within

the jurisdiction of the court until the court has given judgment in the matter.          The

Constitutional Court came to the conclusion that section 30(1) and (3) of the

Magistrates' Courts Act, 1944, infringes on the right to freedom of a person for no just

reason, because—

(a)    the arrest does not necessarily render the debt any more executable than would

       have been the case had the debtor left the country;

(b)    the impugned provisions severely curtail a person‘s fundamental right to

       freedom;

(c)    the degrading effect of incarceration could not be undone if it is determined that

       the money is not owed;

(d)    it is inconceivable that imprisonment of a person can ever be justified where

       liability has not been established, bearing in mind that imprisonment for non-

       payment of an established debt is unconstitutional; and

(e)    the amount of R40 was minimal.

The proposed amendments in clauses 2 and 3 to sections 30 and 30bis of the

Magistrates' Courts Act, 1944, respectively, give effect to the Constitutional Court
                                           53



judgment and also increase the prevailing amount of R40 in accordance with the CPIX

to an amount of R2500 (the calculated amount according to the CPIX is R2346-40).



2.3   Clauses 4 and 5 seek to correct textual inaccuracies which are the result of

amendments to sections 38 and 73 of the Criminal Procedure Act, 1977 (Act No. 51 of

1977), by Schedule 4 to the Child Justice Act, 2008 (Act No. 75 of 2008).



2.4   Clause 6 amends section 271B of the Criminal Procedure Act, 1977, which deals

with the expungement of certain criminal records. This section provides that a person

may apply for the expungement of his or her criminal record if a sentence provided for in

section 271B was imposed on him or her and if certain other criteria have been

complied with, which are among others, that a period of 10 years has lapsed since he or

she was convicted. The section, however, does not make provision for the

expungement of a criminal record if the person convicted of an offence was a child at

the time of the commission of the offence and the court made an order in terms of

section 290(1)(a) or (b) of the Criminal Procedure Act, 1977. Although section 87 of the

Child Justice Act, 2008, regulates the expungement of certain criminal records of

persons who were convicted of offences when they were children, one of the qualifying

criteria for expungement under this regime is based on the offence committed and not

the sentence imposed.    Section 290 of the Criminal Procedure Act, 1977, dealing with

orders that could be made in the place of penalties in the case of children who had been

convicted of offences, was repealed by section 99 of the Child Justice Act, 2008. In

terms of section 290(1)(a) a court could make an order that the child be placed under

the supervision of a probation officer. In terms of section 290(1)(b) a court could make

an order that the child be kept in the custody of a suitable person designated by the
                                            54



court in the order. In terms of section 290(1)(d) the court could make an order that the

child be referred to a reform school. In order to come to the relief of persons who were

convicted as children and who otherwise qualify to have their records expunged under

section 271B of the Criminal Procedure Act, 1977, clause 6 seeks to add court orders

made under section 290(1)(a) and (b) as sentences that qualify for expungement. It

should be noted, however, that an order under section 290(1)(d) is not listed. An order

under this provision is a custodial sentence and, as such, does not fall within the scope

of the other sentences which qualify for expungement under section 271B.



2.5   Clause 7 proposes amendments to section 271C of the Criminal Procedure Act,

1977, in order to include offences which may automatically be expunged by the Criminal

Record Centre of the South African Police Service. These offences are also "apartheid

offences" which were put on the Statute Book before the new constitutional

dispensation took effect and relate to racial segregation and job reservation.



2.6   Clause 8 seeks to insert sections 271DA and 271DB in the Criminal Procedure

Act, 1977.



2.6.1 The insertion of section 271DA allows the Minister or the Director-General:

Justice and Constitutional Development to revoke a certificate of expungement which

was erroneously issued. The Director-General is empowered to request the head of the

Criminal Record Centre to rectify the information on the person‘s criminal record. The

amendment is required for the following reasons:

(a)   The National Register for Sex Offenders in terms of the Criminal Law (Sexual

      Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007), and
                                          55



      the National Child Protection Register in terms of the Children‘s Act, 2005 (Act

      No. 38 of 2005), have not been implemented yet. In terms of section 271B a

      person‘s criminal record may not be expunged if his or her name appears on

      either of the Registers. It might happen that a certificate of expungement is

      issued in respect of a person whose name is entered in one of those Registers at

      a later stage.

(b)   At the time an applicant applies for a certificate of expungement of a criminal

      record, his or her criminal record might not have been updated by the Criminal

      Record Centre, or the applicant may have withheld information on a pending

      criminal case against him or her.

(c)   A certificate of expungement might have been issued due to incorrect information

      or advice or the offence was not an offence referred to in section 271C(1) or (2)

      of the Criminal Procedure Act, 1977.



2.6.2 In terms of the proposed section 271DB the Director-General may delegate any

power or assign any duty conferred on or assigned to him or her in terms of section

271B(2) or (3) or 271C(3) or (4) to an appropriately qualified employee of the

Department of Justice and Constitutional Development holding the rank of Deputy

Director-General. This amendment is necessary in light of the many expungement

applications that have been received by the Department.



2.7   Clauses 9, 10, 11 and 12 seek to correct textual inaccuracies which are the result

of amendments to sections 276A, 309, 309B and 309D of the Criminal Procedure Act,

1977, by Schedule 4 to the Child Justice Act, 2008.           In these instances the

consequential amendments to the Criminal Procedure Act, 1977, in the said Schedule 4
                                              56



did not incorporate amendments by the Criminal Law (Sentencing) Amendment Act,

2007 (Act No. 38 of 2007), and the Criminal Law (Sexual Offences and Related Matters)

Amendment Act, 2007, in the provisions of the Criminal Procedure Act, 1977, in

question.



2.8    Clause 13 proposes the amendment of section 9 of the Small Claims Courts Act,

1984 (Act No. 61 of 1984), in order to enable a commissioner who was appointed for a

specific small claims court to also preside over cases in other small claims courts within

the province. In some districts no persons are willing to serve as commissioners,

especially in the rural areas. The only option is to appoint a commissioner on an ad hoc

basis, which is time consuming and delays the process. The proposed amendment will

greatly improve access to justice.



2.9    Clauses 14 to 19 seek to amend various provisions of the Special Investigating

Units and Special Tribunals Act, 1996 (Act No. 74 of 1996) (the SIU Act), and have

been requested by the Head of the Special Investigating Unit (SIU). These amendments

relate mainly to the litigation functions of a SIU and will improve the SIU‘s effectiveness

in dealing with maladministration and corruption.        The original purpose behind the

enactment of the SIU Act was to create a mechanism in terms of which civil litigation

flowing     from   the   investigations   by the   SIU   into   cases of   corruption   and

maladministration, could be dealt with more speedily. The mechanism for this, namely a

dedicated Special Tribunal which is created by sections 5(5) and 8(2) of the SIU Act, is

intended to adjudicate on matters brought before it by a dedicated SIU which, in turn,

was directly involved in the investigation of the matters in question. This intention

manifests itself clearly from the following provisions of the SIU Act:
                                             57



(a)    The long title, which provides for the establishment of SIU's for the purpose of

       investigating serious malpractices or maladministration in connection with the

       administration of State institutions, State assets and public money as well as any

       conduct which may seriously harm the interests of the public or any category

       thereof, and for the establishment of Special Tribunals so as to adjudicate upon

       civil matters emanating from investigations by any Special Investigating Unit; and

(b)    section 4(1)(b) and (c) of the SIU Act, which provides that the functions of a SIU

       are—

*      to collect evidence regarding acts or omissions which are relevant to its

       investigations and, if applicable, to institute proceedings in a Special Tribunal

       against the parties concerned; and

*      to present evidence in proceedings brought before a Special Tribunal.

However, this clear purpose has been affected by some decisions of our courts that

severely limit the locus standi in iudicio of the SIU. The proposed amendments are

intended to allow the SIU to litigate on behalf of State institutions. One of the reasons

for affording the SIU this power to litigate on behalf of State institutions is to assist with

the recovery of losses suffered by State institutions as a result of corruption and

maladministration. Generally, a State institution may recover losses through the Office

of the State Attorney. However, in instances where the State institution neglects to

recover such losses the SIU can be used for this purpose.



2.9.1 Clause 14 seeks to amend the long title of the SIU Act, so as to provide that the

SIU also has the power to institute civil proceedings on behalf of the State or State

institutions for the recovery of any damages or losses that have been suffered by the

State or State institutions, as well as the prevention of potential damages or losses that
                                             58



may be suffered by the State or State institutions. As already mentioned, this

amendment is necessary as a result of judgments of the Special Tribunal and the High

Courts. The effect of these judgments is that the SIU only has the power to investigate a

matter and no authority or locus standi to litigate on behalf of a State institution which is

subjected to an investigation by the SIU.



2.9.2 Clauses 15, 18 and 19 propose amendments to sections 2(1)(b), 5(5), (7) and (9)

and 8(2) of the SIU Act, respectively, in order to do away with the phrases "justiciable

civil dispute" and "legal proceedings", respectively, and to substitute them with the

phrase "civil proceedings". Again, the reason for these amendments stems from an

interpretation of the SIU Act by the Special Tribunal, that the Special Tribunal only has

jurisdiction to adjudicate upon civil disputes and, if no dispute exists in regard to

conflicting views or contentions, the Special Tribunal does not have jurisdiction. This

interpretation gives rise to the situation that if a debtor of the State does not dispute any

allegations regarding his or her liability, or does not enter an appearance to defend an

action, there would not be a "justiciable civil dispute" and the Special Tribunal would

consequently not have jurisdiction to hear the matter. The effect of this is that a

defendant‘s best response to an action or application by a SIU would be not to defend

the proceedings before the Special Tribunal.



2.9.3 Clause 16 proposes amendments to section 3 of the SIU Act by giving the Head

of a SIU the authority to second a member of that SIU, on certain conditions and for a

specific period of time, to the service of a State institution, on condition that such a

member‘s employment benefits will not be adversely affected. The reasons for the

secondment of members of a SIU to State institutions include the following:
                                             59



(a)     To assist the State institutions with the establishment and enhancing of in-house

        anti-corruption capacity and procedures within those State institutions;

(b)     to assist other law enforcement agencies, including the Asset Forfeiture Unit, in

        joint operational projects;

(c)     to enhance the skills of the members of the SIU through practical exposure to the

        operational methods of other law enforcement agencies or State institutions; and

(d)     to assist State institutions with the planning, directing and conducting of internal

        forensic investigations.



2.9.4   The present wording of the SIU Act is not clear that a SIU has the necessary

locus standi to litigate on behalf of State institutions for any losses suffered as a result

of corrupt conduct or maladministration. The Special Tribunal and High Courts, after

interpreting the Act, have come to the conclusion that the SIU does not have locus

standi to litigate on behalf of State institutions. Although barred from instituting civil

proceedings on behalf of State institutions, the existing SIU has resorted to other

measures to regain losses suffered by State institutions and in various instances has

recovered huge amounts of money despite this handicap. Clause 17 seeks to amend

section 4 of the SIU Act to specifically empower the SIU to institute and conduct civil

proceedings in the Special Tribunal for the recovery or prevention of losses or any other

relief to which the particular State institution would be entitled. The clause also seeks to

insert a new subsection (3) in order to provide that the SIU may, of its own accord,

institute and conduct civil proceedings in a Special Tribunal for the protection of any

interest relating to its functions referred to in that Act. The effect of the proposed

amendment is that the SIU will be able to litigate in its own name in matters that are
                                             60



relevant to its investigation and, among others, to secure and protect evidence or to

prevent further losses or potential prejudice to a State institution.



2.10   Clauses 20, 55 and 56 seek to give effect to the Constitutional Court‘s order in

Centre for Child Law v Minister of Justice and Constitutional Development and Others

(Case CCT 98/08). In this case the Constitutional Court declared certain provisions of

section 51 of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997) (minimum

sentences) to be inconsistent with the Constitution and invalid to the extent that they

apply to persons who were under 18 years of age at the time of the commission of the

offence. Clause 20 proposes amendments to section 51 of the Criminal Law

Amendment Act, 1997, by excluding an accused person who was under the age of 18

years at the time of the commission of an offence from its operation. Clauses 55 and 56

propose consequential amendments to sections 77 and 78 of the Child Justice Act,

2008, respectively.



2.11   Clause 21 proposes amendments to section 18(1) of the National Prosecuting

Authority Act, 1998 (Act No. 32 of 1998) (the NPA Act). Section 18(1) of the NPA Act

provides that any Deputy Director of Public Prosecutions or prosecutor must be paid a

salary in accordance with the scale determined from time to time for his or her rank and

grade by the Minister, after consultation with the National Director of Public

Prosecutions and the Minister for Public Service and Administration, and with the

concurrence of the Minister of Finance, by notice in the Gazette.        Section 18(4),

amongst other things, provides that a notice by which the Minister‘s determination

contemplated in subsection (1) is issued, must be issued if circumstances, including any

revision and adjustment of salaries and allowances of the National Director of Public
                                             61



Prosecutions and magistrates since the latest revision and adjustment of salaries of

Deputy Directors of Public Prosecutions or prosecutors, so justify. This provision is

clearly peremptory and requires that, whenever the salaries of the National Director of

Public Prosecutions and magistrates are revised, regard must be had to those of

Deputy Directors of Public Prosecutions and prosecutors. In order to appreciate the

import of the provisions of section 18(1) and (4), it is important to point out the following:

(a)    Section 18(1) requires that the consultation process prescribed must also be

       followed in instances where cost-of-living increases are to be implemented. It is

       not limited only to salary restructuring.

(b)    Section 18(4) expressly compels the Minister of Justice and Constitutional

       Development to revise the salaries of prosecutors from time to time and,

       specifically, to take into account new salary determinations and adjustments

       made in respect of the National Director of Public Prosecutions and magistrates.

The purpose of these provisions is to—

*      ensure that the Minister maintains the link between the salaries of prosecutors on

       the one hand, and the National Director of Public Prosecutions, Deputy Directors

       of Public Prosecutions and magistrates on the other hand; and

*      prevent experienced prosecutors from applying for magistrates‘ posts as a result

       of better salary dispensations that are linked to such posts.

Experience has shown that cost-of-living increases for Deputy Directors of Public

Prosecutions and prosecutors have followed the trend in the Public Service. Although

the Minister and the Ministers for Public Service and Administration and of Finance may

agree to the proposed salary determinations in terms of sections 18(1) of the NPA Act,

the process of consultation required in terms of the Act takes time and results in
                                            62



prosecutors receiving their increases long after the increases have been implemented

for public servants.

The consultation process is cumbersome and every year there is great concern,

uncertainty and unhappiness regarding the situation.          The Occupational Specific

Dispensation for Legally Qualified Personnel in the Public Service was recently

introduced and was determined by the Minister in terms of section 18(1) of the NPA Act

to be applicable to Deputy Directors of Public Prosecutions and prosecutors. As a result

Deputy Directors of Public Prosecutions and prosecutors are now on the same scales

that apply to legally qualified personnel in the Public Service. There is, therefore, good

reason that the Minister‘s power in terms of section 18(1) of the NPA Act to determine

salary structures (in line with the existing consultation process), be retained, should it

become necessary to have such structures reviewed, but it is suggested that this time-

consuming process be done away with in the case of cost-of-living increases. Clause 21

seeks to achieve this.



2.12   Clause 22 proposes an amendment to section 6 of the Maintenance Act, 1998

(Act No. 99 of 1998), in order to extend the court's jurisdiction in maintenance matters.

The current provision bases jurisdiction on whether or not a person who applies for

maintenance resides in the area of the court's jurisdiction. This provision is brought in

line with section 28(1)(a) of the Magistrates' Courts Act, 1944, which bases jurisdiction,

amongst other things, on place of employment, in addition to place of residence. A

number of people complained to the Department that they are inconvenienced by the

current state of affairs. No logical reason exists why jurisdiction in the Maintenance Act,

1998, should not be similar to that provided for in section 28(1)(a) of the Magistrates'

Courts Act, 1944.
                                            63




2.13   Clause 23 seeks to amend section 18 of the Maintenance Act, 1998, so as to put

it beyond doubt that maintenance orders may also be granted by default if a person fails

to appear before court after he or she was warned to do so. Currently section 18 only

provides that a maintenance court may grant an order by default where the court is

satisfied that the respondent ignored a subpoena.



2.14   In Purnell v Purnell 1993 (2) SA 662 (A), a case that was decided in terms of the

repealed Maintenance Act, 1963 (Act No. 23 of 1963), the Court held that a subsequent

order by a maintenance court replaces the former order. The effect thereof is that an

order made by the High Court ceases to operate and is deemed to be replaced in its

entirety by an order by a maintenance court. However, in Cohen v Cohen 2003 (3) SA

337 (SCA), it was held that a High Court order ceases to be of force and effect, but only

insofar as the order of the maintenance court expressly, or by necessary implication,

replaces such an order. Clause 24 seeks to amend section 22 of the Maintenance Act,

1998, so as to bring it into line with the Cohen judgment.



2.15   Clause 25 proposes an amendment to section 23(1) of the Maintenance Act,

1998, in order to establish a uniform manner in which maintenance orders and files

must be transferred from one maintenance court to another. It is proposed that the

current discretionary power of maintenance officers to give a direction to the clerk of the

maintenance court to transfer a maintenance order or file should be abolished as it is

confusing, leads to different interpretations and often causes delays.
                                            64



2.16   Clauses 26 to 29 seek to increase the maximum penalties prescribed in sections

31(1), 35, 38 and 39 of the Maintenance Act, 1998, in order to lend more weight to the

seriousness of the offences in question.



2.17   Clause 30 seeks to insert section 39A in the Maintenance Act, 1998, in order to

make it an offence for a person to wilfully hinder or obstruct a maintenance investigator

in the exercise of his or her powers or the performance of his or her duties, or to pretend

that he or she is a maintenance investigator.



2.18   Clause 31 proposes an amendment to section 41 of the Maintenance Act, 1998,

in order to bring it in line with the judgment in S v Magagula 2001 (2) SACR 123 (T). In

this case the court held that section 41 empowers the trial court, on its own initiative, to

order that criminal proceedings be converted into a maintenance enquiry if it appears to

the court "desirable" that a maintenance enquiry should be held. The court furthermore

held that the question whether or not a court should convert a criminal trial into a

maintenance enquiry should be in the form of a discretion and not be peremptory.



2.19   Clause 32 seeks to insert section 3A in the Domestic Violence Act, 1998 (Act No.

116 of 1998). This amendment is inserted at the request of the South African Police

Service. Section 26 of the Criminal Procedure Act, 1977, dealing with the entering of

premises for the purposes of obtaining evidence, provides as follows:

       "Where a police official in the investigation of an offence or alleged offence

       reasonably suspects that a person who may furnish information with reference to

       any such offence is on any premises, such police official may without warrant

       enter such premises for the purpose of interrogating such person and obtaining a
                                            65



       statement from him: Provided that such police official shall not enter any private

       dwelling without the consent of the occupier thereof.".

Police officials who receive complaints of domestic violence can only enter private

dwellings to investigate the complaints with the permission of the occupiers of the

dwellings. It is argued that the current legislative framework is not adequate to protect

the interests of victims of domestic violence and has a hampering effect on the

investigation of domestic violence related offences. The amendment proposes that if an

offence containing an element of violence has allegedly been committed during an

incident of domestic violence and the police official reasonably suspects that a person

who may furnish information regarding that alleged offence is in any private dwelling,

the police official may enter that dwelling for the purposes of interrogating that person

and obtaining a statement from him or her.        The amendment also seeks to insert

provisions similar to those of sections 27 and 28 of the Criminal Procedure Act, 1977,

which allow police officials to use reasonable force to gain entry to premises should

permission be refused and which subject police officials to criminal sanctions where

they exceed their powers in this regard.



2.20   Chapter 5 of the Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998)

(the POCA), deals with the proceeds of unlawful activities. Section 28, which is in

Chapter 5, makes provision for the appointment of a curator bonis in respect of property

which is subject to a restraint order. The role of the curator bonis is, among others, to

take care of the property in question, to administer the property and where the property

is a business or undertaking, to carry on that business or undertaking. Section 32(1),

which is also in Chapter 5, provides that immediately after letters of curatorship have

been granted to a curator bonis appointed under this Chapter, the curator bonis must
                                            66



take the property into his or her custody. Section 32(2) of the POCA provides that the

Administration of Estates Act, 1965 (Act No. 66 of 1965), applies in respect of such a

curator bonis unless the Act provides otherwise. The effect of section 32(2) is that the

curator bonis is subject to the supervision of the Master and the Master has the power

to tax the fees of the curator bonis. Chapter 6 of the POCA deals with the civil recovery

of property. Section 42, which is in Chapter 6, makes provision for the appointment of

curatores bonis in respect of property which is subject to a preservation of property

order. The role of the curator bonis, as set out in section 42, is almost identical to that

referred to in section 28. However, section 42 does not have an equivalent to section

32(2), providing that the Administration of Estates Act, 1965, applies in respect of such

a curator bonis unless the Act provides otherwise. This has given rise to the argument

in some quarters that the Master has no authority to supervise a curator bonis

appointed under Chapter 6 and to tax their fees. Because of the current uncertainty and

the lack of a statutory mechanism that allows the Master to supervise curators or to tax

their fees, these functions must be performed by the High Courts. This has been shown

to be impractical.    The Head of the Asset Forfeiture Unit has requested that this

inconsistency be addressed by means of the amendments proposed in clauses 33 and

34, which seek to amend sections 42 and 77 of the POCA, respectively. These

amendments will make it clear that the Administration of Estates Act, 1965, also applies

to curatores bonis appointed under Chapter 6 of the POCA. It is also proposed that the

Minister of Justice and Constitutional Development may determine tariffs applicable to

curators acting under the said Chapter 6.



2.21   Clauses 35, 36 and 37 seek to give effect to the Constitutional Court judgment in

the case of Stefaans Conrad Brummer vs Minister of Social Development and Others
                                           67



(CCT 25/09). The Constitutional Court came to the conclusion that the time periods

prescribed by sections 77(5)(c) and 78(2) of the Promotion of Access to Information Act,

2000 (Act No. 2 of 2000), are unconstitutional. The Court was of the view that before a

litigant can launch an application to court, the litigant must go through a number of

steps, including the consideration of the reasons given for the refusal of access to

information and the need to seek legal advice on whether a court application will be

successful, as well as the need to raise funds for litigation. In order to do this

meaningfully, litigants must be given an adequate and fair opportunity. The Court held

that the 30 day period prescribed by section 78(2) and the 30 day and 60 day periods

by section 77(5)(c) limit the right of access to court as well as the right of access to

information, which is not reasonable nor justifiable. In terms of the judgment—

(a)   Parliament must enact legislation that prescribes a time limit that is consistent

      with the Constitution, bearing in mind the right of access to information and the

      right of access to court; and

(b)   pending the enactment of this legislation, a person who wishes to challenge the

      refusal of a request for access to information must lodge an application to court

      within 180 days of being notified of a decision of an internal appeal refusing

      access to information.

The Court was also of the view that there should be flexibility so that courts can

condone non-compliance with the 180 day time limit where the interests of justice so

require, which clause 37 seeks to do by amending the Promotion of Access to

Information Act.
                                                68



2.22   Clause 38 seeks to amend section 1 of the Regulation of Interception of

Communications and Provision of Communication-related Information Act, 2002 (Act

No. 70 of 2002) (the RICA), as follows:

(a)    The definition of "activate", is amended in order to make this term applicable to

       all electronic communication service providers and not only to those who provide

       mobile   cellular electronic     communication      services.     This amendment       is

       consequential to the amendment proposed to section 39 of the RICA by clause

       40 (see paragraph 2.24).

(b)    The definition of "electronic communication service provider", is amended in

       order to bring it in line with the Electronic Communications Act, 2005 (Act No. 36

       of   2005).   Although    this   definition   was    amended       by    the   Electronic

       Communications     Act,    2005,    it    merely    substituted    the   references    to

       "telecommunication service provider" and "Telecommunications Act", but did not

       amend the RICA in order to bring it in line with the provisions of the Electronic

       Communications Act, 2005, which has different classifications for electronic

       communication service providers. For instance, no reference is made in the

       Electronic Communications Act, 2005, to a local access communication service,

       public pay-telephone service or a value-added network service. Furthermore, an

       internet service provider is regarded in the definition as a unique service

       provider, which is defined in the RICA itself. This was the result of the

       unregulated manner in which internet service providers provided services before

       the enactment of the Electronic Communications Act, 2005. Internet services are

       currently regulated by the Electronic Communications Act, 2005, and a separate

       classification of an internet service provider as an electronic communication

       service provider is therefore unnecessary (see paragraph (c) hereunder). Due to
                                               69



       the fast pace at which the electronic industry develops, the Cabinet member

       responsible for the administration of justice is afforded a discretionary power,

       which must be exercised in consultation with the Cabinet member responsible for

       communications, to declare, by notice in the Gazette, a person or categories of

       persons as an electronic communication service provider for the purposes of the

       RICA.

(c)    The definition of "internet service provider", is amended in order to prevent the

       wide application of the definition and unintended consequences arising from such

       application. The definition currently provides that the provisions of the RICA will

       not only apply to an electronic communication service provider that provides an

       electronic communications service but also to any person who provides access

       to, or any other service related to, the Internet to another person. This in effect

       means that the resellers of internet services, Internet Café's and hotspot

       providers which may lease or otherwise provide electronic communications

       services to a third party will fall within the ambit of the RICA although they are

       strictly speaking not electronic communication service providers. Similarly,

       Government Agencies and schools that provide access to the Internet fall within

       the definition of an internet service provider as persons who provide access to

       the Internet. According to the definition these entities must comply with sections

       39 and 30 of the RICA and the directives issued by the Cabinet member

       responsible for communications. The amended definition is more specific and

       seeks to eliminate legal uncertainty.



2.23   Clause 39 proposes amendments to section 19 of the RICA, in order to provide

that the judge designated in terms of section 1 of the Act may also consider and grant
                                             70



applications for the issuing of archived communication-related directions. At present

such applications must be considered by a judge of the High Court, a regional court

magistrate or a magistrate. Due to the fact that all other applications for interception

directions in terms of the Act must be made to the designated judge, it appears to be an

oversight in the Act not to afford the designated judge the authority to also consider and

grant archived communication-related directions.



2.24   Clause 40 seeks to amend section 39 of the RICA in order to bring it into line with

section 40 of the RICA.       This would require of electronic communication service

providers, other than mobile cellular electronic communication service providers, to

electronically record and store information pertaining to a customer before providing an

electronic communication service to any customer. To align the section with section 40

it is proposed that provision be made for—

(a)    the information relating to a customer that must be stored;

(b)    the verification of the identity of a customer;

(c)    the facilities in which the information must be stored;

(d)    the period for which the information must be stored; and

(e)    a duty to report false identification documents to the South African Police

       Service.

The electronic storage of information will assist the law enforcement agencies in tracing

the required information quicker and easier than a paper-based system of registration

and it will also have cost-saving implications for electronic communication service

providers. This amendment is proposed at the request of the electronic communication

service providers.
                                            71



2.25   Clause 41 seeks to amend section 51 of the RICA in order to make the sanctions

that are applicable to mobile cellular operators for contraventions of section 40 also

applicable to electronic communication service providers that need to record and store

information of their customers in terms of the amended section 39. It is consequential

to the amendments contained in clause 40.



2.26   Clauses 42 and 43 propose amendments to sections 86 and 138 of the National

Credit Act, 2005 (Act No. 34 of 2005), respectively, in order to clarify which magistrate‘s

court has jurisdiction to conduct a debt review procedure referred to in section 86.

Section 86, read with section 87, makes provision for a debt review procedure in terms

of which a magistrate's court must—

(a)    consider an application for debt review in terms of section 86(8)(b) or (9); or

(b)    confirm a consent order in terms of section 138.

The National Credit Act, 2005, however, does not specify which magistrate's court will

have jurisdiction to entertain any of the aforementioned procedures. This omission has

resulted in an impasse where, although applications are made for debt review,

magistrates' courts decline to entertain these procedures based on the fact that they do

not have jurisdiction. The amendments aim to remedy this omission by conferring

jurisdiction on the magistrate's court in whose district the consumer is ordinarily

resident, carries on business or is employed. These amendments emanate from a

request by the Department of Trade and Industry.



2.27   Clause 44 seeks to amend the Table of Contents to the Children's Act, 2005, and

clause 45 seeks to insert section 128A into that Act. If the name of a person has been

included in the National Child Protection Register as a result of a conviction for an
                                           72



offence provided for in the Children's Act, 2005, such person does not qualify for the

expungement of his or her criminal record in terms of section 271B of the Criminal

Procedure Act, 1977. The amendments will enable the Director-General: Justice and

Constitutional Development to establish whether there is compliance with section 271B

of the Criminal Procedure Act, 1977, when considering an application for the

expungement of criminal records.



2.28   In similar vein to clauses 44 and 45 referred to above, clause 46 seeks to amend

the Index to the Criminal Law (Sexual Offences and Related Matters) Amendment Act,

2007, and clause 47 seeks to insert section 44A into the last-mentioned Act in order to

give the Director-General: Justice and Constitutional Development the power to obtain

particulars from the Registrar of the National Register for Sex Offenders regarding a

person whose name appears on the National Register for Sex Offenders for the

purposes of processing applications for the expungement of criminal records in terms of

section 271B of the Criminal Procedure Act, 1977.



2.29   Clause 48 seeks to delete section 66(2)(a)(ix) of the Criminal Law (Sexual

Offences and Related Matters) Amendment Act, 2007. In terms of section 66(2) the

National Director of Public Prosecutions must issue directives regarding a number of

matters, among others, directives in respect of the manner in which prosecutors must

ensure that court orders directing that a person‘s name be entered in the National

Register for Sex Offenders are forwarded to and received by the Registrar of the

Register.   This provision amounts to a duplication of duties since section 50(3) of the

Act already places an obligation on the Registrar of the High Court or the clerk of the
                                           73



magistrate‘s court to forward these court orders to the Registrar of the National

Register.



2.30   Clauses 49 and 58 propose amendments to sections 11 and 97 of the Child

Justice Act, 2008, respectively, dealing with the proof of criminal capacity of children

who are 10 years or older but under the age of 14 years and who are alleged to have

committed an offence. In terms of section 11(2) an inquiry magistrate or child justice

court, when making a decision regarding the criminal capacity of a child, must consider

the assessment report of the probation officer and all other evidence placed before the

court, which may include a report of an evaluation done by a suitably qualified person

referred to in section 11(3). In terms of section 11(3), an inquiry magistrate or child

justice court may on its own accord or at the request of the prosecutor or the child‘s

legal representative, order an evaluation of the child‘s criminal capacity by a suitably

qualified person which must include an assessment of the cognitive, moral, emotional,

psychological and social development of the child. In terms of section 97(3) the Cabinet

member responsible for the administration of justice must determine the persons or

category or class of persons who are competent to conduct the evaluation of the

criminal capacity of children in accordance with section 11(3).          After thorough

consultation with all roleplayers, the Minister of Justice and Constitutional Development

determined that psychiatrists and clinical psychologists are competent to conduct the

evaluations. The Department of Health has, however, indicated that psychiatrists and

clinical psychologists are not able to assess the moral development of a child and are

only equipped to assess the cognitive, emotional, psychological and social development

of a child.   The amendments proposed in clause 49 therefore require the inquiry

magistrate or child justice court to consider the cognitive, moral, emotional,
                                            74



psychological and social development of the child on the basis of all evidence placed

before the court, including the report of the person appointed to evaluate the criminal

capacity of the child, if such an order is made. A new subclause (4A) is proposed to

regulate the handing in of the report during court proceedings, setting out how the report

is to be dealt with if all parties agree with its findings and also how the report is to be

dealt with if its findings are disputed by any of the parties. Clause 58 seeks to amend

section 97 consequentially and provides that different categories or classes of persons

may be determined for the purposes of the different aspects of development of a child

referred to in the amended section 11(2)(b). It also provides that the Minister may

determine different allowances and tariffs of remuneration for the different categories or

classes of persons who do the assessments.



2.31   Clause 50 seeks to amend section 28 of the Child Justice Act, 2008, which deals

with the protection of children in police custody. Section 28(2)(a) provides that if there

is a complaint about any injury to a child or that a child is severely traumatised, this

must be reported to the station commander. Section 28(2)(b) requires the report to the

station commander to be submitted to the National Commissioner of Police.              The

amendment seeks to address a concern raised by the Select Committee on Security

and Constitutional Development regarding reporting lines in the South African Police

Service. The view was expressed that the report should be submitted to the Provincial

Commissioner and that a copy thereof should be submitted to the National

Commissioner.



2.32   Clause 51 proposes an amendment to section 43 of the Child Justice Act, 2008,

which section deals with the nature and objectives of a preliminary inquiry. After the Act
                                             75



was implemented on 1 April 2010 a number of roleplayers raised the question whether

preliminary inquiries should be conducted in the court which will eventually adjudicate

on the matter if it proceeds to trial (that is either in the district court, regional court or

High Court) or whether all preliminary inquiries should rather be conducted in the district

courts.   Although the Act is silent on the matter and while it was accepted that

preliminary inquiries should be conducted in the court at which the trial would eventually

take place, it is proposed that preliminary inquiries should be conducted at district court

level. The reason why this is proposed is that such an arrangement would facilitate the

establishment of a trained and dedicated pool of functionaries (magistrates,

prosecutors, police officials and probation officers) who are equipped to deal with

preliminary inquiries at a central point. Preliminary inquiries are moreover akin to the

proceedings in terms of section 119 of the Criminal Procedure Act, 1977, in terms of

which certain serious offences are initiated in the district courts, pending their readiness

to proceed to trial in the High Courts. Clause 51 seeks to give effect to this practical

arrangement.



2.33   Clause 52 seeks to allow the Minister of Social Development to delegate certain

of the powers contained in section 56 of the Child Justice Act, 2008, to the provincial

level. Section 56 confers a number of powers on and assigns a number of duties to the

Minister of Social Development relating to the accreditation of diversion programmes

and diversion service providers. The Minister must develop and table in Parliament a

policy framework and system for accreditation, which has already been done. The

Minister must thereafter invite applications for accreditation, consider the applications

and issue certificates of accreditation to the successful applicants. Because welfare

services falls within functional areas of concurrent national and provincial competence
                                            76



in terms of Part A of Schedule 4 to the Constitution, the Minister of Social Development

has requested an amendment to section 56 in order to allow him or her to delegate his

or her powers in terms of section 56 to provincial level in order to facilitate the

successful implementation of the accreditation process. The implementation of the

policy framework for accreditation of diversion services will essentially take place in the

provinces which also have the budgets to fund the programmes and service providers.



2.34   Clause 53 seeks to correct a textual inaccuracy in section 65(3) of the Child

Justice Act, 2008.



2.35   Clause 54 substitutes section 75 of the Child Justice Act, 2008, which currently

provides that a child justice court that convicts a child of any offence may impose a

sentence involving correctional supervision—

(a)    in the case of a child who is 14 years or older, in terms of section 276(1)(h) or (i)

       of the Criminal Procedure Act, 1977; or

(b)    in the case of a child who is under 14 years, in terms of section 276(1)(h) of the

       Criminal Procedure Act, 1977.

Section 276 of the Criminal Procedure Act, 1977, sets out the sentences that a court

may impose upon a convicted person. Section 276(1)(h) refers to ―correctional

supervision‖ and section 276(1)(i) refers to ―imprisonment from which such a person

may be placed under correctional supervision in the discretion of the Commissioner or a

parole board‖. The reference to the two categories of correctional supervision in section

75 of the Child Justice Act, 2008, is thus incorrect. Clause 54 seeks to address this. The

amendment proposed to section 75 requires a consequential amendment to section 77

of the Child Justice Act, 2008. Clause 55(c) proposes an amendment to section 77(4) of
                                            77



the Child Justice Act, 2008, in order to accomplish the required consequential

amendment.



2.36   Clauses 55 and 56 propose amendments to sections 77 and 78(1) of the Child

Justice Act, 2008, and the amendments are discussed in paragraphs 2.10 and 2.35

above.



2.37   Clause 57 seeks to amend section 87 of the Child Justice Act, 2008, which deals

with the expungement of certain criminal records of children.       The amendments

proposed to section 87 are similar to those proposed in clause 8 which also deal with

expungements of certain criminal records. The proposed new section 87(7) and (8)

provides that the Minister or the Director-General: Justice and Constitutional

Development may revoke a certificate of expungement which was erroneously issued.

The Director-General is empowered to request the head of the Criminal Record Centre

to rectify the information on the person‘s criminal record. The proposed new section

87(9) provides that the Director-General may delegate any power or assign any duty

conferred on or assigned to him or her in terms of section 87(2) to an appropriately

qualified official in the employ of the Department of Justice and Constitutional

Development at the rank of Deputy Director-General.



2.38   Clause 58 proposes an amendment to section 97 of the Child Justice Act, 2008,

and is discussed in paragraph 2.30 above.



2.39   Clause 59 seeks to address a textual inaccuracy in section 100 of the Setswana

text of the Child Justice Act, 2008.
                                            78




2.40   Clause 60 seeks to effect textual corrections to section 3 of the Reform of

Customary Law of Succession and Regulation of Related Matters Act, 2009 (Act No. 11

of 2009).



2.41   Clauses 61 and 62 seek to establish the Limpopo High Court, Polokwane, and

the Mpumalanga High Court, Nelspruit, respectively. In terms of the current legislative

framework, the existing High Court at Polokwane that was officially opened in February

2009 is functioning as a Circuit Division of the North Gauteng High Court, Pretoria.

However, since the necessary infrastructure has already been established for this

Court, there is no sound reason for not converting the court into a fully fledged High

Court, which is what clause 61 proposes. Mpumalanga is the only province which does

not have a High Court and clause 62 seeks to address this.



3.     FINANCIAL IMPLICATIONS



No additional financial implications are foreseen in the implementation of the Bill.



Funds have been put aside in the Department‘s budget allocation to allow for the

establishment of the High Courts in Polokwane and Nelspruit respectively on an

incremental basis. The provisions of clauses 61 and 62, which establish these courts,

will thus only be put into operation when the necessary budgetary, personnel and other

implications have been taken into account and addressed.



4.     DEPARTMENTS AND PARTIES CONSULTED
                                            79




4.1    The Bill was submitted to the Chief Justice, the respective Judges President,

magistrates, the Magistrates Commission, the Law Society of South Africa, the General

Council of the Bar, the various Bar Councils, the Chief Family Advocate, NADEL, BLA,

the Board of Sheriffs, the Council for Debt Collectors, the National Credit Regulator, the

Special Investigating Unit, the Centre for Child Law, various electronic communications

service providers, the South African Police Service, the Department of Trade and

Industry and the National Director of Public Prosecutions for comments. The Bill was

also made available on the Website of the Department together with a document

explaining the objects of the Bill and which invited the public to comment on the Bill.



4.2    Comments were received from the Tshwaranang Advocacy Centre, the Special

Investigating Unit, the Chief Directorate: Legal Administration within the Department of

Justice and Constitutional Development, the National Prosecuting Authority of South

Africa, the South African Police Service, the Department of Trade and Industry, the Law

Society of North West, the Law Society of the Northern Provinces, the National Credit

Regulator, various electronic communication service providers, the Cape Bar Council,

Retail Credit Solutions, Association of Debt Recovery Agents, Council for Debt

Collectors, Bell Dewar Attorneys on behalf of Avusa Media Limited, the Law Society of

South Africa, ProScripto, Aids Law Project, the Commission for Gender Equality, the

Magistrate, Wynberg, the Centre for Child Law and the Magistrate, Tembisa, which

were accommodated where possible.



5.     PARLIAMENTARY PROCEDURE
                                           80



5.1   The Department of Justice and Constitutional Development and the State Law

Advisers 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.



5.2   The State Law Advisers are of the opinion that it is not necessary to refer the 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 41 of 2003), since it

does not contain provisions pertaining to customary law or customs of traditional

communities.

				
DOCUMENT INFO