The Minister of Justice and Correctional Services, Advocate Michael Masutha, MP, is to introduce a Bill in Parliament within the next few days which intends to enhance organisational efficiency and improve the application of different Acts of Parliament which fall within the justice portfolio.
While the amendments contained in the Judicial Matters Amendment Bill are mostly technical in nature and, on the face of it, seem mundane and without too much significance, their impact collectively will contribute to an improved administration of justice. Some amendments will also bring about cost savings. Others will eliminate prevailing uncertainties which have been identified in practice, while others will give impetus to the independence of the Office of the Chief Justice.
Some of the more significant amendments are discussed below:
Currently section 9(5) of the Magistrates’ Courts Act, 1944, provides for the appointment of acting magistrates for a period not exceeding three months. The proposed amendment contained in the Bill seeks to extend the period of appointment to 12 months. This is intended to address practical challenges currently being experienced by the Magistrates Commission in filling a vacant post of a magistrate within three months. Extending the period of appointment from three months to 12 months will create more stability and be less of an administrative burden in making acting appointments at three monthly intervals.
The period of the acting appointment will also be more in line with the appointment process and bring about continuity where an acting magistrate is appointed to deal with case backlogs. It will furthermore assist in attracting persons who are prepared to act as magistrates since they will invariably be appointed to act for a longer period at a stretch, rather than not knowing whether they will be re-appointed after the current three month period expires.
Section 384 of the 1955 Criminal Procedure Act is being repealed. This section deals with binding over of persons to keep the peace, previously used often in disputes between family members or disputes between neighbours. This procedure has fallen into disuse in many parts of the Republic and has largely been superseded by the provisions of and remedies provided for in, the Protection from Harassment Act, 2011 and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000.
At present the Prescribed Rate of Interest Act, 1975, provides that if a debt bears interest and the rate at which the interest is to be calculated is not governed by any other law or by an agreement or a trade custom or in any other manner, such interest shall be calculated at the rate prescribed by the Minister, after consultation with the Minister of Finance. In order to ensure that the interest rate in this Act reflects prevailing market conditions, the amendments in the Bill propose that the rate of interest will be the repurchase rate, as determined by the SA Reserve Bank from time to time, plus 3,5 percent per annum. The Minister is furthermore required to publish the amended rate in the Gazette whenever the repurchase rate is adjusted by the SA Reserve Bank.
The Magistrates Act, 1993, is being amended in order to provide for the situation when a magistrate vacates his or her office on account of his or her appointment as a judge. Currently, when a magistrate is appointed as a judge, section 13(5)(c)(ii) of the Magistrates Act is applied, which provides that if a magistrate is allowed to vacate his or her office, he or she shall be deemed to have been retired in accordance with section 16(4) of the Public Service Act, 1994. That being the case the magistrate will be entitled to pension benefits as if he or she had retired. This means that the State must make a contribution to the pension fund. It should also be borne in mind that, in practice, the former magistrate, having been appointed as a judge, will receive a judge’s salary for life in terms of the Judges’ Remuneration and Conditions of Employment Act, 2001. The proposed amendments are intended to prevent unintended and undue financial implications that may be imposed on the State in the event of a magistrate, who has not reached the age of retirement as provided for in section 19 of the Government Employees Pension Law, 1996, being appointed to the office of a judge.
The Judicial Service Commission Act, 1994, is being amended by making the Secretary-General of the Office of the Chief Justice the accounting officer for purposes of the Judicial Service Commission, in the place of the Director-General: Justice and Constitutional Development. In similar vein, the South African Judicial Education Institute Act, 2008, is being amended by making the Office of the Chief Justice responsible for the South African Judicial Education Institute, and also making Secretary-General of the Office of the Chief Justice the accounting officer of the South African Judicial Education Institute, in the place of the Director-General: Justice and Constitutional Development. These amendments will enhance the independence of the Office of the Chief Justice.
The Special Investigating Units and Special Tribunals Act, 1996 is being amended in order to tighten up on the reporting responsibilities of Special Investigation Unit (SIU). A new provision is to be inserted in this Act which will require the head of the SIU to report to the President and the Cabinet member responsible for the administration of justice on a quarterly basis on progress made in its investigations and matters brought before the Special Tribunal concerned or any court of law. In addition, the proposed new section gives discretion to the head of the SIU, whenever requested by certain institutions, persons or functionaries, to report on an investigation and matters brought before the Special Tribunal concerned or before any court of law. A discretion is deemed necessary as it may, in certain cases or circumstances, not be appropriate or advisable to report on an investigation or matter.
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Advocate Mthunzi Mhaga
SOURCE: South African Official News