Judicial Matters Second Amendment Act [No. 122 of 1998]
I I OF SOUTH AFRICA
GOVERNMENT GAZETTE
STAATSKOERANT
VAN DIE REP~LIEK VAN SUID-AFWKA
Registered at the Post Ofice as a Newspaper As ‘n Nuusblad by die Poskantoor Geregistreer
CAPE TOWN, 11 DECEMBER 1998 VOL. 402 No. 19590
i KAAPSTAD, 11 DESEMBER 1998
I I ?
O~CE OF THE PRESIDENT
No. 1636. 11 December 1998
It is hereby notified that the President has assented to the following Act which is hereby published for general inforrnation:—
No. 122 of 1998: Judicial Matters Second Amendment Act, 1998.
KANTOOR VAN DIE PRESIDENT
No. 1636. 11 Desember 1998
Hierby word bekend gemaak dat die President sy goed- keuring geheg het aan die onderstaande Wet wat hierby ter algemene inligting gepubliseer word:—
No. 122 van 1998: Tweede Wysigingswet op Geregtelike Aan- geleenthede, 1998.
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~ No, 19590 GOVERNMENT GHE~E, 11 DECEMBER 1998
Act No. 122, 1998 JUDICIAL MA~ERS SECOND AMENDMENT ACT. 1998
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GENERAL EXPLANATORY NOTE:
[ 1 Words in bold type in square brackets indicate omissions from existing enactments.
Words underlined with a solid line indicate insertions in existing enactments.
(English text sigtzed by the Presidetzt. ) (Assetlted t may wish to make in connection with the proposec notice; and has caused to be forwarded to the National Economic. DeveloDmenl. and Labour Council established by section 2(1) of the National Economic. Development and Labour Council Act, 1994 (Act No. 35 of 1994), a copy of such draft.
(3) An employee shall be entitled to salary, wages, leave or othel payments in terms of subsection (1 )(a) even though he or she has nol proved his or her claim therefor in terms of section M, but the trustee may require such employee to submit an affidavit in support of his or her claim for such salary, wages. leave or payment.
(4) (a) The claim referred to in subsection (1 )(a)(i) shall be preferred to the claims refereed to in subsections (1 )(a)(ii), (iii) and (iv) and (1)(b).
(b) The claims referred to in subsection (1 )(a)(ii), (iii) and (iv) shall be preferred to the claims referred to in subsection (1)(b) and shall rank equally and abate in equal proportions. if necessary.
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6 No. 19590 GOVERNMENT GWETTE, 11 DECEMBER 1998
Act No. 122, 1998 JUDICIAL MA~ERS SECOND AMENDMENT ACT, 1998
(c) The claims referred to in subsection (1 )(b) shall rank equally and abate in equal proportions, if necessary.
(5) For the purposes of this section— (a) ‘employee’ means any person, excluding an independent contractor,
who works for another person and wh~ (i) receives, or is entitled to receive, any salary or wages; or (ii) in any manner assists in carrying on or in conducting the business
of an employer; (b) ‘salary or wages’ includes all cash earnings received by the employee
from the employer; (c) ‘unemployment fund’ does not include the unemployment insurance
fund referred to in section 6 of the Unemployment Insurance Act, 1966 (Act No. 30 of 1966).
(6) The Minister of Justice may, after consultation with the National Economic, Development and Labour Council established by section 2(1) of the National Economic, Development and Labour Council Act, 1994, by notice in the Gazette exclude from the operation of the provisions of this section a category of employees, schemes or funds specified in the notice— (a)
(b)
(c)
in the c~se ‘of employees, by reason of the particular nature of the employment relationship between the employer and the employees: in the case of employees, schemes or funds. by reason of the fact that there exists any other type of guarantee which affords the employees, schemes or funds protection which is equivalent to the protection as provided in this section; or in the case of schemes or funds, by reason of the fact that the
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25 sequestration of the employer’s esta~e will make it impossible to achieve the objects of the schemes or funds.”.
(2) The provisions of subsection (1) shall apply in respect of estates which are sequestrated or provisionally sequestrated on or after the date of commencement of this section. 30
Amendment of section 99 of Act M of 1936, as substituted by section 5 of Act 6 of 1972 and amended by section 30 of Act 90 of 1972, section 6 of Act 62 of 1973, section 9 of Act 29 of 1974, section 69 of Act 85 of 1974, section 50 of Act 103 of 1978 and section 3 of Act 139 of 1992
3. Section 99 of the Insolvency Act. 1936, is amended by the deletion of paragraph (N 35 of subsection (1).
Repeal of section 100 of Act M of 1936, as amended by section 13 of Act 32 of 1952, section 31 of Act 99 of 1965, section 14 of Act 101 of 1983 and section 4 of Act 139 of 1992
4. Section 100 of the Insolvency Act, 1936, is repealed. 40
Amendment of section 104 of Act 24 of 1936, as amended by section 6 of Act 122 of 1993
5. Section 104 of the Insolvency Act, 1936, is amended by the substitution in subsection ( 1 ) for the words preceding the proviso of the following words:
“Subject to the provisions of [sub-section (2) of section nine~-five] section 95(2) 45 and [sub-section (3) of section one hundred section 98A(3), a creditor of an insolvent estate who has not proved a claim against that estate before the date upon which the trustee of that estate submitted to the Master a plan of distribution in that estate, shall not be entitled to share in the distribution of assets brought up for distribution in that plan:”. 50
Amendment of section 19 of Act 59 of 1959, as amended by section 6 of Act 15 of 1969, section 2 of Act 41 of 1970 and section 6 of Act 105 of 1982
6. Section 19 of the Supreme Court Act, 1959, is amended by the addition in subsection (1) of the following paragraph:
“-.”.
8 No. 19590 GOVERNMEW G~~. 11 DECEMBER 1998
Act No. 122, 1W8 JUDICIW MA~RS SECOND AMENDME~ Am, 1998
“(c) Subject to the provisions of section 28 and the powers granted under section 4 of the Admiralty Jurisdiction Regulation Act, 1983 (Act No. 105 of 1983), any High Court may—
(i)
(ii)
issue an order for attachment of property or arrest of a person to confirm jurisdiction or order the arrest suspectus de fuga dso where the property or person concerned is outside its area of jurisdiction but within the Republic: Provided that the cause of action arose within its area of jurisdiction; and where the plaintiff is resident or domiciled within its area of jurisdiction, but
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the cause ot action arose outside its area of jurisdiction and the property or person concerned is outside its area of jurisdiction, issue an order for 10 attachment of property or arrest of a person to found jurisdiction regardless of where in the Republic the property or person is situated.”.
Substitution of section 49 of Act 51 of 1977
7. The following section is substituted for section 49 of the Criminal Procedure Act, 1977:
“Use of force in effecting arrest
49. (1) For the purposes of this section— (a) ‘~eStOr’ means any person autiorised under this Act to ~est or to
assist in arresting a ‘suspect; and (b) ‘suspect’ means any person in respect of whom an arrestor has or had
a reasonable suspicion hat such person is committing or has committed an offence.
(2) If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and propofiional in the circumstances to overcome the resistance or to prevent the suspect from fleeing: Provided that the arrestor is justified in terms of this section in using deadly force that is intended or is likely to cause death or grievous bodily harm to a suspect, only if he or she believes on reasonable grounds— (a)
(b)
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that the force is immediately necessary for the purposes of protecting the arrestor, any person lawfully assisting the arrestor or any other person from imminent or future death or grievous bodily harm; that there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed; or that the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life threatening violence or a strong likelihood that it will cause grievous bodily harm.”.
Amendment of Schedule 1 to Act 51 of 1977, as substituted by section 17 of Act 26 of 1987
8. Schedule 1 to the Criminal Procedure Act, 1977, is amended by the substitution for the heading thereto of the following heading:
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10 No. 19590 GOVERNMENT GuEm, 11 DECEMBER 1998
Act No. 122, 1998 JUDICIW MA~ERS SECOND AMENDMENT ACT, 1998
“Schedule 1
(Sections 40 and 42 [49])”.—
Amendment of section 83 of Act 53 of 1979, as amended by section 6 of Act 76 of 1980, section 5 of Act 60 of 1982, section 30 of Act 87 of 1989 and section 1 of Act 49 of 1996
9. Section 83 of the Attorneys Act, 1979, is amended by the addition in subsection (12) of the following paragraph:
“Q) any board of executors or trust company which, on 27 October 1967. was licensed as such under the Licences Act, 1962 (Act No. 44 of 1962). and carrying on business of which a substantial part consisted of the liquidation or distribution of the estates of deceased persons. if the person in the service of any such institution, who draws up or prepares or causes to be drawn up or prepared the documents referred to in subsection (8)(a) (ii), satisfies all the academic requirements to be admitted as an advocate or attorney in terms of the Admission of Advocates Act. 1964 (Act No. 74 of 1964), or this Act. as the case may be.”.
Amendment of section 219 of Act 91 of 1981, as amended by section 17 of Act 80 of 1987
10. Section 219 of the Co-operatives Act, 1981, is amended by the substitution for
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paragraph (b) of the following paragraph: ~o “(b) thereafter in paying any amounts due by the co-operative with respect to the
matters referred to in paragraph (b) of section 98A(1). or in paragraphs (a) to and including [~] @ of section 99~, of the Insolvency Act. 1936 (Act No. 24 of 1936), which have been admitted or proved in terms of section 215. or, if the balance of the said proceeds is insufficient to pay the said amounts in 25 full. in paying a proportionate share of each; ’..
Amendment of section 13 of Act 90 of 1993, as amended by section 4 of Act 85 of 199j and sections 6 and 8 of Act 35 of 1996
11. Section 13 of the Magistrates Act, 1993. is amended by the substitution for subsection ( 1 ) of the following subsection: 30
“(1 ) A magistrate shall vacate his or her office on attaining the age of 65 years: Provided that— (a) the Minister may. after consultation witi the Commission, allow a maF1strate_
(i) who, on attaining the age of 65 years wishes to continue to serve in such office; and 35
(ii) whose mental and physical health enables him or her to do so.., to continue to hold such offi-ce” for the period that the Minister may determine: and @ if he or she attains the said age after the first day of any month, he or she shall be
deemed to attain that age on the first day of the next ensuing month . . . .
Amendment of section 7 of Act 74 of 1996 40
12. (1) Section 7 of the Special Investigating Units and Special Tribunals Act. 1996, is amended by the substitution for subsection ( 1 ) of the following subsection:
“(1 ) A Special Tribunal established under section 2(1) consists of a judge, including a retired judge, of [the Supreme Court] a High Court, as Tribunal President, and such additional members as may be appointed under subsection 45 (3).”.
(2) Subsection (1) shall be deemed to have come into operation on 20 November 1996.
12 No. 19590 GOVERNME~ GM~, I I DECEMBER 1998
Act No. 122, 1998 JUDICIAL MA~RS SECOND AMENDME~ A~, 1998
Substitution of section 45 of Act 32 of 1998
13. The following section is substituted for section 45 of the National Prosecuting Authority Act, 1998:
“Inte~rehtion of ce~in references in laws
45. Any reference in any law t~ 5 (a) an attorney-general shall. unless the context indicates otherwise. be
construed as a reference to the National Directoq and ~ an attorney-general or deputy attorney-general in respect of the area of
jurisdiction of a High Court, shall be construed as a reference to a Director or Depu~ Direcror appointed in terms of this Act. for the area 10 of jurisdiction of that Court.”.
Removal of certain trials to jurisdiction of other Directors of Public Prosecutions
14. Despite the provisions of section 13 of the Justice Laws Rationalisation Act, 1996 (Act No. 18 of 1996), the provisions of section 111 of the Criminal Procedure Act. 1977 (Act No. 51 of 1977), as made applicable to certain areas of the national territory of the 15 Republic of South Africa by section 2 of the Justice Laws Rationalisation Act, 1996, shall also be applicable in respect of any offence committed in any such area prior to the commencement of the last-mentioned Act.
Repeal of law
15. The Bophuthatswana Electricity Act, 1985 (Act No. 34 of 1985), is repealed. 20
Short title and commencement
16. This Act is called the Judicial Matters Second Amendment Act, 1998, and comes into operation on a date fixed by the President by proclamation in the Gazerte.