Judicial Matters Amendment Act 104 of 1996
REPUBLIC OF SOUTH AFRICA
GOVERNMENT GAZETTE
STAATSKOERANT
VAN DIE REPUBLIEK VAN SUID-AFRIKA
Registered at the Post Office as a Newspaper As 'n Nuusblad by die _Poskantoor Geregistreer
VoL 377 CAPE TOWN, 27 NOVEMBER 1996
KAAPSTAD, 27 NOVEMBER 1996 No. 17613
PRESIDENT'S OFFICE KANTOOR VAN DIE PRESIDENT
No. 1902. 27 November 1996 No. 1902. 27 November 1996
It is hereby notified that the President has assented to the following Act which is hereby published for general infor- mation:-
No. 104 of 1996: Judicial Matters Amendment Act, 1996.
Hierby word bekend gemaak dat die President sy goed- keuring geheg bet aan die onderstaande Wet wat hierby ter algemene inligting gepubliseer word:-
No. 104 van 1996: Wysigingswet op Geregtelike Aangeleent- . hede, 1996.
Please note that most Acts are published in English and another South African official language. Currently we only have capacity to publish the English versions. This means that this document will only contain even numbered pages as the other language is printed on uneven numbered pages.
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Act No. 104, 1996 JUDICIAL MATIERS AMDENDMENT ACf. 1996
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.
ACT To amend the Currency and Exchanges Act, 1933, so as to effect a technical correction; to amend the Insolvency Act, 1936, so as to further define a certain expression; to amend the Magistrates' Courts Act, 1944, so as to further regulate the appointment of judicial officers; to abolish the Regional Divisions Appoint- ments Advisory Board; and to delete an obsolete provision; to amend the Pension Funds Act, 1956, so as to effect a technical correction; to amend the Supreme Court Act, 1959, so as to regulate certain appealS anew; to amend the Justices of the Peace and Commissioners of Oaths Act, 1963, so as to extend the offices, the holders of which are ex officio justices of the peace; to amend the Maintenance Act, 1963, so as to further regulate the senice of maintenance orders; to amend the Adminis- tration of Estates Act, 1965, so as to further regulate the acceptance of a will; to amend the Attorneys Act, 1979, so a5 to provide for the cession of a contract of service; and to make further provision for rules of court; to amend the Judges' Remuneration and Conditions of Employment Act, 1989, so as to further regulate the power of the Minister of Justice to make a certain regulation; to amend the Investigation of Serious Economic Offences Act, 1991, so as to make provision for preparatory examination procedures; and to regulate prosecution in criminal proceedings by the Director and officials of the Office for Serious Economic Offences; to amend the Attorney-General Act, 1992, so as "to further regulate the delegation powers of an attorney-general; to amend the Criminal Law Second Amendment Act, 1992, so as to substitute certain references; to amend the Magistrates Act, 1993, so as to substitute an obsolete expression; to amend the Magistrates' Courts Amendment Act, 1993, so as to delete an obsolete provision; to amend the Promotion of National Unity and Reconciliation Act, 1995, so as to amend a defillition; to further regulate the quorum for meetings of the Truth and Reconciliation Commission; to further regulate the granting of amnesty; and to further regulate the powers of ·the Corlunission With regard to investigations and hearings; to amend the Justice J,.aws Rationalisation Act, 1996, so as to provide for further transitional provisions; and to provide for matters connected therewith.
(English text signed by the President.) (Assented to 12 November 1996.)
4 No. 17613 GOVERNMENT GAZETTE, 27 NOVEMBER 1996
Act No. 104, 1996 JUDICIAL MATTERS AMDENDMENT ACT, 1996
BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:-:- Amendment of section 9 of Act 9 of 1933, as amended by section 6 of Act 27 of 1940, section 17 of Act 43 of 1941, section 26 of Act 36 of 1950, section 1 of Act 23 of 1987, section 1 of Act 48 of 1988, section 2 of Act 23 of 1996 and section 1 of Act 49 of 1996 5
1. Section 9 of the Currency and Exchanges Act, 1933, is hereby amended by the addition of the following subsection:
" 6 The Treasu rna consider and t or refuse an a Iication to urchase foreign currency by utilising a computer system or other electronic device or apparatus capable of absorbing and processing data and, in accordance with 10 instructions given by the Treasury, of making available information indicating the refusal or approval of that application, in the form of a document.".
Amendment of section 35A of Act 24 of 1936, as inserted by section 1 of Act 32 of 1995
2. Section 35A of the Insolvency Act, 1936, is hereby amended by the substitution in 15 subsection (1) for the definition of "market participant" of the following definition:
" 'market participant' means a stockbroker or a member as defined in section 1 of the Stock Exchanges Control Act, 1985, or a financial instrument principal or a financial instrument trader as defined in section 1 of the Financial Markets Control Act, 1989, or a client of such a stockbroker, member or financial instrument trader 20 or any other party to a transaction;".
Amendment of section 9 ·or Act 32 of 1944, as substituted by section 2 of Act 8 of 1967 and amended by section 4 of Act 53 of 1970, section 8 of Act 102 of 1972, section 11 of Act 29 of 1974,section 24ofAct 94of1974,section 1 ofAct28 of 1981, section 2 of Act 34 of 1986 and section 17 of Act 90 of 1993 25
3. Section 9 of the Magistrates' Courts Act, 1944: is hereby amended- ( a) by the substitution for paragraph (aA) of subsection (l) of the following
paragraph: "( aA) The Minister may, in a particular case or generally and subject
to such directions as he or she may deem. fit, delegate the power 30 conferred upon him or her by paragraph (a) to the Director-General oi his or her department or another officer of that department with the rank t ' f director or an equivalent or higher rank [or, in respect of a district, sub-district or regional division situated wholly or partly in an area for which a legislative assembly has been established under the 35 National States Constitution Act, 1971 (Act No. 21 of 1971), to any officer of his department who holds the office of secretary or director of a department of the government of the area concerned] or a magistrate at the head of a regional division or a magistrate with the rank of chief magistrate."; 40
(b) by the substitution for subsections (3) and(4) of the following subsections, respectively: · . . ·
"(3) Whenever by reason of absence or incapacity a magistrate, additional magistrate or assistant magistrate is unable to carry out the functions of his or her office or whenever such office becoines vacant, the 45 Minister, or an officer in the Department of Justice or a magistrate at the head of a regional division or· a magistrate with the rank of chief magistrate authorized thereto in writing by the Minister, may appoint any other competent [officer of the public service or any competent retired officer of the public service] person to act in the place of the absent or 50 incapacitated magistrate, additional magistrate or assistant magistrate, as the case may be, during such absence or incapacity or to act in the vacant
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Act No. 104, 1996 JUDICIAL MATTERS AMDENDMENT ACI', 1996
office until. the vacancy is filled: Provided that no person shall be appointed as an acting magistrate of a regional division unless he or she has satisfied all the requirements for the degree referred to in subsection (l)(b) or has passed an examination referred to in that subsection: Provided further that when any such vacancy has remained unfilled for a 5 continuous period exceeding [six] three months the fact shall be reported to the [Public Service Commission] Magistrates Commission estab- lished by section 2 of the Magistrates Act, 1993 (Act No. 90 of 1993).
· (4) The_ Minister or an officer in the Department of Justice or a magistrate at the head of a regional division or a magistrate with the rank 10 of chief magistrate authorized thereto in writing by the Minister, may appoint temporarily any competent person to act either generally or in a particular matter as magistrate' of a regional division in addition to any magistrate or acting magistrate of that division or as additional or assistant magistrate for ariy district or sub-district in addition to the 15 magistrate or any other additional or assistant magistrate."; and
(c) by the addition of the following subsection: " 5 The Minister ma , with the concurrence of the Minister of
Finance, determine the remuneration and allowances and the method of calculation of such remuneration and allowances payable to a person 20 appointed under subsection (3) or (4), if such person is not an officer of the public service.". · ·
Repeal of section 9bis of Act 32 of 1944 ' . ·. . . . - . -
4. (a) Section 9bis of the Magistrates' Courts Act, 1944, is hereby repealed. (b) Any· matter before · the Regional Divisions Appointments Advisory Board 25
established in terms of section 9bis of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944), which immediately before the commencement of this section was not yet disposed of by the Board, shall be continued and concluded in every respect as if this section ~ad not been put into operation.
Amendment of section 114 of Act 32 of 1944, as amended by section 9 of Act 16 of 30 1959 and section 12 of Act 91 of 1977
5. Section 114 of the Magistrates' Courts Act, lY44, is hereby amended . by the deletion ofsubsection (4).
Amendment of section 7E of Act 24 of 1956, as inserted by section 2 of Act 22 of 1996 35
6. Section 7E of the Pension Funds Act, 1956, is hereby amended by the substitution for subsection (1) of the following subsection:
"(I) Sections 7 A, }B, 7C and 7D shall apply to all funds registered on, or after, a date 12 months 'after the date of commencement of the Pension Funds Amendment Act, [1995] 1996 (Act No: 22 of 1996)." . 40
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Act No. 104, 1996 JUDICIAL MATTERS AMDENDMENT ACT, 1996
Substitution of section 21A of Act 59 of 1959, as inserted by section 22 of Act 129 of 1993
7. The following section is hereby substituted for section 21 A of the Supreme Court Act, 1959:
"Powers of court of appeal in certain civil proceedings
21A. 1 When at the hearin of an civil a eal to the A ellate Division or any Provincial or Local Division of the Supreme Court the issues are of such a nature that the judgment or order sought will have no practical effect or result, the appeal may be dismissed on this ground alone.
5
(2) (a) If at any time prior to the hearing of an appeal the Chief Justice or 10 the Judge President, as the case may be, is prima facie of the view that it would be appropriate to dismiss the appeal on the grounds set out in
.. · subsection (1), he or she shall call for written representations from the respective parties as to why the appeal should not be so dismissed. · (b) Upon receipt of the written representations or, failing which, at the 15
· expiry of the time determined for their lodging, the matter shall be referred by the Chief Justice or by the Judge President, as the case may be, to three judges of the Division concerned for their consideration . . (c) The judges considering the matter may order that the question
whether the appeal should be dismissed on the grounds set out in subsection 20 (1) be argued before them at a place and time appointed, and may, whether or not they have so ordered--:-
(i) order that the appeal be dismissed, with or without an order as to the costs incurred in any of the courts below or in respect of the costs of appeal, including the costs in respect of the preparation and lodging 25
· of the written representations; or (ii) order that the appeal proceed in the ordinary course. (3) Save· under exceptional circumstances, the question whether the
· judgment or order would have no practical effect or result, is to be determined without reference to consideration of costs. 30
(4) The provisions of subsections (2) and (3) shall apply with the necessary changes if a petition referred to in section 21 (3) is considered.".
Amendment of the First Schedule to Act 16 of 1963, as substituted by section 5 of Act 21 of 1967 and amended by section 3 of Act 55 of 1970, section 12 of Act 33 of 1974, section 1 of Act 110 of 1984, section 2 ofAct36 of1986 and section 4 of Act 18 35 of 1996 ·
· 8. The First Schedule to the Justices of the Peace and Commissioners of Oaths Act, 1963, is hereby amended by the substitution for the fourth item of the following item:
"Chief of the South African National Defence Force and (Commissioned Officer] a commissioned officer of the [Permanent Force] permanent force component of 40 the South African National Defence Force and, while he or she renders any service, undergoes any training or performs any duty in pursuance of the Defence Act, 1957 (Act No. 44 of 1957), a commissioned officer of the part-time reserve component of the South African National Defence Force.".·
Amendment of section 5 of Act 23 of 1963, as amended by section 2 of Act 39 of 1970 45 and section 2 of Act 2 of 1991
9. Section 5 of the Maintenance Act, 1963, is hereby amended by the substitution for subsection (9) of the following subsection:
"(9) A copy of an order made against any person in his or her absence in terms of subsection (7), shall be sent to him or her by registered post in the prescribed 50 manner or be delivered or tendered to him or her by any maintenance officer [or any], police officer or sheriff and the return of such officer or sheriff showing that such copy was sent, delivered or tendered to such person shall be deemed
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Act No. 104, 1996 JUDICIAL MATIERS AMDENDMENT ACT, 1996
[sufficient) prima (acit!. proof that such person was aware of the terms of such order: Provided that the1court or the clerk of the court, as the case may be, shall, if there is reason to doubt 1whether the order sent, delivered or tendered has come to the actual knowledge of the person concerned, and in the absence of satisfactory evidence, treat such sending, delivery or tendering as invalid.". 5
Amendment of section 8 of Act 66 of 1965, as amended by section 12 of Act 43 of 1992
10. Section 8 of the Administration of Estates Act, 1965, is hereby amended by the substitution for subsection (4B) of the following subsection:
"(4B) The Master may for the purposes of this Act also accept a duplicate [of 10 the] original will.". ·
Substitution of section 10 of Act 53 of 1979, as amended by section 8 of Act 87 of 1989
11. The following section is hereby substituted for section lO of the Attorneys Act, . 1979: . . 15
"Cession of articles or contract of service
10.' (1) Articles or a contract of service may with the consent of a principal and thJ candidate attorney concerned be ceded to any other principal willing to accept such cession.
(2) The societx concerned may in the event of the death, mental illness, 20 insolvency, conviction for crime, [imprisonment for debt] suspension, striking off the roll or discontinuance of practice of the principal under whom a candidate attorney is serving or the debarring of such principal from engaging or\ continuing to engage a candidate attorney, or any other cause, direct that ihe articles or the contract of service concerned be ceded 25 to any other principal willing to accept such cession, and aU service completed under 'the ceded articles or the contract of service shall be effectual for the purposes of this Act.
(3) Articles or a contract of service may be ceded under subsection (2) notwithstanding the fact that the principal who accepts the cession will, as 30 a result of that acceptance, have more thin three candidate·attorneys in his or her employment. . . . . . .
(4) Ari agreement whereby articles or a contract of service [are]~ ceded shall within two rrionths of the date on which the services of the candidate attorney concerned have been terminated with the cedent, or within such 35 further period as the court may for good cause allow, be lodged with the
. society of the province wherein service under the said artiCles or the said contract of service so ceded is to be performed, by the cessionary together with affidavits- · · · · (a) by the cedent stating whether the provisions of this Act relating to 40
sei:vice under articles of clerkship or a contract of service have been complied with during the whole term of service during which the candidate attorney concerned was in his or her service and the date on·
. which the candidate attorney terminated his or her services with him or her; and · . · . . -- - 45
(b) by the cessionary stating the date on which the said candidate attorney assumed duty with him or her. .
(5) The secretary of the law society referred to in subsection (4) shall on payment of such fee as is prescribed under section 80- · . . (a) examine the agreement and affidavits referred to in that subsection; 50
and · (b) if he or she is satisfied that the cession is in order and that the council
of the society has no objection, register the cession, and shall advise the attorney and the candidate attorney concerned of such registration in writing by [certified] registered post. · 55
· (6) If articles or a contract of service [are] is ceded in terms of subsection (2), the agreement whereby the articles or the contract of service [are]~ ceded shall be signed by the legal representative of the attorney concerned
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Act No. 104, 1996 JUDICIAL MATTERS AMDENDMENT ACf, 1996
or the president or secretary of the society concerned as cedent, and a certificate of such legal representative, president or secretary containing the particulars referred to in subsection (4)(a), shall serve as a substitute for the affidavit referre~ to iii subsection (4)(a).".
Amendment of section 80 of Act 53 of 1979, as amended by section 10 of Act 108 of 5 1984 and section 19 of Act 115 of 1993
12. Section 80 of the Attorneys Act, 1979, is hereby amended by the substitution for paragraph (d) of the following paragraph:
"(d) registration of a cession of articles of clerkship or a contract of service in tenns of section 10(5)~". 10
Amendment of section 82 of Act 53 of 1979
13. Section 82 of the Attorneys Act, 1979, is hereby amended by the substitution for paragraph (d) of the following paragraph:
"(d) the procedure to be followed and the information to be supplied to the court by any applicant for admission or readmission under this Act;". 15
Amendment of section 12 of Act 88 of 1989, as amended by section 9 of Act 10 of 1994
14. (a) Section 12 of the Judges' Remuneration and Conditions of Employment Act, 1989, is hereby amended by the substitution for paragraph (d) of subsection (1) of the following paragraph:
"(d) the amounts which may be paid to acting judges in connection with the 20 maintenance by them of their practices as advocates or attorneys; and".
(b) Paragraph (a) shall be deemed to have come into operation on 27 Aprill994.
Amendment of section 5 of Act 117 of 1991
15. Section 5 of the Investigation of Serious Economic Offences Act, 1991, is hereby amended by the addition of the following subsections: · 25
" 13 If the Director considers it necess to hear evidence in order to enable him or her to detennine if there are reasonable grounds to conduct an investigation in terms· of subsection (l)(a), the Director may hold a preparatory mvestigation. .
(14) The provisions of sections 5(2) to (10), inclusive, and 6 and 8 shall, 30 with the necessary changes, apply to a preparatory examination referred to in subsection (13).".
Ins·e;tion of section 6A in Act 117 of 1991
16. The following section is hereby inserted in the Investigation of Serious Economic Offences Act, 1991, after section 6: 35
"Prosecution powers of Director
6A. (1) Sub"ect to subsection 2 , the Director or an erson authorized · thereto by him or her in . writing may, for the purposes of criminal
prosecution- · · (a) institute an action in any court in the Republic of South Africa~ and 40 (b) prosecute an appeal in any court in the Republic of South Africa
emanating from criminal proceedings instituted by the Director or the person authorized thereto by him or her;
(2) The Director or any person authorized thereto by him or her shall exercise the powers referred to in subsection (1) after such powers have 45 been delegated to the Director or authorized person concerned by the Attorney-General concerned in terms of section 6 of the Attorney-General Act, 1992 (Act No. 92 of 1992).".
Amendment of section 6 of Act 92 of 1992
17. Section 6 of the Attorney-General Act, 1992, is hereby amended by the 50 substitution for paragraph (a) of the following paragraph:
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Act No. 104, 1996 JUDICIAL MATTERS AMDENDMENT ACI', 1996
"(a) delegate to any person who has [been admitted to practise as an advocate in tenns of the Admission of Advocates Act, 1964 (Act No. 74 of 1964)] the right to appear in any court in terms of the Right of Appearance in Courts Act, 1995 (Act No. 62 of 1995), subject to the control and directions of the attorney-general, authority to conduct on behalf of the State any prosecution 5 in criminal proceedings in any court within the area of jurisdiction of such attorney-general, or to prosecute in any court on behalf of the State any appeal arising from criminal proceedings within the area of jurisdiction of such attorney-general;".
Amendment of section 13 of Act 126 of 1992 10
18. Section 13 of the Criminal Law Second Amendment Act, 1992, is hereby amended by the substitution for subparagraphs (i) and (ii) of the following subpara- graphs, respectively: ·
"(i) of the South African Police Service as contemplated in [section 5 of the Police Act, 1958 (Act No. 7 of 1958)] the Constitution; 15
· (ii) for which the South African National Defence Force may be employed as contemplated in [section 3(2) of the Defence Act, 1957 (Act No. 44 of .1957)] the Constitution,''.
'· Substitution of expression in Act 90 of 1993
19. The Magistrates Act, 1993, is hereby amended by the substitution for the 20 expression "Minister of State Expenditure", wherever it appears, of the expression · "Minister of Finance". ·
Repeal of section 7 of Act 120 of 1993
20. Section 7 of the Magistrates' Courts Amendment Act, 1993, is hereby repealed.
Amendment of section 1 of Act 34 of 1995, as amended by section 1 of Act 87 of 1995 25
21. Section 1 of the Promotion of National Unity and Reconciliation Act, 1995, is hereby amended-
( a) by the substitution in subsection (l) for the words following upon paragraph (b) of the definition of "gross violation of human rights" of the following words: 30
"which emanated from conflicts of the past and which was committed during the period l March 1960 to the cut-off date within or outside the Republic, and the commission of which was carried out, advised, planned, directed, commanded or ordered, by any person acting with a political motive;"; and · 35
(b) by the substitution for subsection (2) of the following subsection: "(2) For the purposes of sections 10 [(1), (2) and (3)] and 11 and
Chapters 6 and 7 "Commission" shall be construed as including a reference to "committee" or "subcommittee", as the case may be, and "Chairperson", "Vice-Chairperson" or "commissioner" shall be con- 40 strued as including a reference to the chairperson, vice-chairperson or a member of a coinmittee or subcommittee, as the case may be.".
Amendment of section 10 of Act 34 of 1995 .
· 22. Section 10 of the Promotion of National Unity imd Reconcili~tion Act, 1995, is . hereby amended by the substitution for subsection (4) of the following subsection: 45
" ( 4) ~ The quorum for the first meeting· of the Commission shall be two less than the total number of the Commission. · ·
(b) The Commission shall determine the quorum for any of its further meetings.".
Amendment or section 20 or Act 34 of 1995, as amended by section 9 of Act 87 of 50 1995 ~ :.
23. Section 20 of the Promotion of National Unity and Reconciliation Act, 1995, is hereby amended by the substitution for sub~ection (6) of the following subsection:
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"(6) The [Committee] Commission shall forthwith by proclamation in the Gazette make known the full names of any person to whom amnesty has been granted, together with sufficient information to identify the act, omission or offence in respect of which amnesty has been granted.". (
Amendment of section 29 of Act 34 of 1995
24. Section 29 of the Promotion of National Unity and Reconciliation Act, 1995, is hereby amended-
( a) by the substitution for paragraph (c) of subsection (1) of the following paragraph:
5
.. (c) by notice in writing call upon any person to appear before the 10 Commission and to give evidence or to answer questions relevant to the subject matter of the investigation or the hearing;"; and
(b) by the substitution for subsection (5) of the following subsection: "(5) No person other than a commissioner, a member of the staff of the
Commission or any person required to produce any article or to give 15 ·evidence shall be entitled or be permitted to attend any investigation conducted in terms of this section, and the Commission may, having due regard to the principles of openness and transparency, declare that any article produced or information submitted at such investigation shall not be made public until the Commission determines otherwise or, in the 20 absence of such a determination, until the article is produced at a hearing in terms of this Act, or at any proceedings in any c.ourt of law.".
Amendment of section 15 of Act 18 of 1996
25. Section 15 of the Justice Laws Rationalisation Act, 1996, is hereby amended by the addition of the following subsections, the existing section becoming subsection (1): 25
" 2 When the o eration of a law s ecified in Schedule I is made a licable to an affected territory by section 2 and a provision of such a law confers a power, jurisdiction or right, or imposes a duty or entrusts a function to the holder of an office, a body, an institution or any other authority appointed or established in terms of or under a law which has not been made applicable to 30
· such affected territory, such power, jurisdiction or right shall be exercised and such duty or function shall be performed by the holder of a corresponding office, or a . corresponding body, institution or authority appointed or established for the purpose of exercising a corresponding power, jurisdiction or right, or performing a corresponding duty or function in terms of or under 35 a law applicable to such affected territory.
(3) Any reference in a law specified in Schedule I to a duty, function, power, procedure, process, provision or any other act in terms of or under another law which, when the operation of the first-mentioned law is made applicable to an affected territory, has not been made applicable to such affected territory, shall 40
. be construed as a reference to a duty, function, power, procedure, process, provision or act in terms of or under a corresponding law applicable to such affected territory. ••. ·
Short title and commencement
26. (1) This Act shall be called the Judicial Matters Amendment Act, 1996, and shall 45 come into operation on a date fixed by the President by proclamation in the Gazette.
(2) Different dates may be fixed in respect of different provisions of this Act.