Magistrates Amendment Act

1 Words in bpld tyfi In .Square brackets indicate omissio11s .from': existing enacqnents. ., ·, Words und~rifx{ed ·: ~~th~; a solid line indicate insertions: ·in ,' . - - - -··- .. · existing en~ct.nl~nts. .. - ~ . 'ACT ..J. t . · - - To amend the Magistrates Act, 1993, in order to further regulate the composition of the Magistrates Commission; to further regulate the suspension of magistrates; to further regulate the .eswblishm.ent.of comm.iUees; and. to. provide for matters in connection therewith. (Afrfka~~j text sfgned by the P;e~ideni.) ,,:? .' . .:. (Assented to .2Z J.un~J99,6,). · >: ' ·E.~ IT ENACTED, t>y:ilie: P~tiament :'of' iht R~p~blic; 6f-'so'uili~ Africa,··.'as follows:- · 'B. . · Amendment of section 3 of Act 90 of 1993 · ·t. Section;3 of the Magistrates'Act, 1993 (hereinafter referred to as the principal Act),' ..:\ ',, is hereby amended-· 5 (a) by the substitution for subsection (1) of the fo11owing subsection: " 1 a The Commission shall consist of- · (ii) (i) a judge of the Supreme Court of South Africa, as chairperson, designated by the President in consultation with the Chief Justice; the Minister or his or her nominee, who must be an officer of the 10 Department of Justice; . (iii)~ two· regionru magistrates; one to· be designated by the•respective : •-----.·.· regional magistrates and the other by the President after consulta- tion with the respective regional magistrates; two magistrates with the rank of chief magistrate, one to be 15 designated by 'tlie respective chief magistrates and the other by the President after consultation with the respective chief magistrates; (iv) . --(v) '-two magistrates who do not hold the rank of regional magistrate or - ' -1 ;:! . chief magistrate, one to be designated by the magistrates~ profession and tlle. other by. the President after consultation. with· tlie' 'magis: 20 trates' profession; . two practising advocates designated by the Minister after consulta- .. tion with the advocates' profession;· ; . (vi) - (vii) . t two practising attorneys designated by the Minister after. con~ulta- .. . .. 25 ::·, ;·.tionwiththeattomeys.'profession; ,: ·_ .• :.: >· ,,:. ; ·:·'~ ._.: . :_,, (viii) '; one: teacher of: law: d~signated by the Minister after consultation with the teachers of law at South African universities; · (ixF th.e Head: Justice college; · ,, :'( .; .• • i;"'·'''.-Hi' ,_.,!, .· ·,, :c 4 Na:17309 Act No: 35, 1996 GOVERNMENT GAZETIE, 3 JULY 1996 · MAGISTRATES AMENDMENT ACT, 1996 (x) (xi) (xii) four persons designated by the National Assembly from among its members, at least two of ,whom mus~ be members of opposition parties represented in the Assembly;' four senators and their alternates designated by the Senate by resolution. adopted by a majority of at -least two thirds of all its members; and · five fit and proper persons appointed by the President in consulta tion with the Cabinet, at least two of whom shall not be involved in the administration of justice or the practice of law in the ordinary · ··· ·· · ' ' ... : · · ' : course of their business. · · · __ · (b) The chairperson shall designate one of the persons referred to in paragraph (a)(iii) to (v), inclusive, as vice-chairperson of the Commis- . sion, and when the chairperson is not available, the vice-chairperson shall perform the functions assigned to the chairperson by or under this Act."; · · · · · · · · · 5 10 15 (b) by the substitution for subsecti~~· (2),of the following subsection: "(2) A member of the Cominission shall be appointed or designated for a period not exceeding five years, and any such appointment or designation may be .withdrawn by the [State President] appointing or designating authority, as the case may be, at any time after consultation 20 ~q '_l • • • . .. - • with the Commission if in his, her or its opinion there are sound reasons . · .. ; .. . . . .. . ". ,, ..... for doing so."; and ·-,. , ~ . · . (c) by the substitution for subsection (3) of the following subsection: "(3) Any person whose period of office as a member of the Commission has expired, may be reappointed or redesignated.". 25 Amendment of section 4 of Act 90 of 1993 • • ~ ~. • \ • ' '1, ' • 2 •. Section 4 of the principal Act ·is' hereby amended: by the substitution, in the Afrikaans text, for paragraph (c) of the following paragraph: "(c) [hom te beywer vir] stappe te doen om die deurlopende opleiding van regterlike beamptes in die onderskeie laer howe te bevorder en aanbevelings 30 daaromtrent aan die Minister te doen;". . Amendment of section 6 of Act 90 of 1993 ·. :. < j ~

3. Section 6 of the principal Act is hereby amended- -~ '. l . (a) by the substitution for subsection (1) of the following subsection: ·' "(1) The Commission, for the ro er erformance of its functions- 35 ·(a) shall establish an executive committee consisting of two or more members of the Commission designated by the ·Commission; · and· ,_,_ ., .. _@ may establish [one or more] such other: committees as the .Commission: may' deem necessary,· consisting of one or more 40 . members of the Cqmmission designated by the Commission and ·· one or more other persons, if any, whom the Commission may appoint for that. purpose and for the period determined by [it] the . Commission.':; :. . ;: · , · · - d-.! ' .. . ·. · · . • ,·c: (b)· .by the substitution for subsection(4) of the following subsection: 45 "(4) [Q),Acommittee shall, in accordance with the policy laid down by the Commission and subject to· the directions of the Commission, perform· such functions of. the Commission :as .the Commission may assign to [it] such committee .... ' r ·(b) Any function so performed by the executive committee referred to 50 · in subsection (l)(a) shall be deemed to have been performed by the .. ,. · · •;•:·, ,. ,Commission."; and , ,. (c) by the substitution for subsection (5) of the following subsection: : ; ,, ... • . ··"(5) On completion of the Junctions assigned [to it] in terms of subsection ( 4) to a committee referred . to. in. subsection (1 )(b), such 55 ,-· .. · . : committee shall. submit a written report thereon to the Commission [, whereupon the committee shall automatically dissolve].". .. ;_ •. , : . : ' . ~... ·.:. -, : __ •• • . l; ; ' ' . , . ,_, , ~-; I ; , ' ' 6 No. 17309 Act No. 35, 1996 GOVERNMENT GAZETIE, 3 JULY 1996 MAGISTRATES AMENDMENT ACT, 1996 · Insertion of sections 6A, 6B ·and 6C in Act 90 of 1993

4. The following sections are hereby inserted in the principal Act after section 6: ... . -"Investigation of coin plaints against magistrate I ; I

6A. The Minister shall make regulations- · ·. (a) creating a structure and prescribing procedures in terms of which 5 members of'the public may report to such structure any alleged improper conduct or any conduct which has resulted or might result in any impropriety or prejudice on the part of a magistrate; and (b) determining the powers and functioning of such structure. ,, Establishment of complaints committee 10 ·, . . . j ·' ·· ;_: 6B. (1) The Commissiof! silall, pending the creation of the st111cture contemplated in section 6A, establish on~ or rriore committees dealing with COJI.lplaints in terms of this section, consisting of one or more members of · ·• the Commission designated by the Commission and one' or . more other . persons, i( any, whom. ,the Commission may,appoint for a specified period. I?. (2) The provisions of section 6(2), (3) and (7) shall, with the necessary changes, apply to the extension of the period of appoin~ment of a member of the committee, the designation of a chairperson of the coiiUJ,littee and to . ;, .. a meeting of thy committee. . . · . . . (3) The Commission shall take all.such steps as the Commission deems 20 appropriate so as to ensure that the committee is accessible to the public. (4) Any conduct by a magistrate that is alleged to be impr<?per or to_have resulted in any impropriety or prejudice may be reported to the comrnittee by any person _by means of _a written or oral declaration under ,oath pr after having made an affinnatior:t, specify!ng--:- .. thy nature of the .matter in question; . . (a) the 'grounds on wh~ch he 9r she feel~ that an investigation is necessary; . (b) and· · . . , . . . . . : . . .. . ,. 25 · . (c) all other relevant information known to him or her. . . - . . . . ·- . . . ' l ' .- ~ t (5) The COmmittee shall be C.Ompetent to inVt?Stigate an<:{ gather eyidence 30 in regard to any complaint referred to in subsection (4) in accordance with a procedure prescribep by reguJation. . . · _ report to the Co;nmissi9n OJ!_any fin<:iing, pOi!lt of view or.reconimen (6) The committee shall- . , (a) -· · dation in respect of a matter so investiga~ed; an<:~ . . . . _ · · . . . "' " }' . _ (b) as~oonas possible, make the.findings of an investig~tion available to . the. complainant an_d to any pt;rson implicated thereby . , (7) On the d~te that the regula_tions contemplated in section 6A come into . , . , _ . operation, this se~tion shall )apse. . . , . · : - · · . , • . t •. Proviso ' ' ' , I . . '~ ~ . . ,.·!' ·,7 ... , r

6C. The, provisions ;of ~i~tions 6A a~d 6B. shall .notbe construed as . empowering the structure, ~omrnittee or: the Commission to interfere with . , ; . . · .=. the judicial· independence or the judicial functioning of a magistrate.". Substit~ti~n of section 8 of Act 90 ~f 199:3' .· · s: ~e f91lowi~g secti~n fs hereby ~~bstituted for. se~ii~n 8 of the principal Act: ' j , "Remuneration and expe~ses _of memb.ers or <:ommission and commit- i l ,. ' ., . , tees_ . . •. .. · : . , - ; . . _.,. . : 35 40 45 '·. !•' . f ,· .. . , , :~ . 8. (1) Tt1e ch;ii~~n of the Cor~mlissidn ~r a: ine~kr of ~ committee who is a judge of the Supreme Court or a member of the Commission designated in terms of -section 3(l)(a)(x) and (xi), may be paid such allowances for 50 8 No. 17309 GOVERNMENT GAZETIE; 3 JULY 1996 Act No. 35, 1996 • MAGISTRATES AMENDMENT ACT, 1996 travelling and . subsistence expenses .,incurred . by , him or her .in, the performance of his or her functions in terms of this Act as the Minister may . determine with the concurrence of the Minister of State Expenditure. , (2) A member of the Commission or a committee who is not a judge or magistrate or a member of the Commission designated in terms of section 3(1)(a)(x) and (xi) [and] or who is not subject to the laws governing the public service, may_ be paid such ref!!uneration; including allowances for travelling ·and. subsistence expenses incurred. by him or her in the perforinance of his or her functions in terms of this Act, ·as the Minister may determine with the concurrence of the. Minister of State Expenditure.". • • ' j • ' • • •• ' • ' ' ' •• -~- • -~ • • ' •• 5 10 : Amendment of section 13 of Act 90 of1993 ·· · i '

6. Section 13 of 9Je principal Act is hereby amended- ( a) by the substitution for paragraph (a) of subsection (3) of the following paragraph: , "(a) The [Minister] Commission may provisionally suspend a 15 . _.;·,. . _. .. . , .. , ... , . . . ..: '• for misconduct; .. magistrate [on the. recommendation of the Commission and, subject . to the provisions of this subsection; remove him from otfice- - (i) (ii)' on account of continued ill-healthi or (iii) on account: of illcapacity . to carry out his duties of office 20 . efficiently] from office pending an investigation by the Commission into such magistrate's fitness to hold office."; . 0 . . . . . . . . ·. 0 0 0 0 • • • • • • ' , ., ,,·cb)' ~~:ifa;:?e,rtion ,after paragra~h-(a) ?fosllbsectio~ (3),,of the following " aA The Minister' ina . confirin such sus' ens ion if the Commission 25 , . :r~commends that such magistrate be re!lloved from office- . (i) : on the ground of misconduct; . .• (ii) · on account of continued ill-health; or - ' , . . . (iii) . 'on account of incapadtyJo carry out-the duties of his or her office ,. 30 . .. efficiently.";' . ,, 0 ' . , . , ••• _· • • • • ' ' ' paragraph: '(c) by the. substitution for paragraph (c) of subsection (3) .of the following · . .. "(c) A report in which the suspension in terms of paragraph (aA) of a . magistrate and the reason therefor are'made known, shall be tabled in · , . ,,· · . · · · · · ;Parliait).en.t by the Minister wi~hin 14 days of Sl,JCh suspension, if 35 Parliament' is then,in session, .or, if Parliament is,not then in session, .. withinJ4 days after, the commencement_ of its next ensuing session."; . . tiY the substitution for paragraph cdJ or subsection <3> o( ilie following paragraph: · ,"(d) [If] Parliament shall, within [21]30 days after the report referred 40 · ·. 0 · · .. • , , - - • (dJ to inparagniph (c) [was] has· been tabled in.Parliament, or as soon ,. : thereafter as is reasonably possible, [passes] pass a r~soluti~n [in which] as to whether or not the restoration to his or her office of a magistrate so . 'suspended is recommended [, such magistrate shall be restored to his office accordingly]. .. ; and. 0 • • , • • '45 (e) by the substitution for paragraph (e) of subsection (3) of the following paragraph: ,... .. , , .. "(e) After a resolution has been passed by Parliament as contemplated . in paragraph (d), the Minister shall restore the magistrate concerned to · his or her office or remove him or her from office, as the case may be.". 50 Ainend~ent of s~ction i6 of A~t 90 of 1993

7. Section 16 of the principal Act is hereby amended by_the insertion after paragraph (k) of subsection (1) of the following paragraph: · · · · .. · · · · · "(kA) the procedure to be followed by a committee referred to in section 6B and, in general, any matter, which is not in conflict with this Act, which is reasonably 55 necessary for. the functioning of the committee;·: 0 Su~stitution of exp~essions in Act 90 o_f 1993 . 8; The principal Act is hereby amended- • , ; ' •. i- ' . ' ·> ' • I ~ ' ' • I ' . ' ,., ,· • : ·• .-:.:.~. ..:,1,. 10 ! ~0. 17309 Act No.- 35, 1996 GOVERNMENT GAZETIE, 3 JULY 1996 .. MAGISTRATES AMENDMENT ACT, 1996 (a) by the substitution, in ' the English text, :for the expression "chairman" wherever itoccurs oftheexpression "chairperson"; (b) by the substitution, in the English text, for the expression ~'vice-chairman" wherever it pccurs of the expression ~~vice-chairperson"; · (c) by the substitution, in the English text; for the expression "he" wherever it 5 occurs."of.the expression ''he or she''; (d) by .• the ·substitution,· _in· the Afrikaans. text,· subject Jo paragraph lj), for the expression '~by" wherever it occurs of the expression "by of sy"; (e) by _the substitution, in the English text, for the expression '.'him" wherever it occurs of the expression."him or her"; (f) by the substitution, in the Afrikaans text, subject to paragraph (j), for the expression "hom" wherever it occurs of the expression "hom of haar'';. (g) py the substitution in sections 120) and (7), 13(1), (4) and (5), 15, 16(1)(j) and (4) and 18(3) for the expressiqn "his': -wherever it- occurs of. the expression ''hisor her':~; (h) by the substitution h1 section 13(2) and (3)(b); in the Afrikaans text, for the e'xpression "si' of the expression "sy of haar"; 10 15 (i) by the substitution, in the English text, in sections 2, 6(2) and (3) and 1(1)(a), (c), (e) and (f) for the expression "it" of the expression "the Commission"; (j) by the substitution, in the Afrikaans text, , in sections 2, 6(2) and (3) and 20 1(1)(a), (c), (e) and (f) for the expressi.ons "hom" and "hy" of the e~pression "dieKommissie'-'; and (k) by the substitution in the words pr~ceding paragraph (a) of subsection (1) of section? for the" expression "its" of the expression "the". Appli<:ationof Act 25 9. (1) This Act shall not affect the validity of anything :done by the Magistrates Commission before the commencement thereof. · · · (2) A vac~ncy in the ¥agistrates Commission which arises from the convnencement of this Act, $hall not affect the validity of anything done by the Magistrates Commission while such vacancy remains unfilled. 30 Short title am~ commencement JQ, This Act shall be called the Magistrates Amendment Act, :1996, anq shall come into operation qn a date fixed by the Presidentby pr9(:lamation in the Gazette.