Judicial Matters Second Amendment Act

11 December 1998 No. 1636. 11 Desember 1998 It is hereby notified that the President has assented to the following Act which is hereby published for general inforrnation:— 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 of 1998: Judicial Matters Second Amendment Act, 1998. No. 122 van 1998: Tweede Wysigingswet op Geregtelike Aan- geleenthede, 1998. ~ No, 19590 GOVERNMENT GHE~E, 11 DECEMBER 1998 Act No. 122, 1998 JUDICIAL MA~ERS SECOND AMENDMENT ACT. 1998 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<) 20 No~ember 1998. ) ACT To amend the Insolvency Act, 1936, so as to make other provision in connection with the salaries or wages of former employees of an insolvent; to amend the Supreme Court Act, 1959, so as to further regulate persons over whom and matters in relation to which High Courts have jurisdiction; to amend the Criminal Procedure Act, 1977, so as to make other provision in connection with the use of force in effecting arrests; to amend the Attorneys Act, 1979, so as to provide for any board of executors or trust company to receive remuneration for the preparation of a will or other testamentary writing; to amend the Co-operatives Act, 1981, so as to effect a consequential amendment; to amend the Magistrates Act, 1993, so as to further regulate the vacation of office by a magistrate; to amend the Special Investigating Units and Special Wlbunals Act, 1996, so as to further regulate the appointment of the President of a Special Tribunal: to amend the National Prosecuting Authority Act, 1998, so as to effect a consequential amendment; to provide for the centralisation of certiin offences; to repeal an obsolete law; and to provide for matters connected therewith. B E IT ENACTED by the Parliament of the Republic of South Africa, as follows:— Amendment of section 96 of Act 24 of 1936, as amended by section 29 of Act 99 of 1965 and section 12 of Act 101 of 1983

1. Section 96 of the Insolvency Act, 1936, is amended by the substitution for 5 subsection (3) of the following subsection: “(3) In subsection (2) ‘death-bed expenses’ means expenses incurred for medical attendance, nursing [otherwise than by a nurse referred to in section one hundre~. medicines and medical necessaries, and claims for those expenses shall rank pari passu and abate in equal proportion, if necessa~.’.. 10 Insertion of section 98A in Act 24 of 1936 2. (1) The following section is inserted after section 98 of the Insolvency Act, 1936: 4 No. 19590 GOVERNMENT GWE~. 11 DECE~ER 1998 Act No. 122, 1998 JUDICIAL MA~ERS SECOND AMENDMENT ACT. 1998 “Sa]aries or wages of former employees of insolvent 98A. (1) Thereafter any balance of the free residue shall be applied ir paying— (u) to any employee who was employed by the insolvent— (i) (ii) (iv) (iii) any salary or wages. for a period not exceeding three months, dut to an employee: any payment in respect of any period of leave or holiday due tc the employee which has accrued as a result of his or he] employment by the insolvent in the year of insolvency or tht previous year. whether or not payment thereof is due at the date of sequestration: any payment due in respect of any other form of paid absence fol a period not exceeding three months prior to the date of the sequestration of the estate: and any severance or retrenchment pay due to the employee in terms of an! law. agreement. contract or wage-regulating measure; and contributions which were payable by the insolvent, including contributions which were payable in respect of any of his or he employees. and which were. immediately prior to the sequestration o the estate. owing by the insolvent. in his or her capacity as employer to any pension. provident. medical aid. sick pay, holiday, unemploy ment or training scheme or fund. or to any similar scheme or fund. (2) (a) In order to ensure that the balance of tie free residue is applied ir an equitable manner, the Minister of Justice may by notice in the Gazettt determine maximum amounts which shall be paid out in terms oj subsection ( 1 ) in respect of— (b) any 5 10 15 20 25 (i) paragraph (u), any or all the subparagraphs thereof or any single employee; and (ii) paragraph (b) or any single scheme or fund, and different maximum amounts may be so determined in respect 01 different schemes or funds. 30 (b) In order to take into account subsequent fluctuations in the value of money, the Minister of Justice may from time to time supplement, amend or withdrau the relevant maximum amounts by like notice in the Gazette. (c) The Minister of Justice may at any time replace a notice referred to in 35 paragraph (a) with a new notice issued under the said paragraph (u). (d) The Minister of Justice shall not exercise the powers conferred upon him or her by Daragraph (a) or (c), unless he or she— has c~u~ed ~o be published in the Gazette a draft of the proposec notice. together with a notice inviting all interested parties’ to iodgt with the Director-General: Justice in writing within a period of 6( days from the date of the publication of the notice any represents [ions that the> 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 40 45 50 the claims refereed to in subsections (1 )(a)(ii), (iii) and (iv) and (1)(b). 55 (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. 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— in the c~se ‘of employees, by reason of the particular nature of the (a) 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 sequestration of the employer’s esta~e will make it impossible to achieve the objects of the schemes or funds.”. (b) (c) (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. 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 5 10 15 ~o 25 30

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 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 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) 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.”. (b) (c) 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: “-.”. 5 10 15 20 25 30 35 40 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 paragraph (b) of the following paragraph: 5 10 15 ~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: “(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 (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 30 35 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.