By Mapula Sedutla

The Department of Justice and Constitutional Development has prioritised a number of Bills in its strategic plan for 2012/13. These Bills were highlighted by Justice Minister Jeff Radebe at a recent briefing to the parliamentary Portfolio Committee on Justice and Constitutional Development ahead of the Minister’s budget speech on 17 May. The Legal Practice Bill, the Constitution Amendment Bill and the Superior Courts Bill were among those flagged by the Justice Department for urgent progress.

Other prioritised Bills include the Prevention and Combating of Torture Bill; the South African Human Rights Commission Amendment Bill; the Muslim Marriages Bill; the Legal Aid Bill, the Determination of Remuneration of Commissioners of Chapter Nine Institutions Amendment Bill (to be tabled in December) and the Prohibition of Racism, Hate Speech, Xenophobia and Related Intolerance Bill.

In addition, the Portfolio Committee on Justice and Constitutional Development has indicated its intention to finalise the following Bills before the end of the year –

• the Sheriffs Amendment Bill;
• the Criminal Procedure Amendment Bill;
• the Prevention and Combating of Trafficking in Persons Bill; and
• the Protection of Personal Information Bill.

A brief summary of some of these Bills is provided below.

The Legal Practice Bill

The first draft of the Bill was introduced in August 2000 with one of its aim to provide for the establishment of the South African Legal Practice Council. The 2012 version of the Bill was published on 17 May. The public and other interested stakeholders will be given an opportunity to make comments on the Bill. The stated purpose of the 2012 Bill includes to –

• provide a legislative framework for the fundamental transformation and restructuring of the legal profession;
• provide for the establishment of a Transitional South African Legal Practice Council;
• provide for the establishment of a South African Legal Practice Council and regional councils in order to regulate the affairs of legal practitioners and set norms and standards;
• provide for the admission, enrolment and registration of legal practitioners;
• protect and promote the interests of consumers of legal services by the establishment of a legal services ombud; and
• provide for an Attorneys Fidelity Fund and an Attorneys Fidelity Fund board of control (www.lssa.org.za, accessed 21-5-2012).

According to the Justice Department’s 2011 Legislative Programme, the key objective of the Bill is to rationalise the various pre-1994 statutes that continue to regulate the legal profession in different parts of the country. The Bill is aimed at enhancing access to the legal profession for aspirant legal practitioners, as well as enhancing access to legal services.

The Law Society of South Africa (LSSA) has submitted numerous comments on the different drafts of the Legal Practice Bill.

In January, the LSSA and the General Council of the Bar agreed to set up a joint technical committee to work on a joint position paper on the Bill.

The Prevention and Combating of Torture Bill

The Justice Department’s 2011 Legislative Programme states that the objective of the Bill is to create a framework to ensure that the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is effectively implemented in the country. The convention requires signatory countries to enact legislation that specifically prohibits torture and promotes the respect for human rights and the protection of human dignity, which, among others, entails that no one may be subjected to acts of torture or other cruel or inhuman treatment or punishment. South Africa has been under pressure, internally and externally, to create a specific crime of torture in accordance with the convention.

South African Human Rights Commission Amendment Bill

According to the Justice Department’s 2011 Legislative Programme, the Bill seeks to streamline the South African Human Rights Commission Act 54 of 1994 with the Constitution. The Bill will regulate various matters relating to the composition, powers and functions of the support staff of the South African Human Rights Commission and is also aimed at improving the efficiency of the commission.

Muslim Marriages Bill

The Bill is the result of an investigation by the South African Law Reform Commission on Islamic marriages and related matters. Its report proposed legislation in the form of a Muslim Marriages Bill. The objective of the Bill is to provide statutory recognition of Muslim marriages in order to redress inequities and hardships arising from non-recognition of such marriages (www.justice.gov.za, accessed 8-5-2012).

In line with this, the stated aim of the Bill is to –

• make provision for the recognition of Muslim marriages;
• specify the requirements for a valid Muslim marriage;
• regulate the registration of Muslim marriages;
• recognise the status and capacity of spouses in Muslim marriages;
• regulate the proprietary consequences of Muslim marriages; and
• regulate the termination of Muslim marriages and the consequences thereof

(www.info.gov.za, accessed 8-5-2012).

Legal Aid Amendment Bill

The Justice Department’s 2011 Legislative Programme states that the Bill intends to limit the courts’ discretion in ordering the Legal Aid Board to provide legal aid to persons. There have been instances where legal aid has been provided as a result of court orders to recipients who would not normally qualify for legal aid. The other amendments are intended to improve the functioning of the Legal Aid Board and the application of the Legal Aid Act 22 of 1969. The amendments will limit the payment of legal aid funds in undeserving cases, diverting those funds to deserving cases of indigent litigants.

Prohibition of Racism, Hate Speech, Xenophobia and Related Intolerance Bill

According to the Justice Department’s 2011 Legislative Programme, the Bill gives effect to South Africa’s international obligations as a party to the United Nations Convention against all Forms of Racial Discrimination. The Bill criminalises conduct that constitutes hate speech, racial discrimination/racism, xenophobia and related intolerance that is based on race, gender, sex, ethnic or social origin, colour, nationality, sexual orientation, disability, culture, religion, conscience, belief, language or birth.

Sheriffs Amendment Bill

The Bill was introduced in parliament in January with the aim to –

• provide for the establishment of advisory committees to assist the Justice Minister in the appointment of sheriffs;
• regulate the objects of the South African Board for Sheriffs;
• amend the constitution of the South African Board for Sheriffs;
• provide for the dissolution of the South African Board for Sheriffs and the appointment of an interim board;
• regulate the general functions of the South African Board for Sheriffs; and
• regulate the use of the money in the Fidelity Fund for Sheriffs

(www.info.gov.za, accessed 8-5-2012).

According to the Justice Department’s 2011 Legislative Programme, the Bill intends to review a number of technical aspects in the Sheriffs Act 90 of 1986 in order to improve the application of the Act. The Bill addresses, among others, problems relating to the unavailability of sheriffs in areas for which no sheriff or acting sheriff has been appointed. It also proposes an adapted composition of the Board for Sheriffs in order to promote inclusivity.

Criminal Procedure Amendment Bill

The aim of the Bill is to amend the Criminal Procedure Act 51 of 1977 (the Act), so as to substitute and align the provisions relating to the use of force in effecting arrest of a suspect with the judgment of the Constitutional Court in Ex Parte Minister of Safety and Security and Others: In Re S v Walters and Another 2002 (4) SA 613 (CC) (www.info.gov.za, accessed 8-5-2012).

According to the memorandum on the objects of the Bill, the Bill seeks to amend s 49(1) of the Act by inserting the definition of ‘deadly force’ and by deleting the words ‘that is intended or is likely to cause death or serious bodily harm to a suspect’ in s 49(2). The Bill will also amend s 49(2) by aligning the words in the proviso that sets out the criteria as to when deadly force may be used in order to effect the arrest of a suspect with the criteria set out by the Constitutional Court (www.info.gov.za, accessed 8-5-2012).

Prevention and Combating of Trafficking in Persons Bill

The Justice Department’s 2011 Legislative Programme states that the Bill intends to give effect to the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons and to provide for the prosecution of persons involved in trafficking in persons and for appropriate penalties.

Protection of Personal Information Bill

The stated purpose of this Bill is to –

‘(a) give effect to the constitutional right to privacy, by safeguarding personal information when processed by a responsible party, subject to justifiable limitations that are aimed at –

(i) balancing the right to privacy against other rights, particularly the right of access to information;

(ii) protecting important interests, including the free flow of information within the Republic and across international borders;

(b) regulate the manner in which personal information may be processed, by establishing principles, in harmony with international standards, that prescribe the minimum threshold requirements for lawful processing of personal information;

(c) provide persons with rights and remedies to protect their personal information from processing that is not in accordance with this Act; and

(d) establish voluntary and compulsory measures, including an information protection regulator, to ensure respect for and to promote, enforce and fulfil the rights protected by this Act’ (www.justice.gov.za, 8-5-2012).

Mapula Sedutla, mapula@derebus.org.za

This article was first published in De Rebus in 2012 (June) DR 10.