Legislation

The Judicial Matters Amendment Act, 2023 (Act No. 15 of 2023)

The Judicial Matters Amendment Act 15 of 2023, GG 50430, GoN 4597, 03 Apr 2024 (JMA 2023) amends several legislation administered by the Department of Justice and Constitutional Development. The JMA 2023 like other previous JMAs addresses mostly practical and technical changes in these various pieces of legislation.

The JMA 2023 came into operation on publication in the Gazette except for section 9 which amends the Minister’s power to make regulations in terms of the Administration of Estates Act, 1965 (Act 66 of 1965). The Department of Justice and Constitutional Development is in the process of developing new regulations required by JMA and will request the president to determine the date of commencement of section 9 upon the finalisation of regulations.

The JMA 2023 importantly amends some legislation to give effect to certain Constitutional Court (CC) judgments. These legislation are as follows—

(a)      Matrimonial Property Act, 1984 (Act No. 88 of 1984)
Section 12 of the JMA repeals section 21(2)(a) of the Matrimonial Property Act, 1984 to comply with the CC judgment in Sithole and Another v Sithole and Another [2021] ZACC 7, which found that section 21(2)(a) of the Matrimonial Property Act, 1984 perpetuates the discrimination created in section 22(6) of the Black Administration Act No. 38 of 1927, in that marriages of black couples, entered into in terms of the said Act, are automatically out of community of property.

(b)      Intestate Succession Act, 1987 (Act No. 81 of 1987)
Section 14 of the JMA amends section 1 of the Intestate Succession Act, 1987 to align it with the judgment in Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51. The CC declared section 1 to be invalid and unconstitutional in that it omits a surviving life partner in a permanent life partnership in which the parties have undertaken reciprocal duties of support from benefiting in terms of the Intestate Succession Act.

(c)      Maintenance of Surviving Spouses Act, 1990 (Act No. 27 of 1990)
Section 15 amends section 1 of the Maintenance of Surviving Spouses Act, 1990 (Act No. 27 of 1990), to comply with the judgment in Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51 which declared the omission from the definition of “survivor” in section 1 of the Maintenance of Surviving Spouses Act, 1990 of the words “and includes the surviving partner of a permanent life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate” to be unconstitutional and invalid.

(d)      Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000)
Section 20 amends section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (‘‘PEPUDA’’) to comply with the judgment in Qwelane v the South African Human Rights Commission and Another [2021] ZACC 22 which declared section 10(1)(a) of PEPUDA unconstitutional in that it includes the word “hurtful” in the prohibition against hate speech. Section 20 thus removes the word hurtful from the provisions of section 10 of PEPUDA.

The JMA also makes important amendments relating to the Administration of Estates Act, 1965 (Act 66 of 1965) by—

(a)      providing for the powers, duties and functions of the Chief Master, some of which were not set out in the principal Act.  These changes will allow the Chief Master to play a greater supervisory role over the Masters of the High Court and will lead to improved service delivery to legal practitioners and public in general.

With regard to the Criminal Procedure Act, 1977 (Act 51 of 1977), the JMA—

(a)      empowers the Minister of Justice and Correctional Services may, after due consultation, determine certain categories of offences which, if the accused pays or had paid an admission of guilt fine, would not result in the accused receiving a criminal record.  Once the Minister has made these determinations, persons who already have received a criminal record for these categories of offences will have their offences expunged and will therefore no longer have a criminal record in respect of these categories of offences.

(b)      provides for the expungement of the criminal record of a person who paid an admission of guilt fine for violating the State of Disaster Regulations which were imposed during the COVID pandemic.

(c)      repeals the common law relating to the crime of defamation.

In strengthening the fight against corruption, the JMA creates a new mechanism to fight corruption, by creating an additional offence to be included in the Prevention and Combatting of Corrupt Activities Act, 2004 (Act No. 12 of 2004) regarding the failure of members of the private sector or state-owned entities to prevent corrupt activities.  This is in line with recommendations made by the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector, including Organs of State – better known as the Zondo Commission.

The JMA also enhances the preventing and combating domestic violence in our country, by enabling the making of an application for a protection order to be made without having to do so by way of an affidavit, but through a declaration. However, where a person willfully makes a false declaration in support of an application for a protection order in terms of the Domestic Violence Act, 1998 (Act No. 116 of 1998), such person will have committed an offence.  

In conclusion, these amendments may appear to be small and technical in nature, however they will go a long way to significantly improve service delivery to the public and the efficiency and responsiveness of the justice system in various ways.

12 Apr 2024, Media Research and Liaison