A number of amendments to the Act have been effected by the Judicial Matters Act 66 of 2008.
The Judicial Matters Act, 2008 (Act 66 of 2008) contains amendments to the Debt Collectors Act, 1998 (Act 114 of 1998). Section 24 of the Judicial Matters Act, 2008 amends section 5 of our regulating Act by providing that the executive committee of the Council may now, instead of three members, be constituted by not less than three and not more than five members of the Council. Section 23 of the Judicial Matters Act, 2008 amends section 3(4) of our regulating Act by the substitution of subsection (4) of the following subsection:
(a) A member of the Council, subject to paragraphs (b), (c), (d) and (e), holds office
for a term, not exceeding three years, determined by the Minister at the time of
the member’s appointment.
(b) The Minister may, on good cause shown, withdraw an appointment of a member
at any time.
(c) A member of the Council may be re-appointed at the expiry of his or her term of
office.
(d) A member of the Council appointed in terms of this section who is a member of
a committee referred to in section 15(2), must, notwithstanding his or her
subsequent vacation of office as a member of the Council, dispose of the matters
he or she is seized with and, for that purpose only, is deemed to hold office as a
member of the Council in respect of any period during which he or she is
necessarily engaged in connection with the disposal of the matters which were
not disposed of when he or she vacated office as a member of the Council.
(e) A member of the Council referred to in paragraph (d) who, in the opinion of the
Council, is –
(i) unfit to dispose of the matters in question; or
(ii) incapacitated and is not able to dispose of the matters in question due to
that incapacity, may be exempted by the Council from the provisions of
paragraph (d).
The main purpose of this amendment is to allow members of the Council to remain in office after their term of office has expired, purely for purposes of finalising part-heard disciplinary proceedings in which they were involved. Failure to provide for this eventuality could result in disciplinary hearings having to start de novo if members of the disciplinary panel who were members of the Council vacated office during the course of such disciplinary hearings.
These two amendments came into operation on 17 February 2009.
The remaining two sections amended by the Judicial Matters Act, 2008 relate to sections 20 and 23 of our enabling legislation.
The Judicial Matters Amendment Act, 2005 (Act 22 of 2005), among others, amended section 20 of the Debt Collectors Act, 1998, to make provision for the Council for Debt Collectors to take control and administer the trust account of a debt collector who has his or her registration as a debt collector withdrawn or who abandons practice or ceases to practise as a debt collector. Provision was also made for the Council to administer the trust account of such a person until the Master of the High Court has appointed a curator bonis to control and administer such trust account. This section has not been put into operation since it required further amendment.
The proposed amendments to section 20 of our enabling Act contained in the Judicial Matters Act, 2008 give the Council the power to take control over, administer and finalise a debt collector’s trust account in the circumstances already mentioned in section 20, as well as in cases where there is reason to believe that a debt collector is likely to have his or her registration withdrawn. Although the Council retains the right to approach the Master to appoint a curator bonis, the right of any interested party to approach the Master in this regard is removed. It also gives the Master the power to require the payment of security from a curator bonis before he or she is appointed and it regulates the remuneration of a curator bonis.
Section 23 of our enabling legislation empowers the Minister to make regulations. The proposed amendments to section 23 contained in the Judicial Matters Act, 2008 will allow the Minister to make regulations regarding –
(i) the powers and duties of a curator bonis;
(ii) the powers and duties of a Master when appointing a curator bonis; and
(iii) the recusal of members of disciplinary committees.
The required regulations are currently being drafted and the latter two amendments to our enabling legislation will be put into operation once the regulations have been finalised and approved. In the process of finalisation the Council is currently consulting with the Banking Association of South Africa to establish the practicalities of taking over a trust account. This will in due course be supplemented by consultation with other role players.
The development of appropriate amendments to our enabling legislation to provide a probation period and the payment of admission of guilt has been approved. The development of amending legislation is in progress.
