PRESENTATION ON THE SHERIFFS’ AMENDMENT BILL, 2011 to the Portfolio Committee on Justice and Constitutional Development February 2012

Structure of the Presentation 1. Background to the Sheriffs’ profession 2. Key features of the Sheriffs’ Amendment Bill 2.1 to provide the regulation of acting appointment in cases of vacancies 2.2 to provide for the Minister to designate state employees to serve court processes in areas where there is no sheriff 2.3 to amend the object clause to provide for creation of opportunities to advance the transformation of the sheriffs sector 2.4 strengthening of the governance framework of the Board for Sheriffs 2.5 to enhance accountability arrangement relating to the management of the Fidelity Fund 3. Brief overview of the judicial transformative processes impacting on sheriffs

Background to the Sheriffs’ dispensation The Sheriffs Act,1986 introduced a private sheriffs’ dispensation in the place of civil service’s messenger of court dispensation in 1990 Sheriffs are therefore entrepreneurs who generate income from service and execution of court processes. The rules of court made by the Rules Board for Courts of Law determine the process and tariffs chargeable for sheriffs’ service Of the 234 sheriffs 167are White, and only 36 are women

Background to the Sheriffs’ dispensation The appointment and distribution of sheriffs country- wide is informed by the economic viability of the areas leading to the following undesirable consequences: Economically affluent areas attract more sheriffs while underdeveloped areas in former Black areas (township, former homelands and rural villages) struggle to attract applicants to this entrepreneurship. (the following slides show the disparities which were uncovered during the audit by the department in 2008) Coincidentally affluent areas require capital for running a vibrant business while sheriffs’ enterprise in underdeveloped areas is either non existent or operate under financial constraints

Gross income per district in Eastern Cape This map shows the sum of income per district at a provincial level. The number of processes is given for each district, next to the district name. The districts with missing numbers, are the ones for which data on the number of districts was missing, or 0. The no income points refer to sheriffs that haven’t submitted their income. We allocated a sheriff to a single district even he/she was working in many, therefore some districts are shown as “no data”, either because the sheriff was assigned to another district or because there was no data provided for that particular district.

Gross income per district in Gauteng This map shows the sum of income per district at a provincial level. The number of processes is given for each district, next to the district name. The districts with missing numbers, are the ones for which data on the number of districts was missing, or 0. The no income points refer to sheriffs that haven’t submitted their income. We allocated a sheriff to a single district even he/she was working in many, therefore some districts are shown as “no data”, either because the sheriff was assigned to another district or because there was no data provided for that particular district.

Disparities between Serviceable and Non Serviceable offices Of the 366 magisterial districts – - an estimated 6 % is has lucrative and sustainable offices: these are found in affluent cities and towns (Sandton, Randburg, Pretoria, Cape Town, Durban) - an estimated 64% districts are serviced by viable offices (medium offices) - an estimated 30% are in small, non viable magisterial district. An estimated 10% of these are in desperate underdeveloped areas (Eastern Cape (Lusikisiki), KwaZulu Natal, Limpopo, Northern Cape Limpopo Senwabarwana) Therefore 30% of magisterial districts in rural villages are not serviceable, communities living in these areas are alienated from the civil justice system

Purpose of the Sheriffs Amendment Bill Acting appointments (clause 3 of the Bill) - The proposed amendment to section 5 seeks to address the current gap in the Act. Currently the Act limits the Minister to make acting appointment only where a sheriff is unable to perform his or her functions. It does not provide for acting appointment to be made in a case of a vacancy - There is a need for acting appointments in instances of a vacancy which has been caused by any reason.

Purpose of the Bill Designation of state employees to serve court processes (clause 6A) State officials who may be eligible to be designated as to serve court processes (State sheriffs) would include Maintenance Investigators and the Registrars of the Court due to their training and understanding of the civil work This also provides opportunity for persons will skills to be appointed for purposes of serving court processes

Purpose of the Bill The State employee will not be able to execute any court order, but will serve only court processes, including summonses, protection orders and garnishing orders For purposes of executing court orders in respect of areas where State employees have been designated to serve court processes, the Court Manager of such court will appoint any other sheriff from a neighbouring district to execute the order (removal, storage and sale in execution)

Purpose of the Bill Strengthening of the governance framework of the Board for Sheriffs (clause 6 which amends section 9 of the Act) - The Act provides for the appointment of the Board of Sheriff by the Minister to regulate the sheriffs’ profession. The composition in terms of the existing provision is a minimum of 6 and maximum of 9 sheriffs; and a minimum of 3 and maximum of 6 non sheriffs. The strong sheriffs representation results in the agenda of the Board being biased towards the interest of sheriffs. Therefore the Act contain a strong element of self regulation

Purpose of the Bill The Bill proposes for the 11-member Board, the Minister to designate one as chairperson, as follows: 5 Sheriffs An official representing the Dept One attorney nominated by the LSSA One nominee of the National Credit Regulator 3 fit & proper persons designated by the Minister

Purpose of the Bill Objects of the Board (clause 8) The amendment provision is intended to provide for empowerment programmes, by the Board, to assist previously disadvantaged communities to qualify for Fidelity Fund Certificates. These programmes may include training on entrepreneurship assisting potential applicants to access funding to start up a sheriffs practice

Purpose of the Bill -The proposed amendment enjoins the Board to develop measures to enhance the opportunity of previously disadvantaged persons to have access to Fidelity Fund accreditation. Currently the consideration given by the Board in issuing Fidelity Fund Certificates to sheriffs in based on the financial ability of the candidates to establish and run an efficient and viable office. Therefore factors such as financial position of the candidate at the time of applying for the post of sheriffs is paramount

Purpose of the Bill The consideration of the financial position of the candidate perpetuate the exclusion of persons on grounds of social origin, economic status and class. The proposed amendment therefore enjoins the Board to develop progressive measures to enhance the opportunity of previously disadvantaged persons to be issued with Fidelity Fund Certificate The Bill further enhances accountability by providing for the mechanisms, by way of Regulations, for the management of the funds of Fund consistent with the objectives of the Act

Key reform initiatives which affect sheriffs The rationalisation and alignment of courts have an impact on sheriffs service areas The Civil Justice Reform Project which Cabinet approved in May 2010 will result in: Optimum use of technology (e-filing) to replace ancient outdated and at times ineffective methods of service of court process Execution against property/autioneering which require tight regulation

Thank you