The Insolvency Amendment Bill
The Reinstatement of Enrolment of certain Deceased Legal Practitioners Bill and the Implementation of the Rome Statute of the International Criminal Court
Steve Swart, MP – ACDP
Tuesday, 11 JUNE 2002
Steve Swart MP for the African Christian Democratic Party gave the following speech in Parliament today during the National Assembly debate on the Insolvency Amendment Bill, The Reinstatement of Enrolment of certain Deceased Legal Practitioners Bill and the Implementation of the Rome Statute of the International Criminal Court:
A. Madame Speaker, Insofar as the implementation of the Rome Statute of the International Criminal Court Bill is concerned, the ACDP is fully supportive of its objectives as set out in the preamble:
In a lighter vein, (and in the presence of the Springbok Rugby Team in the House), the ACDP does not recommend that the Springboks’ destruction of Wales on Saturday be considered a crime.
“MINDFUL that –
* throughout the history of human-kind, millions of children, women and men have suffered as a result of atrocities which constitute the crimes of genocide, crimes against humanity, war crimes and the crime of aggression in terms of international law;
* the Republic of South Africa, with its own history of atrocities, has, since 1994, become an integral and accepted member of the community of nations and is committed to –
* bringing persons who commit such atrocities to justice, either in a court of law of the Republic in terms of its domestic laws where possible, pursuant to its international obligations to do so when the Republic became party to the Rome Statute of the International Criminal Court, or in the event of the national prosecuting authority declining or being unable to do so, in line with the principle of complementarity as contemplated in the Statute, in the International Criminal Court, created by and functioning in terms of the said Statute; and
· carrying out its other obligations in terms of the said Statute;”
It is important to bear in mind the principle of complementarity as contained in the Statute, meaning that the International Criminal Court may only assume jurisdiction when the South Africa chooses not to prosecute a particular matter.
Clause 4 of the International Criminal Court Bill deals with the jurisdiction of South African courts in respect of the crimes of genocide, crimes against humanity and war crimes which are created in the proposed legislation. Clause 4(3) more specifically sets out the circumstances in which the South African courts will have jurisdiction to hear cases against persons who are alleged to have committed one of the Crimes in question if the crimes are alleged to have been committed outside the territory of the Republic, namely-
if the perpetrator is a South African citizen;
if the perpetrator is not a South African citizen but ordinarily resident in the Republic;
if the perpetrator is present in the Republic after the commission of the crime; and
if the perpetrator has committed a crime against a South African citizen or against a person who is ordinarily resident in the Republic.
The approach adopted by giving South African courts extended jurisdiction to deal with crimes which were committed outside the territory of the Republic is similar to the Canadian legislation dealing with the International Criminal Court.
It is understood that Belgium is the only country which, to date, has gone even beyond what South Africa and Canada have done in respect of jurisdiction, namely by giving the Belgian courts universal jurisdiction to deal with prosecutions instituted against persons who are alleged to have committed one of the above crimes. This, in effect, means that the Belgian courts can deal with cases in which the crimes in question have been committed by any person anywhere in the world.
The Rome Statute will come into operation on 1 July as it had received the necessary ratifications from states.
B. The ACDP supports Reinstatement of Enrolment of Certain Legal Practitioners Bill which is aimed at providing for the reinstatement of legal practitioners who were struck off the roll of advocates or attorneys as a result of their opposition to apartheid. We believe that this step is long overdue and look forward to the names of practitioners such as Braam Fischer being reinstated to redress the injustice of the past by restoring their professional status.
C. Madame Speaker, as far as the Insolvency Amendment Bill is concerned, it is generally accepted that employees whose services are terminated as a result of insolvency are currently not entitled to the statutory severance benefits provided for in section 41 of the Basic Conditions of Employment Act, 1997. The proposed new section 38(11) provides that, for purposes of severance benefits, these employees will be treated as employees who have been dismissed because of the employer's operational requirements. The claim for severance benefits will be against the estate of the insolvent employer, which is regulated in terms of the new section 98A, which is also being amended to reflect this change.
Whilst the ACDP supports the broad thrust of the amendments, we share a matter of concern raised by insolvency practitioners: that the legislation may in fact be counter-productive in causing a further diminution of schemes of arrangement (in the case of a company) or offers for businesses on a going concern basis. As an unintended consequence of the legislation, the purchase of a business as a going concern from a trustee of the sequestrated employer may no longer be a viable option. This is the effect the consultation with employees will have on the attempts by the trustee to sell the insolvent business as a going concern. These negotiations take place at an early stage, and consultations with employees might frustrate the process.
It was, however, mentioned during deliberations that the Act only required that trustees attempt to reach a consensus, and that in the event of failed consensus, the Act did not prevent the trustee from proceeding with his duties. We agree that it would be better to save 100 jobs out of 200 jobs, than not to save any jobs at all.
The ACDP fully endorsed the alteration of the ranking of employees from concurrent creditors to preferred creditors.
The ACDP accordingly supports these Bills.
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For further comment please call Steve Swart MP at 083 285 6290 or ACDP Media Liaison Liza Bloemetje at 082 478 1037