NATIONAL COUNCIL OF PROVINCES
QUESTION FOR WRITTEN REPLY
PARLIAMENTARY QUESTION NO.: 411
DATE OF QUESTION: 29 OCTOBER 2010
411.   Mr D B Feldman (COPE-Gauteng) to ask the Minister of Justice and
Constitutional Development:
(1)Â Â Â Â Â Â Whether his department will review legislation that is governing
liquidation processes as some date back to 1982; if not, why not; if
so, what are the relevant details;
(2)Â Â Â Â Â Â whether he will revisit the Ombudsmanâs legal powers in order to
protect the citizenâs rights; if not, why not; if so, what are the
relevant details?      Â
CW543E
REPLY:-
(1)Â Â Â Â Â Â It is accepted that liquidation processes refer to the winding up
of insolvent estates. The Insolvency Act, 1936 (Act No. 24 of 1936)
deals with the sequestration procedures for individuals, partnerships
and trusts. Â Some of its provisions apply to companies and close
corporations. Â The Companies Act, 1972 (Act No. 61 of 1972) has
provisions for the winding up of companies and the Close Corporations
Act, 1984 (Act No. 69 of 1984) for the winding up of close
corporations.
Proposed reforms of the liquidation processes are contained in the
Insolvency and Business Recovery Bill, 2003, often referred to as the
Unified Insolvency Bill that seeks to provide a uniform process for the
bankruptcy procedures of individuals, trusts and juristic persons. Â The
position regarding the Bill is as follows:
⢠  The Bill was approved by Cabinet in 2003.  A task team of the
Labour Chamber of NEDLAC has prepared a draft report on the Bill.
⢠   The promotion of the Bill was held back, pending the development
of modern business rescue provisions. Â Business rescue provisions
for companies and close corporations are now contained in the
Companies Act, 2008 (Act No. 61 of 2008) (not yet in operation).
 The latest implementation date for the new Companies Act indicated
by the Department of Trade and Industry is 1 April 2011. Â A first
draft of business rescue provisions for individuals, trusts and
partnerships has been prepared for consultation with stakeholders.
⢠   The Unified Insolvency Bill must be referred back to Cabinet to
consider the developments since 2003, once consultation on the
business rescue provisions for individuals, trusts and partnerships
has been concluded.
(2)Â Â Â Â Â Â It is not clear whether the Honourable Member, by referring to
the revisiting of âthe Ombudmanâs legal powers in order to protect the
citizenâs rightsâ is asking whether the powers of the Public Protector
are to be revisited. If that is the question, the answer to that is
no. The powers of the Public Protector are set out in section 182 of
the Constitution. In terms of this provision, the Public Protector in
broad terms, has the power to â
â(i)Â Â Â investigate any conduct in state affairs, or in the public
administration in any sphere of government, that is alleged or
suspected to be improper or to result in any impropriety or
prejudice;
(ii)Â Â Â Â to report on that conduct;Â and
iii) to take appropriate remedial action.â
Section 6 of the Public Protector Act, 1994 (Act 23 of 1994),
furthermore sets out how complaints can be made to the Public Protector
and it also sets out additional powers of that functionary. This
section provides, among others, that any matter, in respect of which
the Public Protector has jurisdiction, may be reported to the Public
Protector by any person. The Public Protector is, for instance,
competent to investigate, on his or her own initiative or on receipt of
a complaint, any alleged-
i) maladministration in connection with the affairs of government at
any level;
ii) abuse or unjustifiable exercise of power or unfair, capricious,
discourteous or other improper conduct or undue delay by a person
performing a public function;
(iii)Â Â Â improper or dishonest act, or omission or offences referred
to in Part 1 to 4, or section 17, 20 or 21 (in so far as it
relates to the aforementioned offences) of Chapter 2 of the
Prevention and Combating of Corrupt Activities Act, 2004, with
respect to public money;
(iv)Â Â Â improper or unlawful enrichment, or receipt of any improper
advantage, or promise of such enrichment or advantage, by a person
as a result of an act or omission in the public administration or
in connection with the affairs of government at any level or of a
person performing a public function; or
(v)Â Â Â Â act or omission by a person in the employ of government at any
level, or a person performing a public function, which results in
unlawful or improper prejudice to any other person.
The opinion is held that the powers of the Public Protector are
sufficiently broad to protect citizensâ rights, including decisions
taken by the Masters of the High Courts, and as such do not need
revisiting.