Issued by: Department of Justice
BACKGROUND INFORMATION REGARDING THE WORKSHOP HELD ON ISSUES RELATING TO THE SHERIFFS' / MESSENGERS OF THE COURT PROFESSION
Prior to the commencement of the Sheriffs Act, 1986 (Act 90 of 1986), on 1 March 1990, the functioning of messengers of the court, for example their appointment, suspension for misconduct and the keeping of trust accounts, was regulated in terms of the Magistrates' Courts Act, 1944 (Act 32 of 1944). The Supreme Court Act, 1959 (Act 59 of 1959), also contained provisions relating to the appointment of sheriffs and deputy sheriffs, the keeping of trust accounts, their suspension from office and the State's liability as far as the conduct of sheriffs is concerned. These provisions in the Magistrates' Courts Act and the Supreme Court Act were either repealed or amended by the Sheriffs Act. This Act is, however, only applicable in the former RSA (that is in the national territory as defined in section 1(2) of the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993), excluding the former TBVC countries and the self-governing territories). This Act now regulates the sheriffs' profession in the former RSA, for example the appointment of sheriffs, the establishment of a Board of Sheriffs, the setting up and running of a fidelity fund and the regulation of an ethical code of conduct for sheriffs.
The provisions of the Magistrates' Courts Act and the Supreme Court Act pertaining to messengers of the court were still in force at the time when the former TBVC countries and self-governing territories acquired legislative powers. These former territories consequently either inherited the said provisions or subsequently amended them as and when the need arose. In terms of section 229 of the Constitution "all laws which immediately before the commencement of the Constitution were in force in any area which forms part of the national territory (as on 27 April 1994), shall continue in force in such area, subject to any repeal or amendment of such laws by a competent authority". The Justice Department's Subcommittee on the Rationalisation of Legislation, which was responsible for the rationalisation of all legislation administered by or affecting the activities of the former Department of Justice in the former RSA and the former territories, prepared the recently enacted Justice Laws Rationalisation Act, 1996, which is to be put into operation shortly. This legislation makes the former laws (administered by the Department of Justice) and which are mentioned therein applicable throughout the national territory and it simultaneously repeals the corresponding legislation of the former territories. The rationalisation of the legislation pertaining to the sheriffs'/ messengers' of the court profession was, however, not included in the Act due to the need for further consultation with all role-players. It might be mentioned that a draft Bill has already been prepared to rationalise the legislation dealing with sheriffs. There is a need for an in-depth discussion on this legislation. There is consequently no uniform legislation in South Africa dealing with the sheriffs' profession as a whole. This and other factors have given rise to numerous practical problems which need to be addresses as soon as possible.
30 SEPTEMBER 1996