Media Statement on Legislative Development by Minister of Justice and Constitutional Development Ms Mmamoloko Kubayi on the 11th August 2026
Good afternoon and thank you for joining us as we provide an update on the work we are doing in reviewing and changing our laws.
With me this afternoon is the Deputy Minister Mr Andries Nel and the Acting-Director General Ms Kalay Pillay. I am also joined by a team of experts who have been instrumental in the development of these Bills.
We are here to give an update on four key legislative amendment bills which have been approved by cabinet, namely: the General (Mining) Laws Amendment Bill, the Legal Practice Amendment Bill, the Regulation of Trusts Bill and Conspiracy, Instigation and Incitement to Commit Offence Bill. These amendments are aimed at strengthening South Africa’s policy and legislative framework. The briefing will also cover the recently increased monetary jurisdiction of the Small Claims Courts.
Regularly reviewing and changing legislation ensures that laws remain fair, useful, and ensures equality before the law. It allows governments to fix outdated rules, adapt to new technology, and respond to changing social and political values. Without updates, laws can become inefficient, fail to protect citizens, or create legal confusion. As I deal with each of the Bill, it will become clear how on critical are the amendments.
General Mining Laws Amendment Bill
Let me begin with the General Mining Laws Amendment Bill. This Bill seeks to address the challenges that South Africa is experiencing in relation to illicit mining in that, while illicit mining is prohibited, illicit mining and the activities related to illicit mining, are not criminal offences.
The terms “illicit mining” and “illegal mining” are used interchangeably. Illicit mining, also commonly referred to as illegal mining, involves mining activities conducted without the required permits, licenses or statutory authorization from the Government or Relevant authorities, such as those outlined in the Minerals and Petroleum Resources Development Act, (“the MPRDA”). Illegal miners also commonly known as “zama zamas” are illegal artisanal miners in South Africa who occupy closed or
operational mines and conduct mining activities in search for minerals such as gold, amongst others, without the proper authorisation.
We also want to make it very clear that the Bill does not seek to criminalise authorized artisanal miners, meaning small scale miners with permits, from engaging in mining activities.
Illicit mining has negative effects on communities in and around mining towns, damages the infrastructure of affected areas such under ground water pipes which then affects water security, and poses a serious threat to the safety and security of the affected communities, in many instances where we saw Sink holes.
Severe harm done to affected communities by illegal miners has increased due to illicit mining. Illicit Mining has been associated with kidnapping, human trafficking, child labour and forced labour. Moreover, illegal mining gangs are directly involved in violent crimes associated with illegal firearms, rape, murder, intimidation, house breaking, theft, assault and corruption in nearby communities.
The Bill seeks to amend various pieces of legislation, with the view to amend provisions dealing with offences and penalties and to provide for matters connected therewith. These pieces of legislation are the Criminal Procedure Act, of 1977, the Diamonds Act, of 1986, the Minerals and Petroleum Resources Development Act, of 2002 and the Precious Metals Act, of 2005.
Clause 1 of the Bill amends Schedule 1 to the CPA, by proposing the insertion of the offences of illegal prospecting and mining activities and prohibition of assistance in committing illegal prospecting and mining activities.
Clause 2 of the Bill amends section 87 of the Diamonds Act, in order to increase the penalty for the contravention of the provisions of section 82(a) or (b) from a fine of R250 000 to a fine of R100 million, and imprisonment of 30years(previously was 10 years). This clause further increases the penalties for the contravention of the provisions of section 82(c), 83(a) or 84(a) from a fine of not exceeding R100 000 to a fine of not exceeding R100 million and the period of imprisonment to 30 years.(previously was 4 years)
Clause 3 of the Bill inserts the definitions of “artisanal mining”; “artisanal mining permit; “authorised person” and “small-scale mining permit” into the MPRDA.
Clause 4 of the Bill amends the heading to section 5A of the MPRDA by inserting the heading “Illegal prospecting and mining activities”. This clause also provides for matters relating to small-scale and artisanal mining.
Clause 5 of the Bill inserts a new provision (section 5B) into the MPRDA in order to prohibit direct or indirect assistance to persons engaged in illegal prospecting and mining activities.
Clause 6 of the Bill amends section 91 of the MPRDA in order to delete the reference to any member of the Board as one of those who may be designated to carry compliance functions and to effect a minor technical to the said section.
Clause 7 of the Bill seeks to insert a new provision (section 91A) into the MPRDA in order to empower members of the South African Police Service to carry out compliance functions as contemplated in section 91 of the MPRDA, excluding the powers to conduct routine inspections in terms of section 92 of the Act, and to issue compliance notices in terms of section 93 of the Act.
Clause 8 amends section 98 of the MPRDA in order to effect certain technical amendments to the said section. This clause also lists the contravention of the provisions of sections 5A and 5B as offences. Section 5A prohibits any person from prospecting, mining or exploring for minerals or petroleum without proper authorisation and notice to the landowner or lawful occupier. Section 5B is a new offence inserted into the MPRDA in order to deal with persons who aid and abet those involved in illicit mining and makes it an offence for any person who unlawfully and intentionally attempts to conspire with another person or aids, abets, induces, incites, instigates, instructs, commands or procures another person to assist or provide any service to a person committing illegal prospecting or mining activities.
Clause 9 of the Bill amends section 99 of the MPRDA in order to effect certain consequential amendments to that section and to increase the penalty from a fine not
exceeding R100 000 to a fine not exceeding R100 million and the period of imprisonment from two years to 30 years in respect of persons who contravene the provisions of section 98(a)(i), (iA) and (aA).
Clause 10 of the Bill seeks to amend section 20 of the PMA in order to effect certain technical amendments and to increase the penalty from a fine not exceeding R100 000 to a fine not exceeding R100 million and the period of imprisonment from 20 years to 30 years.
Legal Practice Amendment Bill
The second Bill is the Legal Practice Amendment Bill. The primary aim of the Bill is to amend the Legal Practice Act of 2014. The Bill seeks to amend the various provisions in the Act in order to develop and enhance the skills of legal practitioners, to ensure access to the legal profession, to ensure access to justice broadly and to address certain practical challenges in the application of the Act. This has been called for by various practitioners in the sector.
Clause 1 of the Bill seeks to amend section 6 of the Act which provides for the powers and functions of the South African Legal Practice Council (“the Council”). The Bill proposes the addition of two new subsections to section 6. The newly inserted subsection (6) adds a function of the Council to enable it to assess the reasonableness of fees and disbursements for non-litigious work, which cannot be determined by the taxing masters of courts of law or tribunals. In the previous dispensation, the provincial law societies had this power. The newly inserted subsection (7) exempts persons employed by the Council or its substructures from liability for damages for actions done in good faith.
Clause 2 of the Bill amends section 17(1) of the Act in order to allow for a decision of the Council to be passed in situations where there are less than 12 members of the Council present at the meeting.
Clause 3 of the Bill provides for the removal in section 22 of the limitation that only an annual appropriation can be made by the Legal Practitioners’ Fidelity Fund (“LPFF”), to allow for more than one appropriation.
There is currently a lacuna in the Act regarding an enabling provision for regulations to be made regarding the composition of the Provincial Councils. Clause 4 of the Bill amends section 23(5) of the Act in order to fill this lacuna by requiring the regulations to provide for composition of the Provincial Councils.
Clause 5(b) of the Bill amends section 29(2)(e) of the Act, to include pro bono legal services, legal services rendered at either no fee or at a reduced fee, into the Act. Clause 5(c) of the Bill inserts two new paragraphs (f) and (g) in section 29(2) of the Act. Paragraph (f) provides the Minister with explicit, lawful authority to expand the list of qualifying community service activities through the regulations. Paragraph (g) seeks to retain paragraph (e) of subsection (2) of the Act except that the proposed amendment provides the Council, as opposed to the Minister, with the authority to approve any other specific service which the candidate legal practitioner or the legal practitioner may want to perform.
Clause 6(a) of the Bill amends section 31(1) of the Act, to include a new paragraph
(c) in section 31(1) of the Act, which seeks to enable the Council to suspend a legal practitioner from the roll of practising legal practitioners for the continuous failure to pay annual levies and other fees payable to the Council. Clause 6(c) amends section 31(4) of the Act, to enable the Council to remove a person from the roll of practising or non-practising legal practitioners upon receipt by the Council of a court order cancelling that person’s admission or striking that person from the roll. This amendment entails that even non-practising legal practitioners can be removed from the roll upon receipt of a court order to that effect.
Clause 7 inserts a new subsection in section 33 of the Act, to expand the work that is reserved for legal practitioners, to provide that advertising or touting is not allowed for certain work, to protect the public against exploitation by unqualified persons who may advertise the listed services. A similar provision was contained in section 83(2) of the repealed Attorneys Act.
Clause 8(a) proposes an amendment to section 41(1)(a) of the Act, to ensure that an appeal is lodged after a sanction has been imposed. The current wording of subsection (1)(a) only allows an appeal against the finding of the disciplinary committee and not against both the finding and the sanction. The period of 30 days allowed for lodging an appeal, is reduced to 14 days in order to avoid delays in the finalisation of the
disciplinary process. Clause 8(b) proposes an amendment to section 41(2)(b) of the Act, to provide that the Council, when establishing appeal tribunals for purposes of hearing appeals from disciplinary committees, must, where practicable, include at least one attorney, one advocate and one lay person drawn by the Council from a list of persons established and maintained by the office of the Ombud. As the subsection currently stands, an appeal tribunal cannot be established until the Office of the Ombud is functional.
Clause 9(b) amends section 55(1)(a), (b) and (c) of the Act. In terms of section 55(1) the LPFF is liable to reimburse persons who suffered loss as a result of theft only. The expression “or due to the negligence of” is inserted in paragraphs (a), (b) and (c), to increase the public’s protection relating to trust funds that are lost due to negligence.
Clause 10 amends section 56(1) of the Act, to exclude the LPFF from liability for transactions in cryptocurrency, as the valuations of these currencies are uncertain.
Clause 11 amends section 57 of the Act. Clause 11(a) inserts a proviso in section 57(1)(a) to determine the priority purpose of the LPFF. Clause 11(b) deletes in section 57(1)(h) of the Act, the expression “to be determined in consultation with the Council”, to remove the cumbersome provision which effectively requires the concurrence of the Council for an objective exercise related to the reasonableness of both the need to incur the expense and the amount of the expense. Clause 11(c) amends section 57(1)(j) consequently, as discussed under clause 3 in paragraph 2.3 above, to allow for more than one appropriation. Clause 11(d) is a punctuation amendment and Clause 11(e) inserts paragraph (m) in subsection (1) to enhance the LPFF’s powers to also pay an honorarium, fees or expenses or compensation to any person for services rendered at the request of the Board with the object of enhancing the professional standards of practitioners.
Clause 12 amends section 62 of the Act, to ensure that attorneys, who are in the vast majority and who are responsible for the largest portion of trust accounts and contributions to the LPFF, will be represented on the Board. Clause 12(a) substitutes the words “legal practitioners” with “practicing attorneys” so as to afford representation in the Board not by just attorneys in general, but by those who are in active practice. Subsection (4) is added to section 62 to provide that the election of the Board must take place within six months after each election of the Council, to avoid delays.
Clause 13 amends section 78 of the Act, to insert a requirement that any theft, as contemplated in section 55 of the Act, be reported to the South African Police Service and a criminal complaint be lodged. Claimants do not always lodge complaints in relation to the theft of trust monies and, as a result, the investigation of such theft cases has been compromised. By making it a condition for the institution of a valid claim, claimants will be compelled to do so.
Clause 14(a) of the Bill amends section 85(1)(b) of the Act, to authorise the Council to grant exemptions to a legal practitioner from completing a legal practice management course. The exemption may be full or partial and on such conditions as may be appropriate. Clause 14(b) of the Bill amends section 85(6)(c) of the Act, to ensure that a practitioner pays all outstanding subscription and other fees, levies and charges due to the Council before a Fidelity Fund certificate is issued, and not only enrolment fees, which would have been paid by the practitioner upon enrolment and would likely not be outstanding when application is made annually for a Fidelity Fund certificate. A new proviso ensures that a practitioner who was fined and made an arrangement to pay a fine in instalments, can still be able to obtain a Fidelity Fund certificate.
Clause 15 amends section 86 of the Act to provide that the LPFF Board is enabled to make rules regarding the recovery of the trust interest that vests in the LPFF to remove the discretion from the practitioner on the method of payment of interest to the Board through a manual process.
Clause 16(b) proposes that section 93(8)(d) be added in the Act to provide that a person who contravenes section 84 or 34 of the Act may not appear on behalf of a client and that the Council may apply for an interdict preventing such a legal practitioner from so appearing or rendering any legal service on behalf of a client. These provisions are currently only activated after conviction and the section is amended to clarify who should protect the public before conviction.
Clause 17 of the Bill amends section 94(1) of the Act, which provides for the regulations that the Minister can make, by the insertion of a new paragraph (dA), consequent upon the amendment to section 23(5) by clause 4 above.
Clause 18(a) of the Bill amends section 95(1) of the Act, by the insertion of a new paragraph (aA), consequent upon the amendment to section 6(6) by clause 1 above.
Clause 18 (d) amends section 95(3) consequent upon the amendment to section 86 by clause 15, as discussed above.
Clause 19 amends section 112 of the Act, to insert a new subsection (3). Section 112 contains transitional provisions in relation to qualifications. Two applicants brought an application to the Gauteng High Court, indicating that they obtained the degree of baccalaureus procurationis during 1997 and 1999, respectively, but now have difficulty in registering practical vocational training contracts, as section 26(1) of the Act requires the LLB degree for admission as an attorney. Although the degree baccalaureus procurationis is not taught at universities anymore, it would be prejudicial to exclude persons who have obtained this degree from doing the required practical vocational training. The new subsection (3) seeks to fill this lacuna in by providing that any person who has a baccalaureus procurationis from a university of the Republic, may be allowed to undergo the practical vocational training required of candidate attorneys.
Clause 20 amends section 115 of the Act that currently provides that a person who immediately before the date of commencement of the Act was entitled to be admitted and enrolled as an advocate, attorney, conveyancer or notary is, after that date, entitled to be admitted and enrolled as such in terms of the Act. There was no clarity on what the date exactly is and the matter was brought before the High Court. In a judgment of the full bench in the Gauteng Division of the High Court of South Africa the Court held that, as section 115 does not provide a cut-off date, the provision would apply ad infinitum, and that an amendment to the Act should be considered as this could clearly not have been the intention. The proposed amendment is intended to remove the uncertainty regarding section 115, whilst allowing a reasonable window period for persons wishing to claim entry into the profession in terms of this section.
Regulation of Trusts Bill
The third amendment bill is the Regulation of Trusts Bill. The Trust Property Control Act of 1988 was enacted following a review of the law of trusts by the South African Law Reform Commission (“the SALRC”) in 1987. The objective of the review was to address specific areas of the law of trusts that were problematic and required legislative intervention at that time. In the 38 years since its enactment, the Act has not been reviewed comprehensively. The socio-economic, legal and practical
environment in which the South African trust operates has, on the other hand, changed significantly.
The Bill seeks to, amongst others, address shortcomings in the current legislation that enable trustees to evade accountability, constrain the Master of the High Court in exercising effective oversight over trusts, do not provide adequate protection for beneficiaries; address the lack of transparency in the management and control of trust property, which increases the risk of trust structures being misused for money laundering and other criminal activities; and align the regulation of trusts with the recommendations of the Financial Action Task Force (FATF) without imposing unnecessary regulatory burdens.
- Protection of vulnerable persons
It is a common practice by legal practitioners to request a court to grant an order for the creation of a trust to administer funds awarded as damages against the RAF or for medical negligence to a child, or to a person with mental disability. There have been reports of trustees misappropriating these funds through excessive fees, improper investments or outright misuse of the money. The Bill proposes in such circumstances a court must, before granting an order for the creation of a trust, satisfy itself that a trust is an appropriate mechanism to hold the funds, the interests of the child or the person with disability are adequately protected in the draft trust instrument, the draft trust instrument does not contain provisions that may be detrimental to the child or the person, and the draft trust instrument makes provision for the remuneration of the trustee.
The Office of the Master of the High Court (“the Master’s Office”) has received complaints from beneficiaries of trusts that were created as a vehicle to hold and manage land received through land reform programmes. The complaints relate to the mismanagement and misappropriation of trust property by trustees. The Master can only offer limited assistance to the affected beneficiaries due to the limited scope of the Act and the nature of the trusts. The Bill proposes that trusts should not be created to administer property received by any community from the State in terms of an agreement or in terms of any law. The objective is to ensure that the property in question is administered in terms of appropriate legislation that has been designed to afford adequate protection to the beneficiaries.
- Accountability by trustees and transparency in the management and control of trust property
Lack of transparency in the management and control of trust property creates a conducive environment for money laundering and other criminal activities. The Bill contains provisions that are aimed at addressing this, including that trustees will be required to cause annual financial statements of trusts to be prepared, and to keep documents related to trusts for the duration of their trusteeship, and for a period of five years from the date on which they ceased to be trustees.
- Strengthening oversight by the Master’s Office.
The Bill aims to improve provisions in the Act that empowers the Master of the High Court to call upon a trustee to account to the Master regarding their administration and disposal of the trust property, and to appoint a person to investigate the trustee's administration and disposal of the trust property.
The Bill empowers the Master to issue compliance notices and administrative fines for failure to comply with certain provisions, including failure to lodge beneficial ownership information, file annual returns or to submit financial statements when required by the Master. The Bill also makes provision for the filing of annual returns by trustees.
- Ensuring that compliance obligations imposed on trustees are proportionate to the objectives of the Bill
Bill provides a legal framework for a risk-based approach in the enforcement of beneficial ownership register requirements. The Master is required to cause a risk assessment to be conducted, and low risk trusts may be exempted from complying with beneficial ownership register requirements on the basis of the outcomes of this risk assessment.
The Bill empowers the Minister to exempt trusts with no or minimal financial activity from preparing annual financial statements.
Currently, the Act provides that a trustee who fails to lodge a beneficial ownership register with the Master of the High Court commits an offence. The Bill proposes that such non-compliance be addressed initially through compliance notices and administrative fines, with criminal sanctions serving as a measure of last resort.
- Offences and penalties
The Bill also provides for criminal offences and penalties in respect of serious contraventions of the Act, including acting as a trustee without the required authorisation, the intentional provision or recording of false beneficial ownership information, and continued non-compliance with specified statutory obligations.
Conspiracy, Instigation and Incitement to Commit Offence Bill
This Bill seeks to repeal the Riotous Assemblies Act of 1956, which was originally designed to combat riotous gatherings, publications and conduct engendering hostility between one population group and another. The Act has been identified by the Department as a piece of apartheid and colonial era legislation to be repealed or repealed and replaced. The Act also reminds the people of South Africa of the atrocities of the past which stand in the way of reconciliation in the country. Many provisions of the Act have been repealed, apart from the preamble and sections 16, 17 and 18 of the Act.
Section 16 of the Act provides for special precautions in the interest of public safety regarding explosives. The Explosives Act of 2003, administered by the Minister of Police, repeals section 16. However, the Explosives Act of 2003, has not yet been put into operation due to a lack of operational readiness. SAPS is preparing for the implementation of that Act.
Section 17 of the Act deals with acts or conduct which constitute an incitement to public violence.
Section 18 of the Act deals with attempt, conspiracy and inducing another person to commit an offence. Subsection 18(1) provides that any person who attempts to commit a statutory offence shall be guilty of an offence and be liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.
Subsection 18(2) provides that a person who—
(a) conspires with another person to aid, procure the commission of, or to commit;
or
(b) incites, instigates, commands, or procures any other person to commit, a common law offence or a statutory offence, shall be guilty of an offence and liable to the punishment to which a person convicted of actually committing that offence would be liable.
The constitutional validity of section 18(2)(b) of the Act was challenged and an order was sought for it to be struck down. In a majority judgment the ConCourt declared that the Act is a remnant of the apartheid era, unconstitutional and invalid insofar as it makes incitement to commit even 'minor' crimes an offence. The majority ruling was that the section referred to above was overbroad and therefore unconstitutional.
The Constitutional Court gave Parliament 24 months to remedy the defects in the Act and ordered that, in the meantime, the words 'any offence' as they appear in the relevant section be replaced with the words 'any serious offence'. Parliament had until November 2022 to remedy the defect and the reading-in became final. The Bill is however necessary to provide for the offences of incitement and conspiracy.
The Concourt did not declare the Act as a whole unconstitutional, but only section 18(2)(b), and only insofar that this section made it a crime to incite anyone to commit 'any offence'. The ConCourt ruled that incitement should be defined as a crime only in circumstances where 'serious' offences had been committed. The Concourt did not explicitly define what constitutes a 'serious' offence but referred to certain Schedules of the Criminal Procedure Act of 1977, as a basis to identify crimes that fit within this category. Accordingly, the bill deals with the following:
Clause 1 defines a serious offence as those offences identified in the Schedule to the Bill in respect of which a period of imprisonment exceeding six months may be imposed. The clause further makes provision for the offence of conspiring with another
person to commit an offence and for the offence of instigating and inciting another person to commit a serious offence.
Clause 2 repeals the Act based on the reasons provided in the discussion above.
Clause 3 of the Bill provides for the short title and commencement.
The Schedule to the Bill lists the serious offences for purposes of clause 1 of the Bill.
Small Claims court
The Small Claims Court provides a fast, affordable, and informal way to resolve minor civil disputes without using a lawyer. As of July 2026, the Department of Justice and Constitutional Development raised the monetary jurisdiction limit, from R20,000 to R30,000. The Small Claims Court expands access to justice by making legal remedy easier for everyday citizens who cannot afford high litigation costs, and all official languages may be used in a Small Claims Court.
Way forward
With regards to the General (Mining) Laws Amendment Bill, the Legal Practice Amendment Bill, and the Regulation of Trusts Bill, they have been gazetted for public comment. The full documents of the Bills have been made available on our website since last week Friday 07 August 2026, and the closing date for submissions is 11 September 2026.
The Conspiracy, Instigation and Incitement to Commit Offence Bill has been approved by cabinet, and will be tabled to parliament for processing and adoption.
We encourage all stakeholders, including civil society, business, labour, and members of the public, to participate in this process and provide inputs that will strengthen these important pieces of legislation.
I thank you.
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