Magistrates' Courts Amendment Bill [B23-2010]: briefing

Meeting report

Mr Jacob Skosana, Chief Director: Policy Development, Department of Justice and Constitutional Development provided the Committee with a brief overview of the Magistrates’ Court Amendment Bill [B23-2010]. The Bill sought to harmonise the appointment requirements for judicial officers for the entire court system. The LLB degree qualification requirement was found to be inconsistent with the requirement of ‘fit and proper’ in the Constitution. The Regional Court was the only court in the country that prescribed the LLB qualification. The Constitutional requirement for ‘fit and proper persons’ to be appointed as judicial officers, was explained. Some of the judges in the country had no LLB qualification, and were appointed from the attorney’s profession with a B Proc degree qualification, yet it was found that they continued to be good judges. With the current legislative framework a person who does not qualify to be a regional magistrate may well qualify to be a Constitutional Court judge. The status of the LLB qualification had diminished from the time when it was legislated as a requirement. Clauses 1 and 2 sought to amend sections 9 and 10 of the Magistrates’ Courts Act, 1944. The aim of clauses 1 and 2 was to abolish the current requirement that only a person in possession of an LLB degree may be appointed as a regional court magistrate.

Ms Wilhelmina Louw, Senior State Law Advisor, briefed the Committee on how Clause 4 of the Magistrates’ Court Amendment Bill [23-2010] amended section 15 of the Magistrates’ Courts Act, 1944. By the insertion of a new subsection (2A), it gave discretion to the Minister of Justice and Constitutional Development to determine the conditions of the authorisation of a person to serve process of court or other documents on behalf of a public body, or to determine any other matter relating to that authorisation. The proposed new section 15(2A) would allow persons and institutions working in this field to make representations to the Minister, who could then make a determination by notice in the Gazette.

Mr Lawrence Bassett, Chief Director, Department of Justice and Constitutional asked if the Committee to consider an amendment to clause 5, where the commencement date had been changed. 

Discussion
Mr J Jeffrey (ANC) asked if any issues were raised from the bodies mentioned under point 5.1 in the Memorandum on the Objects of the Bill and what kind of comments had been received under 5.3 of the Memorandum.

Ms Louw replied that there was currently a project that was looking at the overhaul, in due course, of the Magistrates’ Court Act and the Magistrates’ Act, this would then allow administrative processes to be addressed. At this stage the intention was only to scrap the qualification requirement.

There was one person who had objected to the abolishment of the LLB, and one person was in favour. The Commission on Gender Equality welcomed the provision, but was only concerned by the higher vacancy rate of magistrates in the Equality Courts; the Law Society of South Africa supported it; the Cape Bar Council supported the BiII, but was concerned about clause 3 because many areas would not be serviced by the regional court civil division, and this might hamper access to justice.

Ms M Smuts (DA) said that section 174 of the Constitution had been invoked, and that section dealt with Constitutional Court judges and those were drawn from legally qualified persons. There were judges currently suspended pending disciplinary inquiries. She asked if the point about those lacking in legal qualifications could be addressed.

Mr Skosana replied that by scrapping the LLB degree qualification, this did not mean the floodgates would be opened for any person to be a magistrate, it was just a means to harmonise the dispensation. Section 174(7) had been invoked to ensure that all legislation in the country was harmonised.

Mr S Ntapane (UDM) referred to the proposed new section 15(2A), and asked what kind of representations were referred to here.

Ms Louw replied that there were organisations that provided training for people who served documents. There might be several role players who could and would be consulted.

Mr J Sibanyone (ANC) asked to what extent the Department used the media to convey messages to the public.

Mr Skosana replied that the Department had engaged in an extensive media campaign. The public awareness strategy involved newspaper articles and radio media in all the different languages.  New courts had been introduced and the public had to know where they were located. Posters were developed, which were going to be laminated and placed at every court entry, at the offices of the Department of Home Affairs and in government buildings.

The meeting was adjourned.

Appendix:
MEMORANDUM ON THE OBJECTS OF THE MAGISTRATES’

COURTS AMENDMENT BILL, 2010

 

1. PURPOSE OF BILL

The primary aim of the Bill is to amend the Magistrates’ Courts Act, 1944 (Act No.

32 of 1944) (hereinafter referred to as the principal Act), so as to—

(a) regulate anew the qualifications required for the appointment of a person as a

magistrate, additional magistrate or magistrate of a regional division;

(b) further regulate the inclusion of magistrates of regional divisions on the list of

magistrates who may adjudicate on civil disputes; and

(c) authorise the Minister to determine the conditions relating to the authorisation

of a person to serve process of court or other documents on behalf of a public

body.

 

2. BACKGROUND

The amendments proposed in clauses 1 to 3 of the Bill are necessary as it facilitate

the smooth implementation of the Jurisdiction of Regional Courts Amendment Act,

2008.

 

3. OBJECTS OF BILL

3.1 Clauses 1 and 2 amend section 9(1)(a) and (b) and section 10 of the principal

Act by abolishing the requirement that only a magistrate in possession of a

LLB degree may be appointed as a regional court magistrate, and by providing

that any appropriately qualified woman or man who is a fit and proper person

may be appointed as a magistrate, an additional magistrate or a magistrate of

a regional division. These amendments will bring the requirements for

appointment as a magistrate, an additional magistrate or a magistrate of a

regional division, in line with the requirements for appointment as a judge as

provided for in section 174(1) of the Constitution.

3.2 Under the Jurisdiction of Regional Courts Amendment Act, 2008, section 12

of the principal Act was amended to provide that only a regional court

magistrate whose name appears on the list referred to in section 12(7) of the

principal Act may adjudicate on civil disputes as provided for in section 29(1).

Section 29 of the principal Act was substituted in its entirely by the

Jurisdiction of Regional Courts Amendment Act, 2008, to provide for

adjudication of various types of civil matters and divorce matters. Section

12(8) of the principal Act as amended by the Jurisdiction of Regional Courts

Amendment Act, 2008, provides that the Magistrates Commission may only

enter the name of a regional court magistrate on the list if one or more places

have been appointed in terms of section 2(1)(iA) within the regional division

in respect of which the magistrate in question had been appointed for the

adjudication of civil disputes and if—

(a) the head of the SA Judicial Education Institute has issued a certificate

that the magistrate has successfully completed an appropriate training

course in the adjudication of civil disputes;

(b) the Magistrates Commission is satisfied that, before the establishment of

the Institute, the magistrate has successfully completed an appropriate

training course in the adjudication of civil disputes; or

(c) the Magistrates Commission is satisfied the magistrate, on account of

previous experience—

(i) as a magistrate presiding over the adjudication of civil disputes;

or

(ii) as a legal practitioner with at least five years’ experience in the

administration of justice,

has suitable knowledge of, and experience in, civil litigation matters to

preside over the adjudication of civil disputes contemplated in section

29(1) and 29(1B).

4

Due to the conjunctive nature of the current provision, only the names of

regional court magistrates who are experienced in both areas of adjudication

i.e. various types of civil matters or divorce matters, may be entered on the

said list, thereby preventing a regional court magistrate who is suitably

experienced in one or the other field of adjudication from being assigned to a

regional court exercising jurisdiction only in that field. To broaden the pool of

magistrates who may adjudicate on these matters, clause 3 amends section 12

of the principal Act to provide that the names of magistrates who are

experienced in the adjudication of either civil law matters or divorce matters

may be entered on the list, kept by the Magistrates Commission, as regional

court magistrates who may adjudicate on civil disputes.

3.3 Section 15(2)(a) of the Magistrates’ Courts Act, 1944, provides that whenever

a public body has the right to prosecute privately in respect of an offence under

any law, or whenever a fine imposed on conviction in respect of an offence is

to be paid into the revenue of a public body, the process of the court and all

other documents in the case must be served by a person authorised in writing

by such public body. Section 15(2)(b) further provides that, where it is

expedient that such process be served in the area of jurisdiction of another

public body, a person authorised by such other public body may serve the

process of the court and other documents in the case. Clause 4 amends section

15 of the principal Act by the insertion of a new subsection (2A), which gives

the Minister of Justice and Constitutional Development a discretion to

determine the conditions of the authorisation of a person to serve process of

court or other documents on behalf of a public body or to determine any other

matter relating to that authorisation. The purpose of the amendment is to

prevent certain irregularities that are currently taking place regarding the

service of those documents. For instance persons are not always authorised in

writing, procedures for service are not adhered to and other persons are

serving documents on behalf of the authorised person.

 

4. IMPLEMENTATION PLAN

The Bill does not require detailed implementation plans due to the fact that the Bill

is primarily aimed at facilitating the smooth implementation of the Jurisdiction of

Regional Courts Amendment Act, 2008.

 

5. DEPARTMENTS AND PARTIES CONSULTED

5.1 The Bill was submitted for comment to, inter alia—

• the Chief Justice of the Republic of South Africa;

• the respective Judges President;

• Magistrates;

• the Magistrates’ Commission;

• the Law Society of South Africa;

• the General Council of the Bar;

• the various Bar Councils;

• the Chief Family Advocate;

• the National Prosecuting Authority; and

• the Board of Sheriffs.

5.2 The Bill was also made available on the Website of the Department together

with a document explaining the objects of the Bill and public comments were

invited regarding the contents of the Bill.