The Procedural Officer and Under-secretary to the National Council of Provinces briefed the Committee on the Mandating Procedures of Provinces Bill. The Committee expressed concern that the Bill had not been passed within a reasonable time (as was required by the Constitution) and could therefore be challenged.
The Department briefed the Committee on their discussions held with the Association of Regional Magistrates of Southern Africa (ARMSA). They also provided the Committee with a clause-by-clause briefing on the Bill.
Mr Carrim said that the programme had been changed to accommodate the fact that the Child Justice Bill was very challenging, with the Jurisdiction of Regional Courts Amendment Bill proving to be much easier to manage.
Mr Delport asked if the Directorate of Special Operations (DSO) report would be dealt with on the 20 February, as well.
Mr Carrim said that it seemed that the Portfolio Committee on Safety and Security would be given more responsibility with regard to this Bill. The Committee would therefore be working closely with that Committee. Perhaps the cluster could be brought together for these discussions on 26 February 2008.
Adv L Joubert (DA) said that the Committee was still awaiting the Director-General’s (DGs) performance contract.
The Chair said that the DG had written to explain his absence at the meeting with the Committee. There was a letter from the DG, in which he responded to all the Committee’s reports. This letter had been circulated to members, but would be sent out again. He would however request the Department to send the performance contract, which was a public document.
Adv C Johnson (ANC) acted as Chair for this part of the meeting.
Mandating Procedures of Provinces Bill: briefing
Ms Shahieda Bowers (Procedural Officer: National Council of Provinces) said that the Mandating Procedures of Provinces Bill (B8B-2007) was a S76 Bill [ie Bill having a provincial competence] which had been introduced in the National Council of Provinces (NCOP) first. Referring to the Purpose of the Bill, she said that there was currently no uniform official procedure in terms of which provincial legislatures conferred authority on their delegations to cast votes on their behalf in the NCOP. The Bill sought to provide this uniform procedure.
Adv Joubert asked how voting took place in the NCOP and the Chair asked how the delegates arrived at their mandates.
Ms Bowers replied that voting took place per provincial delegation who arrived at a provincial mandate in terms of S21(5) of Schedule 6 of the Constitution. There was however no uniformity regarding the way in which provinces cast authority on their delegates to vote in the NCOP. Some provinces failed to submit their mandate on a provincial letterhead, sometimes it was not signed by the Chair of the particular Committee and their Speaker. Often it did not contain a Bill number or even reflected the incorrect Bill number.
Thus even though the content of the mandate was arrived at using the proper procedure, it was when this mandate was transferred to the NCOP that there was no uniform procedure. The Bill proposed definitions for negotiating and final mandates and indicated who arrived at these. The Select Committee felt that the Committee should arrive at the negotiating mandate, while the House would have to arrive at the final mandates. The format of the negotiating and final mandates were found in Schedules 1 and 2 of the Bill.
Adv C Johnson (ANC), asked why there were only two Schedules, while there were three types of mandates, that is, the negotiating, final and voting mandates.
Ms Bowers explained the difference between the negotiating and final mandates. In the case of the negotiating mandate, the Committee would receive the briefing, deliberate and then vote. The Provincial legislature would then send a delegation who would submit their position to the NCOP. The negotiating mandate was however provisional. When they submitted the final mandate to the House, accompanied by the relevant documentation, they were in fact submitting their final position. This would in most cases become the voting mandate. The Select Committee did not wish to clutter the Bill and therefore wanted the rules of each provincial House to apply with regard to the voting mandate.
Ms N Mahlawe (ANC) asked if all provinces could have the same mandate.
Adv M Phindela (Under-secretary to the NCOP) said that it was possible. This would depend on the position adopted by the respective provinces.
Ms Bowers added that when delivering the voting mandate, there would have to be five provinces voting for a particular position in order to constitute a majority.
Adv Joubert said that since the Bill first dealt with final mandates, the Schedule relating to final mandates should appear first.
Mr Carrim asked if one would vote according to a party mandate in the case of S75 Bills, but would be bound by the province’s mandate in the case of S76 Bills.
Ms Bowers referred to the definitions clause, saying that ‘legislative mandate’ specifically excluded S75 Bills [ie Bills having a national competence].
Adv Johnson asked what would be the status of the mandate if the province did not hand in the form set out according to the Schedule.
Ms Bowers said that the provincial process worked in six-week cycles, which would give them time to obtain public involvement. A province could write to ask for an extension. The NCOP Chairperson would then refer the request to the Select Committee to decide if they would give the province more time.
Mr S Swart (ACDP) referred to the decision in the ACDP/UDM court case, in which they challenged the floor-crossing legislation. The court had stated that parliamentary legislation had to be passed within a reasonable period. He expressed concern that this Bill would later be subject to challenge, since it was already twelve years overdue.
Adv Phindela said that this was a difficult question which they were not in a position to answer.
Mr Carrim said that this response was not satisfactory. He suggested that the NCOP should send someone who could answer this question.
Ms Bowers responded that the process had begun in 2004 with a draft bill. The Chair of the NCOP had looked at legislation which had to be passed soon and had then established a Technical Task Team to proceed with the drafting. Because it was legislation that dealt with a provincial competence, it was a very long process. Both national and provincial legislatures have had to deal with the Bill. It was presented to the Committee in 2005, after which amendments were made reflecting different views. The main reason for the delay was simply that it was a very long political process.
Mr Carrim said that this was no excuse. The first draft had been produced only in 2004, which was eight years after the formation of the NCOP. This had been a relatively easy thing to accomplish and there was therefore no reason that it could not have been done earlier. He added that it was no reflection on Ms Bowers and Adv Phindela.
Adv Johnson requested that the panel return to the Committee with information on how the NCOP ensured that Bills were dealt with speedily (taking into account public participation) and did not simply gather dust.
Mr Swart doubted that there was any way in which this argument could be met by the NCOP, especially in the light of the Constitution which stated that all national legislation should be enacted within a reasonable time.
Adv Johnson suggested that the panel take the time to consider this and then return to the Committee with a response.
Mr Carrim asked if the fact that this Bill was only being introduced now, would mean that all legislation passed prior to this Bill had been ultra vires. He asked if there was not a need to make the application of this Bill retrospective.
Mr Swart replied that they were covered in S21(5). However any legislation enacted subsequently in terms of this Bill could possibly be contested owing to the fact that this Bill had not been passed within a reasonable time.
Adv Joubert referred to Clause 3(e) of the Bill, which stated that final mandates should follow the format prescribed in Schedule 2. He suggested that one should therefore specify that negotiating mandates would have to follow the format prescribed in Schedule 1.
Jurisdiction of Regional Courts Amendment Bill
Mr J Skosana (Chief Director: Court Services) said that the Department had met with representatives of the Association of Regional Magistrates of Southern Africa (ARMSA) and a representative of the Forum of Regional Court Presidents on 11 February 2008 to discuss the ARMSA submission on the Bill.
Mr Skosana said that the Bill would revolutionise the court system. It would not extend jurisdiction immediately, but would instead do it incrementally. It would provide the first steps in the process.
He referred to concerns raised around the substantive issues, as well as issues on the process and implementation. The increase in the capacity of the courts was an ongoing process. One would however have to look at whether the current Regional Courts could handle the increase in caseload resulting from extended jurisdiction. It was also important to take into account that all 752 courts were not being used optimally and this should first be addressed.
Lack of capacity was a concern raised by many of the stakeholders (both those whom they had addressed in the recent meeting and those whom they were addressing on an ongoing basis). An intersectoral committee was being established to look at capacity issues. Although this matter had been on the table for a long time, one should not let the process collapse due to lack of infrastructure. Thus where training was needed, it would be provided and a Training Committee had already been established for this purpose. The issue regarding the training of magistrates was proving to be a point of disjuncture. Previously, a person could only become a magistrate if s/he possessed either a Diploma Iuris, a B Iuris or an LLB qualification. However since the scrapping of the Diploma and B Iuris qualifications, the only qualification accepted was the LLB. There was much opposition to this, as it was felt that a fit and proper person, who had the ability to deal with the complex issues involved, should be allowed to become magistrates. This did not mean that they would accept candidates who were not suitably qualified, but rather that this should not be prescribed in the statute books.
The Divorce Courts had been invited to give their input but were unable to due to time constraints. The Bill sought to integrate the Divorce Courts into the Regional Courts. It was felt that there should not be special courts dealing with divorce as this was not the main problem facing SA. Issues of divorce would therefore be dealt with by the regional courts and magistrates would therefore be able to deal with all family law related matters.
In discussions on the Legal Aid Board, there were views that there were definite capacity constraints. The Legal Aid Board should not be the only vehicle through which the State should provide legal services.
The process was long overdue and one should guard against saying that it could not be done due to lack of capacity. It was important to meet the challenges incrementally, and it was for this purpose that an Implementation Committee had been formed. One should remember that the Bill would not transfer matters from District Courts to Regional Courts, but instead brought matters down from High Court level to Regional Court level. Media inputs have indicated that the public was supportive of this initiative as it would assist people who had been waiting for court dates for long periods of time.
The Judicial Officers Association of SA (JOASA) had concerns, which were not with the Bill itself, but rather around the requirement that magistrates should have an LLB. They argued that many magistrates had in the past been unable to obtain this due to prevailing circumstances at the time. However, Mr Skosana stated that many had managed to obtain these qualifications under those circumstances. In addition there would be the opportunity to allow magistrates to upgrade their qualifications.
Mr Skosana then read through pages 7 to 10 of thr presentation document, which dealt with the Department’s responses to questions raised by the Parliamentary Research Unit.
Mr Robert Henney (Regional Court President- Western Cape) said that they were aware of issues like forum shopping and were able to monitor this adequately. They would require flexibility to enable them to transfer cases from a very busy centre to one which is not so busy if this was agreed to by the litigant. If this concern was addressed, they welcomed the Bill.
Ms Mahlawe said that the implementation of this Bill should be facilitated, since it was long overdue. She expressed concern about the removal of LLB as a requirement, saying that this could possibly mean that a person with only matric could end up being a magistrate.
Mr Skosana replied that a number of safety mechanisms existed to guard against this happening. The Judicial Services Commission would examine their short-list of candidates to see if they were properly qualified. There was no way that they would choose a person who did not have the requisite qualifications. This matter was then further referred to the executive who would see if the person chosen had satisfied all the requirements. With these mechanisms in place there was no need to prescribe it in legislation.
Ms Mahlawe asked about the qualifications of the presiding officer of Divorce Courts.
Mr Skosana responded that the Deputy Minister would appoint a person with requisite knowledge of family law.
Adv Joubert referred to the three court tiers, which would still be an interim measure. He asked how different this was to the final measures on which the Department was working.
Mr Johan de Lange (Legal Drafter: Department of Justice) said that they were still dealing with a 1944 Act on this issue. While they were reinventing the wheel concerning the lower courts, they were including provisions which gave effect to the Constitutional Court judgement in the Van Rooyen case. The High Court would not be a court of first instance in most cases, but would instead deal mainly with reviews and appeals.
Mr Swart said that capacity and infrastructure constraints were being raised constantly. He asked if there were at least sufficient resources to implement some of the provisions from the date the Bill would be passed.
Mr Swart asked for more detail with regard to monetary jurisdiction. He understood the Department to have said that the District Courts would have jurisdiction up until R150 000 and the Regional Courts would have jurisdiction for amounts in excess of R500 000. He asked which court would have jurisdiction for amounts between R150 000 and R500 000. He said that there appeared to be a gap.
Mr Skosana said that there was not a gap. Districts Courts heard cases of less than R150 000. Regional Courts would have jurisdiction for matters involving between R150 000 and R500 000. High Courts would have jurisdiction for matters in excess of R500 000.
Mr Swart asked why ARMSA did not hear equality cases.
Mr Skosana replied that these were private cases which did not involve the State. The Department was however looking at the structure of equality courts as well.
Adv Johnson said that members of her constituency had raised concerns about the fact that matters which had been heard in the Southern Divorce Courts (where they did not need to appoint a legal representative) now had to be heard in the Regional Court. Attorneys were happy because they could now charge Regional Court tariffs and there was more work for them since people were forced to appoint a lawyer.
Mr Skosana responded that the Bill would not change the substantive law. Where the assistance of a family advocate would be required in Divorce Court, the same would now happen in Regional Court. The aim was to help the indigent to access courts and not just the Southern Divorce court. As far as the legal profession was concerned, advocates and judges were overloaded while the attorneys were struggling. This would assist the attorneys, but more importantly, the aim was to assist the people requiring access to justice.
Dr J Delport (DA) asked if there had been consultation with Chief Justices.
Mr De Lange answered in the affirmative, saying that although they had not made a formal submission, the Department was engaging with them on an ongoing basis.
Clause by Clause analysis of the Bill
Mr De Lange read through the Bill and highlighted the following points:
Clause 1(e)(A): This gave the Minister power to declare or annex a regional division to another regional division.
Clause 2: This clause repealed S9 (c) (1) of the Principal Act.
Clause 3(b): this gave effect to the Constitutional Court judgment in the Van Rooyen case.
Clause 4: this clause amended S28 and extends the jurisdiction of Regional Courts to include civil matters.
Clause 5(1B): referred to the issue of divorce and marriage and amounted to duplication of jurisdiction in terms of existing divorce cases. Mr De Lange said that, with hindsight, this could be improved upon and reference to the Civil Union Act could be included.
Clause 7 referred to Transitional Arrangements. Clause 7 (2) (b) meant that if the presiding officer had a permanent position in the Divorce Court, s/he would have a permanent position in the Regional Court. Thus if his/her was holding a temporary position, it would not become a permanent position simply by virtue of the person becaming a Regional Court magistrate. At present Regional Courts did not have clerks, because they did not deal with civil matters. The clerk of the Divorce Court would be deemed to be the Registrar of the Regional Court.
Clause 8: repealed the Divorce Courts
Adv Johnson referred to the words ‘appropriate training course’ in Clause 3(d) and asked who decided what was appropriate.
Mr Skosana answered that it could be replaced with ‘course offered by Justice College or other relevant training institution’.
Mr Henney suggested the words ‘training as approved by the Justice Commission’.
Adv Johnson asked why there was a restriction to persons resident in South Africa for one year or more, in Clause 4(g)(1A)(ii).
Mr De Lange said that the Department would check this and inform the Committee.
Adv Joubert asked if the Regional Court had inherent jurisdiction with regard to marriage.
Mr Delport said that it was not inherent jurisdiction, as this power had been conferred on the Court by statute.
A member asked which rules would apply in civil matters (other than divorce matters).
Mr De Lange said that Magistrates Court rules would apply. Although ARMSA had argued for the application of High Court rules in the Regional Court, this would not be the case unless the Regional Court was hearing a case which was only in the jurisdiction of the High Court. There was still a need for the development of rules which would be specific to the Regional Court at a later stage.
Mr J Sibonyane asked if the High Court rules would apply as suggested by ARMSA.
Mr De Lange answered that the Department had persuaded ARMSA that this would not be the case but had undertook to ensure that the Rules Board would fast track the revision of rules for the Regional Court.
The Chair said that they would attempt to finish the Bill in two sittings. Perhaps Bills could be dealt with by forming sub-committees which would deal with the different pieces of legislation, after which it would be processed in the Portfolio Committee.
Adoption of Outstanding Reports
The Committee voted for the adoption of the outstanding committee reports on the Annual Reports of the Human Rights Commission and the Commission on Gender Equality.
The Chair adjourned the meeting.
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