The Committee was briefed by the Department of Justice on submissions received up to 21 February 2008 regarding the Jurisdiction of Regional Courts Amendment Bill which proposes amendments to the Magistrates Court Act 32 of 1944. The primary amendment was to bestow extended civil jurisdiction on the regional courts, including matters currently handled by the divorce courts, which would be merged with and become part of the regional courts. The amendments were intended to enhance access to justice and to increase judicial expertise amongst magistrates, creating a larger pool of suitable candidates for the superior courts. The Bill and submissions were considered on a clause by clause basis. Some clauses were of a consequential or technical nature and did not attract much comment, whilst others are more contentious, especially clause 3, which allowed only regional court magistrates who had completed the requisite training to adjudicate in civil matters and clause 5, which provided for the absorption of the divorce courts into the mainstream court hierarchy.
General submissions on the Bill
He noted that a submission from SP Kuduge claimed that the Bill discriminated unfairly against district court magistrates who are interested and competent to adjudicate in more advanced trials in regional courts.
Mr de Lange stated that, with respect, this was a misconception as the Bill allows civil magistrates in district courts, who have acquired the necessary skills, to advance to the regional courts.
Adv L Joubert (DA) noted that in the past, magistrates who wished to be promoted to regional courts had to undertake a test and he asked if this was the status quo.
Mr J Skosana Chief Director: Policy Development: DOJ, replied that the test had been discontinued, as it undermined the competency of the Magistrates Commission.
Mr Lawrence Bassett, Chief Director: Legislation, DOJ, elaborated on Mr Skosana’s answer by stating that the old test had been problematic. Currently, persons were appointed by the Minister as acting magistrates for 12 months. After six months, a selection of five judgments was examined and a report was written by the regional court president and submitted to the Magistrate’s Commission (MC) with a recommendation as to whether the appointment should continue. This was considered by the MC, who then remitted their recommendation to the Minister. Seven years’ post-university experience was required in the legal profession before an appointment could be made and that formally, five years were required.
Mr G Magwanishe (ANC) asked if the procedure above was applied in all provinces.
Mr De Lange replied that it was, and that appointments were done at a national level.
Mr De Lange noted that the Association of Regional Magistrates of Southern Africa (ARMSA) and the Law Society of South Africa (LSSA) generally supported the aims of the Bill. Mr de Lange noted that C Helm Spence and Jacques du Preez Attorneys both stated that they did not wish to see the closure of the divorce courts which were an effective and inexpensive option to the High Courts. The courts would not be closed, that they were merely undergoing a name and organisational change and would remain operative.
Mr Magwanishe sought clarification on the status of the Divorce Courts.
Mr de Lange replied that in terms of establishing legislation, they are equal in status to regional courts, but would have concurrent jurisdiction with the High Court over all divorce matters.
Mr Skosana elaborated by drawing attention to the difference in costs involved in the divorce and high courts.
Mr L Landers (ANC) asked if the regional court magistrates would receive training.
Mr de Lange noted that there was a provision for training.
Mr Skosana pointed out that the current President of the divorce court only handles divorce matters, and that would now be exposed to both criminal and civil matters.
Mr de Lange noted that a number of the presiding officers of the divorce courts are also regional magistrates.
Adv L Joubert wanted to know if the intention was that divorce court magistrates also get training in civil and criminal matters.
Mr de Lange noted that only civil and criminal court magistrates would receive training, and not vice versa in terms of the amendment.
Mr de Lange summarised the contents of clause, stating that it created the power for the Minister to annex a regional division or part thereof for any reason that might be thought necessary. This mirrors the Minister’s power in respect of magisterial districts and would enable the Minister to roll out the extended civil jurisdiction of the regional courts in an incremental manner. A further amendment was proposed to allow for trying of criminal matters and civil disputes within the prescribed monetary limits. This was essentially a confirmation of the existing position.
Mr de Lange noted that the vague ARMSA comment on this clause appeared to be a mistake and should be ignored. He said that the Commission on Gender Equality (CGE) submission objected to s(1)(b), which was not being amended at all. The CGE further objected to new clause (1)(eA) which allows the Minister to interfere with regional division boundaries for any reason he deemed necessary as being too vague and ambiguous. Mr de Lange pointed out that this was just a repeat of the wording that already applied to Magistrates Courts. CGE’s objection to s2(1)(i) was also about a provision that was not being amended and had been in place since 1952.
This effected a consequential amendment to the MCA. He noted a general comment from Law Society of South Africa (LSSA) that geographical demarcations would have to be attended to.
Mr Skosana pointed out that any proposed annexing would have to be published in the Government Gazette for comment beforehand.
Mr de Lange noted that clause 3(a) permits only regional court magistrates whose names appear on the list to adjudicate in civil matters, including divorce. Clause 3(b) was a cleanup of an amendment emanating from the Constitutional Court judgement in the Van Rooyen case. Clause 3(c) was a consequential cleanup resulting in the deletion of s9(1)(c) in the MCA. Clause 3(d) states that magistrates who preside over divorces must receive a training course, and a list of all such magistrates who receiving this training must be kept by the Director-General of the Department.
Mr de Lange noted that several public comments had been received on this clause from Khuduge, LSSA and ARMSA on this clause. These would not be considered in detail, but instead the main objections would be noted which dealt with whether the Director-General should keep a list of magistrates and the contents thereof.
Mr de Lange conceded that subsequent discussions with affected role-players had revealed this clause to be overly simplistic. It would exclude new candidates, including experienced civil magistrates and experienced civil litigators. It would be irrational to require them to complete a training course. The object in his opinion was that magistrates, who have been hearing criminal cases for years, should merely do a refresher course on civil matters. He noted that a considerable number of magistrates appointed to hear criminal matters in the regional courts came from the civil side of district courts, and were never required to under go any sort of refresher course.
However, a list would be maintained and that the MC would participate. The name would only appear on a list of the MC if the Head of the South African Judicial Institute (SAJI) had issued a duly signed certificate that he had completed a trained course in adjudication of civil disputes or the MC was satisfied that the person had sufficient experience or was a legal practitioner with at least five years’ experience, with sufficient exposure to civil adjudication. He noted that the MC would have to establish a procedure within its own ranks, but this was an empowering provision that allowed it to do so. The South African Judicial Institute was to be established by the South African Judicial Institute Bill which was passed by the National Assembly last year and was under consideration by the National Council of Provinces. It was not yet law and therefore no such institution exists. Mr de Lange did expect it to be up and running by the end of the year.
Imam G Solomon (ANC) asked about transitional provisions, noting that he had been asked about this by the public.
Mr de Lange said that there would be a vacuum and that something would need to be put in place. Regarding the commissioner having to keep a list of names from time to time, this was not a major concern and could be revisited. As for the Justice Colleges, relevant training or that the commissioner was satisfied that the person had relevant experience were two conditions and he suggested a third option (c) – that the commissioner was satisfied the magistrate was appropriately trained to adjudicate.
Mr Skosana said he supported the last option.
Imam Solomon referred to the phrase “appropriately trained” in (c) and asked why not just use that as a criterion rather than the complicated provisions in the Bill.
Mr de Lange replied that this referred to the MC’s own rules, which not even necessary if the MC was satisfied that the candidate magistrate was a "fit and proper person".
Mr Joubert noted that divorce court magistrates would not have training as civil magistrates.
Mr Bassett pointed out that what was important was for some provision for training. He noted that there would be varying levels of experience. The way it would work was that a magistrate not trained in a particular field would have to be “phased in”.
Mr de Lange said that this clause dealt with jurisdiction of persons and it amends section 28 of the MCA to give effect to the proposal that regional courts deal with civil matters.
It had solicited one comment from the CGE – but again their problem related to provisions of the MCA that were not being amended and that had probably been there since the Act’s inception in 1944.
Mr Y Carrim (ANC) wanted to know why the CGE referred to ‘mischief’ – more specifically, why they were so suspicious, and why the proposed s28(1)(A)(ii) stated inter alia, that courts would have jurisdiction over a person who had been ordinarily resident in the Republic for at least a year.
Mr De Lange responded that he found it difficult to understand why the CGE referred to ‘mischief’. In response to the second question, such a clause was standard, presumably to prevent forum-hopping, but he would investigate further. He pointed out that they were promoting a new definition of ‘court’ which would add regional and district courts to the definition.
Mr de Lange pointed out that depending on whether or not there was a new definition for “court”, there would be two consequential amendments for clause four and five.
This dealt with jurisdiction over causes of action. The first few changes were superficial, whilst the major change was 1A, which allowed the Minister to stipulate different maximum amounts for cases in regional and district courts, which determine which court had jurisdiction, and IB which was a repeat of the empowering provision in s10 of the Administration Amendment Act which created the divorce courts. There was one small amendment to encompass civil unions, although this was redundant due to a clause in the Civil Unions Act which provided that references to marriage included civil unions.
Turning to the comments, Mr De Lange said that ARMSA would like them to have jurisdiction in terms of the Promotion of Access to Information Act (PAIA) and Promotion of Administrative Justice Act (PAJA). Both have their own definition of court, which means a high court or lower courts delegated by the Minister that fulfil certain requirements. They then refer to appointment of regional clerks in s13 of the MCA, and the impact the Bill would have, given that regional magistrates were not defined.
Mr De Lange noted that in discussions with ARMSA that this had been identified as a lacuna. They were appointed by district magistrates and that there were no regional clerks. There was a transitional arrangement where the Registrar of the Divorce Courts appointed them and they would automatically become officers of the new regional courts. He proposed that provision be made to appoint them as clerks of the new courts.
Mr De Lange said that LSSA had made a general comment on Clause 5 that the infrastructure of the regional courts was inadequate to deal with the increase in jurisdiction. If they were not able to deal with increased jurisdiction, it would erode access to the courts and disadvantage litigants. He said that structures would have to be in place to counter this.
Mr de Lange said that CGE stated that the jurisdiction of regional courts in respect of divorces should be on a par with the high courts. He said that in terms of the present amendments, the Minister could determine the monetary amounts of the lower courts. This was for the Committee to decide, but he noted that the amounts in a divorce action could be exceedingly high, in excess of R50 million and more.
Mr Carrim noted that it did seem unreasonable not to impose a ceiling.
Adv Joubert returned to the ARMSA submission and asked why a magistrate court could not have extended jurisdiction to hear cases involving PAIA or PAJA, especially if the purpose was to promote access to justice.
Mr de Lange apologised, saying he should have been a bit more specific. He noted that neither of the two act was particularly old and that Parliament had seen fit to include a definition in those acts relating to courts, and that any change should be dealt with via amendments to those acts and through this amendment.
This was not a controversial section and it had attracted no comment. This clause amended s46 of the MCA by deleting ss1. SS1 provided that no magistrate’s court had any jurisdiction over matters “in which the dissolution of a marriage or separation from bed and board or of goods of married persons was sought” except under provisions of the Indian Immigration Law, Act 25 of 1891. This was repealed as regional courts were now given jurisdiction to deal with family related matters, including divorce.
Mr de Lange felt he should mention that was some feeling from certain quarters that s46 should be revisited. He noted that a magistrate’s court had no jurisdiction in the following matters: interpretation of a will; declaring a person insane; where an order of specific performance was sought without an alternative sounding in money; transfer of property of amount capped by Minister and a decree of perpetual silence. Mr de Lange wished to raise attention to the fact they had been re-examining jurisdiction with regard to wills and specific performance. He noted that this amendment was just a first step.
This clause contained transitional provisions, providing that proceedings currently before divorce courts should continue as if the Bill had not been passed, which was a standard provision. Secondly, when this clause comes into operation, all divorce courts would become a court of the regional division designated by the Minister in respect of that court. Officers of those courts would become officers of the regional courts. Presiding officers of the divorce court would be magistrates of the regional court, but not substantively.
He noted areas of jurisdiction would remain the same and if they overlapped, they would be annexed. Lastly, rules of court established under section 10 of the Administration Amendment Act 9 of 1929 would remain in force until amended by a competent authority.
Mr de Lange said that from discussion with ARMSA, an argument had emerged about high court rules being made applicable to regional courts for certain purposes. He noted that rules do not empower courts, only an act does, and that rules only tell a court how to proceed. He noted that regional courts would fall under the rules of the magistrate’s court and that any lacunae would have to be addressed and would need to be dealt with administratively. He noted that they would sit down with officials to determine a suitable course of action.
Mr Carrim said that the rules were done by the Rules Board and wanted to know if they bound all courts.
Mr de Lange stated that this was the case.
Mr Carrim then asked what happened when the rules were drawn up and the Minister did not agree with them.
Mr de Lange responded that the rules were made by the Rules Board with the approval of the Minister. His approval was necessary as the Minister would promulgate them.
Mr Carrim then asked what happened if there was a dispute, and what role would Parliament and the Portfolio Committee perform?
Mr de Lange responded that certain acts such as the Promotion of Administrative Justice Act, contain a referral provision to Parliament.
Mr G Magwanishe wondered if Rules Board would be applicable to regional courts.
The meeting was adjourned.
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