Rules Under Promotion of Administrative Justice Act, Jurisdiction of Regional Courts Amendment Bill, Mandating Procedures of Pro

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Justice and Correctional Services

27 February 2008
Chairperson: Mr Y Carrim (ANC), Adv C Johnson (ANC), Mr J Sibanyone (ANC)
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Meeting Summary

The Department of Justice noted that the Promotion of Administrative Justice Act was enacted in 2000 but the Rules under that Act had not yet been passed. Previous versions in 2001 and 2006 had not been passed by Parliament. The Department had now drafted and tabled a new set of Rules. At the moment the High Court rules applied, and matters under the Act could be brought only in the High or Constitutional Courts. When the new Rules came into effect, matters could be brought in any Court. The new Rules, which were based largely on the existing High Court rules for applications, would be uniform. They provided a simple procedure for applications, by way of a Notice of Motion, with an accompanying affidavit, followed by delivery of a Notice of Intention to Oppose and Opposing Affidavit by the respondent, and provision for a Replying Affidavit. All were in prescribed forms. Provision was also made for urgent applications, interlocutory hearings and temporary relief. The Rules and contents were summarised. Most of the questions by Members were directed to the current dispute between the Rules Board and the Department as to whether, firstly, the Rules Board or Department should be making the Rules, whether these draft Rules set an appropriate procedure, and whether it was competent to make rules binding the Constitutional Court. It was decided that the Committee would hold discussions with the Rules Board and attempt to reach consensus on the matter.

The Committee then discussed the Mandating Procedures of Province Bill. The Department tabled a list of very technical proposals for amendments that had not been accepted by the Select Committee, and the Procedural Officer of the NCOP indicated that there did not seem to be any difficulty with a number of those proposals. The Committee discussed the amendments clause by clause, accepted some and decided that others were not desirable. A formal vote would be taken, clause-by-clause, on the Bill in the following week. The delay in bringing this Bill to Parliament was raised, and would be mentioned in the Committee Report. 

The Department of Justice then commented on a letter from the Judicial Officers Association of South Africa and media reports on the Jurisdiction of Regional Courts Amendment Bill (the Bill). Although the Department did not disagree with many of the sentiments expressed by the Association, it believed that there were some misperceptions about the main purpose of the Bill and the fact that the training would address all magistrates. The Department had already set up an appointment to discuss this with the Association, and some of the comments would be taken into account in the training implementation plans. Members asked whether the courts would be able to cope with extension of jurisdiction, particularly in light of the current vacancy rates, and expressed concern that it would be difficult to fast-track any civil training, given the vast field to cover. The Committee would be voting on the Bill in the following week.

The final Committee programme would be adopted the following week.

Meeting report

Rules under the Promotion of Administrative Justice Act (PAJA): Department of Justice (DOJ) Briefing
Ms Ina Botha, Principal State Law Advisor, DOJ, said that the Promotion of Administrative Justice Act (PAJA) was enacted in 2000. No Rules had yet been approved under the Act. She summarised that the Constitution, in dealing with administrative justice, said that any person was entitled to lawful, just and procedurally fair administrative action. The purpose of PAJA was to provide for a review of administrative action by the Court, and to impose a duty on the State to give effect to the entitlement for just administrative action. Both the Constitution and the PAJA dealt with administrative action and referred to decisions by organs of state when exercising public powers or public functions. Both sought to ensure that the administrator had the necessary authority, that correct procedures were followed, that the decision and reasons for it were made known, and that there were procedures in place to have the decisions reviewed.

Section 7(3) of the PAJA set out that any Rule relating to judicial review must, before publication, be approved by Parliament. The rules would be tabled in the NA and the NCOP. Section 6 provided that until the Rules came into operation, all matters would be instituted in the High Court. After the Rules came into operation, an application for administrative review would be tabled in any of the Constitutional, High or Magistrate’s Court. 

Ms Botha said that in November 2002 the Rules Board for the Courts of Law (the Rules Board) had submitted Rules to parliament. These were not approved. The then-Portfolio Committee was of the view that the procedures were not streamlined, were not appropriate or desirable and were too onerous.

In 2006 the Rules Board again submitted Rules to the Minister, which were not approved. The Rules now before the Committee emanated from the Department of Justice.

Ms Botha noted that there were different rules applicable in each of the three courts in respect of applications. The Rules under PAJA would set a new and uniform procedure in all courts and would take precedence over the individual court’s rules for PAJA applications. It was important to develop a speedy, uniform and cost effective procedure that was not unduly burdensome, and to take into account the multiplicity of possible grounds for review, which would, for example, include lack of authority and failure to follow correct procedures. She pointed out that although Rule 53 of the High Court rules, relating to review of criminal matters, required submission of the full record in every instance, which was a costly exercise, a review under Section 6 would not necessarily require the full record. It was therefore necessary for the PAJA Rules to strike a balance between the interests and rights of citizens and effective administration.

Ms Botha said that the current draft had drawn on Rules 6, 11 and 12 of the High Court rules, and Rules 11 of the Constitutional Court rules around applications.

She then summarised the draft Rules as follows:

Rule 1 dealt with definitions. The aim was to make the rules easy to understand and use.

Rule 2 dealt with procedures for the institution of judicial review. It sought to ensure that only the procedure prescribed in these rules, and no other, should be followed in applications for judicial review under PAJA. This would establish a uniform procedure. In order to ensure, however, that there were no gaps, it stated that High Court Rule 10 could be used, and that the rules of the Court in which the application was brought may supplement the PAJA rules if necessary.

Rule 3 dealt with the Notice of Motion. There was a prescribed form. This set out that details must be provided of the administrative action to be reviewed, and the relief to be claimed. The person applying for review must serve the application on all interested parties and file a copy with the court. There must be an affidavit setting out the grounds for review, facts and circumstances.

Rule 4 dealt with the response of the administrator or any party. Notice of intention to oppose must be given, in a prescribed form, followed by an opposing affidavit that must answer to the issues raised, and also set out any questions of law. Copies must be served on the applicant, and any other interested party, and on the Court. Service would be effected by the Sheriff. The time frames were based on working days. Form 3 was prescribed for the notice of Intention to Oppose.

Rule 5 dealt with the Replying Affidavit. This affidavit must be duly served on interested parties and a copy filed with the Court.

Rule 6 facilitated applications and catered for a variety of aspects. It authorised the Court to allow the filing of further affidavits. The Court could also make no order but allow the applicant to renew the application. If it could not decide the matter, it could dismiss, or direct that oral evidence be heard, or refer the matter for trial. It could strike matters, consolidate actions, order joinder of persons, or appointment of amicus curiae. The Rule also provided for bringing of counter-applications. It also provided for interlocutory or other procedural applications. Provision was made also for ex parte applications, and a form was prescribed for this.

Rule 7 dealt with urgent applications. This was in line with Rule 12 of the Constitutional Court Rules and Rule 6 of the High Court rules. A presiding officer may dispense with the forms and services provided for and give directions for the handling of the matters.

Rule 8 provided for temporary relief, and was similar to the procedure in other applications.

Rule 9 provided that either the applicant or respondent could set a matter down for hearing, to avoid delay by either party. A clerk of the Court could be asked, in writing, to set down the date.

Rule 10 set out a number of High Court rules that would apply, irrespective of the Court in which the PAJA application was brought. The High Court rules were simple and easy to follow, as opposed to the Magistrate’s Court Rules, hence the reason for incorporating them by reference. These rules related to matters such as discovery, service, non-compliance with rules, and changing of the time periods.

The Rules also contained a short title and commencement provision. Rules must be published 30 days before coming into operation. The Court fees were prescribed at R50.

Ms Botha summarised that before bringing an application for review under PAJA, a person should first exhaust all other avenues to get the information required. Only if correct administrative procedures were not followed, or there was lack of authority, would the applications normally be brought under PAJA and these Rules.

Adv C Johnson (ANC) asked for, and received confirmation, that a person bringing an application under PAJA at the moment was bound by the Rules of the High Court, in which the application had to be brought at present. When the Rules were passed, they would effectively supersede the normal Court rules, except as far as they related to time lines and other issues, or where the PAJA Rules were silent.

Adv Johnson asked if these rules would enhance easier access to justice, and if they went far enough.

Ms Botha said the Department was of the view that they would enhance access. She stressed again that the Promotion of Access to Information Act (PAIA) could be used to get the necessary information, and only if that attempt failed would there be a review of the administrative action in terms of these Rules.

Dr T Delport (DA) said that the High Court Rules provided that the applicant would request the reasons for the finding, which would assist an applicant to specify the points in issue. The DOJ draft did not make provision for calling for the record and the reasons, and he asked why this was so.

Mr Y Carrim (ANC) asked how exactly the Rules would enhance access. PAJA was part of transforming the country, and was crucial to democracy and the rights of citizens. He asked for the specific distinction between the current High Court Rules that applied, and this new Rule.

Ms Botha said that there was not much difference between High Court Rule 6, or Constitutional Court Rule 11, and this draft Rule, but there were significant departures from the Magistrate’s Court rules on applications. Firstly, this draft Rule set out precisely what had to be done, in a direct way. The Court fee was the same as that currently applying in the Magistrate’s Court. The prescribed forms would assist applicants in setting out matters. Most Acts did not give a prescribed process, but the Court would normally accept that an applicant should approach the Department or Minister in order to get the information if he failed to get it from the administrator. The Rules were also attempting to achieve a uniform procedure. They did not require the full record in all instances, as this was not always required.

Mr Carrim said that the PAJA did not say anything about the role of parliament. He suggested that surely the first port of call for assistance should be the Member of Parliament. He asked if a court could decline to consider the application where the internal remedies had not been exhausted.

Ms Botha confirmed that the Act did say that internal remedies should be exhausted before a review would be entertained. Even if the relevant Act under which the administrative action had been taken did not say in so many words that a certain route, such as approaching an MP, must be followed, the Court would use its discretion in deciding whether appropriate steps had been taken.

Adv Johnson asked if the concerns around the onerous requirements placed on administrators, criticised in the earlier rules, had been addressed.

Ms Botha stated that the earlier rules before the Committee in 2002 stated that the respondent must show cause why the relief claimed in the Notice of Motion should not be allowed. This brought the onus on to the administrator. The second criticism had been that the administrator must also give all the reasons for the decision, and the record must automatically be provided, and this could be a costly exercise that was not always necessary.

Mr S Swart (ACDP) asked for the explanation on the dispute between the rules board and the Department.

Mr Deon Rudman, Deputy Director General: Legislation and Constitutional Development, DOJ, said that there were three main issues. The first was whether the rules should apply to the Constitutional Court. DOJ believed that this was correct, because PAJA defined a Court as including the Constitutional Court. The current draft had drawn heavily on the Constitutional Court Rules. Another argument was that the Chief Justice would make the Rules of the Constitutional Court in terms of its own Act. However, DOJ was of the view that because PAJA was the later Act, it would take precedence and would allow for the making of Rules in every court for PAJA applications. It was desirable for the sake of uniformity that the same rules should apply in all court structures.

Mr Carrim asked if the Chief Justice had expressed a view

Mr Rudman said that the DOJ had not consulted with the Chief Justice. He did not know if this had been done by the Rules Board.

Mr Rudman said the second issue related to procedure. The 2002 rules had been rejected on the grounds that the procedures were not streamlined, appropriate or were too onerous. The 2006 rules drawn by the Rules Board were substantially similar, and provided that the administrator still had to provide a list of all documents relating to the issue under discussion, and a copy of the record of proceedings. Only thereafter could the applicant ask for access to the documents, and amend the original application. The draft by the Department, on the hand, was plain and simple, and it was clear that other avenues should be followed to try to elicit the information required first. These rules were more streamlined and would be faster to deal with.

Mr Rudman stated that the third point related to who had the authority to make the rules. PAJA provided that the Rules Board made the rules, and these must be approved by parliament. However, the Rules Board Act said that any Rules made by the Rules Board were submitted to the Minister for approval. The heading to this draft noted that the Minister of Justice had approved the Rules, after considering proposals made by the Rules Board. The Rules Board, however, held a different view, believing that authority was conferred on them by PAJA.  It was a matter of legal interpretation.

Mr Carrim noted that Section 7 of PAJA did not say in terms that the drafting of Rules was to be done by the Rules Board.

Mr Rudman said this was so, but the Rules Board was an establishment in terms of the legislation.

Adv Johnson noted that the Rules Board could only act in terms of the enabling legislation.

Mr Rudman agreed.

Mr Carrim asked what was Parliament's power, and whether, it could, for instance, say that if did not agree with the Minister, and therefore agreed with the Rules Board. He pointed out that although the Minister had the ultimate power to make the Rules, he or she would have to take into account the views of the Rules Board. He cited a problem that had arisen in the Provincial and Local Government Portfolio Committee, when that Committee had queried whether the Minister really did have the power to override the Demarcation Board. This was perhaps an issue that Parliament must consider. If it was so that the Minister could make Rules, then what was the purpose of having the Rules Board.

Mr Rudman said that the role of Parliament was a constitutional issue. If Parliament failed to approve the Rules then there would be none. Parliament did have a veto power. The same would apply as far as the Rules Board was concerned. The Rules Board’s power to make rules was still subject to the approval of the minister, and he or she therefore had a veto power, similar to that of Parliament, and in effect the decision of the Rules Board was in the nature of a recommendation. He suggested that there was a need to try to reach agreement between the Rules Board and Minister.

Mr Carrim did not agree that there was a correlation between the power of the Minister, and that of Parliament, as the Minister was one person. He would like to hear what the DOJ had done to try to arrive at consensus.

Mr Carrim asked why the Rules Board had submitted similar rules again to the ones already rejected by Parliament. Members of Parliament represented the people of the country, and must fulfil the obligations the Constitution imposed. Although Parliament could veto the Minister's rules, it did not have the right to accept the rules of the Rules Board, because this would be outside its powers. Parliamentarians could change Bills, but not subordinate legislation. It was an academic question to look at the Rules Board rules, as if the DOJ draft was rejected it would be withdrawn.

Mr Rudman noted that the rules submitted in 2006 were not exactly the same as those of 2002.

Mr Swart interjected that he would like the long term effects of challenging the Rules to be considered. The Rules Board felt it was being treated in a humiliating way, and contrary to the law. A litigant who was unhappy with PAJA could well raise the issue that the Rules were not properly framed. He wondered if a legal opinion should not be obtained.

Adv Johnson said that there was a deadlock and the Committee must get past it. The Rules Board had indicated that it was not prepared to give further input. She suggested that perhaps the Committee should consider forming a multi-party sub-committee, who should try to consult with the Rules Board, then revert to DOJ. If it was necessary then to obtain legal opinion it could be done.

Mr Carrim agreed. He did not think that at this stage it was necessary to get a legal opinion; the Committee had always tried to operate on the basis of consensus. He thought it was curious that a Judge should, on behalf of the Rules Board, make representations to this Committee but say that no further submissions would be made. Parliament could not judge the value of the points unless it was able to engage further.

Mr Swart agreed with this suggested approach, but asked that the differences be crystallised. He asked if it was correct that the DOJ and the Rules Board were unable to agree.

Adv Johnson said that the Minister had written to the Rules Board saying that if they wanted to take the matter further they must address it to the Committee.

Mr Rudman summarised that the differences could be summarised as the issue whether the rules applied to the Constitutional Court, whether the procedure set out in the draft rules of the DOJ or those of the Rules Board was preferable, and who should make the Rules.

Dr T Delport (DA) said that this Committee must get clarity on the question whether Parliament was able to amend Rules before adopting them, and if the Minister could also amend before putting his or her signature to them.

Mr Rudman said that there was also a difference of opinion on this issue. The Committee would be likely to make suggestions to the Minister on how rules should be changed. If the Minister agreed then the Committee would proceed.

Mr Swart asked what role the Chief Justice would play. He felt that his input was needed.

Adv Johnson said that the Rules Board would have consulted the Chef Justice and this emphasised that the Committee must hear from the Board.

Mr Carrim said ideally a report should be called for on what had been done to get consensus. He asked if it would not make things easier for the DOJ to contact the Chief Justice to ask for his views. He also said that the Committee must accept that the State did not do enough to be accessible to citizens, therefore the rights of citizens to challenge the State were vital, and Parliament must ensure that the rules created matched the intention of the drafters of the Acts. He wondered if any other developing society had similar provisions.

Mr Rudman said that simplicity and accessibility were the main considerations behind the DOJ’s attempts to make their draft PAJA Rules as simple as possible. The main difference between the DOJ and Rules Board drafts was that the DOJ was trying to retain the main points without placing a huge burden on the state. There had been many meetings to discuss these rules, and eventually a decision was taken by DOJ to bring the rules to Parliament. He reminded the Committee that only when these Rules were adopted could applicants bring applications in the Magistrate's Court.

Mr Carrim suggested that it might be possible, to break a deadlock, to accept rules for a limited period; for instance if it felt that there was merit in the Rules Board suggestions but that they might be premature, given the readiness of the State to deal with reviews. These matters could be raised in the Committee’s report.

Mr Swart asked how applications under PAJA were being brought at the moment.

Ms Botha responded that the applicant could follow either Rule 6 of the High Court Rules (which was similar to the DOJ draft), and make use of other sub-provisions in relation to interlocutory applications or further facts, or use Rule 53 of the High Court Rules, which set out a similar procedure to the Rules Board 2002 rules. Until Parliament had approved the PAJA rules, the applications would be heard under the High Court rules and in the High Court only.

 Ms M Meruti (ANC) asked that the Rules not agreed upon in 2002 should be circulated to members.

The Committee gave a mandate to Adv Johnson to contact Judge Nkabinde at the Rules Board.

Mr Rudman confirmed, in answer to a question from Mr Swart, that there was still time, in terms of the Act, to produce the Rules. 

Mandating Procedures of Province Bill: Deliberations
Adv Johnson tabled a letter addressed to the Select Committee on Security and Constitutional Affairs (Select Committee) by the Minister of Justice in respect of proposals to amend the Bill.

Mr Johan Labuschagne, Principal State Law Advisor, DOJ, indicated that the B-version of the Bill was before Members. All the proposals from the DOJ, as set out in the letter, were of a technical nature. Some had been addressed by the Select Committee already, and were included in the Bill introduced into Parliament.

Preamble and Enacting Clause
The proposals by DOJ to amend the preamble and enacting clause were accepted by the Select Committee.

Heading of Chapter 2
The heading of Chapter 2 had referred to “Procedures in respect of mandates". However, clauses 3 and 4, under that Chapter, referred to “requirements” and not “procedures”. DOJ had suggested that the word “procedures “ in the heading be substituted with “requirements”. The Select Committee had not accepted that.

Mrs Shahida Bowers, Procedural Officer, NCOP, said that this was a technical amendment and that she did not foresee that there would be any problems in effecting the change.

Members agreed to the Department’s suggestion.

Sequence of clauses 5, 6 and 7
Mr Labuschagne moved on to Clauses 5, 6, and 7. The sequence of mandates should be negotiating, final and legislative. However, the clauses were in the incorrect order, and should be switched around, although their content would not be altered, to reflect this sequence.

Ms Bowers noted that the NCOP Committee had not provided any reasons for not accepting the DOJ proposed amendments. She believed that this suggestion was in fact quite logical,

Members agreed to the Department’s suggestions.

Mr Labuschagne noted that the points raised by DOJ  in relation to the heading of Clause 9 were accepted.

Clause 1/ Definition of Head of Delegation
In relation to the text of the Bill, Mr Labuschagne said that Clause 1 contained a definition of “Head of Delegation”. However, clause 8.1 referred to the “Head of the delegation”. The DOJ felt that, for consistency, one of these clauses should be changed.

Ms Bowers said that this was a mater of semantics. In the context of clause 8, this must be read as a sentence, and in the context of clause 1 as a phrase or term.

None of the Members felt very strongly about it and considered that it was probably not necessary to effect the change.

Definition of “legislative mandate”
Mr Labuschagne said that the term "legislative mandate" was defined to include questions contemplated in sections 64 and 78 of the Constitution. However, these two sections of the Constitution did not deal with legislation; instead they dealt with appointment of the Chairperson and Deputy Chairperson and matters pertaining to the Mediation Committee. The DOJ felt that these were therefore not legislative matters, and a legislative mandate would not be required. It was not clear from the Bill whether a negotiating mandate would be needed.

Ms Bowers said that the NCOP Committee agreed with the thinking behind clustering the different sections of the Constitution where a mandate might be required. She agreed that strictly speaking, neither Section 64 nor 78 pertained to legislation. However, section 78 did provide for how voting should take place. Whether or not it was omitted from the definition term would make no difference. In section 64, the election was prescribed in the Constitution’s Schedule 3. 

Dr Delport said that the two sections were largely irrelevant, as they did not deal with legislative mandates at all. He would prefer to see the reference to them being deleted from the definition.

The Committee agreed to the DOJ’s suggestions.

Other definitions
Mr Labuschagne indicated that the suggestions to achieve consistency in respect of the definitions of the terms “NCOP plenary”, NCOP select committee”, punctuation after “negotiating mandate” and “provincial delegation” had been accepted.

Mr Labuschagne indicated that the items listed in paragraphs 4.2 and 4.3 of the letter had been dealt with.

Clause 3 / Clause 6
Mr Labuschagne said that Clause 3 contained a long list of requirements in respect of the final mandate, but there was no such list in respect of the negotiating mandate. Schedule 2 contained a note of the prescribed formats. The question arose whether the more general wording, as used in Clause 6, should be used, or whether there should be a list for the negotiating mandate.

Ms Bowers said that the reason for the list in respect of the final mandate, plus a corresponding form, was that this was the most important mandate. With the negotiating mandate, the form alone would suffice

The Committee decided there was no need to change Clause 3.

Clause 4
 Mr Labuschagne noted that in Clause 4 the word “as” in the heading should be substituted with the word “of” to be consistent. There was a need to amend the numbering.

Adv Johnson said that it must be left to the drafters to decide which was more suitable, as long as there was consistency.

Clause 5
Mr Labuschagne noted that Clause 5 contained a reference to Section 74(8) in paragraph (a) but DOJ felt it was unnecessary as there was already reference to another section, 74(3)(b).

Adv Johnson asked if it could do any harm to include it.

Mr Labuschagne said that it would not.

Mr Eric Phindela, Under Secretary, NCOP, noted that it was included merely for the purpose of emphasis.

Members agreed not to amend this Clause as there was no harm in leaving the reference in.

Mr Labuschagne said, in relation to Clause 5(e), whether there should be reference to "any other national legislation which requires a decision by the NCOP”.

Ms Bowers noted that if (e) was retained, any other national legislation would be Section 75 legislation. Section 75 matters would not require mandates in the NCOP. She suggested that there was no need for this sub clause (e).

Mr Phindela said that the alternative might be  to refer to "any other matter affecting the provinces which may require the decision of the NCOP". This would be added as a new subsection.

Dr Delport queried whether this should be "matter" or "legislation".

It was clarified that it should be "matter"

Mr Labuschagne said that this would also then require a consequential definition to the definition of "legislative mandate" under (e) of Clause 5.

It was initially agreed to effect the change as suggested by Mr Phindela. However, in the light of later discussions around the schedule, this wording would be amended to refer to “any other question”.

Clause 8
Mr Labuschagne noted that DOJ had proposed that Clause 8 be redrafted. The proposals in respect of sub clause (2) were no longer relevant, but he still believed 8(1) should be amended, as it would read better. The words "to vote", if deleted" would clarify the matter.

Adv Johnson said that not a great deal turned on it.

Dr Delport agreed that it would be neater to delete the words "to vote".

Ms Bowers agreed.

The proposal by DOJ for a redraft was accepted.

Clause 9
Mr Labuschagne said that the proposal to amend clause 9 had been accepted..

He said that consequential amendments were needed on the memorandum on the objects of the Bill, to bring it in line with the amendments.

Annexure A
Mr Labuschagne pointed out that the Annexure setting out the Format for a Mandate referred to Bills only. In view of the changes that allowed for consideration of “any other matter affecting provinces” he thought that another line could be added to allow for addition of other matters, to avoid the need for new Schedules.

Ms Bowers said that Section 65 (1)(b) of the Constitution referred to “questions”. Perhaps the words "bill or questions" could be used, and then the word “questions” should be substituted for “matter” under  Perhaps then "questions" should be substituted in the earlier discussions instead of "matter" under Clause 5(e).

It was agreed that that the new wording and line would be added to the Schedule.

M Labuschagne said that nothing else would be added to the Bill. The DOJ had no objection to the principles contained in the Bill ; the proposals were merely of a technical nature. He asked, from the procedural point of view, who would prepare the formal amendments.

Mr Phindela confirmed that the amendments would come from this Committee. 

Adv Johnson noted that the Bill would be voted on the following week.

Mr Swart repeated his earlier comment around the delay in passing this legislation. The Bill was required in terms of the Constitution. Item 21 of Schedule 6 required that legislation be passed "within a reasonable time". He referred to the criticisms expressed by the Constitutional Court around the delays in passing the floor crossing legislation, and pointed out that now 11 years had lapsed before the passing of this Bill. He asked if this was “a reasonable time”. Whilst there was no problem with the interim procedures that the NCOP had been following, he feared that future legislation of the NCOP might be open to challenge on the basis that this legislation, which sought to prescribe the procedure of that future legislation, had not been passed in a reasonable time and therefore its validity might be challenged.

Mr Phindela agreed that a reasonable time was called for, but that would depend on the circumstances. He could not pre-judge whether a Court would consider the time frame and delays to be reasonable. 

Adv Johnson took Mr Swart’s point, but pointed out that the longer Parliament sat on the Bill, the longer the delay would be. She suggested that the Committee’s report should touch on the issue.

Mr Swart said that this was a relatively straightforward piece of legislation. No satisfactory explanations had been given for the delays. He said that by putting in the Committee Report a reference to the delay he feared this might alert people to the problems. However, the Committee would have to express its position on the Bill. He accepted that the Bill must be passed. Perhaps there just needed to be more discussion. The only way out seemed to be a constitutional amendment.

Dr Delport agreed that there was a Catch 22 situation, but the Committee had no option other than to proceed. He thought it unlikely that the Constitutional Court would interfere, as the NCOP had been operating effectively without this legislation. It was in that sense rather a superfluous exercise. He also indicated that this Portfolio Committee had dealt with the matter within a reasonable time.

Mr Labuschagne agreed that there seemed to be two options; either to pass the Bill, or proceed to a Constitutional amendment. This was not, however, a controversial matter and he doubted whether it would be subject to attack.

Jurisdiction of Regional Courts Amendment Bill
Mr J Sibanyone (ANC) took over as co-Chairperson for the final portion of the meeting. He indicated that the Committee had received a letter from the Judicial Officers Association of South Africa (JOASA) raising certain issues around the Jurisdiction of Regional Courts Amendment Bill (the Bill).

Mr Carrim added that a letter had been received from another Chief Magistrate in Cape Town, asking for an opportunity to appear, and this would be arranged. The Cape Argus had published an interview with two magistrates, who had complained that the current system was working well, and that the amendments would in fact result in denial of justice.

Mr Johan de Lange, Principal State Law Advisor, DOJ, said that the letter from JOASA seemed to be based on a perception that the Bill was focused on the careers of Regional Court Magistrates. The media reports were rather sensational. As the law stood at the moment, there were regional courts that were limited to criminal jurisdiction, divorce courts limited to dealing with divorce applications, and district courts that had both civil and criminal jurisdiction. He stressed that although the divorce courts would be abolished in law, they would not be affected in practice. They would simply be absorbed into the regional courts, and, on merger, would give much scope to increase justice services. The Courts, offices, procedures and so forth would be intact. Ease of access would be preserved to make them more user-friendly than the High Court. Nothing was being taken away from the services. He added that the media report had also contained a number of inaccuracies: the Divorce Courts were actually established in 1929 but de-racialised in 1998.

Mr de Lange noted that the Bill formally featured on the agenda of the Magistrate's Conference in 2007, and sub-committees in that conference had discussed it. Therefore, contrary to what JOASA suggested, there had been consultation. He stated that JOASA appeared not to realise that the main purpose of the Bill was enhancing access to justice. It was correct that a secondary purpose related to the pool of expertise. However, it was not correct, as JOASA had suggested, that this referred to “the ranks of regional magistrates" as reference was made only to “magistrates". The suggestion that this Bill was intended to  enhance the career opportunities of regional magistrates was incorrect. No doubt this would be a spin-off, but the benefit would apply to all magistrates. More magistrates would be subject to more training at both regional and district level. District magistrates, looking to promotion, would be focusing on developing their civil expertise. The DOJ was not at odds with many of the sentiments but felt that there was perhaps an incorrect interpretation of the Bill.

Mr de Lange said that comments had been made by JOASA on the background to the judicial service commission (JSC). The issue of training under Clause 3 of the Bill was also raised. The DOJ had already realised that there were possible flaws in the training clause, and had already made proposals as to how to amplify those provisions. Again, JOASA perceived that the training was solely aimed at regional court magistrates and that district court civil magistrates would be excluded. JOASA had also referred to the difference with the equality court training. Only hypothetical examples had been cited, but their concerns could be borne in mind when developing the implementation programme.

Mr de Lange stressed that the DOJ had envisaged that most of the regional court bench would be appointed from the district courts, and this would open up career opportunities for competent and experienced magistrates at the higher level, and eventually could lead to their appointment to the superior courts. JOASA however had suggested that the Bill could be perceived as "discriminatory" against district court magistrates. The DOJ did not agree that the currently worded preamble could be read in this way. In reality there would be a need to refresh the training of incumbent regional court magistrates.

Mr de Lange touched briefly on the comments about the efficiency and efficacy of the divorce courts, and stressed that the aim was to retain all the good characteristics and user-friendly elements, not to abolish the courts.

Mr J Skosana, Chief Director, Policy Development, DOJ, noted that the Magistrate’s Conference had been attended by 557 magistrates and judges. One of the themes focused on the single judiciary, and the Deputy Chief Justice had emphasised that the current system did not promote career pathing. Detailed reports were given on the current system of divorce courts. It was emphasised, in relation to appointments, that competence and experience, were perhaps given more weight than the LLB degree. DOJ was working with JOASA, and would continue to engage with it to find solutions. JOASA had argued for a flat structure but DOJ maintained that more experience was required for more complex matters, and that a tiered structure was more appropriate. He stressed that there was money available and DOJ was already working on training plans.

Mr Sibanyone noted that the Judicial Service Commission had previously mentioned that the lack of experience in civil matters on the part of regional court magistrates had acted to their prejudice. The extension of jurisdiction would definitely address this problem.

Dr Delport said that there were 21% vacancies in public prosecutors. He was not sure of that for magistrates. He wondered how the courts would handle the extra load of civil matters if they could not even cope with criminal matters. He also said that it was impossible to give quick training in the vast field of civil law. Proper training would come from years of practice. He was concerned that there would be miscarriages of justice and many appeals if there were attempts to fast-track.

Mr Carrim said that these concerns could be put in the Committee’s report. He felt that they would have to be addressed in the DOJ implementation plan.

Mr Carrim also asked if the DOJ could not meet with the JOASA and try to sort out the misunderstandings and obtain their buy-in.

Mr Skosana said that such a meeting had already been initiated; and suggested that members of the Committee might like to attend. He would communicate with Mr Sibanyone.

Mr Sibanyone noted that the clause by clause deliberations on this Bill would take place next week.

Draft Committee Programme
Mr Carrim tabled a draft programme, noting that he had titled it "Managing the Challenges; Too much legislation, too little oversight". The Committee would focus on fining a balance between its legislative and oversight responsibilities. The Committee would have to monitor its own achievements. Legislation currently before the Committee was listed. Five Bills were yet to come. Agendas would follow for the latter part of the year, as it was not possible at this stage to give specific details. The Committee might also, in principle, be permitted to meet in the afternoons.

Mr Carrim noted that the Commission on Gender Equality outstanding matter was in the process of being sorted out. The Legal Aid Board had responded to the Committee’s request. The Department had written a number of letters and had met with the Johannesburg Attorneys Association and the Court. It had found that the press had sensationalised the matter, but that there were indeed matters to be addressed.
The final programme would be adopted the following week.

The meeting was adjourned.


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