Jurisdiction of Regional Courts Amendment Bill: public submissions & Implementation Policy briefing

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Justice and Correctional Services

03 March 2008
Chairperson: Mr B Magwanishe (ANC)
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Meeting Summary

The Committee heard a submission from Ms Mary-Anne Atteridge, a senior magistrate, on the Jurisdiction of Regional Courts Bill. The submission did not focus on the substantive provisions of the Bill but on the problems faced with regard to implementation. Ms Atteridge believed that the Bill would not enhance access to justice, as this could be achieved by making services accessible to all in real terms. She felt that those with claims over R100 000 – the current jurisdictional limit – would likely be able to afford to litigate in the High Court. Those affected most by non-accessibility were those without access to public transport, and those who had to stand in queues in all weathers outside to access fundamental services. She commented that there was no reason to tamper with the effective divorce courts, but that it would be more effective merely to proclaim all district courts as seats of divorce courts. She commented on the crisis around court accommodation, and noted that if the Bill were passed there would be nowhere to house the courts or the additional magistrates. She was further concerned that some parties might choose to have their cases heard in regional courts, with consequent cost implications for the other side, and that she was concerned that huge backlogs could result. The Bill did not provide for any contingencies or support structures.

Members asked questions whether regional magistrates had had exposure to civil work, whether the intended raising of jurisdiction of the district courts would not address the problem, commented that incremental approaches were anticipated, and wondered if the building of infrastructure should not be separated from the other issues. They further commented that the submission seemed not to address national issues, that access to justice was a process, and that the Committee was well aware of the problems and would try to include a visit to the places mentioned to assess the situation. They asked if her proposals had support of other magistrates, and questioned her remarks on those who were likely to be able to afford High Court costs.

The Department of Justice tabled and briefly outlined a Cost and Implementation Plan for the Extension of Civil Jurisdiction to Regional Courts. This covered project governance, strategic imperatives, benefits and risks, organisational structures and costing.

Meeting report

 

Jurisdiction of Regional Courts Amendment Bill (the Bill): Submission by Mary Anne Atteridge
The Committee was briefed by Ms Mary-Anne, Atteridge, a senior magistrate, who presented a  submission drafted by herself and Ms Linda Unavar, a presiding officer in the divorce court, on the Jurisdiction of Regional Courts Amendment Bill.

Ms Atteridge stated that the mere alteration of the courts would not enhance access to justice. The term “access to justice” was understood as meaning that the courts and their services would be accessible to all, especially  the poor and vulnerable, and she felt that the Bill would not be able to achieve this. Extending monetary jurisdiction of magistrates’ courts would also not achieve this, as people with claims over R100 000 – the current limit in district courts – would have no problems in accessing the courts. She further stated that the money to be spent in implementing this Bill would be better utilised in improving infrastructure.

She pointed out that there were thousands of communities across South Africa that did not have access to the courts. She cited as an example, “Op die Berg”, a community of 2 000 people located 60 kilometres outside Ceres. There was no public transport and residents could pay as much as R300 for a round trip to Ceres in a taxi. This trip would be necessary, if for example, maintenance needed to be collected, and the maintenance could be lower than the taxi fare. Further details were provided in an annexure to her presentation.

Ms Atteridge pointed out that access to justice entailed that when the facilities and services were utilised, they complied with minimum standards to ensure the dignity of people. She cited the example of people having to wait outside in the sun or rain to access fundamental services.

Ms Atteridge than commented that the divorce courts in their current form had been highly successful in providing affordable and efficient access to courts, and she could not see how incorporating specialising divorce courts under the aegis of regional courts would enhance access. If access was problematic, all district courts could have been proclaimed seats of the divorce court.  The district court had more seats, and access to divorce courts could not be provided more effectively, including access in terms of costs, than through the district courts. Furthermore, it made no sense to remove a successful project and place it in an untested and overburdened structure.

Ms Atteridge than drew attention to the court accommodation crisis endemic in the South African judiciary, noting that current accommodation was unable to cater for even existing structures. She cited as an example that the Cape Town district criminal courts needed at least five more courts to cope with the backlogs, but even if five more magistrates were found, there would be no room or offices for them.  She noted further that at many courts, mobile courts had to be provided to cater for the lack of court rooms.

She noted that in civil matters, once a party had chosen a forum, that forum could not refuse to hear the case. The practical implication would be that many parties would choose to have their cases heard in the regional court, which would be cheaper than other forums. Cost penalties could be made against a party who chose to litigate in a court with a higher jurisdiction than necessary, but this would only be decided at the end of the case. Furthermore, cost orders were forbidden in maintenance cases. The parties determined  the court roll, not the courts, and if the courts could not respond to the needs of the communities they served, enormous backlogs might result. Lastly, she stated that the Bill did not provide for any contingencies or support structures.

Discussion
Dr T Delport (DA) asked Ms Atteridge what her personal experience of regional magistrates had been thus far, and whether they had been exposed to civil work.

Ms Atteridge replied that they wanted exposure to civil work for career pathing to the High Court, and that no legislation prevented them from doing civil work, but due to the demands of their criminal law caseload, few were able to do so. 

Mr Johan de Lange, Principal State Law Advisor, Department of Justice,  noted that this was a reference to Section 9(1)(c) of the Magistrate’s Courts Act that was being repealed.

Ms Atteridge remarked that the aims of the Bill could be achieved by simply increasing the jurisdiction of the district courts.

Mr S Swart (ACDP) asked whether the Bill did not increase the jurisdiction of both courts.

Mr JK Skosana, Chief Director: Policy, Department of Justice, noted that plans were under way to extend the jurisdiction of the district courts to R300 000, from R100 000. He noted that Clause 3 provided for new positions and thus new career opportunities

Ms Atteridge stated that quantum never determined complexity, and that there was no point in creating a new structure if there was no more accommodation for it.

Mr Swart noted that an incremental approach was anticipated. If a district court monetary limit was increased this would improve access to justice. He further stated he did not know the plans for rolling out periodical courts and this needed to be discussed at some point.

The Chairperson sought clarity as to whether regional courts dealt only with criminal or civil matters.

Ms Atteridge stated that there was no concurrent jurisdiction. The regional courts were an anomaly, created purely to enforce apartheid security laws in 1952. Many regional court magistrates had only adjudicated over criminal cases. Although the Bill was intended to assist in gaining civil exposure for career pathing, she was adamant that one could not prioritise the needs of magistrate over needs of the people. That latter should corrected first,

Adv C Johnson (ANC) said she shared Ms Atteridge’s concerns about access to justice, but that the building of infrastructure was separate from the Bill. She felt that Ms Atteridge was mixing separate issues.

Ms N  Mahlawe (ANC) concurred with Adv Johnson and stated that if Ms Atteridge applied her mind to the national issues, not just to the Western Cape, she would understand the need for the Bill.

Imam G Solomon (ANC) remarked that access to justice was a process, not an event, and that it could not happen overnight but needed to built up incrementally.

Ms Atteridge responded that she was not ignoring the fact that it was an incremental process. Her point was that the Bill was simply not ready to be enacted and implemented at all.

Mr J Jeffery (ANC) sought clarification on Ms Atteridge’s position, asking whether she objected to the substantive sections of the Bill itself or whether she was just expressing concerns over the implementation of the Bill.  He also echoed the question whether she was speaking from a Western Cape perspective, or whether she was speaking nationally. He also enquired whether the problem was a lack of finances, or lack of ability to spend available monies.

Ms Atteridge responded that the issues could not be separated. If there was no office accommodation it was impossible to put in the necessary support structures,

Ms Linda Unavar, Senior Magistrate, Divorce Court, stated that the examples presented were a microcosm, and that the presentation had looked at the national issues.

Ms Atteridge clarified that she had not said that the Bill was flawed, but that it could not be implemented. The inability to properly implement the bill would be at the expense of the very people that the Bill claimed to assist.

Mr Y Carrim (ANC)  stated that the Committee was fully aware of the conditions that Ms Atteridge had described in “Op die Berg”, as also in similar places. Many parliamentarians were drawn from families in similar conditions, and they were not living in a dream world as she had implied. He also commented that she expressed a “cynical fatalism” in her presentation.

Ms Atteridge replied that she was not fighting the Department, and had in fact, received assistance from Mr Skosana on many occasions in the past for which she thanked him.

Mr Carrim stated that he was aware of many magistrates who agreed with the Bill and asked whether her submission was representative of feelings in the magistracy or whether she was presenting on her own behalf.

Ms Atteridge replied that the Chief Magistrate had given her permission to make this presentation. She noted that other interested parties had focused on the technical and legal aspects of the Bill, which was not the focus of her representation.

Mr Carrim also noted that her submission was made rather late into deliberations on the Bill.

Ms Atteridge said she did not expect special treatment.

Mr Carrim asked whether this was some sort of territorial dispute, and whether regional courts were protecting their turf against intrusion by district courts.

Ms Atteridge said she was not fighting to defend her terrain; she was not a divorce or family court judicial officer. She was merely presenting a point of view that was derived from having a specialised job.

Mr Carrim disputed her claim that anyone with claims of above R100 000 would be able to access the vastly more expensive High Court, noting that upper working class trades and lower middle class professionals, including both artisans and teachers, would not be able to afford to litigate in the High Court.

Mr Jeffery believed it was necessary to separate the comments from the issues, and said that as part of its oversight role, the Committee should consider the condition of “Op die Berg” at a future meeting.

Mr Swart reiterated the importance of hearing the other side, noting that when report-back on the judiciary was given, the Committee had heard from the Chief Justice and Association of Regional Magistrates (ARMSA) but not from the magistrates themselves.

Ms Atteridge noted that there had not been a single bill since 1994 that was not well-intentioned, and that she was aware of the lack of resources.

Ms Unavar reiterated the fact that divorce courts were started in 199 as a pilot project and that they had been a success.

Cost and Implementation Plan for Extension of Civil Jurisdiction to Regional Courts: Department Briefing
Mr Jacob (JB) Skosana briefly went though the Cost and Implementation Plan for the Extension of Civil Jurisdiction to Regional Courts.

He started by noting that the purpose was to harmonise the judiciary, pursuant to the achievement of a single judiciary, and to increase access to justice, as well as provide career pathing for regional magistrates.

The presentation considered project governance, strategic imperatives, benefits and risks, organisational structures and costing. Detailed figures were contained in the attached document. There was no further discussion.

The meeting was adjourned.


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