The Committee went through the Jurisdiction of Regional Courts Amendment Bill, clause by clause, which proposed amendments to the Magistrates Court Act 32 of 1944. The primary amendment was to bestow extended jurisdiction to the regional courts in respect of civil matters and to merge the divorce courts with the regional courts. The amendments were intended to enhance access to justice, and also to increase the judicial expertise amongst magistrates, creating a larger pool of suitable candidates for the superior courts.
The Department of Justice, in leading the Committee through the Bill, focused on the revisions made since the first draft. There was no policy discussion and the questions asked related to clarification or amplification of the Bill’s provisions or points of law.
Jurisdiction of Regional Courts Amendment Bill: Clause by clause deliberations
Mr Johan de Lange, Chief State Law Advisor, Department of Justice, led the Committee through a clause by clause reading of the Bill.
Mr Y Carrim (ANC) enquired as to what was meant by “certain civil matters” in the Preamble.
Mr de Lange replied that this was a reference to section 46 in the Magistrates’ Courts Act 32 or 1944 (MCA), which excluded certain matters from being heard in the magistrates’ court.
Mr Carrim then enquired what was meant by “specific performance”.
Mr L Joubert (DA) replied that it referred to a form of relief that ordered an action, rather than sounding in money.
Mr de Lange stated that Clause 1 amended section 1 of the MCA by redefining court to mean a “magistrates court for any district or regional division”. Previously, ‘court’ referred to district courts only.
Mr de Lange noted that Clause 2 replaced MCA section 2. He first referred to a minor typographical error in the first draft, which had now been corrected, in the reference to “Magistrate’s” where the apostrophe had appeared incorrectly. He further stated that the proposed new section 2 (eA) was a repeat of the existing section, which allowed the Minister of Justice and Constitutional Development (the Minister) to annex any district or any portion thereof to another district for any purpose deemed fit. This was being repeated in respect of the regional courts. Mr de Lange referred to the Commission on Gender Equality (CGE) submission objecting to this section. He responded that this was an administrative prerogative and had nothing to do with judicial functions, and thus did not impact on judicial independence as had been suggested.
Mr de Lange noted that the proposed section 2(f) would allow the Minister to establish a court for any area, in respect of criminal trials as contemplated in sections 89 and 92 of the MCA, and for adjudicating civil disputes as contemplated in section 29(1). Section 89(1) conferred jurisdiction on the magistrates’ courts to hear most criminal offences. Section 92 contained sentencing limitations. Section 29 stated the causes of action over which the magistrate’s courts had jurisdiction. He also noted that this was the 65th time that the MCA was being amended.
Mr de Lange stated that Clause 3, deleted section (9)(1)(c) of the MCA. He claimed that this section had been misinterpreted as extending civil jurisdiction to regional magistrates, but it had never been applied in any event.
Mr de Lange then considered Clause 4, which amended section12 of the MCA, by introducing a caveat, to provide that a court may be held in terms of that section, only to be presided over by a magistrate of the regional division, but subject to subsection (6), which essentially qualified that only a regional magistrate whose name was included on a list could adjudicate on civil disputes.
Clause 4 also proposed a new section 12(2)(b), as a result of the finding in the Van Rooyen case heard in the Constitutional Court, that now deleted the words “as he is no expressly prohibited from exercising or performing”.
Clause 4 further repealed subsection 12(5) and introduced new subsections (6) to (8).
Mr de Lange stated that the proposed subsection (6) allowed that a magistrate of a regional division whose name appeared on a list in subsection (7) may adjudicate in civil matters. The requirement that he or she needed to complete an appropriate training course had been dropped. Mr de Lange explained that this change was originally drawn contemplating the current situation where regional magistrates, by virtue of their service in the regional courts, were not concentrating on civil matters. In future, those magistrates who had extensive civil litigation experience at district level would not be required to attend a training course.
Subsection (7) initially proposed that a list of magistrates who were permitted to hear civil disputes be kept by the Director-General of the DoJ. This had now been amended to allow the Magistrates Commission to keep such a list instead.
The proposed subsection (8) provided for additional requirements to be fulfilled before the Magistrates Commission could add a name to the list.
Mr de Lange noted that clause 5, which provided for a new insertion, new section 13A. Currently, clerks ere appointed to district courts only by magistrates. This had been rewritten to include clerks of regional courts. The clerk of the regional court would now be the Registrar of that court, as it was envisaged that he or she would have more comprehensive duties to perform. Furthermore, the divorce courts already had a Registrar and the wording was thus consistent. The Registrar and Assistant Registrars would be appointed by the Director-General.
Adv Joubert (DA) noted that registrars in the High Court were required to have a law degree. He asked if it was envisaged that this would be the case for regional courts.
Mr de Lange replied that it was not stated in terms of this Bill. However, the DoJ was looking at adding a professional qualification.
Mr de Lange continued that Clause 6 proposed insertion of a new section 28. several changes were made since the first draft. Firstly, a grammatical error was corrected. Secondly the proposed wording was altered to make it less cumbersome and the phrases “for a district or a court for a regional division” and “in question” were removed from the original draft of subsection (1).
Mr Carrim (ANC) enquired what was meant by the legal term “ex parte.”
Adv Joubert explained this meant that a party could go directly to court without notifying the other side.
Mr Carrim then asked about the quotation marks appearing on page 8 of the document handed out.
Mr De Lange explained that that was the end of a quotation that started on page 7. This was done in accordance with current drafting conventions.
Mr De Lange then used the opportunity to briefly consider the objections received and how they had been met. He noted that Law society of South Africa (LSSA) had suggested that geographical boundaries would need to be determined. He noted that the Commission on Gender Equality (CGE) commented that the jurisdiction of regional courts with respect to divorces should be on a par with the High Court. He believed this meant they wanted to abolish the ceiling imposed on lower courts The effect of enacting such a proposal was that divorces with large assets at stake would have unlimited access to the regional courts.
Mr de Lange noted that a reference to civil unions in the Bill was an unnecessary addition, as the Civil Unions Act stated that, from the date of passing this Act, all references to marriages in any legislation must be read as also including civil unions. He left it to the Committee to decide whether it should be removed.
Mr Carrim, speaking for the Committee, declined to do so.
Mr Carrim noticed that the proposed new section 29(1(b) referred to actions of ejectment against the occupier of any premises or land within the district. He enquired whether the drafters meant to include “district” instead of “region”.
Mr de Lange noted this and said “and regional court” would be inserted
Mr Carrim expressed irritation that it was not the job of a Chairman to find and point out elementary mistakes.
Mr Carrim then enquired as to what a liquid document” was, as referred to in section 29(1)(d).
Adv Joubert explained that this was a document, such as a cheque, where the amount was not in dispute. An illiquid claim would be a claim where the amount was not certain, such as a claim for damages.
Mr Carrim than enquired as to the proposed section 29(1A) (a) which referred to “the nullity of a marriage” and asked what this was.
Mr de Lange answered that it was a marriage that was not legal. The effect was that in the eyes of the law the parties were never married, and would not be able to obtain a divorce.
Mr Carrim than asked what a claim in reconvention was.
Mr De Lange responded that it occurred when a party lodged a claim. The other party would deny the claim and files his own claim in reconvention.
Adv Joubert stated that it was also known as a counterclaim.
Mr de Lange noted that Clause 8 repealed MCA section 46(1).
Mr de Lange than considered the transitional provisions in clause 9. Subsection (1) was a standard clause, which provided for actions that had already commenced at the time the Act came into force. These would continue as if the new Act did not exist, to their completion. Subsection (2) stated in detail what would happen on the day of enactment. He noted that different sections could come into force at different times. The clause included a provision that the Rules Board for Courts of Law must, within six months of the coming into force of the new Act, review and amend existing rules. Any amendments made must be sent to Parliament. Mr de Lange noted that this did not mean that Parliament had to approve them, but rather that this was an opportunity to give an opinion.
Additional provisions stated that any rules made must, as far as possible, provide for simplified and expeditious procedures and to limit costs.
Adv Joubert enquired whether there was a President of the
Mr de Lange replied that there was not, and that the divorce courts had a presiding officer. This person would, in terms of the Bill, be deemed as a regional magistrate. This could be seen as a lowering in status, but rank and salary would not be altered. They would however, be subject to administrative directives from the Regional Division.
Mr de Lange further noted that there were certain practical difficulties in rule-making and that changes were proposed in the Superior Courts Bill to streamline this process.
Mr de Lange continued on to clause 10, which listed the laws repealed or amended.
The meeting was adjourned.
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