The meeting continued with a briefing on the Jurisdiction of Regional Courts Amendment Bill (the Bill), which was started at a previous meeting. Officials from the Department of Justice explained that the Bill was intended to transform the civil justice system in South Africa, and grant civil jurisdiction to the Regional Courts, which currently had criminal jurisdiction with one or two minor exceptions, to enable such courts to relieve the backlog in the High Courts, as well as to regularise the position of the divorce courts, which would now be established at the seat of the Regional Courts. He monetary limits of the jurisdiction had not yet been set. The wider geographic spread of courts would increase access to justice, make it cheaper as litigants would not have to appoint correspondent attorneys also at High Courts, and relieve the High Court backlogs. Because many regional court magistrates had little civil experience, there was a need to train them, to appoint new regional court magistrates who already had civil jurisdiction, and to have Justice College arrange for new courses. The budget of R 51million and its allocation was discussed. 53 new Regional magistrates posts, a Regional Court Registrar and new clerks of the court would be created.
Members asked questions around the training, the legal qualifications that magistrates currently required, the roles of the traditional courts, the clerks who were currently granting default judgments, the reasons why the divorce matters were kept separate from other matters, how the circuit courts and divorce courts operated, and the issue of magistrates who had qualifications less than an LLB but many years of experience, and the use of interpreters in courts.
Jurisdiction of Regional Courts Amendment Bill: Deliberations
The Chairperson noted that this meeting was a continuation from the previous meeting, in which the Committee was briefed on the Jurisdiction of Regional Courts Amendment Bill by the Department of Justice.
Adv JB Skosana, Chief Director: Policy Development, and Mr Johan De Lange, Principal State Law Advisor, Department of Justice. outlined the format of his presentation and set out the policy aspects that would support the discussion on implementation and challenges of the Bill.
Adv Skosana stated that the Bill was intended to transform the civil justice system in South Africa and address the dichotomy between Regional and District Magistrates courts. Under the current system there were several lower courts, including Traditional Courts, the Small Claims Courts, the District Magistrates Courts, the Divorce Courts and Regional Magistrates Courts. The latter had mostly criminal jurisdiction and were established in 1953 to deal with the increase of criminal cases that could not be handled by the High Court. These regional courts were presided over by regional magistrates and were assigned higher sentencing powers.
The Bill now sought to transform Regional Courts to enable them to have a wider civil jurisdiction. The District Courts had limited civil jurisdiction and could not decide questions of status, thus did not deal with divorces. The Bill sought to make use of the Constitutional Twelfth Amendment to redress the past issues of accessibility to justice. Regional Courts, staffed by 327 magistrates, sat at all seats of the District courts and certain detached and branch courts. Because of their wider geographic distribution, more people could receive services in their own areas of location than if they had to continue taking civil and divorce matters to the High Court. This would improve accessibility, and would make it cheaper for litigants, who would now only have to employ attorneys in their own area, rather than having to use local attorneys as well as correspondents at the seat of the High Court.
The current jurisdictional limit for civil cases in the District Courts was R100 000. Thus, unless the parties who were claiming more compensation had specifically consented to go to the District court, they would normally go to the High Court for civil claims. The High Court’s rolls were overstretched and few trial dates were available, or there is a long wait until their case was heard. The Registrar of the High Court was currently delaying family law cases till 2010 in favour of other civil law cases, which causes unnecessary tension in families and communities. There were far fewer High than Magistrates Courts. The Bill aimed to make better use of these courts. The lower courts serviced the people better. There was approximately the same percentage spread of civil to criminal matters in district courts at the moment. The granting of civil jurisdiction to regional matters would ease the position at the High Court.
Adv Skosana explained that under apartheid white litigants had to approach the High Court to have their divorce matters heard. There were three courts of lower status that previously serviced the black communities for divorce matters: namely the Southern Divorce Courts, the Central Divorce Courts and Eastern Divorce Court. These courts had a quorum of three presiding officers who had cross-provincial circuits. The Central Divorce court, for example, had an average of 1 122 cases per month, with an average wait of 16 months for a court date. The Southern Divorce Court’s average wait was 13 months. The time lag in finalising a divorce often meant extremely high legal fees that cut down on the eventual award under the divorce.
Currently, regional court magistrates had little civil experience, as they had been dealing with criminal cases and not motion court or civil matters. Most magistrates who were appointed as acting judges were District Court magistrates. District magistrates formerly needed only a B Proc or B Iuris degree, whereas Regional Magistrates always needed LLB degrees. Since the degrees had been rationalised all newer magistrates had LLB degrees. Although many magistrates did not want to lose their civil jurisdiction and experience, they would have to apply for promotion to the Regional Court bench to increase their pay.
Adv Skosana explained that the civil matters were often contested and complication matters, dealing with civil liberties, where the judicial officer needed to apply complex legal principles. With the proposed extension of the civil matters to the Regional Courts, it was necessary to address the question of training. There was a 34% backlog in Regional Courts and the plan was to appoint new regional court magistrates with civil law experience, have them concentrate on the civil cases and, over time, train the incumbent Regional magistrates in civil matters and they would gain experience over time. Justice College should try to train more magistrates. The Bill sought to ensure proper training before the Regional Magistrates could act in civil matters, to avoid de-stabilising the system. Judges seemed supportive of the move to allow magistrates to have a freer route to the High Court bench and to have a single judiciary.
Adv Skosana then went on to discuss the budget. R 51million had been allocated, and from this 53 new Regional magistrates posts would be created. In addition there would be a new post of the Regional Court Registrar, and 43 people would be trained to assist Regional Magistrates in organising their rolls and case loads. R5 million was allocated for the training for newly recruited magistrates and clerks of court, who were of course to handle administrative matters and to advise the public. Justice College was satisfied that the Bill was on the table so that the programmes could be designed to ensure that civil cases were dealt with properly in regional courts at all levels.
The Minister of Justice was still to decide what amount the Regional Courts could award in civil cases. Mr Skosana said that this may be an amount from R100 000 (current District Court levels) and R750 000.
Mr JW le Roux (DA, Eastern Cape) commented that he had no problems with the Bill, other than the necessity to ensure the expertise of the people to be employed as Regional Magistrates.
Mr M Mzizi (IFP, Gauteng) was under the impression that Regional Court magistrates were normally drawn from District Courts and thus should have civil law experience. The regional court magistrates who were seeking to be trained so that they could have a route to the bench should be given an equal opportunity to be educated on civil law matters.
Mr Skosana discussed that generally magistrates would be appointed from the ranks of public prosecutors, and attorneys and advocates were usually appointed to the High Court Bench. Those who applied to be regional magistrates were those that were passionate about their jobs as District Court magistrates, and many of them would have been prosecutors in the past. Prosecutors had very little exposure to civil law matters. District magistrates might have had this exposure, but of course when appointed to the regional courts they would not be dealing with civil matters at all at the moment. There was a need to use those 53 new regional magistrates who had civil law experience to transform the system.
Mr S Shiceka (ANC, Gauteng) looked at the implementation of the Bill, and commented that insofar as the estimated costs went, the Committee would have to pass the budget on to the Executive who ultimately decided what they spend.
Mr Shiceka asked whether the regulations would be part of subordinate legislation passed by the Minister in order to implement the Bill.
Mr Shiceka commented on the fact that the courts applying Roman Dutch Law needed to be examined in terms of their value against the current needs of the people. It was necessary also to look at the traditional leaders who had a role in the traditional courts and who had been applying local law.
Adv Skosana noted that the traditional courts, who in the past had limited civil law jurisdiction, were to be transformed through regulations published as notices. There was a need to repeal the Black Administration Act, and there was currently discussion on the Traditional Courts Bill at the NA.
Mr Shiceka questioned how it was possible for the clerks of the court to give a default judgment when litigants might not be aware of the impact of the matters.
Adv Skosana agreed that there was a move to divest the Clerk of the Court of the power to give a default judgment. It was difficult and expensive to replace these 46 Clerks of the Court with new persons with legal qualifications. It was however possible to retrain them. The system needed to be understood so that the clerks and Magistracy could slowly build capacity to enable them to have a wide knowledge of both civil and criminal law. There was also the need to build infrastructure to house new magistrates in new offices.
Mr D Worth (DA, Free State) enquired about the entry requirements for the new magistrates who would be appointed, and whether the LLB was going to be the only accepted appropriate qualification for appointment.
Mr de Lange replied that all 53 new magistrates needed to have an LLB. A magistrate was simply described in the Constitution as any ‘appropriately qualified man or woman’.
The Chairperson enquired why there was a division between family matters and other matters in High Courts. He asked if any default judgments could be given by clerks in family matters. He also said that the fact that divorce cases emanating from one centre were dealt with by courts in other centres was very unusual and needed to be addressed.
Adv Skosana stated that Judge Hoexter had recommended that all family law courts must be headed by judges with experience in and knowledge of all the complex issues around family law; for instance maintenance, paternity, and so forth. The Divorce Courts were established by the President, and there were 3 divisions. In the past, these courts were regulated under the Magistrates Court Act of 1929, and were only open to black persons. In 1997 these courts became multiracial and anybody could now approach these courts for a divorce.
With regard to the seats of the divorce courts, Adv Skosana noted that the documents would be filed at the provincial High Court where that particular Divorce Court was located. Thus the attorney a party to the divorce would brief may have to pay another attorney within 8 km of the High Court to file the papers. This was undesirable, and this was one of the aspects which this Bill sought to address by establishing civil jurisdiction at the Regional Courts. The fact that the seats of the divorce courts were far away should not impact on the cases, as the seats only had an oversight mechanism over the circuit courts
Mr Mzizi asked whether the requirement of a magistrate being a fit and proper person and having the appropriate qualification meant that the other degrees were being phased out. The Magistrates Court Act specifically mentioned the LLB or equivalent degree. He questioned this, since the judges were mentioned only as needing “an appropriate qualification”. In the past judges were only appointed from the ranks of senior advocates, who would have had to have held LLB degrees but with transformation, appointments were made from a wider range of candidates.
Mr Skosana stated that the Department of Justice hoped to introduce some legislation next year to correct this anomaly. With the Supreme Court Act and appointment procedure, the JSC was unlikely to appoint someone without an LLB law degree.
Mr De Lange noted that Section 9(1)(c) of the Magistrates Court Act stated that a Magistrate required a B Proc degree from an SA university and Section 10 stated that preference must be given to those that had an appropriate degree from an South African A university. The Judicial Services Bill tried to amend that section, but this had not yet been passed. There remained this anomaly in the statutes in respect of qualifications. The issue of magistrates who had lower qualifications but had been serving for many years was thus unresolved.
The Chairperson asked about the use of interpreters in courts.
Mr Skosana replied that Section 35 of the Constitution prescribed that a person who was being tried must be tried in the language best understood to that person. Most criminal courts use interpreters, but the Department was looking at the capacity of the court to provide interpretation in both criminal and civil cases and looking at employing more interpreters.
Correctional Services / Police and Prisons Civil Rights Union (POPCRU) matter
The Chairperson noted that the Committee would be discussing this matter, which involved an assault by Correctional Service officials, in a subsequent meeting.
The meeting was adjourned.