Jurisdiction Of Regional Courts Amendment Bill: Department of Justice briefing; Suspension of magistrate Mr S Zwelibanzi

Meeting report

Jurisdiction of Regional Courts Amendment Bill (the Bill): Department of Justice (DOJ) briefing
Mr Johan de Lange, Principal State Law Advisor, Department of Justice, briefed the Committee on the Jurisdiction of Regional Courts Amendment Bill (“the Bill”) The main purpose of the Bill was to extend the jurisdiction of regional courts, where only criminal matters were currently heard, to include certain civil matters and to incorporate the divorce courts into the mainstream court system, by designating them as part of the regional courts in whose jurisdiction they were located.

The Bill would amend the Magistrates Courts Act. He emphasised that this amendment should be regarded as an interim measure, as a new lower courts act was being considered. At the stage of drafting this new Bill there would be formal policy decisions on a number of issues which could well reverse the provisions of this Bill. However, there was a necessity to amend the legislation in the meantime, firstly to try to regularise the position with divorces, and secondly to deal with backlogs.

Mr de Lange explained that the Magistrate’s divorce courts were initially established under apartheid for black parties only, whilst white persons had to pursue their cases in the High Court, but were opened to all races in 1997. Since then their workload had increased and they were frequently used for uncontested divorces as a cheaper alternative to the High Court. However, this did not alter the fact that they were established outside the mainstream court system. Their jurisdiction was limited to the nullification of marriages and matters arising from that.

Mr de Lange then proceeded to summarise the Bill on a clause by clause.

Clause 1 was the definitions clause

Clause 2 was an important operational clause, which allowed the Minister to annex certain regional divisions or portions of them, and to attach them to other regional divisions.  Mr de Lange emphasised that this Bill was to adopt an incremental approach. Nothing would change overnight. The immediate consequence of the promulgation of the Bill would be that the divorce courts would become part of the regional magistrates’ courts, and that Regional Courts would be empowered to hear civil matters, but would not do so unless all the supporting factors were in place. In order to plan and make incremental changes, it was necessary to have empowering legislation such as this Bill.

Clause 3 instituted a small amendment, repealing a section of the Magistrates’ Courts Act that had never been used.

Clause 4 provided that only regional court magistrates who had been placed on a list drawn by the Magistrates Commission could hear civil claims. This was a filter process to ensure that fit and proper persons were selected to exercise extended jurisdiction. He explained that many regional court magistrates who had served on the Regional Court bench for some time may not have civil experience. Some magistrates may need retraining in civil matters, whilst others could be selected on the basis of their experience and record at District Court level. There was provision for the Judicial Education Institute (still to be established under a separate Bill) to issue a certificate stating that the magistrate was competent to hear civil matters, and the present Justice College and the new Judicial Education Institute would also be attending to running training courses.  In the meantime, the Magistrates Commission would issue the certificate.

Clause 5 provided for the creation of new posts for the regional courts, namely the registrar, who would be needed for administrative support to the civil work.

Clause 6 effected an amendment concerning jurisdiction of persons.

Clause 7 amended section 29 of the principal Act.

The remaining clauses were transitional measures.

Discussion
Dr F van Heerden (FF+, Free State) asked whether a principal could send a candidate attorney to appear on his behalf in the Regional Court, and charge his normal fees; and whether this was dealt with in this Bill. Secondly, he asked whether there was any indication of what would be the expanded monetary jurisdiction of the courts. He commented that this Bill was long overdue.

Mr de Lange responded that the law in regard to rights of appearance by candidate attorneys, and the fees they could charge, were not being altered and that the status quo would remain. In respect of the second question, Mr de Lange was hesitant to provide an answer as it would be pure speculation. He conceded that the increases in monetary jurisdiction were under consideration and that they were likely to be quite substantial.

Mr J le Roux (DA, Eastern Cape) asked where the current divorce courts were situated.

Mr de Lange replied that the names of the divorce courts were North-East, Central and Southern Divorce Courts. 

Mr DA Worth (DA, Free State) enquired as to how severe the lack of civil litigation knowledge or experience was, and whether the proposed course would be sufficient.

Mr de Lange responded that about 30 to 40 magistrates had not handled much civil work after their appointment to the regional court, and this accounted for about 10 to15% of regional court magistrates. He did not believe that the course in itself would be fully sufficient. Much would be gained from experience. However, the important criterion was that the Magistrates Commission must be satisfied that the magistrate was competent to hear civil matters.

An ANC member enquired whether there was an implementation programme.

Mr de Lange stated that this was the domain of his colleague Mr JB Skosana, Director of Policy, DOJ, who was absent. He was unable to answer the question

Mr J Le Roux asked whether there was any resistance to the Bill from the Magistrates Commission.

Mr de Lange said that the Bill had been enthusiastically received. There were some initial concerns from district court magistrates that it would impact on their career advancement, but these fears had been allayed. There was also concern from some quarters that the already overburdened courts would not be able to cope with the increase in jurisdiction, but that this would be negated by the incremental application of the Bill, which would be put into force as capacity improved.

Mr Z Ntuli (ANC, Kwazulu-Natal) enquired whether there was any difference between civil and commercial courts.

Mr de Lange said that he was not sure that he understood the question, but said he would try and provide an answer. He said that the small claims courts and courts of traditional leaders were separate from the Magistrate’s courts, as they were constituted under separate Acts. The Magistrate’s Court Act dealt with the district and regional courts. There were furthermore specialist Labour Courts, established under the Labour Relations Act. Amongst the superior courts, the Income Tax Courts and Land Claims Courts were separate courts established under their respective Acts, and these were at the same level or exceeded the level of high courts.

The Chairperson asked under what circumstances the Minister of Justice and Constitutional Development would annex an area.

Mr de Lange responded that this would happen so that a Court could form part of another region, and could occur when there was insufficient capacity to develop courts in a particular area.

An ANC member asked whether the demarcation of magistrate’s courts was skewed.

Mr de Lange responded that he could provide an adequate answer to this question only, but a far better answer could be given by his colleague Mr J Skosana.

Mr Mzizi asked a question with regard to traditional courts and whether there was sufficient capacity. He further noted that a candidate attorney could appear in regional courts, He asked whether the issue of training did not apply to candidate attorneys as well.

Mr de Lange noted that the Bill was not seeking to give candidate attorneys the right to appear. However, they could have right of appearance in all magistrate’s courts, provided that they fulfilled the requirements and conditions and had applied for right of appearance certificate under the Attorneys Act. The Bill was not making any changes to that.

Suspension of Magistrate Mr Zwelibanzi: Consideration
The Chairperson tabled the report on the suspension of Magistrate Mr S Zwelibanzi, and recommendations by the Magistrates Commission. He summarised briefly that when this matter had been discussed, the ANC was of the opinion that the magistrate should have been given a chance to overcome his drinking problem, and that, in the reported circumstances, dismissal may not have been the most appropriate sanction. The DA members were of the opinion was that his position as a magistrate required him to adopt higher ethical standards than the rest of society and that his dismissal for misconduct was justified.

The Magistrates Commission report was presented. This report recommended that the magistrate be removed. Pending parliamentary approval, he had been suspended from his duties. The details were that Mr S Zwelibanzi was 50 years old, and had 11 years of service as a magistrate. He had been convicted of misconduct on two previous occasions for infringements that included unauthorised absence from office, failure to enter results in the register of the criminal trail and failure to answer reviewing judges’ questions. He was cautioned on these matters.  He had also convicted of driving whilst intoxicated, and for this criminal conviction he had been suspended. He had pleaded guilty to all offences.

A disciplinary hearing was held, but Mr Zwelibanzi did not attend the scheduled hearing. The presiding officer was satisfied that all procedural requirements had been adhered to and the hearing proceeded in his absence, and ruled that he should be removed from office. The presiding officer expressed the view that Mr Zwelibanzi did not take the earlier warnings seriously. The Magistrates Commission accepted his ruling. After the hearing Mr Zwelibanzi claimed that he was unable to attend as he was in a psychiatric institution.

Mr Labuschagne, Magistrates Commission, noted that perhaps sufficient attention was not paid to his problem, but the fact remained that the Magistrates Commission had recommended that he be removed.

Discussion
An ANC member stated that it appeared that, at all relevant times, Mr Zwelibanzi intended to present his case. There was an allegation and correspondence to indicate that he was admitted to hospital and therefore could not appear before the Commission. He said that surely the audi alterem partem rule, requiring both sides to be heard, applied here. He noted that the Magistrates Commission could not say that Mr Zwelibanzi had not been admitted to a mental institution, and the Committee had been presented with nothing that suggested fabrication on the part of Mr Zwelibanzi. He felt that further investigation was required.

Mr Meyer agreed that the Commission could not contest that Mr Zwelibanzi was admitted to the institution. However, the Magistrates Commission had still considered it to be in the interest of justice that he be removed.

An ANC member responded that removal should be a measure of last resort and that Mr Zwelibanzi did not do anything dishonourable. He noted that there was a shortage of black magistrates. He suggested that surely the State should support a Magistrate to rehabilitation, before considering dismissal.

Mr N Mack (ANC, Western Cape) said that Mr Zwelibanzi had pleaded guilty and that this conveyed a sense of responsibility and urgency on the part of Mr Zwelibanzi. He realised that he had erred. He was not sure that enough regard was paid to his alcoholism as a mitigating factor, and this should have been taken into consideration as part of building a humane and caring society.

Mr Le Roux responded that in order to build society, the people who administered justice must do so well, and in a manner that that was above reproach.

An ANC member commented that it was a cause of concern that Mr Zwelibanzi had been dismissed without an opportunity to defend himself. It could be argued that the Magistrates Commission had made up its mind before the hearing. He had doubts that the Commission had applied it mind. He wanted to know what harm would result from allowing Mr Zwelibanzi the opportunity to attend to rehabilitation and then reviewing the position. If Mr Zwelibanzi did not attend rehabilitation then perhaps it would be appropriate to remove him.

An ANC member said that the prime question was whether the matter should have proceeded if the presiding officer knew that Mr Zwelibanzi was in a mental clinic.  If not, then the matter should be referred back to the Magistrates Commission. He said that he did not believe that any responsible presiding officer would have proceeded had he known that Mr Zwelibanzi was in hospital.

Mr Labuschagne said that that believed that the presiding officer had considered all the options. He further stated that the legislation provided for this option, and that there was no duty to allow a person to attend rehabilitation. He noted that the Commission was notified only a day or two before the hearing, and that nothing was supplied at the time to back up the assertion. He further stated that Mr Zwelibanzi had battled with alcohol since 1996 and thus the ball was in his court.

Mr Meyer stated that the presiding officer was informed by the officer leading evidence that Mr Zwelibanzi was in hospital. No further evidence was provided.  He stated that magistrates were supposed to have a higher standard of behaviour than the general public.

The Chairperson said that the Committee was not condoning irresponsibility. However, there was concern over the process followed, and some question as to whether a different conclusion might have been reached  if Mr Zwelibanzi had been allowed to plead in mitigation.

The Committee ruled that a letter be drafted to Mr Zwelibanzi, asking him to state his case.

Magistrate Mr Chauke: Suspension
The Chairperson indicated that Magistrate Mr Chauke sat in the regional court in Midrand. He had been criminally convicted of having received stolen property and had received a suspended sentence. He had appealed against his sentence to the High Court. Mr Chauke, on conviction, was suspended from the magistracy. He had objected to being suspended without pay since December 2007, and had argued that he should be entitled to receive his salary.

No discussion was entered into and the matter was deferred to a later meeting.

The meeting was adjourned.