PARLIAMENT: RESEARCH UNIT : C SILKSTONE OPINION

4 February 2008

JURISDICTION OF REGIONAL COURTS AMENDMENT BILL [B 48 - 2007]

1. BACKGROUND

The Jurisdiction of Regional Courts Amendment Bill, 2007, is intended as an interim measure pending further rationalisation of the lower courts. The Bill amends the Magistrate's Court Act 32 of 1944 (the Principal Act) to establish civil jurisdiction on the Regional Courts, including jurisdiction to deal with matters presently dealt with by the Divorce Courts. It is intended that the Divorce Courts are merged with the Regional Courts.

The purpose of this Bill is:

• To enhance accessibility of our lower courts.

• Provide magistrates with additional knowledge/expertise, specifically in civil matters and family related law.

• Generally improve the efficiency and effectiveness of the lower courts.

• To address discrepancies in the present Divorce Courts that has its origins in apartheid legislation.

Jurisdiction of the Magistrate's Courts

Magistrate's courts have limited jurisdiction. This means that their power to hear/try a matter is specified by statute:

In respect of criminal matters -

• District Courts can hear all criminal matters, except treason, murder and rape. Sentences cannot exceed three years and fines cannot exceed R60 000.

• Regional courts can try any offence, except treason. These courts enjoy far greater sentencing powers - they can now impose life imprisonment, or a fine not exceeding R300 000.
  
  

In respect of civil matters

• District Courts can hear certain specified matters where the amount involved does not exceed R100 000 (Parties can consent to waive this restriction on jurisdiction).

• Regional courts do not have civil jurisdiction.

Divorce Courts

Since 1998, the Divorce Courts have been able to hear any divorce matter. Prior to this, this court dealt only with divorces between black people. The Divorce Courts provide an alternative to the High Court, which traditionally had the only authority to grant divorces. The Divorce Courts are designed to deal with less complicated divorces quickly and inexpensively.

At present, there are three divisions:

• The Central Division seated in Johannesburg.

• The North Eastern seated in Durban.

• The Southern Division seated in King Williamstown

As is evident from the above, the Divisions are not evenly distributed throughout the country, although the courts also periodically sit as circuit courts in rural areas. Each Division has 3 Presiding Officers that must rotate to all circuits in the Division. In practice, this means that presiding officers of the Southern Divorce Court rotate among 19 areas spread across provinces (Eastern Cape; Free State and Western Cape); the presiding officers in the Central Division serve 8 areas across Gauteng and North West; and the presiding officers of the Eastern Divorce Court serve 10 areas across KwaZulu Natal, Limpopo and Pretoria in Gauteng.

As the Registrar of the Court is stationed at the seat of the court, parties must file all papers (summonses and pleadings) at the seat of the Court. Frequently this is not where the plaintiff lives, creating many logistical difficulties.

2. SUMMARY OF THE BILL

2.1. Clause 1 amends section 2 of the Magistrate's Court Act

• To allow the Minister to annex any regional division to another regional division.

• Establish a court for any district with both criminal and civil jurisdiction.

• Establish a court for any regional division with criminal and civil jurisdiction.

The memorandum to the objects to the Bill states that the power to allow the Minister to annex any regional division to another regional division will enable the Minister to roll out the extended civil jurisdiction of the regional courts in an incremental manner.

2.2. Clause 2 deletes section 9(1)(c) of the Magistrate's Court Act, which allowed a regional court magistrate to be appointed as an additional district court magistrate for the purpose of hearing civil matters, is deleted.

2.3. Clause 3 amends section 12 to provide that that only those regional court magistrates who have completed the appropriate training can hear civil matters.

2.4. Clause 4 amends section 28 of the Magistrate's Court Act, which sets out jurisdiction in respect of persons. The amendment extends the law relating to jurisdiction in respect of persons where appropriate to the regional courts to allow these courts to hear civil matters.

2.5. Similarly, clause 5 amends section 29 of the Magistrate's Court Act, which provides for jurisdiction of magistrate's courts in respect of causes of action. The amendment extends jurisdiction to the regional courts to allow such courts to hear civil matters but at a higher level than the district court. Thus, the Minister may determine different amounts in respect of the matters to be heard by the district and regional courts.

2.6. Section 29(1 B) specifically provides that a regional court can hear 'suits relating to the nullity of marriage and relating to divorce between persons and to decide upon any question arising there from, and to hear any matter and grant any order provided for in terms of the Recognition of Customary Marriages Act 120 of 1998'. In this regard, regional courts have the same jurisdiction as the High Court.

2.7. Thus, clause 6 repeals section 46(1) which excluded the court's jurisdiction to hear matters relating to dissolution of marriage or separation from bed and board of goods of married persons is sought'.

2.8. Clause 7 creates transitional provisions:

• As the Bill envisages the repeal of the Administration Amendment Act, 1929, the transitional provisions allow for cases that have already commenced in the Divorce Court to be finalized.

• The Divorce courts are merged with the regional divisions.

3. QUESTIONS

· According to the memorandum on the objects of the Bill, presiding officers in the Divorce Courts are not regarded as regional court magistrates, although they operate at the same level. Also, as presiding officers of the Divorce Courts do not fall within the definition of regional magistrate in terms of the current legislation, the Magistrate's Commission does not have oversight of their appointment and functioning. The Administration Act 1929 (as amended) indicates that they are deemed regional court magistrates and are appointed by the Minister after consultation with the Magistrate's Commission. What is the applicable appointment process and status of the presiding officers in the Divorce Court?

· The extension of civil jurisdiction to the regional courts (and presumably the roll out of additional Divorce/Family Courts) will require additional resources (infrastructure, more presiding officers). Also, the hearing of civil disputes (including divorce/family matters) requires that regional court magistrates are knowledgeable of such matters. They may well require further training. How does the Department intend addressing these issues. Will implementation be rolled out? If so, where and how?

· What are the jurisdictional limits (in terms of monetary amounts) contemplated for civil matters in both the district and regional courts?

· What is the present case load of the respective courts: District, Regional, Divorce Courts as well as the High Court?

· How will this legislation impact on existing backlogs in respect of criminal matters?

· The Divorce Court has concurrent jurisdiction with that of the High Court. Is this not a duplication of function? (The same concern will apply if the Divorce Courts are converted to regional courts).

· If the Divorce Courts are supposed to be cheaper than the High Courts and employ a simpler procedure for obtaining divorces, why do plaintiffs continue to use the High Court?

· What are the present challenges/problems that the Divorce Courts experience that undermine its optimal functioning? How does the Department intend addressing these challenges?

· How are the presiding officers of the Divorce Courts presently selected and appointed? Are they required to have expertise in family-related matters?

Sources

Magistrate's Court Act 32 of 1944

Memorandum on the Objects of the Jurisdiction of Regional Courts Amendment Bill