COMMISSION ON GENDER
EQUALITY
5TH FLOOR
,
132 ADDERLY STREET
,
SUBMISSION TO THE DEPARTMENT OF JUSTICE
AND CONSTITUTIONAL DEVELOPMENT
JURISDICTION OF REGIONAL COURTS BILL
[ B48-2007]
1. INTRODUCTION
The Commission on Gender Equality
(CGE) is an independent statutory body, established in terms section of 119 of
the Interim Constitution and created in terms of Section 187, Chapter 9 of Act
108 of 1996, The Constitution of South Africa.
Our mandate is to promote respect
for gender equality and the protection, development and attainment of gender
equality. The powers and functions of the CGE are detailed in the Commission on
Gender Equality Act 39 of 1996. In terms of Section 11(1) (c), the CGE is obliged
to evaluate any Act of Parliament affecting or likely to affect gender equality
or the status of women and to recommend to Parliament or such other legislature
with regard thereto.
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In terms of the Principles relating
to the Status of National Institutions ( The Paris Principles ) as adopted by
the General Assembly resolution 48/134 of 20 December 1993, various principles
are espoused in relation to national institutions supporting and promoting
human rights.
In the South African landscape our
own chapter 9 institutions are also based on the aforementioned
principles.
The Vienna Declaration and Programme
of Action, as adopted by the World Conference on Human Rights on 25 June 1993,
places emphasis on the need for the state to develop and encourage respect for
human rights and fundamental freedoms for all, without distinction as to race,
sex, language or religion. It also expresses deep concern for various forms of
discrimination and violence that are still being experienced by women all over
the world. An important aspect of the Vienna Declaration is that it emphasizes
the fact that “all human rights are universal, indivisible and independent and
interrelated.” Under the circumstances the CGE regards the right to have one’ s
dispute adjudicated in a fair public hearing before a court of law as a vital
aspect of a person’s dignity.
2. CONSTITUTIONAL
PROVISIONS
The South African Constitution allows
any person to have access to any Court when there is a dispute and ensure that
this dispute is resolved in a fair public hearing as provided for in Section 34
as follows :
Everyone has the right to have any
dispute that can be resolved by the application of law decided in a fair public
hearing before a court or, where appropriate, another independent impartial
tribunal or forum.
In Section 35 of the Constitution
the following right is protected :
Section 35 (3) Every accused person has a right to a fair trial, which includes the right :
(c) to a public trial before an ordinary court
The right to access our courts and
face a trial is an important socio-economic right which is recognized and
protected in any democracy.
2
In terms of the common law relating to socio-economic
rights as developed in the Government of the Republic of South Africa and
others v Grootboom and others 2000 (11)BCLR1169 (CC). , the state is
obliged to take legislative and other measures within its available resources
to achieve the progressive realization of the rights as enunciated in Section
34 and 35 of Act 108 of 1996 as amended.
It is important to recognize what is expected in terms of
Section 34 and 35 of the Constitution as far as the common law has developed by
Government of the Republic of South Africa and others v Grootboom and others
2000 (11)BCLR1169 (CC).
An important fact that emerges from the Grootboom case
is that socio-economic rights are justiciable. This means that the right to
access adequate housing, food, water, health care, courts, education, social assistance and legal representation may be affirmed and cannot be seen to exist on
paper only. The second fact is that The International Covenant on Economic ,
Social and Cultural Rights ( signed by RSA on 3 October 1994 ) which proposes
that signatories take steps within its available resources towards achieving
progressively the full realization of socio-economic rights of its citizens
resulted in what has been referred to as a minimum core of socio-economic
rights. This minimum core is the minimum
essential level of socio-economic rights which every state is bound to fulfill
in terms of basic shelter, health care, nutrition and access to justice. Furthermore,
a state is obliged to demonstrate that every effort has been made to use all
the resources at its disposal to satisfy the minimum core of rights. It
must be noted that the standard to be equated as the minimum core is rather
complex because it has to be informed by variables such as income levels,
unemployment levels, availability of expertise such as doctors/nurses/lawyers,
infrastructural resources such as hospitals/clinics/courts, availability of
land, differences between city and rural communities and needs of the diverse
communities in our country.
It must be appreciated that the State has to manage its
limited resources in order to address the needs of its citizens. Therefore, a
holistic approach must be taken where the larger needs of society is
considered. Against the background of the Grootboom case there is an obligation on the state to
implement legislative and other measures that are reasonable attempts aimed at
attaining minimum core rights as provided for in then Bill of Rights.
South Africa is characterized by an established Judiciary
which boast sophisticated legal innovations that includes Information
Technology initiatives, a wealth of legislative material and reputable members
of the Judiciary.
3
It must be borne in mind that a customary legal system also
exists alongside our modern legal system and the latter is an attractive option
for marginalized and rural communities.
In many instances the
large rural population is denied access to our Courts for various reasons which
may include prohibitive costs associated with litigation, the availability of
Courts and ignorance of their rights.
The CGE believes that
the proposed amendments enumerated in the Jurisdiction of Regional Courts
Amendment Bill [ 48 – 2007 ] is an
important step in expanding the Rights as contained in Sections 34 and 35 of
the Constitution. Furthermore, this Bill will promote and protect gender equality
because once promulgated it will allow more Courts to adjudicate on divorce and
related matters.
3. AN OVERVIEW OF SOUTH AFRICAN COURTS
The
judicial authority of the Republic is vested in our courts which are
independent and subject only to the Constitution.
The
following courts are distinguished :
3.1
Constitutional
Court
3.2
Supreme
Court of Appeal
3.3
High
Courts
3.4
Magistrate’s
Courts
3.5
Other
Courts established in terms of an Act of Parliament.
Territorial jurisdiction as well as jurisdiction
in terms of cause of action is
clearly defined in terms of statute and by common law principles. Despite this
fact costs of litigation remains prohibitive and Courts are burdened with heavy
caseloads as we will see hereunder. These two factors indicate that
jurisdictional issues result in limiting access to justice which is unhealthy
for a fledgling democracy such as
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4. SOME SERVICE DELIVERY STATISTICS BY
COURTS
4.1 AN
ILLUSTRATION OF THE CASELOAD IN ALL COURTS IN THE LAST FINANCIAL YEAR -2006/7
CATEGORY |
NUMBER |
NEW CASES
|
875 038 |
REMOVED
FROM ROLL |
587 037 |
DIVERSIONS |
37 225 |
CASES FINALISED |
313 702 |
Cases removed from the court will include matters which have
been struck off the roll, withdrawals in terms of Section 6 of the Criminal
Procedure Act and failure of accused persons to appear in Court.
A high number is being removed from the roll ( approximately 67 % )
4.2
HIGH
COURT CONVICTION RATE OVER THE LAST TWO REPORTING PERIODS
2005/6 |
2006/7 |
86 % |
86 % |
The High
Courts have reflected a consistent conviction rate of over 80 % which is
remarkable.
4.3
OUTSTANDING
ROLL IN THE HIGH COURTS IN THE LAST FINANCIAL YEAR
CATEGORY |
NUMBER |
TRIAL
CASES |
815 |
MINIMUM
SENTENCES |
298 |
BACKLOG
CASES |
166 |
TOTAL |
1279 |
The High
Courts have a significantly lower case load in comparison with lower courts
which carry a caseload of over 200 000.
5
4.4
NEW
MATTERS IN THE HIGH COURT DURING THE LAST FINANCIAL YEAR.
CATEGORY |
NUMBER |
TRIAL |
1238 |
MINIMUM
SENTENCE |
1772 |
TOTAL |
3010 |
Minimum sentence matters would arise from the split courts
which could be avoided if jurisdiction was extended.
4.5
OUTSTANDING
ROLL IN LOWER COURTS FOR THE LAST FINANCIAL YEAR.
CATEGORY |
NUMBER |
OUTSTANDING
ROLL |
209 572 |
BACKLOG |
36 322 |
TOTAL |
245 894 |
The above figures reflect the disparities between high and
low court rolls which could be addressed by extending jurisdiction so that more
matters can be transferred to regional courts.
4.6
LOWER
COURT CONVICTION RATE IN THE LAST TWO FINANCIAL YEARS
COURT |
2005/6 |
2006/7 |
DISTRICT |
87 % |
87 % |
REGIONAL |
71 % |
72 % |
It would unsatisfactory to regard conviction rate as an
indicator of efficiency because the nature of the issue, quality of investigation
work, witness availability and other factors such as quality of legal
representation determine conviction rate. Therefore it would be unwise to place
unnecessary emphasis on
4.7
AVERAGE
COURT WORKING HOURS OF ALL COURTS IN THE
LAST TWO REPORTING PERIODS
COURTS |
2005/6 |
2006/7 |
HIGH
COURT |
3.20 |
3.18 |
REGIONAL
COURT |
4.02 |
3.57 |
DISTRICT
COURT |
4.08 |
4.02 |
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The average working hours seem to be low but
is satisfactory given that one cannot predict when matters would
collapse. Allowing for increased jurisdiction creates an opportunity where courts
could share and deal with divorce and related matters in instances where the
roll collapses.
4.8
CIVIL
COURTS CASE LOAD – LOWER COURTS IN THE LAST TWO REPORTING PERIODS
CATEGORY |
2006 |
2007 |
TRIALS |
628 717 |
800 788 |
DEFAULTS |
365209 |
455 961 |
The manner in which civil cases are dealt with needs to be
addressed given the high numbers. It is clear that these matters are given “ production line treatment” which is unacceptable given the
new National Credit Act which sets new standards.
4.9
CIVIL
CASES – HIGH COURTS IN THE LAST TWO REPORTING PERIODS
CATEGORY |
2005 |
2006 |
SETTLED |
8291 |
11061 |
STRUCK |
3313 |
4448 |
TRIAL |
4966 |
6791 |
TOTAL |
16570 |
22 300 |
The treatment of these matters have
to be revisited against the background of the National Credit Act.
4.10
DIVORCE
COURTS
SEAT OF
COURT |
DIVORCE
ACTIONS INSTITUTED |
SOUTHERN
EASTERN |
9496 |
NORTHERN
EASTERN |
10 913 |
CENTRAL |
14321 |
TOTAL |
34 730 |
Divorce Courts are overloaded and all seats are equally
burdened. An expanded jurisdiction will certainly ease the burden placed on
families and children by prolonged divorce actions.
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4.11
CASES
INVOLVING CHILDREN AND FAMLIES
CATEGORY |
NUMBER |
ACCUSED UNDER
18 |
49 810 |
ADOPTIONS |
3 757 |
CHILDREN
IN NEED OF CARE |
32 776 |
CHILDREN
PLACED IN FOSTER CARE |
35 409 |
MAINTENANCD
COMPLAINTS |
198 826 |
FORMAL
MAINTENANCE ENQUIRIES |
101 504 |
DOMESTIC
VIOLENCE APPLICATION MADE |
119 860 |
TEMPORARY
ORDERS GRANTED |
75 424 |
PROTECTION
ORDERS |
63 013 |
DIVORCE
COURT SUMMONS ISSUED |
27 933 |
DIVORCE
DEALT BY FAMILY COURT |
23 860 |
Although there is double counting in this table one can see
that these are serious matters, are numerous and have serious impact on
families and children. There is an urgent need to address caseloads in these
Courts and extending jurisdiction will ease the pressure on overburdened family
courts.
5. RECOMMENDATIONS
BY THE COMMISSION ON GENDER EQUALITY
5.1 PROPOSED
AMENDMENT TO SECTION 2 (1) OF THE MAGISTRATE’S COURT ACT 32 OF 1944.
MINISTER’S POWERS RELATIVE TO DISTRICTS, REGIONAL DIVISIONS
AND COURTS
The CGE is in support of the
proposed amendment in Bill
[B 48-2007] but taking into cognizance that access to courts would
entail providing additional relevant facilities the following is recommended in
respect of
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2.(1) (b) In creating regional divisions or
districts with sub-districts the minister must be required to take valid
criteria into consideration such as the nature and size of the population,
availability of legal practitioners and other socio - economic factors such as
income level, language, dominant educational level and attitudes towards the
administration of justice. It would be of no value if a regional court is set
up in an area to deal with crime where domestic violence is the predominant
problem.
2.(1) (eA) The proposed amendment herein is vague and ambiguous
because it provides for the Minister to declare or annex any regional division
or a portion thereof to another regional division for any or all purposes.
The abovementioned
construction is open to abuse in that it empowers the Minister to interfere
with regional divisons for any purpose that he deems necessary. It would be
reasonable for this section to enumerate what the test should be for regional
divisions to be reconstituted. It could entail taking the number of district
courts, volume of matters and size of population as the test for reconstitution
of regional divisions.
2. (1) (l) This
proposal is an administrative decision because it may adversely affect the
right or legitimate expectation of many citizens. In such instances the Minister
is obliged to follow due process such as holding public hearings, giving notice
to affected individuals to comment and consulting with relevant officials.
Accordingly, the CGE recommends that this proposed amendment provides
guidelines or tests such as :
A Requiring that the envisaged steps
that need to be taken in order to improve efficiency and effectiveness must be
driven by the population demographics of the affected regions and made in
consultation with relevant stakeholders.
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5.1.2
RECOMMENDATION
2
PROPOSED AMENDMENT
TO SECTION 28.
(1) ( c ) OF
THE MAGISTRATE’S COURT ACT 32 OF 1944.
The proposed
amendment is constructed as follows :
Section 28 (1) ( c ) any person whatever ....herself.
The abovementioned amendment is
vague and as such open to mischief. Accordingly, the following is recommended.
The following construction be
considered “any other natural or juristic person in any primary or
interlocutory proceeding instituted in the court by such natural or
juristic person.”
5.1.3
RECOMMENDATION
3
PROPOSED AMENDMENT TO SECTION 28 (1)
( e ) ( ii )
The words subject matter is
vague and as such open to mischief. Accordingly the CGE recommends that the
words legal object be substituted.
5.2 RECOMMENDATION 4
JURISDICTION IN RESPECT OF CAUSE OF ACTION
The proposed amendments in paragraph 5 of the Bill herein is
supported
save for paragraph (f). The proposal that
actions both in the Regional and District Courts be limited in terms of value
determined by the Minister tends to limit access to justice unfairly. It must
be borne in mind that action instituted in terms of Section
16 (1) are already being dealt with by
lower courts. Therefore it would
be advantageous to extend jurisdiction of matters under Section 16 (1) of The
Matrimonial Properties Act in Regional Divisions to the extent that it is on par with
that of the High Court. Regional Courts already have the competency to deal
with more complex issues. Raising their jurisdiction would help to ensure that
lower courts progressively mirror the High Courts in
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5.3.
RECOMMENDATION
5
It is evident that Regional Courts
deal with more serious criminal matters and have a remarkable conviction rate
despite having a much higher caseload in comparison with High Courts. Extending jurisdiction to Regional Courts
which will see these Courts adjudicating divorce matters is a progression
towards bridging gaps between Regional and High Courts. It would be untenable
to raise the responsibilities of Judicial Officers and Prosecutors in Regional
Divisions and expect this to benefit the administration of justice. It would
require more tangible endeavours to expand the access of justice. These
endeavours should include changes in post descriptions, revised remuneration
and changes to job responsibilities. In this regard, the CGE proposes that
prosecutors in regional divisions be upgraded to state advocates. The Presiding
Officers be designated as Regional Court Judges and Clerks be designated as
Registrars of the
It is the belief of the CGE that
with the re-designation of post descriptions in respect of regional divisions
then the resultant expansion of jurisdiction becomes more substantive.
Expanding jurisdiction by placing additional responsibilities and avoiding
structural changes would be counter productive to the extent that officers of
the court would become disillusioned with the prospect of having to do more
without any reward.
6. CONCLUSION
Statistics provided by the
Department of Justice and Constitutional Development indicate that Regional
Courts devote more hours to cases in comparison with High Courts. The case - load
of lower courts which include Regional Courts are enormous in comparison with
High Courts with conviction rates in Regional Courts being marginally lower
when compared to High Courts.
Cases involving families and
children are also relatively high with over 198 800 maintenance complaints
being received in the last financial year.
A total of 34 730 divorce matters
were instituted in our Divorce Courts last year. Divorces usually result in
serious ramifications to family life inclusive of matrimonial property.
A total of almost 120 000
applications were made for protection orders with approximately 75 000 being
granted as interim orders. This means that these were urgent applications.
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It is clear that the South African
judiciary is experiencing severe stresses and strains because there has been a
failure to implement transformation which is necessary to align our Courts in
terms of our Constitutional aspirations and needs.
A cursory overview of access to
justice will reveal that the Legislature displays a commitment to increase
access to justice but there are serious gaps that stifling this vision. For
example with the implementation of The Promotion of Equality and Prevention of
Unfair Discrimination Act equality rights remain paper rights. The right to access
to information has not developed very much beyond the comprehensive Access to
Information Act. Similarly many other rights such as the right to a fair trial
and access to courts are not being realized because only cosmetic changes are
being made to the legal systems. The right to access information is a cornerstone
for a successful democracy but it is unfortunate that institutions and organizations
still display resistance towards providing access to information. This
untenable situation is perpetuated because the Judiciary / still has barriers
which prevents access to justice by the majority. The limited number of High
Courts, expensive costs of litigation and jurisdictional limitations ensures
that access to justice favours individuals who are usually urbanized, educated
and have adequate financial resources. This was the scenario even prior to the
Constitutional era. Transformation to the judiciary has been nominal to
the extent that the name of the Appellate
Division was changed to the Supreme Court of Appeal [ SCA]
, the Supreme Courts renamed as High Courts and the
The creation of Equality Courts was
a step in the right direction and in keeping with our the
right to access to justice. However, the marketing and roll out of services in
this domain has been dismal because of our piecemeal approach towards
transformation that is resulting in a failure to address urgent needs of the
people.
Against the above background the
message is clear. The South African judiciary must transform not for the sake
of transformation but transformation must be needs driven. If we are serious
about transformation then the Judiciary should take steps towards developing
the following revised Court structure.
1.
Establish
Regional Courts of Appeal and Review which
would act as
courts of appeal and review only in
respect of matters from District and other Courts within its designated
territorial cluster.
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2. In affirming gender and other human rights
whether in the workplace, in respect of succession, unfair discrimination,
maintenance or divorce there is an urgent need to create the following
:
District Divorce, Maintenance and Custody Courts with the Regional Courts of Appeal
and Review having initial appeal and review jurisdiction. High Courts should
have concurrent appeal and review jurisdiction.
3.
In
the case of domestic violence which is a major issue the courts dealing with
these matters should be Domestic
Violence and Equality Courts with Regional Courts of Appeal and Review
Having jurisdiction and existing High Courts with concurrent jurisdiction.
4.
In
the case of review of administrative decisions, access to information
matters including the review of decisions
by professional councils such as the Nursing Council and Health Professional Council
there
should be specialized Administrative
Courts with the High Courts having jurisdiction in respect of appeals and
reviews.
5.
Traffic, Transport and Environmental
Matters Courts should
be established to deal with traffic offences, road accident fund claims ,train
accident claims, contravention of the Civil Aviation Act
violations of any rule, regulation,
by-law relating to our marine and other natural resources with Regional Courts
of Appeal and Review having initial jurisdiction in respect of appeals and
reviews.
6.
District and Regional Courts with the current jurisdiction
should
remain unchanged in respect of criminal
matters.
The CGE believes that the abovementioned recommendations are
in keeping with the provisions of the Constitution because the steps herein are
intended to expand the reach of Courts by embracing core needs and demands that
are being marginalized by the Judiciary.
Currently the Judiciary deals predominantly with criminal
matters. The remaining resources is then devoted to civil claims, divorce , administrative , family law, labour, equality and
commercial matters. The recommendations of the CGE are designed to address the disparities
created by aforementioned disposition which are pitched at meeting the criminal
law needs and seeks to establish an equilibrium in
terms of allocation of resources aimed at affirming and developing all our
rights.
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Therefore, The Commission on Gender Equality welcomes the
proposed amendments and supports the Portfolio Committee on Justice and
Constitutional Development in its endeavours. Notwithstanding this, the CGE
would like to see more meaningful changes to the Judiciary and trusts that the
recommendations herein will be of assistance in this regard.
PARLIAMENTARY
OFFICE
NB THIS MAY
BE SUBJECT TO AMENDMENT OR REVISION