COMMISSION ON GENDER EQUALITY

 

5TH FLOOR , ABSA BUILDING

 

132 ADDERLY STREET , CAPE TOWN.

 

 

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.

 

 

 

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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.

 

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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 South Africa. The CGE believes that increasing not only the jurisdiction of Regional Courts but also the number of courts will favour greater access to justice.

 

 

 

 

 

 

 

 

 

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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.

 

 

 

 

 

 

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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 Regional Court conviction rates which are lower in comparison to High and District Courts.

 

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 DIVORCE COURT

 

 9496

NORTHERN EASTERN DIVORCE COURT

 

10 913

CENTRAL DIVORCE COURT

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 South Africa. Accordingly, The CGE proposes that there should be no limit on the value of matters brought in terms of Section 16 (1) of the Matrimonial Properties Act in any Regional Division.

 

 

 

 

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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 Regional Court.

 

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 Constitutional Court was added to the judicial system

 

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

CAPE TOWN

 

NB THIS MAY BE SUBJECT TO AMENDMENT OR REVISION