NOTE ON
DISCUSSIONS BETWEEN ARMSA AND DEPARTMENT OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT ON JURISDICTION OF REGIONAL COURTS AMENDMENT BILL [B 48-2007]
1. The Department met with representatives from ARMSA and a representative of
the Forum of Regional Court Presidents on 11 February 2008 in order to discuss
the ARMSA submission on the above Bill.
2. At the meeting consensus were reached
on the following issues:
2.1 The Bill as introduced would achieve its main objectives, would be able to
be applied in practise and would represent a major step forward towards
enhancing access to justice and developing a pool of judicial expertise in the
regional courts.
2.2 With regard to extending jurisdiction in respect of PAlA and PAJA (also
Prevention of Organised Crime Act), it is agreed that this might prove to be
valuable and feasible, but those Acts were passed in the recent past, on which
occasions the legislature applied itself to the issue of courts' jurisdiction
and framed the present dispensation. To depart from this recently determined
legislative framework would require reconsideration of the policy in this
regard. The Department will seek the necessary
2.3 The Bill may require certain improvements in order to enhance the practical
application thereof: which the Department will bring to Parliament in the form
of proposed amendments. Although these issues were not necessarily raised in
the formal ARMSA submission, it could be summarised briefly as follows:
a) Provision should be made for the appointment of registrars for the regional
courts.
b) A mechanism should be provided in order to ensure that the rules to be
applied by the regional courts are purpose-designed and/or could be amplified
by High Court rules in the event of any lacunae (in the magistrates' court
rules.
c) One consequential amendment should be made to the new Children's Act (or a
general interpretative provision relating
to existing references to Divorce Courts.
d) Ways of extending jurisdiction to beyond mere monetary criteria should be
considered, probably amending section 46.
e) The training requirement should be revisited, as not all new appointees to
the post of regional magistrate would necessarily need to meet this
requirement. The existing provision is only intended to address current office
holders who will have "new" civil jurisdiction.
3. The Department will revert to the Portfolio Committee on these matters in
the ordinary course of its deliberations on the Bill, as directed by the
Committee.
The Regional Court Presidents fully aligned themselves with the inputs of
ARMSA, and the view point and consensus points raised.
Meeting with other stake holders on 12 February 2008
The following stake holders and interest groups were further consulted on
12 February 2008
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STAKEHOLDER |
INPUT
ON THE SUBSTANTIVE ISSUES |
INPUTS
ON THE PROCESS AND IMPLEMENTATION |
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APPROACH |
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JUDICIAL
ASSURANCE QUALITY |
-
Sections 23, 29, 30, 45 and 46 and then the Rules. - Should
there be a differentiation between unopposed matters and opposed/complication
and if so, will this not cause a lot of administrative confusion who decides
what is opposed or not |
-
Infrastructure, resource and capacity concerns - Look at
current and required needs analysis for appropriate and adequate
infrastructure , clerks of court, administrative staff, registrars for civil
regional matters, office space, training, implications |
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MAGISTRATES
COMMISSION |
Parts of
s 46 should be deleted and other parts retained, but duly amended S 12 MCA
- "appropriate course |
Infrastructure,
resource and capacity concerns: |
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FORUM
OF CHIEF MAGISTRATES |
Consider
concurrent jurisdiction due to capacity challenges Change
LLB qualification requirement |
Infrastructure,
resource and capacity concerns: |
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JUDICIAL
OFFICERS ASSOCIATION OF SOUTH AFRICA |
JOASA
raised objections to the Bill They raised transformation implications the
Bill will have on its membership, in terms of career-pathing, and it will
perpetuate what they called an "elitist regional court
dispensation" . |
Infrastructure,
resource and capacity concerns: Against
usage of High Court Rules in Regional Courts. |
|
|
Giving
divorce jurisdiction to district magistrates will increase access to justice Qualifications
of LLB to be removed from as it retards transformation and blocks career
pathing of magistrates. It promotes elitist character of the Regional Court.
Agrees with Prof Loots on this matter |
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PRESIDENTS
OF THE DIVORCE COURTS |
-
Sections 29, 36 are issues of substance to be considered; - Impact
of ss 114 and 116 of CPA and Rule 39 and 32 of the Uniform Rules of Courts
|
Infrastructure,
resource and capacity concerns: - The
regional Courts are already overloaded: make sure that there is a plan to
decrease the backlogs before bringing in civil matters - Aspects
of in-house capacity are as crucial as substantive matters.
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Divorce
Court stated that his court serve Rustenburg in North West and the Mpumalanga
region. He advocated that the Divorce Court was the nucleus of the envisaged
Family Court and should therefore by kept alive not to loose the building
block of the envisaged Family Court. He acknowledged that the Bill will make
access to justice for the poor actually more expensive. |
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Mr
Classen of the Southern Divorce Court (King Williamstown) preferred the
current Divorce Courts to be retained as they are working well. |
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LEGAL
AID BOARD |
- LAB
limited capacity for civil cases, Currently 40 cases at every centre served
by one civil |
Infrastructure,
resource and capacity concerns: - Passing
of Bill will cause capacity and efficiency problems for LAB: LAB has one
civil lawyer per justice centre - there is a huge case load - if the Bill is
passed, There must be proper consultation with LAB - since their budget does
not allow for the allocation of LAB lawyers for to do civil work in the
regional courts. |
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PROF
LOOTS |
- When
sections are amended in the Bill - a clean up of cross referencing in other
legalisation must also be undertaken |
Infrastructure,
resource and capacity concerns: -
Consensus on National
Inter-Sectoral team with dedicated sub-groups: HR (training, capacity),
Rules/Regulatory Framework; Facilities (court buildings; Information
and Case Flow Management. |
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provided
for in s 45(3) of the Children's Act |
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RESPONSES TO THE QUESTIONS OF THE PARLIAMENTARY RESEARCH UNIT
(1) The appointment process and status of Presiding Officers in the Divorce
Courts
The law currently provides for a dual dispensation, which is cumbersome. The
definition of "magistrate" in the Magistrates Courts Act (and
Magistrates' Act) does not include Presiding Officers of the Divorce Courts.
The au1hority of the Magistrates Commission over 1he presiding officers is
subject to different interpretations. Practically 1he position of Regional
Court Presidents and Divorce Court Presidents is confusing and over-lapping.
However, the integration of 1he Divorce Courts into the Regional Courts will
address 1his anomaly.
(2) How implementation will be rolled out
Statistical information from the current Divorce Courts and matters over R500
000 being adjudicated upon in the High Courts is being used as a measure to
cost the new Bill. An Integrated Panning Committee looking at HR (personnel),
Infrastructure (courts and office accommodation), Regulatory framework (rules
of court and case flow aspects) and Budget has been established to integrate
planning and coordinate implementation. A detail costed implementation plan is
being finalised by the integrated task committee.
Justice College has commenced with training of regional magistrate and the Law
Society and ARMSA have undertaken to participate in the training programme. A
training programme by Regional Court presidents and ARMSA has been drafted. We
advised that they engage the legal profession and judges.
(3) Monetary jurisdiction
The monetary jurisdictional limits will be incremental: Regional Court
President suggest a start up of R500 000. The district court jurisdictional
limit should also be reviewed (the current amount is R100 000 was determined in
1998). The latter could be increased to R150 000, for example.
(4) Case load of the respective case load
Statistics which were presented with the slide presentation are until March
2007. They are provided separately.
(5) How will legislation impact on case backlogs?
There will be a substantive decrease in the case backlogs as more resources
will be added to the regional court structures. Importantly backlogs are
caused by the cycle time it takes to complete cases in the High Courts and
Divorce Courts. The current cycle time for High Court litigation 2 years six
months. Due to the protracted litigation case clog the system. In the regional
court the case cycle time is slightly lower (18 months in criminal cases). The
shortening of the case cycle time will reduce case backlogs.
(6) Concurrent jurisdiction of the Divorce Court and the High Court - Is it
not a duplication?
The concurrent jurisdiction was necessitated by the dual system that existed in
the past. White always had their matters dealt by the High Court, and when the
Divorce Courts were de-racialised the existing right of access to the High
Court was not taken away. There were always concerns that the lack of adequate
capacity and expertise of the Divorce Courts would limit access to qualitative
justice in certain cases. Dual jurisdiction may not be desirable in the long
term, and that would be after the Regional Courts have been fully capacitated
to handle complex divorce cases.
(7) Why do people continue to use Divorce Courts if they are cheaper than
the High Courts
Because the Divorce Courts are not accessible. The sit in designated cases
only, and in Vryburg it sits 2 in two months. For urgent applications and
interdicts litigants are compelled to approach the High Court which will always
have a judge on call. The Regional Court also have regional magistrates within the
proximity of the litigants. Divorce Courts centres are less than 60 country
wide, while regional magistrates sit in all 366 district centres, on circuit
basis to some of the branch courts.
(8) What are the present challenges/problems that undermine the optimal
functioning of Divorce Courts
The biggest challenge is limited jurisdiction to deal with divorce cases, which
is non existent in the High Court. What is envisaged in a generalist court
which should be able to respond to aspects of brought family law matters and
other civil disputes. The inaccessibility in territorial jurisdiction has been
elaborated. Creating a system that has same status of the regional court (but
not being a regional court) and with concurrent jurisdiction with a High Court
creates access challenges.
(9) How are the Presiding Officers presently selected and appointed
They were appointed by the Minister in terms of the old dispensation and were
appointed outside the Magistrates Commission process as it was non existent at
that time. In the Southern Divorce Court there is Officers and handle 8 000
cases per annum. Expertise and experience on family law was considered when
appointments were made for the permanent appointment.
CONSENSUS POINTS
Agreed that substantive matters raised in the table above to be considered
when the Bill is debated before the Committee by the Department.
THE FOLLOWING IMPLEMENTATION PROCESS WAS AGREED
There was consensus on the establishment of a national Inter-Sectoral team
with dedicated sub-groups, coordinated by the Department. This coordinated
multi-cluster task team should research and create an implementation plan -
with dedicated groups on (1) HR(training, capacity), (2) Rules/Regulatory
Framework (harmonisation of Rules of Courts and development of Rules for the
Regional Court to deal with civil matters); (3) Facilities (court buildings;
Information and Case Flow Management) - But, Budget and Costing implications
must be done by each sub-committee/group.
DISCUSSION WITH JUDGES
Communication with the Chief Justice has taken place to indicate the
intention of extending civil jurisdiction to the Regional Court and subsequent
thereto the Bill was tabled in the Heads of Courts meeting of 07 February 2008.
Besides views of individual judges that the extension of the civil jurisdiction
should also look at the possibility of devolving certain review powers to the
regional courts, there were no formal written comments from the judges.
STRATEGIC FOCUS OF THE BILL
The Bill does not take any impact on the jurisdiction of the district
court, nor does it take any power or function from the district courts but
seeks to integrate Divorce Courts into the regional court dispensation and to
alleviate the High Court roll to increase access to justice.
VIEWS FROM CERTAIN MEMBERS OF THE PUBLIC
The views expressed by members of the public through the media show support
for the Bill