SUBMISSIONS BY M ATTRIDGE AND L UNUVAR REGARDING
JURISDICTION OF REGIONAL COURTS AMENDMENT BILL (B48/2007)
1.
SUBMISSION
1.1 ACCESS TO JUSTICE
I have heard the argument that
implementation of this bill will enhance access to justice.
I fail to see how access to justice
will be improved by implementation of this bill. The monetary jurisdiction for the regional
court will of course have to exceed that of the district court for argument
sake one million rands.
Most people with claims over R100
000 and up to one million currently have no problems with access to
justice. They can usually afford
attorneys, advocates and the costs involved in their claims.
With the separate rules proposed for
the regional court, that would of course include a
different tariff structure which will be more than that of the tariffs in the
district court.
In my opinion access to justice will
not be enhanced but limited.
Access to justice should be viewed
within the context of our social realities, such as high unemployment and poverty
and a high crime rate.
Access to justice means that access
to the courts and the services that the courts provide should be made
accessible to all and especially to the poor and vulnerable.
The money that has to be spent to
implement this bill in my opinion could be better utilized upgrading current
infrastructure and providing new infrastructure to ensure access to justice for
all people and especially the people who currently do not have access to the
courts.
There are literally thousands of communities
countrywide who have no access to justice and the limited access they do have
is due to the efforts of the SAPS.
An example and there are too many to
mention each instance, is a community about 60kms outside Ceres in a farming
area called “Op die Berg”. There is no
public transport whatsoever between “Op die Berg” and Ceres.
I conducted an assessment of the
Although the police assist the
community where they can by completing domestic violence applications etc. they
are unable to assist with the services most important to the community namely
the payment of maintenance.
The average cost for a person to
hire transport for the trip to Ceres to collect the maintenance is
±R300-00. Often the maintenance they
receive is not even R300-00. A woman
will pay the R300-00 to get to Ceres only to find that no maintenance has been
paid in. During an assessment done in
2005 a proposal to establish services at “Op die Berg” was submitted in. A further proposal will be submitted. The same situation exists for the communities
at Redelinghuys and Elandsbaai in the district of Piketberg and many more. A copy of the proposal for a periodical court
at “Op die Berg” is attached marked “A”.
Redelinghuys for example is a
proclaimed periodical court but has not been serviced for over 5 years as no
venue for a court has been provided. The
police station has no available space.
In draw your attention to Annexure “B”.
There are communities within the
urban areas who also have little or no access to justice. An example is the community at
Access to justice also means that
when using the available services that the facilities and services at least
comply with minimum standards to ensure the dignity and of people. The accommodation crisis at some courts is so
bad that the only place for domestic violence applicants or maintenance
applicants to be served is at the cash office counter. The victims of domestic
violence find it humiliating and is almost a second victimisation to
explain how she was abused sexually and otherwise within earshot of other
people.
In some cases there are no waiting
rooms and people literally have to stand out in the
sun or rain waiting to be served.
As an illustration I draw your
attention to the extracts from the Vredenburg and Lutzville reports marked
Annexure “D” and “E”.
In both the above cases proposals
were sent for the urgent building of proper facilities at these courts. You will notice that attached to the
Lutzville report is a document where discussion surrounding the building of the
court is instituted. No further action
has been taken.
Many proposals have also been sent
for the building of a court at Vredenburg.
Also see the extract of the
assessment report regarding the court house at Bellville marked “F”.
I must mention that the above
submissions are not an indictment on the court managers and staff at these
courts as on the whole they do the best that they can within their
circumstances.
There are courts currently being
built such as the periodical courts at Riebeeck West in the Malmesbury
district, Lambertsbay in the Clanwilliam district and Ashton in the Montagu
district.
I can only comment on Cluster A of
the
1.2
ACCESS TO JUSTICE –
DIVORCE COURTS
The divorce courts have been running
in their current form as a pilot project since 1999. They have proven to be highly successful and provide
affordable and efficient access to the people who most need them.
I have heard a
argument that vesting the divorce courts under the regional courts will enhance
access.
I fail to see how. All that needs to be done is for all district
courts to be proclaimed seats for the divorce court. The district court has many more seats than
the regional court and access to the divorce courts cannot be provided more
effectively and cost effectively than through the district courts. Proposals have been sent requesting that more
district courts be proclaimed seats for the divorce courts.
While it is correct that the next
available date for an opposed divorce in the High Court is 2010, one has to
keep in mind that only 20% of the opposed cases on the High Court roll are
divorce cases.
Currently the Southern Divorce Court
only deals with divorce related matters.
The introduction of this court has made it possible for people on ground
level to have better access to courts.
Our statistics in the
There are currently eight (8)
presiding officers countrywide with seats in the
The current circuits done by the
divorce courts provide access to most people.
This access could however be extended to all people with a simple
proclamation.
My understanding of a pilot project
is that its purpose is to institute a project and run it in its “pilot” form
for a certain amount of time to establish whether it is successful and
sustainable or not. The divorce courts
in their present form have proved to be both successful and sustainable. It makes no sense to remove it from a proven
construct and to place it in an untested and overburdened structure
2.
CAPACITY
2.1 CAPACITY OF THE EXISTING STRUCTURE TO ABSORB THE STRUCTURE
WHICH WOULD BE REQUIRED TO IMPLEMENT THE BILL
I draw your attention to point 7 of
the implementation document marked Annexure “G”. The heading of point 7 is Infrastructure.
In my opinion, one of the most
profound impediments to successful implementation of the bill is the
accommodation crisis in our courts nationally.
It seems strange that in the implementation document, infrastructure
only warrants one sentence.
Accommodation in our courts is unable to cater for even existing structures.
I mention the following examples:
1.
At
Even should five (5) more magistrates
be provided there would be no court rooms or offices for them. Clerks and magistrates alike share offices.
The cells at
2.
At many courts mobile courts have to be provided to cater
for the lack of court rooms. The mobile
courts are inadequate insecure venues and do not provide for cells. This is the situation at Vredenburg,
Clanwilliam,
The need for the mobile courts at
these courts is due to the increased demand from the Regional court on the
court rooms due to their increasing rolls.
In some courts there is no space
left for filing and filing has to be done in the passages. As an example, see the extracts of the
assessment reports on Bellville and Vredenburg.
I do not know of one court house in
Cluster A of the
To try and impose an additional
structure which will result in increased demand on the accommodation and
facilities will be tantamount ot building another
storey on a building with crumbling foundations.
3.
MAGISTRATES – COURT ROLLS
I draw your attention to Annexure
“H” which is the 2004 statistics and establishment requirements for the
regional court nationwide. I do not have
access to current statistics but every indication is that the situation has
become significantly worse. In the rural
areas towns where the regional court used to sit once a week are now occupied
almost full time because of the increase in regional court cases. According to the statistics and backlogs 112
more regional court magistrates are required to cope with backlogs (in
2004). Backlog courts in addition to the
permanent establishment had to be provided to try and address the backlogs.
On Page 4 of the implementation
report provision is to be made for twenty (20) more regional court
magistrates. That represents one fifth
of the number of regional court magistrates that would be needed just to address
criminal court backlogs. It would be
interesting to see which court rooms would be utilised to accommodate even an
additional twenty magistrates. Never
mind the additional support staff that would be required.
4.
JURISDICTION – CIVIL /
CRIMINAL
Our law provides for only two (2)
kinds of courts, civil and criminal.
Everything that is not purely criminal is civil.
That means that civil jurisdiction
would include civil trials, civil motion court, maintenance, domestic violence,
childrens court, insolvencies, estates, inquests and other related duties such
as default judgments.
We must bear in mind that in all
civil matters, the parties choose the forum.
Once a party has decided to have his/her case heard in a certain forum
(currently the district court and the High Court) that forum cannot refuse to
hear that case.
The practical implication of this is
that many parties in maintenance, domestic violence, insolvencies etc, can and
I believe, will, choose the regional court as the forum to have their matters
heard. Remember monetary jurisdiction
only operates against the higher jurisdiction.
It could be argued that costs
penalties could be made against a party who chooses a court with a higher
jurisdiction than necessary. The fact
remains that that the case must be heard in the forum chosen by that party and
costs are argued at the end.
Furthermore, in maintenance cases costs orders are forbidden.
It is your constitutional right to
access the court you choose. The result
is that the parties decide the roll not the courts. If the courts cannot respond to the needs of
the cases enormous backlogs result. This
could result in thousands of parties in for instance in maintenance and
domestic violence matters choosing to have their matters adjudicated in the
regional court.
I do not see any contingency
planning or provision of support structures to cater for the above
eventualities.
Applications for default judgments
come in literally in their thousands which is an additional time consuming duty
in the civil courts. The district courts
on the other hand for the most part have spare capacity in their civil courts.
It makes more sense to simply
increase the monetary jurisdiction of the district civil court. This can be done within the existing
structures, and any additional staffing or accommodation requirements which
could result would be a mere fraction of the cost compared to imposing an
entire new structure. Increasing
jurisdiction within the existing structure will enhance access to justice and
especially access to justice for the poor as the tariff will remain at the
current levels in terms of the Magistrates Court Act.
The argument that the regional court
magistrates are denied exposure to the civil matters does not hold water. Nothing prevents regional court magistrates
from presiding in civil matters. I am
sure they have been aware that in terms of Section 9(1)(c)
read with Section 12(5) of Act 32 of 1944 they are appointed as additional
magistrates and as such can preside in all matters.
I can only summise that the reason
they have not availed themselves of this opportunity is due to the excessive
demands of them by their criminal rolls.
5.
CONCLUSION
1.
98% of all criminal matters are heard in the district
court. The remaining 2% are heard in the
regional and high courts. Looking at the
2004 court rolls certain regional courts have outstanding rolls as high as
those in the district courts.
Considering the case load in the district court as compared to the regional court it is a clear
indication that the regional court structure is unable to cope with its case
load.
The basic inefficiency of the
regional court structure is also evidenced by the high percentage of time that
is spent on travelling.
2.
The Department of Justice is unable to respond to the
rapidly changing circumstances in our society.
Court rolls in the urban areas of Cluster A of the
3.
Any changes in society have a rapid and sometimes profound
effect on the court, I
will mention two simples examples.
Firstly, the closing of the fish factories due to loss of fish quotas in
Lambertsbay, which has lead to unemployment and widespread poverty and has
resulted in the court rolls of Lambertsbay and Clanwilliam doubling over the
last two years. There has also been a
significant increase in domestic violence and childrens court matters during this
time. Secondly, the explosion in the
abuse of and dealing in methamphetamine (tik) has resulted in a significant
increase in the number of cases placed on the roll as has the influx of
millions of refugees.
4.
In my opinion the Department of Justice has more than enough
on its plate just maintaining, refurbishing and extending services within the
current structure without imposing an additional unnecessary structure.
5.
Implementation of this bill will result in a costly
duplication of resources.
6.
In my view all this bill will achieve is that it will
accommodate the rich even more, at the expense of the poor. Trying to maintain sustainability of a new
structure will necessarily mean that funds that could have been allocated to
extending access to justice for the poor will have to be utilised on the long
term to maintain this unnecessary structure.
M A
ATTRIDGE
SENIOR
MAGISTRATE