GENERAL EXPLANATORY NOTE:

[ ] Words in bold type in square brackets indicate omissions from existing enactments.

Words underlined with a solid line indicate insertions in existing enactments.

BILL

To amend the Magistrates’ Courts Act, 1944, so as to confer on courts for regional divisions jurisdiction in respect of certain civil disputes, including matters currently regulated by section 10 of the Administration Amendment Act, 1929; to stipulate the requirements for the appointment of judicial officers; to repeal the Administration Amendment Act, 1929; to effect consequential amendments to certain other laws; and to provide for matters connected therewith.

PREAMBLE

SINCE the Divorce Courts established under section 10 of the Administration Amendment Act, 1929, have their origins based on race;

AND SINCE these Courts, although now open to all races, are not geographically distributed throughout the national territory;

AND SINCE courts for regional divisions only deal with criminal matters, while courts for districts deal with criminal and civil matters;

IT IS CONSEQUENTLY THE PURPOSE of this Act, as an interim measure, pending the further rationalisation of the lower courts, to—

􀁏 enhance access to justice by conferring jurisdiction on courts for regional divisions which are distributed throughout the national territory to deal with certain civil matters, including matters currently dealt with in the Divorce Courts established under section 10 of the Administration Amendment Act, 1929; and

􀁏 promote the development of judicial expertise among the ranks of magistrates with the view to broadening the pool of appropriately qualified, fit and proper persons for appointment to the lower courts and the superior courts,

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:—

Substitution of section 2 of Act 32 of 1944, as substituted by section 2 of Act 53 of 1970 and amended by section 7 of Act 102 of 1972, section 2 of Act 34 of 1986 and section 2 of Act 66 of 1998

1.   The following section is hereby substituted for section 2 of the Magistrates Courts Act, 1944:

‘‘Minister’s powers relative to districts, regional divisions and courts

2.   (1) The Minister may, by notice in the Gazette

(a)  create districts, define the local limits of each district, which may consist of various non-contiguous areas, and declare the name by which any district shall be known;

(b)  create regional divisions consisting of a number of districts, or of a district together with one or more sub-districts, and declare the name by which any regional division shall be known;

(c)  increase or decrease the local limits of any district;

(d)  increase or decrease the limits of any regional division;

(e)  for all purposes or for such purposes as he or she may declare, annex any district or any portion thereof to another district;

(eA) for all purposes or for such purposes as he or she may declare, annex  any regional division or any portion thereof to another regional division;                           (f)    establish a court for any district for the purposes of—

(i)   the trial of persons accused of committing any offence which shall have jurisdiction contemplated in sections 89 and 92; and

(ii)   adjudicating civil disputes contemplated in section 29(1);

(g)  establish a court for any regional division for the [purpose] purposes of—

(i)   the trial of persons accused of committing any offence, which shall have increased jurisdiction [as hereinafter provided] contemplated in sections 89 and 92; and

(ii)   adjudicating civil disputes contemplated in section 29(1) and 29(1B);

(h)  appoint one or more places within each district for the holding of a court for such district, and may by like notice prescribe the local limits of an area in a district, which area may include any portion of an adjoining district, and declare the name by which such area shall be known, and appoint one or more places in such area for the holding of a court for such district; of which places, if more than one is appointed, one shall be specified as the seat of the magistracy;

(i)   appoint one or more places in each regional division for the holding of a court for such regional division;

(j)   within any district appoint places other than the seat of magistracy for the holding of periodical courts, and prescribe the local limits within which such courts shall have jurisdiction, and include within those limits any portion of an adjoining district;

(k)  detach a portion of a district or portions of two or more adjoining districts as a sub-district to form the area of jurisdiction of a detached court, and declare the name by which such sub-district shall be known, and appoint the places where such detached court is to be held;

(l)   withdraw or vary any notice under this section and abolish any regional division, district, sub-district or other area of jurisdiction and the court thereof.

(2) The Minister may, by notice in the Gazette and after consultation with the Magistrates Commission, join any group of districts together to create an administrative region for administrative purposes.’’.

Amendment of section 9 of Act 32 of 1944, as substituted by section 2 of Act 8 of 1967 and amended by section 24 of Act 94 of 1974, section 2 of Act 34 of 1986, section 17 of Act 90 of 1993, section 3 of Act 66 of 1998, section 1 of Act 62 of 2001 and section 1 of Act 28 of 2003

 

3.     Section 9 of the Magistrates’ Courts Act, 1944, is hereby amended –

(a)     by the deletion of paragraph (c) of subsection (1).

(b)    by the substitution in subsection (1) for paragraph (b) of the following paragraph:

                (b) (i)Any  appropriately qualified woman or man who is a fit and  proper

                        person may be appointed as a judicial officer.”

                         (ii)The need for the judiciary to reflect broadly the racial and gender 

                          composition of South Africa must be considered when judicial                                     

                          officers are appointed.”

                  

     Amendment of section 10 of Act 32 of 1944, as amended by section 9 of Act 40 of 1952, section 25 of Act 94 of 1974 and section 5 of Act 66 of 1998

4. Section 10 of the Magistrates’ Courts Act, 1944 is hereby amended –

 by the deletion of paragraph (b).

Amendment of section 12 of Act 32 of 1944, as amended by section 9 of Act 40 of 1952, section 25 of Act 94 of 1974 and section 5 of Act 66 of 1998

5.   Section 12 of the Magistrates’ Courts Act, 1944, is hereby amended—

(a)  by the substitution in subsection (1) for paragraph (a) of the following paragraph:

‘‘(a) may hold a court, provided that a court of a regional division may, subject to subsection (6), only be held by a magistrate of the regional division;’’;

(b)  by the substitution in subsection (2) for paragraph (b) of the following paragraph:

‘‘(b) shall possess such powers and perform such duties conferred or

imposed upon magistrates [as he is not expressly prohibited from

exercising or performing either by the Minister or by the

magistrate of the district] by law.’’;

 (c) by the repeal of subsection (5); and

(d)     by the addition of the following subsection:

“(6) The magistrate at the head of a regional division must designate, in writing, a magistrate of the regional division to adjudicate civil disputes contemplated in section 29 (1) and 29 (B) if so recommended by the Magistrates Commission as contemplated in section 2 of the Magistrates Act, 1993 (Act 90 of 1993).”

Substitution of section 28 of Act 32 of 1944, as amended by section 12 of Act 40 of 1952

6.   The following section is hereby substituted for section 28 of the Magistrates Courts Act, 1944:

‘‘Jurisdiction in respect of persons

28.  (1) Saving any other jurisdiction assigned to a court for a district or a court for a regional division by this Act or by any other law, the persons in respect of whom the court in question shall, subject to subsection (1A), have jurisdiction shall be the following and no other[—]:

(a)  Any person who resides, carries on business or is employed within the district or regional division;

(b)  any partnership which has business premises situated or any member whereof resides within the district or regional division;

(c)  any person whatever, in respect of any proceedings incidental to any action or proceeding instituted in the court by such person himself or herself;

(d)  any person, whether or not he or she resides, carries on business or is employed within the district or regional division, if the cause of action arose wholly within the district or regional division;

(e)  any party to interpleader proceedings, if—

(i)   the execution creditor and every claimant to the subject matter of the proceedings reside, carry on business, or are employed within the district or regional division; or

(ii)   the subject-matter of the proceedings has been attached by process of the court; or

(iii)  such proceedings are taken under [sub-section (2) of section sixty-nine] section 69(2) and the person therein referred to as the ‘‘third party’’ resides, carries on business, or is employed within the district or regional division; or

(iv)  all the parties consent to the jurisdiction of the court;

(f)   any defendant (whether in convention or reconvention) who appears and takes no objection to the jurisdiction of the court;

(g)  any person who owns immovable property within the district or regional division in actions in respect of such property or in respect of mortgage bonds thereon.

(1A) For the purposes of section 29(1B) a court or a regional division shall have jurisdiction if the parties are or if either of the parties is—

(i)   domiciled in the area of jurisdiction of the court on the date on which proceedings are instituted; or

(ii)   ordinarily resident in the area of jurisdiction of the court on the said date and has or have been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.           (2) ‘Person’ and ‘defendant’ in this section include the State.’’.

Substitution of section 29 of Act 32 of 1944, as substituted by section 27 of Act 94 of 1974 and amended by section 1 of Act 56 of 1984, section 35 of Act 88 of 1984, section 3 of Act 25 of 1987, section 2 of Act 157 of 1993 and section 172 of Act 34 of 2005

7.   The following section is hereby substituted for section 29 of the Magistrates’ Courts Act, 1944:

‘‘Jurisdiction in respect of causes of action

29.  (1) Subject to the provisions of this Act and the National Credit Act,

2005 (Act No. 34 of 2005), [the] a court for any district or a court for any regional division, in respect of causes of action, shall have jurisdiction in—

(a)  actions in which is claimed the delivery or transfer of any property, movable or immovable, not exceeding in value the amount determined by the Minister from time to time by notice in the Gazette;

(b)  actions of ejectment against the occupier of any premises or land within the district: Provided that, where the right of occupation of any such premises or land is in dispute between the parties, such right does not exceed the amount determined by the Minister from time to time by notice in the Gazette in clear value to the occupier;

(c)  actions for the determination of a right of way, notwithstanding the provisions of section 46;

(d)  actions on or arising out of a liquid document or a mortgage bond, where the claim does not exceed the amount determined by the Minister from time to time by notice in the Gazette;

(e)  actions on or arising out of any credit agreement as defined in section 1 of the National Credit Act, 2005 (Act No. 34 of 2005);

(f)   actions in terms of section 16(1) of the Matrimonial Property Act, 1984 (Act No. 88 of 1984),where the claim or the value of the property in dispute does not exceed the amount determined by the Minister from time to time by notice in the Gazette;

(fA) actions, including an application for liquidation, in terms of the Close Corporations Act, 1984 (Act No. 69 of 1984);

(g)  actions other than those already mentioned in this section, where the claim or the value of the matter in dispute does not exceed the amount determined by the Minister from time to time by notice in the Gazette.

(1A) The Minister may determine different amounts contemplated in

subsection (1)(a), (b), (d), (e), (f) and (g) in respect of courts for districts

and courts for regional divisions.

(1B) (a) A court for a regional division, in respect of causes of action, shall, subject to section 28(1A), have jurisdiction to hear and determine suits relating to the nullity of a marriage and relating to divorce between persons and to decide upon any question arising therefrom, and to hear any matter and grant any order provided for in terms of the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998).

(b)  A court for a regional division hearing a matter referred to in paragraph (a) shall have the same jurisdiction as any High Court in relation to such a matter.

(c)  The presiding officer of a court for a regional division hearing a matter referred to in paragraph (a) may, in his or her discretion, summon to his or her assistance two persons to sit and act as assessors in an advisory capacity on questions of fact.

(d)  Any person who has been appointed as a Family Advocate or Family

Counsellor under the Mediation in Certain Divorce Matters Act, 1987 (Act No. 24  of 1987), shall be deemed to have also been appointed in respect of any court for a regional division having jurisdiction in the area for which he or she has been so appointed.

(2) In subsection (1) ‘action’ includes a claim in reconvention.’’.

 

Amendment of section 46 of Act 32 of 1944, as amended by section 5 of Act 19 of 1963, section 28 of Act 94 of 1974, section 2 of Act 56 of 1984 and section 4 of Act 25 of 1987

 

8.   Section 46 of the Magistrates’ Courts Act, 1944, is hereby amended by the repeal of subsection (1).

Transitional provisions

9.   (1) Any proceedings instituted in a court established under section 10 of the Administration Amendment Act, 1929 (Act No. 9 of 1929), before the commencement of this section and which are not concluded before the commencement of this section must be continued and concluded in all respects as if this Act had not been passed.

(2)  On the date of the commencement of this section—

(a)  each court established under section 10 of the Administration Amendment Act, 1929 (Act No. 9 of 1929), becomes a court of the regional division designated by the Minister in respect of that court;

(b)  any person holding office as a presiding officer of a court referred to in paragraph (a) shall, subject to any condition regarding his or her term of office and any condition of service applicable to his or her appointment to that office, hold office as a magistrate of the regional division contemplated in paragraph

(a); and

(c)  any person who is an officer of a court referred to in paragraph (a), continues to hold such office as an officer of the regional court in question.

(3)  Notwithstanding subsection (2)(a)

(a)  the area of jurisdiction of any court referred to in that subsection shall, subject to any subsequent amendment thereof, remain as it existed immediately before the commencement of this section; and

(b)  in so far as such area of jurisdiction overlaps with the areas of jurisdiction of regional divisions other than the regional division of which such court has become a court of, those other regional divisions or the relevant portions thereof are deemed to have been annexed to the regional division of the court in question in terms of section 2(1)(eA) of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944).

(4)  The rules in force on the date of the commencement of this Act in respect of the courts established under section 10 of the Administration Amendment Act, 1929 (Act No. 9 of 1929), remain in force until they are repealed or amended by a competent authority.

Repeal and amendment of laws, and saving

10.  (1) The Administration Amendment Act, 1929 (Act No. 9 of 1929), is hereby repealed.

(2)  The laws referred to in the first column of the Schedule are hereby amended to the extent mentioned in the third column thereof.

(3)  Nothing in this Act affects any of the powers exercised by the Minister in terms of section 2 of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), before the commencement of this Act.

Short title and commencement

11.  (1) This Act is called the Jurisdiction of Regional Courts Amendment Act, 2007, and comes into operation on a date fixed by the President by proclamation in the

Gazette.

(2) Different dates may be so fixed in respect of different regional divisions for the purposes of section 2(1)(g)(ii) of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), as inserted by section 1 of this Act.

SCHEDULE

Laws amended by section 8(2)

No and year of law Short title Extent of amendment

Act No. 53 of 1979 Attorneys Act, 1979 1. The amendment of section 8 by the substitution for subsection (1) of the following subsection:

‘‘(1) Any candidate attorney who has satisfied

all the requirements for the degree referred

to in paragraph (a) of section 2(1), or

for the degrees referred to in paragraph (aA)

of that section, or for a degree or degrees referred

to in paragraph (aB) of that section in

respect of which a certification in accordance

with that paragraph has been done, shall be

entitled to appear in any court, other than any

[division of the Supreme] High Court, and

before any board, tribunal or similar institution

in or before which his or her principal is

entitled to appear, instead of and on behalf of

such principal, who shall be entitled to charge

the fees for such appearance as if he or she

himself or herself had appeared: Provided

that such a candidate attorney shall not be

entitled to appear in a court of a regional division

established under section 2 of the

Magistrates’ Courts Act, 1944 (Act No. 32 of

1944), [or a Divorce Court established under

section 10 of the Administration

Amendment Act, 1929 (Act No. 9 of 1929),]

unless he or she—

(i)         has previously practised as an advocate

for at least half a year; or

(ii)        has served for at least one year under his

or her articles or contract of service; or

(iii)       has at least one year’s experience as a

state advocate, state prosecutor or magistrate.’’.

Act No. 70 of 1979 Divorce Act, 1979 1. The amendment of section 1 by the substitution

for the definition of ‘‘court’’ of the following

definition:

‘‘‘court’ means any High Court as contemplated

in section 166 of the Constitution of

the Republic of South Africa, 1996 [(Act 108

of 1996)], or a [divorce] court [established

under section 10 of the Administration

Amendment Act, 1929 (Act 9 of 1929)] for

a regional division contemplated in section

29(1B) of the Magistrates’ Courts Act, 1944

(Act No. 32 of 1944), which has jurisdiction

with respect to a divorce action;’’.

Act No. 90 of 1986 Sheriffs Act, 1986 1. The amendment of section 1 by the substitution

for the definition of ‘‘lower court’’ of the

following definition:

‘‘‘lower court’ means a court established

under the Magistrates’ Courts Act, 1944 (Act

No. 32 of 1944)[, and a divorce court established

under section 10 of the Administration

Amendment Act, 1929 (Act No. 9 of

1929)];’’

No and year of law Short title Extent of amendment

Act No. 24 of 1987 Mediation in Certain

Divorce Matters Act,

1987

1.   The amendment of section 1 by the insertion

before the definition of ‘‘Family Advocate’’ of

the following definition:

‘‘‘court’ means the court having jurisdiction

in any action or proceedings referred to in

section 4;’’.

Act No. 78 of 1997 Qualification of Legal

Practitioners

Amendment Act,

1997

1.   The amendment of section 11 by the substitution

for subsection (2) of the following subsection:

‘‘(2) Any candidate attorney who at the

commencement of this Act—

(a)        has satisfied the requirement for the degree

of baccalaureus procurationis; or

(b)        was registered as a student at any university

in the Republic with a view to obtaining

the degree of baccalaureus

procurationis and provided that he or she

has satisfied the requirements for the said

degree on or before 31 December 2004,

shall be entitled to appear in any court, other

than any [division of the] High Court, a court

of a regional division established under section

2 of the Magistrates’ Courts Act, 1944

(Act No. 32 of 1944), [or a Divorce Court

established under section 10 of the Administration

Amendment Act, 1929 (Act No. 9

of 1929),] and before any board, tribunal or

similar institution in which his or her principal

is entitled to appear, instead of or on behalf

of such principal, who shall be entitled to

charge the fees for such appearance as if he

or she himself or herself had appeared.’’.

Act No. 120 of 1998 Recognition of Customary

Marriages

Act, 1998

1.   The amendment of section 1 by the substitution

for the definition of ‘‘court’’ of the following

definition:

‘‘‘court’ means a High Court [of South Africa,

a family court established under any

law or a Divorce Court established in

terms of section 10 of the Administration

Amendment Act, 1929 (Act No. 9 of 1929)]

or a court for a regional division contemplated

in section 29(1B) of the Magistrates’

Courts Act, 1944 (Act No. 32 of 1944);’’.

Act No. 12 of 2004 Prevention and Combating

of Corrupt

Activities Act, 2004

1.   The amendment of section 1 by the deletion

of paragraph (g) of the definition of ‘‘judicial

officer’’.