[ ] Words
in bold type in square brackets indicate omissions from existing enactments.
Words
underlined with a solid line indicate insertions in existing enactments.
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
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
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).
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).”
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).
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.
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.
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.
Laws
amended by section 8(2)
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
section
10 of the Administration
unless he or she—
for at least half a year; or
or her articles or contract of service; or
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
of
1996)], or a [divorce] court [established
under
section 10 of the Administration
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
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—
of baccalaureus procurationis; or
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
established
under section 10 of the Administration
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
a
family court established under any
law
or a
terms
of section 10 of the Administration
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’’.