BRIEFING TO THE PORTFOLIO COMMITTEE BRIEF OVERVIEW OF THE EXTENSION OF CIVIL JURISDICTION TO THE REGIONAL COURTS BILL 6 FEBRUARY 2008
THE CIVIL JUSTICE SYSTEM IN SOUTH AFRICA Civil dispute resolution mechanism Different civil courts & and status of capacity • Traditional Courts – deal with disputes within traditional communities largely based on customary law / 800 plus courts presided by senior traditional leaders in six provinces (the fact that there is not monetary jurisdictional limit is some of the flaws of the system which are being addressed through a separate policy process • Small Claims courts – limited jurisdiction to R7 000 / presided over by Commissioners appointed largely from the legal practitioners • District Magistrates’ Courts - structured as follows 366 district courts; 50 detached courts;230 periodical courts; 90 Branch courts. Civil adjudication (other than divorce matters) are mainly heard at the 366 district courts. A few detached courts handle civil cases. • Regional Courts (which has 327 magistrates who sit in all seats of the district courts and certain detached and branch courts) don’t have civil jurisdiction
THE CIVIL JUSTICE SYSTEM IN SOUTH AFRICA Family Law disputes • Family law disputes are civil disputes as they do not involve the state. They are between private persons. The horizontal application of the Constitution (Bill of Rights) has “constitutionalised” private law • Family Law is treated as a specialised form of civil law – even internationally (Divorce, custody, child adoptions, maintenance are all elements of the family law that affect mostly the vulnerable members of society and need to be treated with expediency and sensitivity) • Two Commissions (1983 and 2003) examined the the need to establish specialised family courts. - The 1983 Hoexter Commission recommended the establishment of a specialised Family Court at level of Regional Court. The recommendation was not endorsed by Cabinet – due to its implication on the court structure and costs, among others - In 2003 the Hoexter Commission recommended a specialised Family Court at High Court level. The Department decided to establish Family Court pilot sites at Regional Court level. The lack of a legislative framework and governance are some of the obstacles in realising the objectives and benefits of the pilots. The extension of civil jurisdiction to RC may help to remove some of the obstacles.
THE CIVIL JUSTICE SYSTEM IN SOUTH AFRICA • The court system inherited from the apartheid system of government, was designed to exclude Blacks (Africans) from the mainstream of civil adjudication. The 366 district courts which have civil jurisdiction are largely located in the former White areas and suburbs, the Branch courts and Periodical Courts which largely serviced the Black areas don’t provide civil and family law services. (Soweto, being the biggest township, does not have a civil court) The congestion and the clogged court system at the main centres in the cities and towns are the manifestation of the flawed system of court based on the policy of segregation • The programme that looks at the realignment of the old magisterial demarcations seeks to remedy this
Extension of civil jurisdiction to the RC is a transformative imperative … • The Constitution, and in so far as it relates to civil justice, the horizontal application of the (justiciable) Bill of Rights necessitate the re-organisation of the judicial system to meet the requirements of the Constitution – arguably the RC in its present form has limitation does not meet this commitment • The Bill starts to address the dichotomy between chief magistrates (originally heads of administration) who are perceived specialists in lower court’s civil adjudication; and regional magistrates who are seen specialist in criminal adjudication.
Extension of civil jurisdiction to the RC is a transformative imperative … • The Regional Courts were established late not to build “jurisprudential” expertise and capacity between the district and the High Court, but to off load the High Court of serious cases which (between those that warranted capital punishment and those that warranted long prison terms) – hence the transformation ito of race and gender has been slower in the RC, than in the district courts; Regional Courts still carry the stigma … it is the heavier sentence that seems to matter; not the quality of justice • It provides opportunity to develop expertise to increase the pool for appointment to the Superior Courts
Transformative imperative … • The categorisation of adjudication into civil and criminal streams limits access to justice for the end user and perpetuate a system which is desirable and is non-existent in the High Courts • The monetary limits of R100 000 for the district courts means there is no “middle layer” where the “middle class claims” would lie (and where the majority of the population will have recourse) (save where there is consent to high jurisdiction) • The transitional nature of this proposed legislation lies in the fact that ordinary citizens will get access to courts while the court system is being restructured to address the dichotomy – the system cannot withhold service delivery because structural and governance issues, which are equally important, are still being addressed
THE DIVORCE COURT The Divorce Court • The Black Divorce Court was established in terms of the Black Administration Act of 1929 to serve the Black (African) community • This Court, together with the following courts were established to serve Blacks exclusively: - Traditional Courts (Chiefs’ Courts) in rural areas (still exist, but need to be aligned to the Constitution) - Commissioners’ Courts which existed alongside Magistrates Courts which existed in urban areas and the former RSA territory (under the then Dept of Cooperation & Dev) - The Commissioners’ Appeal Court which heard appeal from the Commissioners’ Courts (last two courts were abolished in 1986)
THE DIVORCE COURT The Divorce Court • In 1997 the Black Administration Act was amended to de-racialise the Black Divorce Courts • The areas of jurisdiction were not “de-racialised” but remained structured around the areas which were the seats of the Commissioners’ Appeal Courts, namely – Ferreirasdorp (Johannesburg), King Williamstown and Durban • To date the Divorce Courts are still structured around these three centres and the entire Republic is demarcated on the 3 areas – which does not follow the constitutional re-arrangement
The structure of the Divorce Court The underlined area is the seat of the Divorce Court The Registrar of the Courts is stationed at the seat of the Court where all papers must be filed North East division Southern division Central Division • King Williamstown • Higher delegations Atlantis • Beafort West • Bethlehem, Umtata • Bloemfontein • Cape Town, Worcester • East London • PE • George, Vredendal, Swellendam, Welkom, • Graaf-Reinet • Kayelitsha • Kimberley • Ferreirasdorp • Circuits: • Klerksdorp • Mmabatho • Mogwase • Odi • Potchefsstroom • Vereeniging • Vryburg • Wolmaranstad • Durban • Circuits: • Empangeni • Eshowe • Nelspruit • Lebowakgomo • Newcastle • Pietermaritsburg • Polokwane • Pretoria • Thohoyandou • Vryheid Each division has 3 Presiding Officers who rotate to all circuits of the division
THE FUNCTIONING OF THE DIVORCE COURT How the Divorce Court Functions • When a litigant consult a legal practitioner outside his/her magisterial district his/her legal practitioner needs to brief a correspondent in the area of jurisdiction of the court – paying two attorneys for the same service • The structure and capacity of three divisions of the Divorce Court have remained the same (an average of 3 Presiding Officers for every division). This means for e.g. 3 Presiding Officers attached to the Port Elizabeth division rotate around 19 the areas spread across three provinces of Eastern Cape, Free State and Western Cape
THE FUNCTIONING OF THE DIVORCE COURT Presiding Officers • There are 3 Presiding Officers for every division. This means for e.g. 3 Presiding Officers attached to the Port Elizabeth division rotate around 19 areas spread across three provinces of Eastern Cape, Free State and Western Cape • The 3 Presiding Officers in Johannesburg serves 8 areas across Gauteng and North West; while the Durban division serves 10 areas across KZN, Mpumalanga, Limpopo and Pretoria in Gauteng
Aim of Bill • The purpose of the Bill is to amend the Magistrates Court Act, 1944, so as to confer to regional divisions’ jurisdiction in respect of certain civil disputes and matters currently regulated by section 10 of the Administration Amendment Act, 1929 which incorporates divorce matters within the Family Courts. • At the moment regional courts do not deal with any civil or family law or divorce matters Impact of the Bill • The extension of the civil jurisdiction to Regional Courts will increase access to justice for members of the community in relation to the resolution of civil disputes, access to legal services, rationalization of the lower courts for improved efficiency, enable the Regional Court Magistrates to handle civil cases for the first time and thus eliminating the current practice of distinguishing between criminal and civil magistrates and deal with all matters currently falling within the jurisdiction of the Divorce Courts.
THE IMPACT OF THE BILL It is to transform the lower courts … • It will result in the rationalisation of the lower courts for improved efficiency • It will enable Regional Magistrates to handle civil cases for the first time – thus eliminating the current practice of distinguishing between criminal & civil magistrates
THE IMPACT OF THE BILL It will increase access to justice … • The extended civil jurisdiction will result n the integration of the Divorce and Family Courts pilot sites into the regional division, and increase the capacity of the courts in areas of need (A budget of R37 mil is allocated additional to the baseline budget of 2007/8 to provide for additional magistrates’ posts) • Regional Courts sit in proclaimed district courts, hence all current courts will be able to provide additional service, with minor structural increase to the court infrastructure
THE EFFECT AND IMPACT OF THE BILL The benefits of the Bill are: • It will enhance access to justice • It will confer jurisdiction on the Regional Court to hear civil matters – for eg if the monetary limit of R500 – R1 million is determined for Regional Courts, cases which are currently heard by the High Court will be disposed off by the Regional Courts, thus alleviating the High Court of the heavy case roll • Therefore the Bill does not take any work from the district courts (the jurisdiction of the district court need to be increased to about R300 000); but “devolve” more cases from the High Courts to increase access). In the criminal sphere the “devolution” has happened rapidly. Regional Courts can pass life sentences, but still cannot be entrusted with a R500 000 law suit
THE AVERAGE STATS OF THE DIVORCE COURT In the Central Divorce Court an average of 1122 cases per month are registered • 715 are finalised through settlement outside court • Only 200 are finalised through trial • One presiding Officer sit in 8 circuits per month • The Southern Divorce Court sits an average of 2 days per month in areas across the Western Cape, Eastern Cape and Free State
High Court Stats Civil workload performance • Bloemfontein: • Out of the 20 cases placed on the roll 20 was heard by a judge at an average waiting period of 2 months before a case could be heard. There are a high number of 1810 outstanding civil cases as on 31/03/2007, which is a cause for concern and must be addressed. • Cape Town: • Out of the 2105 cases placed on the roll only 1318 was heard by a judge at an average waiting period of 13 months before a case could be heard. The very high number of outstanding civil cases 6226 as on 31 March 2007 is a great cause for concern and must be addressed. • Pietermaritzburg: • Out of the 1137 cases placed on the roll only 434 was heard by a judge at an average waiting period of 17 months before a case could be heard. The very high number of outstanding civil cases (6229) as on 31 March 2007 is a great cause for concern and must be addressed. • Pretoria: • Out of the 6709 cases placed on the roll only 4146 was heard by a judge at an average waiting period of 16 months before a case could be heard. The very high number of outstanding civil cases (27260) as on 31 March 2007 is a great cause for concern and must be addressed. • Durban: • Out of the 351 cases placed on the roll only 182 was heard by a judge at an average waiting period of 6 months before a case could be heard. The very high number of outstanding civil cases (9514) as on 31 March 2007 is a great cause for concern and must be addressed. • Johannesburg: • Out of the 120 cases placed on the roll only 15 was heard by a judge at an average waiting period of 2 months before a case could be heard. The very high number of outstanding civil cases (4707) as on 31 March 2007 is a great cause for concern and must be addressed.
High Courts • In view of the outstanding cases and workload, in terms of criminal and civil work the various Judges President have requested the Ministry to create additional posts of judges as follows: • KZN: Two extra judges. • TPD: 18 new posts. The office of the Director of Public Prosecutions, Pretoria confirms that the Judge President have for some time already been turning down some of their requests for additional courts, the same has happened to several request for long civil trails. According to the statistics given to the Judge President by the Statistics South Africa, the total population served by the High Courts Pretoria and Johannesburg is about 20 million (Gauteng, Limpopo, Mpumalanga and parts of North West). • FS: One extra judge • Labour Court: Five additional Judges’ posts. • The shift of civil jurisdiction to the regional courts will obviously assist in reducing the workload of the High Courts and the need for such a high number of additional judges.
State of readiness • Divorce Courts including their existing structures will be integrated into the regional divisions in their provinces of location; structural adjustments and capacity in provinces where they sat in circuits are being phased in as part of the implementation plan • Main additional capacity will be from magistrates; and structural adjustment to the judicial structures are being discussed with the Magistrates Commission as part of the broader rationalisation of the courts; • Regional Magistrates, who have been consulted and sensitised of the intended policy have had first round of civil training in anticipation of the new changes. Further training programmes are being designed by the regional court. The training programmes will include the participation of the judges and the legal profession • The shift of civil jurisdiction to the regional courts will obviously assist in reducing the workload of the High Courts and the need for such a high number of additional judges.