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BRIEFING TO THE SELECT COMMITTEE ON SECURITY AND CONSTITUIONAL AFFAIRS BRIEF OVERVIEW OF THE EXTENSION OF CIVIL JURISDICTION TO THE REGIONAL COURTS BILL 18 JUNE 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. Have civil jurisdiction, save for dissolution of marriages • Three Divorce Courts country- wide which focuses on family law disputes. Jurisdiction of the 3 courts (Southern Divorce Courts, Central Divorce Courts and Eastern Divorce Court cut across provincial boundaries); contrary to dictates of integrated services that led to the Constitution 12th Amendment Act • Regional Courts with 327 magistrates sit in all seats of the district courts and certain detached and branch courts. These courts don’t have civil jurisdiction
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 proposed legislation will remedy the defect of the family law adjudication system • 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 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 • 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 proposed legislation will increase access to justice • 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 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 12 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.
IMPLEMENTATION PLAN - INCREMENTAL • Magistrates raised LLB requirement as a limiting aspect towards career mobility for magistrates with civil law experience – matter is dealt with as part of the broad transformation of the judiciary; end of long term act app • Reg Court Magistrates raised concerns on the need re-skill magistrates on practical civil law – it’s a long term objective. In the immediate term additional magistrates will be appointed to deal with the expected increased work load • Judges – want to be actively involved in the implementation, including training programmes – this will achieved through the Judicial Education Institute Getting buy-in from role players
Budget Allocation – R51m for 2008/9 Budget will be used for: • Creation of 53 posts of Regional Court Magistrates in designated courts. Using the population demographics and case load patterns the suggested case allocation is as follows: (R35m) EC – 9; FS – 4; Gauteng – 12; KZN – 9; Limpopo – 4; Mpumalanga – 3; NC -2; NW – 2; WC - 8 • Creation of 43 Regional Court Registrars to be allocated proportionally to all provinces (R12,2m) • Training for newly recruited magistrates and clerks of court (R5m) • The re-training of existing Reg Court magistrates on practical civil law will constitute part of the allocation of the Judicial Education Institute
Integration of Divorce Courts • 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; • 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.