Chairperson, hon members, it is with great pleasure that I present this proposed legislation to the House. Upfront, I would like to thank the Chairperson of the Portfolio Committee on Justice and Constitutional Development, the hon Mr Yunus Carrim, and members of the committee for considering this Bill, notwithstanding their tight schedule.
The proposed legislation is important for the transformation of the judicial and legal sector as it will enable people previously excluded from justice services to have access to such services. It is of course our commitment as this government to contribute towards a better life for all our citizens.
The Bill will cure the defects in the current court system, in particular the jurisdictional competency of the magistracy. When the regional courts were established in 1952, they were not conferred with civil jurisdiction. They could only hear serious criminal offences other than treason and murder and only in 1990 was their jurisdiction extended to include murder. But, of course, over the years, there has been a delegation of civil jurisdiction to the lower courts and the hierarchy is dependent upon the action and quantum.
I won't go into that but just want to say that the important point that we really want to put across is that what was established in the old Bantustans and rural areas were not proper courts, but branch courts and periodic courts. In terms of this arrangement, civil disputes could only be dealt with at the seat of the proper courts which were beyond the reach of many citizens living in the former black townships and rural areas. The consequence of this arrangement, for example, is that people from Soweto, which is made up of a conglomerate of townships with a population in excess of 3,4 million, have to approach the magistrates' court in Johannesburg, commonly referred to as 15 Market Street and designated formally or at the time was proclaimed as the Ferreirasdorp Magistrate's Court. This court, as we all know, has been congested and it is indeed sad that a population of 3,4 million could not be properly served with appropriate justice services.
I would like to refer to a quote from the Deputy Chief Justice Dikgang Moseneke, opening a magistrates' conference in September, whose focus was the transformation of the judiciary, in particular the magistracy. He then talked about this history, this baggage from our past, and said:
These features of the magistracy were in great part a product of the times. The colonial, and later the apartheid government, sought to exercise governmental authority over vast tracts of land, vast numbers of people. This they sought to do by a trickle of governmental decoys with the least public resources.
This is the reality. Even today we are struggling with this reality. With regard to courts, he went on to say:
Magistrates' offices served mainly the poor and often those discriminated against on grounds of race, gender and disability. In short, the magistracy served mainly the disenfranchised and marginalized members of society. The ruling party and the economically powerful often sought and found judicial solace in the superior courts. There was therefore no pressing need to reform the magistracy in a way that would respond to the needs of an open, democratic and just society.
In fact, colleagues, the many complaints I have heard from citizens across the country relate to lack of access to courts dealing with family matters in particular, especially the area of divorce. For the entire Republic, three divisions of the Black Divorce Courts were established in 1929, namely: the North East Division with its seat in Durban, which serves some of the areas in the old KwaZulu-Natal, Transvaal, Lebowa, Venda - that is Gauteng, Limpopo and indeed Venda which is now in Limpopo; the Central Division with its seat in Johannesburg which serves part of the Transvaal, part of the old Bophuthatswana - North West, and the Southern Division with its seat in King William's Town which serves the area in the Eastern Cape. I hope you have noted how widely the service areas for Johannesburg were defined. Regardless of where people stayed then, they were expected to file their cases at the seat of the three courts. Imagine the inconvenience. So, this has been a complaint of our people every time we went to izimbizo.
In 1997 the Divorce Courts were deracialised to bring them in line with the constitutional order. However, their demarcated areas were left unchanged. The pilot Family Court Centres established in some of the major towns did not remove but did in fact minimise the hardships endured by people in far- flung areas, away from such courts. Through this Bill, the Divorce Courts and the pilot centres of the Family Court Centres will be integrated into the regional courts. We have allocated funds for the creation of additional registrars and administrative pools to deal with the extended civil regional courts' jurisdiction provided for in this Bill.
The creation of the additional judicial posts for the civil jurisdiction regional courts will ensure that the current criminal jurisdiction regional courts are not diverted from the current heavy criminal case load. Anyway, we've many appropriate arrangements and I am convinced that the arrangements made are adequate. I want to assure the chairperson of the committee that we will take seriously the advice given to us.
This Bill is supported by the judiciary and the legal profession. I request the House to support this Bill. I thank you. [Applause.]
Ngithokoze kuSihlalo, kuboNgqongqotjhe nakumalunga ahloniphekileko wePalamende. [Thank you, Chairman, Ministers and hon Members of Parliament.]
The Bill we are debating today is intended to amend the Magistrates' Courts Act, so as to extend civil jurisdiction and the jurisdiction to adjudicate divorce matters to the regional courts.
First and foremost, I would like to state that the Jurisdiction of Regional Courts Amendment Bill goes a long way in the strive to transform the judiciary and to provide access to justice for all.
Regional courts were established in 1952 with criminal jurisdiction to hear all matters except murder and high treason. From their establishment until the demise of apartheid in 1994, regional courts focused solely on serious crimes, most of which involved offences under the terrorism legislation and the legislation aimed at curbing resistance against the oppressive laws and policies of the erstwhile government.
Due to their exclusive criminal jurisdiction, the regional court mainly drew and continues to draw its magistrates from the prosecution and less from the legal profession, which is the trend with the High Court. This anomaly further exacerbates the situation at the High Court in that although the regional courts are seen to be the intermediate court between the district courts and the High Court, magistrates of the District Court are more likely to be appointed at the High Court than the regional courts. This is simply because the regional courts are perceived to be criminal courts while district courts are seen as courts of law. This distinction no longer finds application in our constitutional democracy.
UmThethomlingwa lo uqalene nokukghonakalisa kobana woke umuntu anikel we ilungelo lobulungiswa lokobana akghone ukunghonghoyila. Lokhu kufaka hlangana imilandu yomphakathi neyomndeni leyo engararululwa ngokusetjenziswa komthetho, lokho siqunto esingathathwa yiKhotho yeRijini.
Umnqopho womthetho otjhukunyisiweko lo, unikela ilwazi elingaphezu komThetho wesaHlukaniso nomTthetho womNdeni, begodu unabela ehlelweni loke lomthetho womphakathi. Ezakhamizini, ukunabiswa komThetho lo kusukela emthethweni womphakathi ukufikela eKhotho yesiGodi, uzakungezelela ikghono lokusetjenziswa komthetho malunga womphakathi malungana nokurarulula imiraro yemilandu yomphakathi nokuthola isizo lezomthetho. Imilandu engaquntwa yiKhotho ePhakemeko ngileyo edlula isamba semali engange R100 000 enikelwa amaKhotho wesiYingi lokho kuquntwa yiKhotho yesiGodi. Lokhu kuzakwehlisa iindleko zomlandu ngokuthi akuzokufana neKhotho ePhakemeko lapho imilandu yomphakathi ithatha isikhathi seminyaka emibili ukuya kwemine. Imilandu izakusetjenzwa msinyana emaKhotho wesiGodi wona afikelwa ngobuduze.
Abamangali bangafaka iimbawo zokumangala ngokwabo nanyana basebenzise abajameli ukubalekela ukusebenzisa amagqwetha wamajaji, lokho kuyinto efunwa yiKhotho ePhakemeko begodu kubangela iindleko eziphezulu zemilandu enarheni yekhethu.
Kilokhu kuzakuzuza abatlhagako namalunga womphakathi angakghoni ukulandela iimbawo zawo zokumangala eKhotho ePhakemeko ngonobangela weendleko eziphezulu zemilandu.
UmThethomlingwa lo umuhlahlandlela wemilandu yokuhlukanisa amaKhotho wesiGodi esikhundleni seendleko eziphezulu zeKhotho ePhakamileko kunye nekhotho yesahlukaniso leyo edzimelele emithethweni yebandlululo. Ikhotho yesahlukaniso yanje, iziinsalela zeKhotho yekadeni yabantu abanzima yesahlukaniso eyasungulwa ngokomThetho wokuPhathwa kwaBantu abaNzima we- 1929, ukusebenzela abantu abanzima.
Ikhotho le iyincenye yamakhetho eyasungulelwa ukuphatha abantu abanzima ngokuhlukileko kurhulumende wakadeni webandlululo. Nanyana kwabakhona ukunatjiswa kwekhotho yesahlukaniso kizozoke iinhlanga ngomnyaka we-1986, ikhotho le isesenamatshwayo wakade nemikhawulo efaka lokhu, kutjho bonyana nemithetho isafana. (Translation of isiNdebele paragraphs follows.)
[The Bill seeks to enhance access to justice in that every person should be given the right to have any dispute, including civil and family disputes that can be resolved by the application of the law, decided by the regional court.
The intention of the proposed legislation goes beyond divorce and family law disputes and extends to the entire civil system. To the citizens, the extension of this law to the jurisdiction of the regional court will increase access to justice for members of the community in relation to the resolution of civil disputes and to have access to legal services. Matters that would ordinarily be decided by the High Court are those that exceed the monetary value of R100 000. Certain matters presented to the district courts, will now be decided by the regional courts. This will reduce the cost of litigation in that, unlike the High Court, where the average case cycle for civil matters takes between 2 to 4 years, cases will be dealt with much more quickly at the regional courts, which are within easy access in terms of proximity.
Litigants can litigate on their own or use attorneys for their cases and thus avoid the use of advocates, which is required in the High Court that adds to the high cost of litigation in our country.
This will benefit the poor and the indigent members of society who are not able to pursue their civil disputes in the High Court due to the high cost of litigation.
The Bill is the guide to divorce cases in the regional courts, instead of the more costly High Court and the Divorce Court that still uses the apartheid policies. The current Divorce Court is the remnant of the old Black Divorce Court which was established in terms of the Black Administration Act of 1929 to serve the black people. This court forms part of the courts which were established to form a separate administration for blacks as part of the policy of the old apartheid government.
Despite the extension of the Divorce Court to all races in 1986, this court is still characterised by its original features in that its territorial jurisdiction is the same, as are the rules applicable to this court.]
Currently, litigants must file their summonses and pleadings not only outside their magisterial district but also outside the province of residence. After this Bill has become law, married couples who want to divorce will be able to do so in the regional courts where they reside.
Presiding officers of the Divorce Courts, who are not regarded as magistrates, are appointed at the Divorce Courts and move in circuits to cover the vast areas covered by each of the courts, sitting an average of one day per month in any designated area.
Not only is our Constitution perceived as exemplary by most constitutional democracies, but it is unique in more than one sense. It enshrined in section 34, the right of access to court, which is uncommon in other jurisprudence.
In so far as the judiciary is concerned, the proposed legislation seeks to streamline the judicial process and create a single career pathing for judicial officers. The Act, as revolutionary as it is, will be implemented incrementally. Parliament has been assured by the Department of Justice and Constitutional Development that additional budget will be provided annually to increase the capacity of the regional courts by appointing more regional court magistrates, building more courts and improving infrastructure at courts.
Linked to the implementation plan is the assurance that there will be an intensive judicial education programme that will be designed in conjunction with the judiciary to ensure that a regional court magistrate who was excluded from the practical application of the civil law is reskilled to apply this vital branch of the law.
There are no strong objections to the principles articulated by the Bill. The few magistrates who advocate the retention of the current Divorce Courts base their views on the fact that Divorce Courts have shown a high level of efficiency and are surprised by government's move to scrap them. The argument misses the point in that their integration into the ordinary regional courts is not influenced by their individual performance. It is not whether they operate rightly in the eyes of some but it is whether they do the right thing in performing constitutional mandate.
The proposed legislation is geared to streamline services relating to justice and to respond effectively and efficiently to the needs of a modern society - a caring society - in the manner that increases access to justice. In their current form, regional courts lack these attributes.
During its 52nd national conference held at Polokwane, in Limpopo, December 2007, the ruling party of South Africa - the ANC - noted as follows: ``There have been great strides in transforming the judiciary but more still must be done.''
Ngifuna ukutjho Sihlalo bonyana lokhu kuzokwenza bona abantu bekhethu bakwazi ukufinyelela emakhotho wabo kalula. Njenganje umuntu ohlala e- Nelspruit, ikhotho yakhe isePitori, umuntu ohlala eMafikeng nakafuna ukutlhala uya ePitori. Njenganje abantu bazakuba nelungelo lokuthi bakwazi ukufaka isahlukaniso namkha umlandu wokutlhala i-divorce la bahlala khona. Abantu abahlala e-Witbank emalahleni bazakwazi ukufaka isibawo sesahlukaniso khona ekhotho yaseMalahleni. Begodu nomuntu ohlala e- Kwaggafontein uzakuba nelungelo lokufaka isahlukaniso ekhotho yaseMkobola. Lokhu kuzokunikela abantu ilungelo lokuthi bafinyelele kalula emakhotho la bangathola khona isizo.
Abomarhastrada bazokwazi bonyana nabafunde zoke iimfundo zemithetho emaNyunivesithi bangasebenzisi umthetho munye nasele bakhethwe ukuba bomarhastrada besifunda namkha besigodi, batholakale basebenzisa umthetho munye. Okwanjesi sebazakwazi ukusebenzisa imithetho yemibango yemilandu ama- civil cases, begodu nemithetho yobulelesi ama-criminal cases. Okukhulu wukuthi bakwazi ukusega imilandu yokutlhalana namkha ama-divorce. (Translation of isiNdebele paragraphs follows.)
[Chairman I would like to say that this will enable our people to access their courts easily. Right now, somebody who resides in Nelspruit, has to attend a court in Pretoria. If a person who resides in Mafikeng wants to apply for a divorce he has to go to Pretoria. Now people will have the right to apply for their divorce cases where they reside. People who reside in Emalahleni, Witbank, will be able to file their divorce applications at Emalahleni Court. And even the person who resides in Kwaggafontein will have a right to file his divorce application at Mkobola Court. This will give people the right to easily access their courts for assistance.
After the magistrates complete their law studies at universities, they do not use one law, but when they are chosen to be provincial or regional magistrates, they should be able to implement one law. They will be able to implement laws pertaining to civil and criminal cases. The most important thing is that they should be able to adjudicate divorce cases.]
The ANC supports this Bill. I thank you.
Voorsitter, agb lede, ek was nie veronderstel om vandag aan hierdie debat deel te neem nie. My kollega en vriend, Dr Tertius Delport, hoofwoordvoerder van die DA oor justisie sou ons spreker gewees het. Hy het egter 'n hartaanval gehad en het 'n ernstige hartomleidingoperasie ondergaan en sal vir 'n tyd lank nie by ons wees nie. Ek vra vir u om asseblief aan hom en sy familie te dink in julle gebede. (Translation of Afrikaans paragraph follows.)
[Mr L K JOUBERT: Chairperson, hon members, I was not supposed to participate in this debate today. My colleague and friend, Dr Tertius Delport, the DA's chief spokesperson on justice, should have been our speaker. However, he has had a heart attack and had to undergo serious heart bypass surgery and will not be with us for quite a while. I ask that you extend your thoughts and prayers to him and his family.]
The DA welcomes the Jurisdiction of Regional Courts Amendment Bill, as we welcome all measures to improve our justice system. This, of course, is an interim measure pending the further rationalisation of our courts, which is a constitutional imperative that we still have to comply with more than 12 years down the line. We realise that this is a complex matter, but if Napoleon succeeded in codifying all French law in less time, surely we should be able to do better in this day and age. It is regrettable that we still do not have a clear picture of the final rationalisation of our courts, and we seem to be doing this in piecemeal way.
I say this because the portfolio committee is at present also busy with the renaming of the High Courts Bill and the Traditional Courts Bill. One gets the impression that there is no holistic vision of what South Africa really needs, so in the meantime we tinkle with the existing structures. What we need is a clear picture of where we are taking our court system, and that - I am afraid - is not forthcoming. As far as this particular piece of legislation is concerned, I am happy to state that our concerns were addressed, especially the one about the regional magistrates being adequately vested in civil law.
Dr Delport, as chairman of the training committee of the Magistrates Commission, felt very strongly about this issue, and we are satisfied with the provisions for training of regional magistrates as stipulated in the Bill. Another concern we had was the backlogs in our regional courts, and it was felt that the regional courts will be overburdened if civil jurisdiction is added to their already heavy workload. The promise of more than 50 new regional magistrates posts alleviate our fears, and we can only urge the department to start filling the posts without delay, preferably from the private sector, as it would otherwise just amount to playing musical chairs.
In as much as we are today, in adopting this Bill, dissolving the Divorce Courts I would like to avail myself of this opportunity to salute the presiding officers of those courts who, over many years, gave so diligently to us. Although the Divorce Court has its origin in racial legislation, in later years it became a model court and, in my experience, is the best organised of all courts that I attended as a practitioner. I can only hope that now that they will be part of the regional courts they will transfer their excellence to these courts. I thank you.
Chairperson, as the title suggests, the Bill before the House today seeks to extend the jurisdiction of regional courts, as distinct from district courts from hearing only criminal matters, to the hearing of civil disputes and divorce matters.
Whereas before district courts had jurisdiction to deal with certain specified civil cases up to a R100 000, at present regional courts have no civil jurisdiction. The Bill proposes that such jurisdiction be bestowed on regional courts in respect of divorce proceedings, and matters relating to the nullity of marriage. This provision will thus change years of standardised divorce procedural matters in terms of both the Magistrates Courts Act of 1944 and the Black Administration Act of 1929.
By merging divorce courts so that they become part of regional courts, all presiding officers and other personnel are also to be merged by the same process. It is envisaged that members and officers of regional courts would receive additional and specialised training for their new roles.
The IFP welcomes the proposed amendments as they would contribute towards enhancing access to justice for all and the transformation of justice, the state and society, and recognizing the need for the lower courts to mirror their counterparts, the superior courts, where appropriate.
The IFP feels that by increasing the jurisdiction of the regional courts, the judicial expertise of magistrates will further develop, thereby increasing the pool of suitable candidates from which appointments could be made to the bench of the superior courts. The IFP will support the Bill. Thank you.
Chairperson, the ACDP notes the concerns that were expressed by various parties that the department would be shooting itself in its foot by extending jurisdiction to courts that were already overburdened. Concerns were expressed that courts currently experience hefty backlogs in criminal matters, with regional courts facing a 43% backlog of criminal trials last year. However, the department responded that civil jurisdiction would be extended on an incremental approach as capacity developed.
Now, Ms Atteridge, a senior magistrate in Cape Town, made an impassioned plea regarding access. She pointed out that access to justice entailed that, when the facilities and services were utilised, they must comply with minimum standards to ensure the dignity of people. She cited the example of people having to wait outside in the sun or rain to access fundamental services.
I raised certain questions with the department, particularly relating to the civil jurisdiction of district courts, and I was pleased with the answer that it would be increased from R100 000 to R300 000 and that, in itself, would allay the burden on both regional and High Courts. To allay concerns on the lack of capacity and the impact of this Bill on the backlog of regional court cases, we welcome and support that an incremental approach be implemented as capacity and skills are developed. So, for these reasons, the ACDP will support this legislation.
Let me also take this opportunity to express our sentiments for a speedy recovery to Dr Delport, after his heart bypass operation. Thank you very much.
Chair, hon Minister, and colleagues, section 165(4) of the Constitution requires that courts be accessible and effective, amongst others. The National Alliance supports any effort to achieve these constitutional imperatives, including the Bill before us in the House. We are still a long way from a truly effective and accessible judiciary, and therefore, the interim status of this measure has to be emphasised. It therefore goes without saying that greater levels of concrete and practical efforts are needed to ensure that all people enjoy the benefits of an accessible and effective judicial system.
A need exists for a streamlined judiciary, capable of serving all South Africans. In this regard the National Alliance will, in the forthcoming Budget Vote, outline a proposal for a municipal court system with greater responsibilities, thereby bringing our courts closer to the people. This proposal will include a practical proposal on giving ordinary South Africans greater access to legal aid. The National Alliance supports this Bill. Thank you.
Chairperson, comrades and friends, we welcome this very necessary and long-overdue Bill, particularly because it's a further shedding of the legacy of our apartheid past and, more significantly, it advances our transformation of the judicial system and the criminal justice system as a whole, in particular in making the court system more accessible to the people.
Mr Sibanyoni has, of course, dealt with many aspects of that, not least the inexpensive, more accessible process that this Bill provides for. But of course I do accept what hon Mr Leon Joubert says, namely that the department could have done better and that this Bill could have been brought before this Parliament sooner. But he will know more than I perhaps as a lawyer that transforming the judiciary, that is, transforming the criminal justice system, poses challenges that are especially unique and extremely difficult to overcome. Often you have to carry with you key stakeholders in the criminal justice system and in particular the judiciary.
So, I think that, yes, we could have done better and I think maybe the Minister herself might concede but, no, it's not easy. Furthermore, too, this Parliament has a role. We, as a portfolio committee, have a role as contributors as well. What, after all, is a system of co-operate governance if not serving to provide the space to do precisely that?
I think hon Mr Joubert is both wrong and right that elements of the overall vision are there and in fact that aspects of the strategy are there. It's just that we require more co-ordination. And that, too, is not a responsibility that falls solely on the shoulders of the executive; it also falls on Parliament, civil society and many other stakeholders in the criminal justice system as a whole.
Mr Sibanyoni has dealt with many key things that relate to the value of this Bill, and so have other members, much of which one can find little to disagree with.
I will actually take us through very quickly, in the three to four minutes I've got left, our report that we submitted on this Bill to the ATC for publication, close of course to our finalisation of it.
We want to stress that we think that there are very good characteristics of the Divorce Courts, and these characteristics must be drawn on in the way we integrate the Divorce Courts into the regional courts. We are especially pleased, let us add, hon Minister, that there is a very incremental process. We must stress to this House that in fact it's not as if civil jurisdiction will be heaped onto the regional courts overnight. The Minister will do so incrementally and base this on the capacity of the respective regional courts to actually manage civil jurisdiction and on some acknowledgement of the number of backlog cases they have in respect of criminal cases and so on and so on. We think it is a very sound, very sober, very temperate process that will be effected by the finalisation of this Bill through both Houses.
We want to say that in fact we received various submissions right up to the last moment that we processed the Bill. We think that the department could have done more to secure the participation of some of the stakeholders. In fact, they did that but perhaps not enough. Finally, on the role of Parliament, that is what we are here for and stakeholders have a right to come to us even after they have been turned down by the executive, and I must stress that the department is extremely co-operative.
Before my time runs out, let me, in the middle of my speech in so far as there is coherence in the speech at all, add that I must thank hon Johnny de Lange and hon J B Skhosana, who actually led the process by the department. Thanks go to our excellent secretary "Lolly" Phumelele Sibisi for her work and to our very good researcher, Christine Silkstone, for the background work that they did.
Now there are many issues, I must stress, that will arise in the processing of this Bill through interaction with stakeholders that we won't be able obviously, hon Minister, to address in the Bill nor indeed did we carry them in our full report. We think that it helped us to understand aspects of the overall criminal justice system. I want you, through this House, to communicate in so far as you can to the stakeholders who came that many of the issues that you have raised, Christine Silkstone has taken down and we will feed it into the process of the further transformation of the criminal justice system. Of course we will, all of us, hopefully, as committee chair... I see the Chief Whip is here writing exact reports for incoming committees and the incoming chair and, by that stage, I may be a ambassador in Mongolia, and who knows, the Minister might be in Alaska as an ambassador. The issues still remain. It doesn't matter where Comrade Mabandla is next year March. I would prefer Alaska, by the way, Chief Whip and I think hon Minister Brigitte Mabandla will prefer Mongolia because I can deal with winter probably better than she can because I spent a few years in England.
Let me stress, I am being kind to the Minister not because I'm servile to her, but because we are comrades. So, Chief Whip, please note that I prefer Alaska as some have noted. Thank you very much, all of you. [Applause.]
Debate concluded.
Bill read a second time.