ON THE JURISDICTION OF REGIONAL COURTS AMENDMENT BILL.
These submissions are pursuant to the invitation to make written submission advertisement in print media on Sunday the 20th January 2008. The writer would also like to thank Ms P.R. Sibisi who was kind to telefax a copy of the Bill for perusal. The Memorandum on the object of the Bill was also annexed to the copy of the Bill.
Firstly let the writer introduce himself. I am Segai Petrus Khuduge. At present, the writer hold a rank of magistrate stationed at Mankwe Magistrates Courts in the North West Province. Before the writer's appointment to the Roodepoort Magistrates Court's bench on the 13th September 1999, the writer was practicing as an advocate based at the North West Bar in Mafikeng. The writer's practice comprised 90% civil practice (Commercial litigation) and approximately 10% criminal practice. This was the position as the writer's major courses in both under and postgraduate degrees were Civil and Procedural Law. In order to augment the meager criminal practice experience, the writer took up a post presently held.
Despite having gained massive experience in Criminal and Procedural Law, Civil and Procedural Law was still appetizing to the writer. At no stage did the writer want to lose sight of Civil and Procedural Law. As a result, the writer have attended many civil related courses offered by Justice College including Advanced Civil Trials and Mentor Training for Civil Court Magistrates. Various magistrates have been placed under the writer's guidance as their mentor while adjudicating in civil cases.
Posts for Regional Magistrates who deals with Criminal and Procedural Law were advertised yearly. The writer did not have interest in applying for one. The reasons thereof are twofold. Firstly, the writer saw the post as limiting him only to Criminal and Procedural Law aspects while the writer did not want to lose sight of Civil and Procedural Law. Secondly the writer knew that efforts were in the pipeline by most resolutions of the Magistrates Commission for the introduction of the so-called "Regional Civil Magistrates." Even though the writer was however nominated for the Transvaal Provincial Division bench during 2006, he waited patiently for the resolution to be legally effective in order to apply for post Regional Civil Magistrate.
During the first week of January 2008, while browsing the local intranet of the Department of Justice and Constitutional Development DJINI, the writer came across Justice College Work Programme 2008/9 financial year. According to Training Intervention For Judicial Officers, Course A.2.1.5 to be offered under the aforesaid programme by Justice College is named Civil Regional Court Training for Magistrates. The course duration is a period of three (3) weeks starting on the 26th May 2008. According to the target group under that course is written "Magistrates who will preside in the new Civil Regional Courts." 'This is what I have been looking for', the writer said to colleagues.
The following day the writer completed the form 'Justice College Course Application Form' in respect to the aforesaid Course A.2.1.5. A colleague then showed the writer a document entitled "Civil Court Newsletter" prepared by the Civil Section, Justice College. The writer was devastated on reading Tux Deosaran discussion of the Jurisdiction of Regional Courts Amendment Bill. According to Mr. Deosaran's discussion the Bill exclude the writer as a district court magistrate and any district magistrate to ascend to the bench as a 'Magistrate of a regional division' having civil jurisdiction. The writer did not know what to do until he discovered on the 20th January 2008 that he can make written submissions relating to the proposed Bill.
2. DISCUSSION OF THE BILL.
Discussion of the Jurisdiction of Regional Courts Amendment Bill cannot be divorced from the discussion of the Magistrates' Courts Act 32 of 1944 and the Administration Amendment Act 9 of 1929 as amended. This is so because on date of commencement of the Bill, Act 9 of 1929 will be of no force and effect and the applicability of Act 32 of 1944 will have expanded effect.
2.1. UNFAIR DISCRIMINATION OF OTHER JUDICIAL OFFICERS.
First and foremost, the Bill unfairly discriminates against those judicial officers in the district courts like the writer hereof, who have the same qualification as is required for magistrates of a regional division ( See Section 9 1 b of Act 32 of 1944- Degree of Baccalaureus Iegurn and who are interested and competent in adjudicating more advanced trials in the regional courts to also be considered with other judicial officers to 'adjudicate civil disputes contemplated in section 29 (1) and (1b) “ as contemplated by Section 12(6) of the Bill and further to be developed as is envisaged in the preamble to the Bill with the view to broadening the pool of fit and proper persons qualifying for appointment to the superior courts. Every magistrate inclusive of regional magistrates has legitimate expectation that, during his/her career or lifetime he/she will be adjudicating in the superior courts. In brief it is my humble submission that even though it will be costly to do so, that the Magistrates Commission as usual be authorized to advertise, shortlist suitable candidates, conduct interviews, recommend suitable candidate and thereafter as envisaged in Section 9 (1) (b) (inform the Minister that ( such candidate recommended) is suitable for appointment as a magistrate of a (civil) regional division.
Section 6 of the Bill provides for 'appropriate training course' to be completed by a magistrate of a regional division in order to qualify to 'adjudicate in civil disputes contemplated in section 29 (1) and 29 (1B)' of the Bill.
If a three (3) weeks course to be offered by Justice College from 26th May 2008 is found to be appropriate training course contemplated in Section 6 of the Bill, it is my humble submission that it will amount to lowering of standards. This is so in view of the fact that the preamble to the Bill provides among others, “[to] promote the development of judicial expertise among ranks of magistrates with the view to broadening the pool of fit and proper persons qualifying for appointment to the superior courts.” The lowering of standards in this fashion will not make the lower courts to mirror superior courts as envisaged in the preamble to the Bill.
A classical example will be of an old magistrate of a regional division who for better part of his career on the regional court bench, which rank he held even before the advent of the new South African Constitution with the enshrined Bill of Rights, had been dealing with Criminal and Procedural Law and because he now wants to mirror [his] counterpart in the superior courts in order that he may be considered for the superior court bench, attend the aforesaid three (3) weeks course and thereafter preside in a defended action contemplated in Section 29(1)(b) ejectment action where the right of occupation is valued at R 1million and defendant raises Constitutional defence and the regional magistrate makes a blunder by dismissing plaintiff's action on the basis that " the plaintiff did prove his case beyond reasonable doubt however dependant's version is reasonably possibly true" which yardstick is used in criminal cases only.
The Honourable Judge President of the Transvaal Provincial Division who happens to be the Chairperson of the Magistrates Commission will not consider such regional magistrate in casu, capable of being appointed in his Division as in Afrikaans he shall be "bekwaam maar nie bedreue nie. " Training has to consist of theory and thereafter intensive practice under the guidance of a competent mentor.
2.3.NEED FOR RULES OF THE REGIONAL COURT.
Even though Section 7(4) of the Bill addresses the point of the rules only relating to divorces, it is the writer's submission that there is a need for rules in respect of other matters which the regional court is now empowered to adjudicate upon. The Bill is silent on whether Magistrates Court Rules will be of force on the date of commencement of the Act or not.
The writer's view is that rules applicable in the High Court should be adopted in the Regional Courts. This will ensure continuity of the part of members of the side Bar and the Bar itself. Further to this, presiding officers will adapt easily to what is happening in the High court should they be appointed to the High Court bench in future. Mind you, the purpose of the Bill is among others, that the Regional Courts (and District Courts) should mirror the Superior Courts.
2.4 SECTION 12 AND THE JUDICIARY.
It is the writer's view that Section 12(7) of the Bill impacts negatively on the independence of the judiciary. In terms of Section 165 of Constitution of the Republic of South Africa Act 108 of 1996 the judicial authority of the Republic is vested in the courts. The introduction by Section 12(7) of an employee of the executive arm of governance, that is, the Director-General of the Department of Justice and Constitutional Development may be interpreted as interference by the executive in matters exclusively in the domain of the judiciary as envisaged in Section 165(3) of the Constitution Act. It is not impossible for the Director- General to put the name of a magistrate of a regional division on list contemplated in Section 12(7) when such magistrate had not "completed an appropriate training course" as contemplated in Section 12(6). A similar state of affairs happened in the case of Kgoele vis Minister of Justice and Constitutional Development and 2 others decided in the Transvaal Provincial Division on the 7th December 2007. Let the Minister leave the question as to who is fit and proper to adjudicate as a magistrate of a regional division solely with the Magistrates Commission. The Commission has shown that it is accredited for such duties.
Hoping that the submissions may go a long way in addressing pit falls in the bill. Let us make democracy to work!
From: S.P. KHUDUGE