briefing to the portfolio committee

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BRIEFING TO THE PORTFOLIO COMMITTEE

BRIEF OVERVIEW OF THE EXTENSION OF CIVIL JURISDICTION TO THE REGIONAL COURTS BILL

6 FEBRUARY 2008

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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

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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.

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• 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

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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.

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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

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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

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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)

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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

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North Eastdivision

Southern divisionCentral Division

•DurbanCircuits:EmpangeniEshoweNelspruitLebowakgomoNewcastlePietermaritsburgPolokwanePretoriaThohoyandouVryheid

The underlined area is the seat of the Divorce Court

•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

The Registrar of the Courts is stationed at the seat of the Court where all papers must be filed

Each division has 3 Presiding Officers who rotate to all circuits of the division

The structure of the Divorce CourtThe structure of the Divorce Court

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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

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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

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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.

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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

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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

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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

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Current Civil Court Stats

The District Court Cases reported over a three year period are provided below Table 1: District Court Civil Cases

Region Civil Cases Filed % Population

Gauteng 1 353 031 53% 20,2% Western Cape 436 389 17% 10,1%

Free State 177 874 7% 6,2% Mpumalanga 153 343 6% 7,4%

Limpopo Province 131 089 5% 11,3% Eastern Cape 123 077 5% 14,4% North West 67 795 3% 7,1%

KwaZulu-Natal 63 871 2% 20,9% Northern Cape 51 214 2% 2,3%

Grand Total 2 557 683

100%

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Current Civil Court Stats cont.

Civil Cases Recorded - 2005 to 2007

Eastern Cape5%

Free State7%

Gauteng53%

KwaZulu-Natal2%

Limpopo Province5%

Mpumalanga6%

North West3%

Northern Cape2%

Western Cape17%

Figure 1: Civil Cases Recorded – Years 2005 to 2007 Analyzing the civil workload over a three year period, Figure 3 shows that Gauteng Region had the most (that is 53% (1, 353, 031)) number of civil cases recorded, followed by Western Cape which had 17%. The bulk of the civil cases workload is therefore in Gauteng.

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High Court Civil Cases The High Court Civil Cases (in terms of cases placed on the court roll) reported over a three year period (2005-2007) are provided below Table 3: High Court Statistics

High Court Placed on

the roll Settled/Struck off

the roll Heard by Judges

%

Pretoria 25 144 7 863 17 291 48%

Cape Town 7 128 2 793 4 622 13%

Durban 5 253 2 402 2 847 10%

Pietermaritzburg 4 001 2 350 1 582 8%

Bloemfontein 3 248 1 908 1 330 6%

Port Elizabeth 1 849 835 1 005 3%

Umtata 1836 807 735 3%

Johannesburg 1 498 2 434 108 3%

Grahamstown 844 443 401 2%

Mmabatho 722 335 640 1%

Thohoyandou 677 111 560 1%

Kimberley 555 427 122 1%

Bisho 444 297 238 1%

Total

53 199

23 004

31 480

100%

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Current Civil Court Stats cont.Figure 4 below shows that the Pretoria High Court is carrying the most civil cases workload (48%) of the total workload (53199) of cases placed on the court roll. It is followed by Cape Town High Court (13%) and Durban High Court (10%).

High Court Civil Cases - 2005 to 2007

Bisho1%

Bloemfontein6%

Cape Town13%

Durban10%

Grahamstown2%

Johannesburg3%

Kimberley1%

Mmabatho1%

Pietermaritzburg8%

Port Elizabeth3%

Pretoria48%

Thohoyandou1%

Umtata3%

Figure 1: High Court Civil Cases Placed on the Court Roll

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Divorce stats

Table 1: Divorce Court Statistics – Apr’06 to Mar’07 Divorce Court

Final orders granted

Summonses issued

Cases placed on roll

Cases refused

Cases withdrawn or struck from the roll

Cases postponed

Marriages declared null and void

Actual bench hours

Time spent on preparation

Applications

Settlements

Trial cases disposed of

Central 12652 14428 15788 6 1207 2475 1

1537:00:00

516:00:00 1880 3492 31

North Eastern 6634 12849 10968 138 1645 2207 6

1828:00:00

1196:00:00 410 1290 46

Southern 4142 6745 7273 6 1682 855 3

543:00:00

226:00:00 437 746 96

Grand Total 23428 34022 34029 150 4534 5537 10 3908:00 1938:00 2727 5528 173

Divorce Court - Apr'06 to Mar'07

Central 1578847%

North Eastern1096832%

Southern727321%

Figure 1: Divorce Court Cases Placed on the roll – Apr’06 to Mar’07 Figure 2 shows that for the period April 2006 to March 2007, Central Divorce court had the most number (47%) of cases placed on the court roll.

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Table 1: Divorce Court Statistics Apr’07 to Nov’07

Divorce Court

Number of final orders

granted

Number of summonses

issued

Number of

cases placed on roll

Number of

cases refused

Number of cases

withdrawn or struck from the

roll

Number of cases

postponed

Number of

marriages declared null and

void

Actual bench hours

Time spent on

preparation Number of

applications Number of

settlements

Number of trial cases

disposed of

Central 8821 8883 12788 0 838 1684 0 999:00 348:00 1752 2830 12

North-Eastern 3942 7652 6683 84 1012 1446 0 1100:15 635:01 199 910 19

Southern 3112 3873 5436 0 1225 804 0 345:00 187:00 402 611 0

Grand Total 15875 20408 24907 84 3075 3934 0 2444:15 1170:01 2353 4351 31

Divorce-Courts Cases Placed on the Roll - Apr'07 to Nov'07

1278851%

668327%

543622%

Central North-Eastern Southern

Figure 1: Cases Placed on the Roll – Apr’07 to Nov’07 51% (12788) of the overall number (24907) of divorce cases placed on the roll are accounted for by Central-Divorce Court. It is clear that Central Divorce court carries the bulk of the divorce courts workload.

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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

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High Court StatsCivil 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


• Durban:– Out of the 351 cases placed on the roll only 182 was heard by a judge at an average waiting


• Johannesburg:– Out of the 120 cases placed on the roll only 15 was heard by a judge at an average waiting


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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.

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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.

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THANK YOU

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briefing to the portfolio committee

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