BRIEFING TO THE PORTFOLIO COMMITTEE
BRIEF OVERVIEW OF THE EXTENSION OF CIVIL
JURISDICTION TO THE REGIONAL COURTS BILL
6 FEBRUARY 2008
1
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
2
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.
3
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
4
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.
5
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
6
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
7
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)
8
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
9
The structure of the Divorce Court
The underlined area is the seat of the
Divorce Court
North East
division
•Durban
Circuits:
Empangeni
Eshowe
Nelspruit
Lebowakgomo
Newcastle
Pietermaritsburg
Polokwane
Pretoria
Thohoyandou
Vryheid
The Registrar of the Courts is stationed
at the seat of the Court where all papers
must be filed
Central Division
• Ferreirasdorp
•Circuits:
•Klerksdorp
•Mmabatho
•Mogwase
•Odi
•Potchefsstroom
•Vereeniging
•Vryburg
•Wolmaranstad
Southern 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
Each division has 3 Presiding Officers who rotate to all circuits of the division
10
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
11
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
12
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.
13
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
14
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
15
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
16
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
Western Cape
Free State
Mpumalanga
Limpopo Province
Eastern Cape
North West
KwaZulu-Natal
Northern Cape
1 353 031
436 389
177 874
153 343
131 089
123 077
67 795
63 871
51 214
53%
17%
7%
6%
5%
5%
3%
2%
2%
20,2%
10,1%
6,2%
7,4%
11,3%
14,4%
7,1%
20,9%
2,3%
Grand Total
2 557 683
100%
17
Current Civil Court Stats cont.
Civil Cases Recorded - 2005 to 2007
Eastern Cape
5%
Western Cape
17%
Free State
7%
Northern Cape
2%
North West
3%
Mpumalanga
6%
Limpopo Province
5%
KwaZulu-Natal
2%
Gauteng
53%
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.
18
Current Civil Court Stats cont.
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%
19
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
Umtata
3%
Thohoyandou
1%
Bisho
1%
Bloemfontein
6%
Cape Town
13%
Durban
10%
Pretoria
48%
Grahamstown
2%
Johannesburg
3%
Kimberley
1%
Mmabatho
1%
Port Elizabeth
3%
Pietermaritzburg
8%
Figure 1: High Court Civil Cases Placed on the Court Roll
20
Divorce stats
Table 1: Divorce Court Statistics – Apr’06 to Mar’07
Divorc
e
Court
Centra
l
North
Easter
n
South
ern
Grand
Total
Final
orders
grante
d
Summo
nses
issued
Cases
placed
on roll
Case
s
refus
ed
Cases
withdra
wn or
struck
from
the roll
Cases
postpo
ned
Marria
ges
declar
ed null
and
void
Actual
bench
hours
Time
spent
on
preparat
ion
1537:00
:00
516:00:0
0
1196:00:
00
226:00:0
0
1938:00
12652
14428
15788
6
1207
2475
1
6634
12849
10968
138
1645
2207
6
4142
6745
7273
6
1682
855
3
1828:00
:00
543:00:
00
23428
34022
34029
150
4534
5537
10
3908:00
Applicati
ons
Settlem
ents
Trial
cases
dispo
sed of
1880
3492
31
410
1290
46
437
746
96
2727
5528
173
Divorce Court - Apr'06 to Mar'07
Southern
7273
21%
Central
15788
47%
North Eastern
10968
32%
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.
21
Current Civil Court Stats cont.
Table 1: Divorce Court Statistics
Number
of final
Number of
Divorce orders summonses
Court granted
issued
Apr’07 to Nov’07
Number
Number
of cases
of
Number
of Number withdrawn
marriages
cases
of or struck Number of declared
from the
cases
null and
placed
cases
on roll refused
roll postponed
void
Number
of trial
Actual Time spent
cases
bench
on
Number of Number of disposed
hours preparation applications settlements
of
Central
8821
8883
12788
0
838
1684
0
999:00
348:00
1752
2830
12
NorthEastern
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
15875
20408
24907
84
3075
3934
0 2444:15
1170:01
2353
4351
31
Grand
Total
Divorce-Courts Cases Placed on the Roll - Apr'07 to Nov'07
5436
22%
12788
51%
6683
27%
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.
22
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
23
High Court Stats
Civil workload performance
•
Bloemfontein:
–
•
Cape Town:
–
•
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 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 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 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.
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.
24
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.
25
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.
26
THANK YOU
Questions
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