1.                   SUBMISSION


            1.1  ACCESS TO JUSTICE


I have heard the argument that implementation of this bill will enhance access to justice.


I fail to see how access to justice will be improved by implementation of this bill.  The monetary jurisdiction for the regional court will of course have to exceed that of the district court for argument sake one million rands.


Most people with claims over R100 000 and up to one million currently have no problems with access to justice.  They can usually afford attorneys, advocates and the costs involved in their claims.


With the separate rules proposed for the regional court, that would of course include a different tariff structure which will be more than that of the tariffs in the district court.


In my opinion access to justice will not be enhanced but limited.


Access to justice should be viewed within the context of our social realities, such as high unemployment and poverty and a high crime rate.


Access to justice means that access to the courts and the services that the courts provide should be made accessible to all and especially to the poor and vulnerable.


The money that has to be spent to implement this bill in my opinion could be better utilized upgrading current infrastructure and providing new infrastructure to ensure access to justice for all people and especially the people who currently do not have access to the courts.


There are literally thousands of communities countrywide who have no access to justice and the limited access they do have is due to the efforts of the SAPS.


An example and there are too many to mention each instance, is a community about 60kms outside Ceres in a farming area called “Op die Berg”.  There is no public transport whatsoever between “Op die Berg” and Ceres.


I conducted an assessment of the Ceres Court from 25-29 February 2008.  During my assessment I visited this community and spoke to community members and the police.


Although the police assist the community where they can by completing domestic violence applications etc. they are unable to assist with the services most important to the community namely the payment of maintenance.


The average cost for a person to hire transport for the trip to Ceres to collect the maintenance is ±R300-00.  Often the maintenance they receive is not even R300-00.  A woman will pay the R300-00 to get to Ceres only to find that no maintenance has been paid in.  During an assessment done in 2005 a proposal to establish services at “Op die Berg” was submitted in.  A further proposal will be submitted.  The same situation exists for the communities at Redelinghuys and Elandsbaai in the district of Piketberg and many more.  A copy of the proposal for a periodical court at “Op die Berg” is attached marked “A”. 


Redelinghuys for example is a proclaimed periodical court but has not been serviced for over 5 years as no venue for a court has been provided.  The police station has no available space.  In draw your attention to Annexure “B”.


There are communities within the urban areas who also have little or no access to justice.  An example is the community at Delft in the district of Bellville.  Delft is a community where most people live in abject poverty.  Delft is situated 15kms from the Bellville Court and most people walk the 15kms to attend court.  Not only is this an unacceptable hardship it is dangerous for woman and children who are forced to wake to the court.  Please see attached Annexure “C” which is the proposal submitted for the Delft court which was again resubmitted during 2007.


Access to justice also means that when using the available services that the facilities and services at least comply with minimum standards to ensure the dignity and of people.  The accommodation crisis at some courts is so bad that the only place for domestic violence applicants or maintenance applicants to be served is at the cash office counter.  The victims of domestic violence find it humiliating and is almost a second victimisation to explain how she was abused sexually and otherwise within earshot of other people.


In some cases there are no waiting rooms and people literally have to stand out in the sun or rain waiting to be served.


As an illustration I draw your attention to the extracts from the Vredenburg and Lutzville reports marked Annexure “D” and “E”.


In both the above cases proposals were sent for the urgent building of proper facilities at these courts.  You will notice that attached to the Lutzville report is a document where discussion surrounding the building of the court is instituted.  No further action has been taken.


Many proposals have also been sent for the building of a court at Vredenburg.


Also see the extract of the assessment report regarding the court house at Bellville marked “F”.


I must mention that the above submissions are not an indictment on the court managers and staff at these courts as on the whole they do the best that they can within their circumstances.


There are courts currently being built such as the periodical courts at Riebeeck West in the Malmesbury district, Lambertsbay in the Clanwilliam district and Ashton in the Montagu district.


I can only comment on Cluster A of the Western Cape and an enormous amount of work still has to be done to provide basic services to many communities.  I cannot comment on the situation nationally but in conversations with the National Judicial Quality Assurance magistrates, a similar situation exists in all the provinces.




The divorce courts have been running in their current form as a pilot project since 1999.  They have proven to  be highly successful and provide affordable and efficient access to the people who most need them.


I have heard a argument that vesting the divorce courts under the regional courts will enhance access.


I fail to see how.  All that needs to be done is for all district courts to be proclaimed seats for the divorce court.  The district court has many more seats than the regional court and access to the divorce courts cannot be provided more effectively and cost effectively than through the district courts.  Proposals have been sent requesting that more district courts be proclaimed seats for the divorce courts.


While it is correct that the next available date for an opposed divorce in the High Court is 2010, one has to keep in mind that only 20% of the opposed cases on the High Court roll are divorce cases.


Currently the Southern Divorce Court only deals with divorce related matters.  The introduction of this court has made it possible for people on ground level to have better access to courts.  Our statistics in the Western Cape is indicative of how successfully the Southern Divorce Court has operated since its inception.


There are currently eight (8) presiding officers countrywide with seats in the Western Cape, Johannesburg, King Williams Town, and the Eastern Cape.


The current circuits done by the divorce courts provide access to most people.  This access could however be extended to all people with a simple proclamation.


My understanding of a pilot project is that its purpose is to institute a project and run it in its “pilot” form for a certain amount of time to establish whether it is successful and sustainable or not.  The divorce courts in their present form have proved to be both successful and sustainable.  It makes no sense to remove it from a proven construct and to place it in an untested and overburdened structure


2.                   CAPACITY




I draw your attention to point 7 of the implementation document marked Annexure “G”.  The heading of point 7 is Infrastructure.


In my opinion, one of the most profound impediments to successful implementation of the bill is the accommodation crisis in our courts nationally.  It seems strange that in the implementation document, infrastructure only warrants one sentence.  Accommodation in our courts is unable to cater for even existing structures.


I mention the following examples:


1.                   At Cape Town district criminal courts we need at least five more fully operational courts to adequately cope with the criminal court backlogs and to provide another bail court.


Even should five (5) more magistrates be provided there would be no court rooms or offices for them.  Clerks and magistrates alike share offices.


The cells at Cape Town have to hold three (3) times more prisoners daily than they are designed for.


2.                   At many courts mobile courts have to be provided to cater for the lack of court rooms.  The mobile courts are inadequate insecure venues and do not provide for cells.  This is the situation at Vredenburg, Clanwilliam, Wellington and Vredendal.


The need for the mobile courts at these courts is due to the increased demand from the Regional court on the court rooms due to their increasing rolls.


In some courts there is no space left for filing and filing has to be done in the passages.  As an example, see the extracts of the assessment reports on Bellville and Vredenburg.


I do not know of one court house in Cluster A of the Western Cape which is not either occupied to capacity or beyond capacity.


To try and impose an additional structure which will result in increased demand on the accommodation and facilities will be tantamount ot building another storey on a building with crumbling foundations.


3.                   MAGISTRATES – COURT ROLLS


I draw your attention to Annexure “H” which is the 2004 statistics and establishment requirements for the regional court nationwide.  I do not have access to current statistics but every indication is that the situation has become significantly worse.  In the rural areas towns where the regional court used to sit once a week are now occupied almost full time because of the increase in regional court cases.  According to the statistics and backlogs 112 more regional court magistrates are required to cope with backlogs (in 2004).  Backlog courts in addition to the permanent establishment had to be provided to try and address the backlogs.


On Page 4 of the implementation report provision is to be made for twenty (20) more regional court magistrates.  That represents one fifth of the number of regional court magistrates that would be needed just to address criminal court backlogs.  It would be interesting to see which court rooms would be utilised to accommodate even an additional twenty magistrates.  Never mind the additional support staff that would be required.


4.                   JURISDICTION – CIVIL / CRIMINAL


Our law provides for only two (2) kinds of courts, civil and criminal.  Everything that is not purely criminal is civil.


That means that civil jurisdiction would include civil trials, civil motion court, maintenance, domestic violence, childrens court, insolvencies, estates, inquests and other related duties such as default judgments.


We must bear in mind that in all civil matters, the parties choose the forum.  Once a party has decided to have his/her case heard in a certain forum (currently the district court and the High Court) that forum cannot refuse to hear that case.


The practical implication of this is that many parties in maintenance, domestic violence, insolvencies etc, can and I believe, will, choose the regional court as the forum to have their matters heard.  Remember monetary jurisdiction only operates against the higher jurisdiction.


It could be argued that costs penalties could be made against a party who chooses a court with a higher jurisdiction than necessary.  The fact remains that that the case must be heard in the forum chosen by that party and costs are argued at the end.  Furthermore, in maintenance cases costs orders are forbidden.


It is your constitutional right to access the court you choose.  The result is that the parties decide the roll not the courts.  If the courts cannot respond to the needs of the cases enormous backlogs result.  This could result in thousands of parties in for instance in maintenance and domestic violence matters choosing to have their matters adjudicated in the regional court.


I do not see any contingency planning or provision of support structures to cater for the above eventualities.


Applications for default judgments come in literally in their thousands which is an additional time consuming duty in the civil courts.  The district courts on the other hand for the most part have spare capacity in their civil courts.


It makes more sense to simply increase the monetary jurisdiction of the district civil court.  This can be done within the existing structures, and any additional staffing or accommodation requirements which could result would be a mere fraction of the cost compared to imposing an entire new structure.  Increasing jurisdiction within the existing structure will enhance access to justice and especially access to justice for the poor as the tariff will remain at the current levels in terms of the Magistrates Court Act.


The argument that the regional court magistrates are denied exposure to the civil matters does not hold water.  Nothing prevents regional court magistrates from presiding in civil matters.  I am sure they have been aware that in terms of Section 9(1)(c) read with Section 12(5) of Act 32 of 1944 they are appointed as additional magistrates and as such can preside in all matters.


I can only summise that the reason they have not availed themselves of this opportunity is due to the excessive demands of them by their criminal rolls.


5.                   CONCLUSION


1.       98% of all criminal matters are heard in the district court.  The remaining 2% are heard in the regional and high courts.  Looking at the 2004 court rolls certain regional courts have outstanding rolls as high as those in the district courts.  Considering the case load in the district court as compared  to the regional court it is a clear indication that the regional court structure is unable to cope with its case load.


The basic inefficiency of the regional court structure is also evidenced by the high percentage of time that is spent on travelling.


2.       The Department of Justice is unable to respond to the rapidly changing circumstances in our society.  Court rolls in the urban areas of Cluster A of the Western Cape have doubled and in may cases tripled over the last two years.  The current infrastructure and staffing is unable to keep pace with changes and the effect they have on the courts.


3.       Any changes in society have a rapid and sometimes profound effect on the court,  I will mention two simples examples.  Firstly, the closing of the fish factories due to loss of fish quotas in Lambertsbay, which has lead to unemployment and widespread poverty and has resulted in the court rolls of Lambertsbay and Clanwilliam doubling over the last two years.  There has also been a significant increase in domestic violence and childrens court matters during this time.  Secondly, the explosion in the abuse of and dealing in methamphetamine (tik) has resulted in a significant increase in the number of cases placed on the roll as has the influx of millions of refugees.


4.       In my opinion the Department of Justice has more than enough on its plate just maintaining, refurbishing and extending services within the current structure without imposing an additional unnecessary structure.


5.       Implementation of this bill will result in a costly duplication of resources.


6.       In my view all this bill will achieve is that it will accommodate the rich even more, at the expense of the poor.  Trying to maintain sustainability of a new structure will necessarily mean that funds that could have been allocated to extending access to justice for the poor will have to be utilised on the long term to maintain this unnecessary structure.