Magistrates Court Amendment Bill to be Promulgated Soon

Department of Justice and Constitutional Development

The Department of Justice and Constitutional Development has acknowledged that it will seek to implement the draft Bill as soon as it is promulgated.

This is because sections 9, 10 and 11 are intended to facilitate the implementation of the Jurisdiction of Regional Courts Amendment Act 31 of 2008, which came into operation on 10 August.

The urgency of this matter became evident during a briefing on the draft bill by department representatives at a meeting of the parliamentary portfolio committee on justice and constitutional development on Tuesday 31 August. 

The principal aim of the draft bill is to amend the Magistrates’ Court Act, 32 of 1944.

It seeks to bring qualification requirements for appointing magistrates, additional magistrates and magistrates of a regional division in line with current realities in respect of restructured university programmes and constitutional imperatives.

According to departmental representative, Advocate J B Skosana, the Constitution requires that “fit and proper” persons be appointed as judicial officers. Together, the Judicial Services Commission (JSC) and the Magistrates Commission have developed criteria and “extensive guidelines” to ascertain how to meet this constitutional requirement. These include:

· “Qualifications relevant to the judicial office in respect of which an appointment must be made; and
· Competence, diligence, dignity and social standing”.

In terms of the existing legislative framework, an LLB is one of the requirements for the appointment of a magistrate. This, explained Advocate Skosana, overlooks the fact that prospective LLM or doctoral students are now accepted without an LLB. Consequently, a “considerable number” of judges appointed from the attorneys’ profession (with a B Proc) or from the magistracy (with judicial experience built over many years on the bench) do not have an LLB.

Further, Advocate Skosana stated that the LLB is no longer a post-graduate but an entry-level degree. As a result, it is not a suitable yardstick for determining candidates best qualified for appointment as magistrates. Legislation for the admission of advocates to the bar is similarly affected by the downgrading of the LLB.  

The recent implementation of the Jurisdiction of Regional Courts Amendment Act means that 62 courts have been designated as civil regional courts. This has led to the creation of 25 new regional magistrates posts to be filled by persons with civil law experience. Because of their expertise in this field, the new magistrates are likely to be drawn from the attorneys’ profession, most of whom do not have an LLB.

It is hoped that the draft bill will address this anomaly.

Advocate Skosana told committee members that the draft bill also seeks to address the need for magistrates to be fully conversant with family law. This is in keeping with the requirements of the Jurisdiction of Regional Courts Amendment Act, which effectively abolishes the outmoded and “undesirable” distinction made between civil and family (divorce) law in previous legislation.

Members were assured that – while the draft bill seeks to amend selection criteria for magistrates, additional magistrates and magistrates of a regional division – the selection process remains the same. This should prevent persons without suitable qualifications from being elevated to the magistracy.

Sabinet Cape Town Office