BRIEFING TO THE PORTFOLIO COMMITTEE BRIEF OVERVIEW OF THE MAGISTRATES COURT AMENDMENT BILL, 2010 A brief overview of the transformative impact of the Bill 31 August 2010

LLB requirement inconsistent with the requirement of fit and proper The Constitution requires fit and proper person to be appointed as judicial officers The Judicial Service Commission and the Magistrates Commission ascertain the criteria of fit and proper every fit and advises the President or Minister in respect of judges and magistrates respectively Criteria and extensive guidelines developed by the JSC and Magistrates Commission to ascertain “fit and proper” requirement and include:- - qualification relevant to the judicial office in respect of which an appointment must be made - competence, diligence, dignity and social standing

Unintended consequences of the LLB requirement Judges are appointed on the basis of fit and proper criteria – some of the judges, a considerable number have no LLB, appointed from the attorney’s profession (with B Proc) or magistracy and continued to be good judges With the current legislative framework a person who does not qualify to be a regional magistrate may well qualify to be a Constitutional Court judge The requirement of LLB overlook the reality that one may do LLM or even a Doctorate without an LLB Judicial expertise is built over many years on the bench

LLB status diminished from time when it was legislated as a requirement The LLB is no longer a post graduate, but a Bachelor degree – The JSC or Magistrates Commission may therefore find the Bachelor degree insufficient compared to other candidates who have applied or the requirement of a particular office The Magistrates Act is not the only legislation that need to be brought in line with the development in the academic sphere, so is the Legal Profession. The requirement in the Admission of Advocates legislation based on the attainment of LLB has become obsolete and highly undesirable

The impediment of the LLB requirement on the regional courts’ civil jurisdiction Parliament has enacted legislation (Jurisdiction of Regional Courts Amendment Act, 2008) which was promulgated on 9 August 2010 to streamline regional courts with the courts’ system and to advance a unified (single) judiciary 62 Courts have been designated as civil regional courts and 25 new regional magistrates posts have been created specifically for these courts There current crop of regional magistrates (353) was drawn primarily from a criminal law environment as a consequence of the history exclusion of civil law jurisdiction

The impediment of the LLB requirement on the regional courts’ civil jurisdiction The Jurisdiction of Regional Courts Amendment Act has been drafted in a manner that will gradually address this anomaly which has become inconsistent with the post 1994 value system, part of this gradual process is the enlistment of regional magistrates for purposes of civil adjudication, thereby creating opportunity for current regional magistrates to undergo appropriate civil law courses offered by the South African Judicial Education Institute To address the immediate capacity needs at the regional courts, the 25 regional posts will be filled from persons with civil law experience

The civil law experience and expertise lies in the legal profession The reality is that the attorney’s profession possess the most experience and expertise on civil law (that is their daily bread) Despite this reality, the majority of the estimated 13 000 attorneys cannot be appointed civil regional magistrates by virtue of the LLB limitation There is less than 8 000 advocates, half of whom are in the public sector. There is therefore not a sufficient pool from the BAR to address the immediate needs The amendment of the LLB requirement will address this capacity constraints Pending the consideration of this Bill the 25 posts are being filled on acting capacity

The need to remove distinction between civil and divorce jurisdiction The manner the Jurisdiction of Regional Courts Amendment Act is drafted it requires the civil regional courts to exercise civil and family law (divorce) jurisdiction This is undesirable as it perpetuate the legacy of a separate divorce jurisdiction which characterised the Divorce Courts which were originally established for the “African” population by the previous dispensation Civil law includes family law jurisdiction (and therefore divorce) and the distinction is superfluous and undesirable

Recommendation The Portfolio Committee to consider the proposed amendment to the Magistrates Courts Act as proposed, subject to amendments by the Committee

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