FIRST INTERIM REPORT
VOLUME I
Under Construction!
Mr President
We, the undersigned, appointed by you as members of the Commission of Inquiry into the Rationalisation of the Provincial and Local Divisions of the Supreme Court, have the honour to submit to you this first interim Report.
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G.G. Hoexter (Chairman)
Pretoria 7 March 1997
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R.N. Leon (Member)
Durban 10 March 1997
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A.N. Jappie (Member)
Durban 10 March 1997
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G.S.S. Maluleke (Member)
March 7 1997
CHAPTER 1
INTRODUCTION
1.1 The appointment of the Commission
1.2 The membership of the Commission and its secretariat
1.3 The Commission's terms of reference
1.4 The overall scheme of the Commission's Reports
1.5 The scope of the Commission's First Interim Report
1.6 The scheme of the First Interim Report
1.7 The scope of the Commission's Second Interim Report
1.8 The scope of the Commission's Final Report
CHAPTER 2
THE HISTORICAL AND LEGISLATIVE BACKGROUND TO THE QUESTIONS POSED IN SUB-PARAGRAPH (1)(b) OF THE TERMS OF REFERENCE 7
CHAPTER 3
SUMMARY OF THE COMMISSION'S WORK TO DATE
3.1 Invitation to interested parties to make written submissions and/or oral representations to the Commission
3.2 Reciprocal disclosure of written responses between respondents
3.3 Informal meetings with Judges, Attorneys-General, Practitioners and Court Officials
3.4 Inspections of Supreme Court buildings, Magistrates Courts buildings and buildings suggested by interested parties as being suitable for adaptation to use as a Supreme Court
3.5 Public sittings of the Commission at which oral representations by interested parties were received
3.6 The Commission's overseas fact-finding trip
3.7 Assistance given to the commission by Mr. L.O. Fourie
CHAPTER 4
SUMMARY OF THOSE ISSUES RAISED IN THE WRITTEN RESPONSES WHICH ARE RELEVANT TO SUB-PARAGRAPH (1)(b) OF THE TERMS OF REFERENCE 24
CHAPTER 5
SUMMARY OF SUBMISSIONS IN THE WRITTEN RESPONSES WHICH RELATE TO ISSUES RAISED UNDER SUB-PARAGRAPH (1)(b) OF THE TERMS OF REFERENCE 30
CHAPTER 6
THE BROAD GUIDE-LINES ADOPTED BY THE COMMISSION
6.1 Introduction
6.2 Financial constraints in relation to the problem of access to civil justice in South Africa
6.3 Geographical constraints upon access of civil litigants to the High Courts
6.4 The future volume of civil work in the High Court
6.5 The necessity that every provincial division of the High Court should have a seat
6.6 The establishment of a provincial division of the High Court within each of the three adjoining provinces
6.7 The existing High Court facilities at Mmabatho in the North West and at Thohoyandou in the Northern Province
6.8 What factors should primarily determine the selection of the seat of the court in a new division of the High Court?
6.9 The disparity which exists in the case of certain provinces between their respective areas of jurisdiction and their respective territorial areas
6.10 The need for circumspection in weighing submissions made to the Commission
CHAPTER 7
THE COMMISSIONS RECOMMENDATIONS IN REGARD TO THE DISPARITY WHICH EXISTS IN THE CASE OF CERTAIN PROVINCES BETWEEN THEIR RESPECTIVE AREAS OF JURISDICTION AND THEIR RESPECTIVE TERRITORIAL AREAS 83
CHAPTER 8
THE COMMISSION'S RECOMMENDATIONS IN REGARD TO THE RATIONALISATION OF THE COURTS WITHIN THE EASTERN CAPE DIVISION
8.1 Should there be a seat of the High Court in the Eastern Cape Division ?
8.2 Where should the seat of the Eastern Cape Division be ?
8.2.1 The recommendation of the majority
8.2.2 The minority recommendation
8.3 The Commission unanimously recommends the retention of the South-Eastern Cape Local Division
8.4 The Commission unanimously recommends that the Transkei High Court be converted into a local division of the Eastern Cape Division
8.5 The Bisho/East London dispute in regard to the seat and area of jurisdiction of a proposed new local division within the Eastern Cape Division
8.6 The Commission's recommendations in regard to the Bisho/East London dispute
8.6.1 The recommendations of the Chairman and the Hon. R.N. Leon
8.6.2 The recommendations of Adv. A.N. Jappie
CHAPTER 9
THE COMMISSION'S RECOMMENDATIONS IN REGARD TO THE STATUS AND AREA OF JURISDICTION OF THE WITWATERSRAND LOCAL DIVISION AS PART OF THE RATIONALISATION OF THE TRANSVAAL PROVINCIAL DIVISION
9.1 Introduction
9.2 The present status and area of jurisdiction of the Witwatersrand Local Division
9.3 The Commission's unanimous recommendations in regard to the Witwatersrand Local Division
9.4 The unanimous recommendations of the Commission in regard to what Magisterial Districts, within the province of Gauteng, should be assigned respectively (1) to the civil and criminal jurisdiction of the Johannesburg High Court and (2) to the civil and criminal jurisdiction of the Pretoria High Court ?
CHAPTER 10
THE COMMISSION'S RECOMMENDATIONS REGARDING THE RATIONALISATION OF THE REMAINDER OF THE TRANSVAAL PROVINCIAL DIVISION
10.1 Introduction
10.2 The recommendations of the Chairman and the Hon. R.N. Leon
10.3 The recommendations of Adv. A.N. Jappie
10.4 The recommendations of Mr. G.S.S. Maluleke
APPENDIX "A"
APPENDIX "B"
APPENDIX "C"
APPENDIX "D"
APPENDIX "E"
APPENDIX "F"
APPENDIX "G"
APPENDIX "H"
APPENDIX "J"
APPENDIX "K"
APPENDIX "L"
APPENDIX "M"
APPENDIX "N"
APPENDIX "O"
APPENDIX "P"
1.1 THE APPOINTMENT OF THE COMMISSION
The Commission was appointed by the President on 31 March 1995.
1.2 THE MEMBERSHIP OF THE COMMISSION AND ITS SECRETARIAT
1.2.1 The persons originally appointed to the Commission on 31 March 1995 were:-
1.2.2 Both Adv. Desai (who on 1 July 1995 was appointed to the Bench of the Cape of Good Hope Provincial Division) and Mr. Bam (who on 10 August 1995 was appointed as President of the Lands Claim Court) were obliged to relinquish their membership of the Commission. In their stead the President appointed as members of the Commission:-
On 17 February 1997 Mr G.S.S. Maluleke was appointed to act as a Judge of the Venda High Court until 31 March 1997. He continues, however, to be a member of the Commission.
1.2.3 The Researcher originally appointed to the Commission, Mr. Cornelius Bezuidenhout, was at the end of September 1995 replaced by Mr. Robert Augus O'Connell. The Secretary to the Commission is Mr. Daniel Gouws Marais.
1.3 THE COMMISSION'S TERMS OF REFERENCE
1.3.1 The complete Terms of Reference are set forth in APPENDIX "A" at pages
123 - 124 of VOLUME I.
1.4 THE OVERALL SCHEME OF THE COMMISSION'S REPORTS
1.4.1 The Commission proposes to set forth its findings and recommendations in three separate Reports to the President. The subject-matter of each individual Report is indicated hereunder.
1.4.2 The Commission's most pressing task relates to sub-paragraph (1)(b) of its Terms of Reference. Read together with the preamble contained in the introductory words of paragraph (1), sub-paragraph (1)(b) enjoins the Commission to report upon and to make recommendations regarding the rationalisation of the provincial and local divisions of the Supreme Court as envisaged by sec. 242 read with sec. 241 of Act No. 200 of 1993 [ "the previous Constitution"], with more specific reference to :-
(i) the desirability of creating within each of the nine provinces established under sec. 124(1) of Act No. 200 of 1993 a provincial and/or local division or divisions of the Supreme Court; and should the Commission advise the creation of such divisions, its recommendations regarding :-
1.5 THE SCOPE OF THE COMMISSION'S FIRST INTERIM REPORT
1.5.1 The First Interim Report deals exclusively with the Commission's findings and recommendations in regard to sub-paragraph (1)(b) of the Terms of Reference.
1.5.2 Translated into practical terms the inquiry here focuses primarily on what should be done : -
1.6 THE SCHEME OF THE FIRST INTERIM REPORT
1.6.1 The First Interim Report consists of four volumes.
1.6.2 Some of the broad guidelines used by the Commission in approaching the problems of rationalisation of the provincial and local divisions in the Eastern Cape Division and in the Transvaal Provincial Division are discussed in Chapter 6 at pages 64 - 82 of VOLUME I. In this Chapter reference is also made to certain differences of opinion between individual members in regard to the critical questions when and how provincial divisions should be achieved in Mpumalanga, Northern Province, and North West.
1.6.3 The findings and recommendations of the Commission in regard to sub-paragraph (1)(b) of the Terms of Reference are set forth in Chapters 7, 8, 9 and 10 at pages 83 to 122 of VOLUME I.
1.6.4 The remaining three volumes contain extracts from oral representations made to the Commission by interested parties at public sittings of the Commission. These extracts relate chiefly to oral representations bearing on sub-paragraph (1)(b) of the Terms of Reference.
1.6.5 VOLUME II contains extracts from oral representations made by interested parties in the Eastern Cape Province.
1.6.6 VOLUME III contains extracts from oral representations made by interested parties in the following three provinces : KwaZulu-Natal; Western Cape and Northern Cape.
1.6.7 VOLUME IV contains extracts from oral representations made by interested parties in the following four provinces: Gauteng; Mpumalanga; Northern Province and North West.
1.7 THE SCOPE OF THE COMMISSION'S SECOND INTERIM REPORT
1.7.1 The Commission will deal in its Second Interim Report with its findings and recommendations in regard to the nature and extent of the appellate jurisdiction of provincial and local divisions of the High Court.
1.7.2 Except for the Witwatersrand Local Division no local division has appeal or review jurisdiction in respect of inferior courts within its area of jurisdiction.
1.7.3 Except for the Witwatersrand Local Division no local division has appellate jurisdiction in respect of the judgment or order given by a single Judge within its area of jurisdiction.
1.7.4 Certain interested parties in the Eastern Cape Province have submitted to the Commission that within the Eastern Cape Division all local divisions should be invested with appellate jurisdiction in respect both of inferior courts and the decisions of a single Judge within their respective areas of jurisdiction. Interested parties in KwaZulu-Natal have made similar submissions with regard to the Durban and Coast Local Division.
1.7.5 The Second Interim Report will further deal with the appellate jurisdiction of a Full Court in the provincial divisions. This was a matter which in the written responses and the oral representations before the Commission gave rise to protracted debate and sharp differences of opinion between the various interested parties.
1.7.6 The problem in regard to the appellate jurisdiction of the provincial Full Court is complex and has many facets. Suffice it to say for present purposes that some of the important questions which have emerged in the debate are the following :-
(i) to harness the entire pool of available judicial talent across provincial borders ;
(ii) to overcome the problem presented by convening a Full Court in a small division ; and
(iii) to dispel a possible public perception, however unfounded, that a Full Court constituted from a small group of the immediate colleagues of the Judge whose decision is on appeal may not be completely impartial?
1.8 THE SCOPE OF THE COMMISSION'S FINAL REPORT
1.8.1 In its Third and Final Report the Commission will consider whether access to justice for civil litigants in the High Court could be improved by the : -
2.1 The structure of the High Court in South Africa has its genesis in the establishment of Union in 1910. The South Africa Act created an Appellate Division to exercise appellate jurisdiction and in addition thereto provincial divisions to correspond with the four constituent provinces of the Union.
2.2. The present position of the High Court is governed by the Supreme Court Act. 59 of 1959 [ "the Supreme Court Act"].
2.3 At the date of the appointment of this Commission of Inquiry on 31 March 1995 the legitimacy of the Supreme Court Act was governed by Act 200 of 1993 ["the previous Constitution"] which came into operation on 27 April 1994.
2.4 The previous Constitution was repealed by THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996 (Act No. 108 of 1996) ["the new Constitution"] which, save for sec 160(1)(b) thereof, came into effect on 4 February 1997. The legitimacy of the Supreme Court Act now derives from the new Constitution.
2.5 In terms of sec 3(a) of the Supreme Court Act a provincial division shall consist of a judge president , one or more deputy judges president, each with specified headquarters within the area of jurisdiction of that Division , and so many judges as the President may from time to time determine. In terms of sec 1 of the Supreme Court Act "provincial division" includes the Eastern Cape Division and the Northern Cape Division.
2.6 In terms of sec 4(1) read with the First Schedule to the Supreme Court Act the SEATS of the various provincial and local divisions are as follows :-
| Cape of Good Hope Provincial Division ["CPD"] | ............ | Cape Town |
| Eastern Cape Division ["ECD"] | ............ | Grahamstown |
| Northern Cape Division ["NCD"] | ............ | Kimberley |
| Natal Provincial Division ["NPD"] | ............ | Pietermaritzburg |
| Orange Free State Provincial Division ["OPD"] | ............ | Bloemfontein |
| Transvaal Provincial Division ["TPD"] | ............ | Pretoria |
| Durban and Coast Local Division ["DCLD"] | ............ | Durban |
| Witwatersrand Local Division ["WLD"] | ............ | Johannesburg |
| South-Eastern Cape Local Division ["SECLD"] | ............ | Port Elizabeth |
2.7 Schedule 1 of the Supreme Court Act defines the area of jurisdiction of each of the provincial and local divisions mentioned in 2.6 above. Concurrent jurisdiction is exercised by :-
2.8 Except for the WLD , a local division has no appeal or review jurisdiction from inferior courts within its area of jurisdiction. Such jurisdiction is exercised by the provincial division.
2.9 The full court of a provincial division has appellate jurisdiction in civil or criminal proceedings in respect of the judgment or order of a single judge of that division if the court granting leave to appeal is not satisfied that the appeal requires the attention of the Supreme Court of Appeal. Where the judgment or order is that of a local division , the appeal lies to the full court of the provincial division having concurrent jurisdiction , save that in the case of an appeal from the WLD the judge president of the TPD may direct it to be heard by a full court of the WLD.
2.10 In terms of sec 7 of the Supreme Court Act the judge president of a provincial division may by notice in the Government Gazette divide the area under the jurisdiction of that division into circuit districts. In each such district ["circuit local division"] a circuit is held at least twice a year. A circuit local division is deemed to be a local division.
2.11 When the Transkei became independent in 1976 its former High Court became the Transkei Supreme Court with a right of appeal to the South African Appellate Division ["the AD"]. Through further legislation there was constituted in 1978 a new Transkei Supreme Court comprising a general division and an appellate division.
2.12 Immediately before Bophuthatswana gained independence in 1977 there was created the Bophuthatswana Supreme Court with a right of appeal to the AD. Through further legislation there was constituted in 1982 a Bophuthatswana Supreme Court comprising a general division and an appellate division.
2.13 When Venda became independent in 1979 the Venda High Court was established with appeals lying to the AD.
2.14 When Ciskei gained independence in 1981 the Ciskei High Court was established. Through further legislation there was constituted in 1984 the Ciskei Supreme Court comprising a general division and an appellate division.
2.15 The areas of the former TBVC states now form part of the national territory of the Republic of South Africa ; and the courts mentioned in paragraphs 2.11 to 2.14 above have been incorporated afresh into the South African judicial hierarchy.
2.16.1 In the previous Constitution, the Judicial Authority and the Administration of Justice were dealt with in secs 96 to 109 in Chapter 7.
2.16.2 In the previous Constitution, Transitional Arrangements for the Judiciary were dealt with in sec 241 and Rationalisation of Court Structures in sec 242.
2.16.3 In the new Constitution, Courts and the Administration of Justice are dealt with in secs 165 to 180 in Chapter 8.
2.16.4 In the new Constitution, Transitional Arrangements for the Courts are dealt with in item 16 of Schedule 6.
2.17.1 Sec 101(1) of the previous Constitution read as follows -
" There shall, subject to sections 241 and 242, be a Supreme Court of South Africa, which shall consist of an Appellate Division and such provincial and local divisions, and with such areas of jurisdiction, as may be prescribed by law."
2.17.2 Subject to certain provisos, which are here not quoted, sec 241(1) of the previous Constitution read as follows -
" Every court of law existing immediately before the commencement of this Constitution in an area which forms part of the national territory, shall be deemed to have been duly constituted in terms of this Constitution or the laws in force after such commencement, and shall continue to function as such in accordance with the laws applicable to it until changed by a competent authority..."
2.17.3 Subsections (1) and (2) of sec 242 of the previous Constitution read as follows -
" (1) All jurisdictional areas and court structures appropriate thereto existing immediately before the commencement of this Constitution, shall as soon as possible after such commencement be rationalised in accordance with an Act of Parliament with a view to establishing the jurisdictional areas and court structures contemplated in Chapter 7.
(2) The rationalisation of the jurisdictional areas and court structures referred to in subsection (1) shall be the responsibility of the national government after consultation with the Judicial Service Commission."
2.17.4 Sec 166 of the new Constitution reads as follows -
" 166. The courts are -
(a) the Constitutional Court;
(b) the Supreme Court of Appeal;
(c) the High Courts, including any high court of appeal that may be established by an Act of Parliament to hear appeals from High Courts;
(d) the Magistrates' Courts; and
(e) any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to either the High Courts or the Magistrates' Courts."
2.17.5 Subitem 16(1) of Schedule 6 to the new Constitution reads as follows -
" 16(1) Every court, including courts of traditional leaders, existing when the new Constitution took effect, continues to function and to exercise jurisdiction in terms of the legislation applicable to it, and anyone holding office as a judicial officer continues to hold office in terms of the legislation applicable to that office, subject to -
any amendment or repeal of that legislation ; and
consistency with the new Constitution."
2.17.6 Subitem 16(3) of Schedule 6 to the new Constitution reads as follows -
" (3)
The Appellate Division of the Supreme Court of South Africa becomes the Supreme Court of Appeal under the new Constitution.
Anyone holding office as the Chief Justice, the Deputy Chief Justice or a judge of the Appellate Division when the new Constitution takes effect, becomes the Chief Justice, the Deputy Chief Justice or a judge of the Supreme Court of Appeal under the new Constitution."
2.17.7 Subitem 16(4) of Schedule 6 to the new Constitution reads as follows -
" (4)
A provincial or local division of the Supreme Court of South Africa or a supreme court of a homeland or a general division of such a court, becomes a High Court under the new Constitution without any alteration in its area of jurisdiction, subject to any rationalisation contemplated in subitem (6).
Anyone holding office or deemed to hold office as the Judge President, the Deputy Judge President or a judge of a court referred to in paragraph (a) when the new Constitution takes effect, becomes the Judge President, the Deputy Judge President or a judge of such a court under the new Constitution, subject to any rationalisation contemplated in subitem (6)."
2.17.8 Subitem 16(6) of Schedule 6 to the new Constitution reads as follows -
" (6)
As soon as is practical after the new constitution took effect all courts, including their structure, composition, functioning and jurisdiction, and all relevant legislation, must be rationalised with a view to establishing a judicial system suited to the requirements of the new Constitution.
The Cabinet member responsible for the administration of justice, acting after consultation with the Judicial Service Commission, must manage the rationalisation envisaged in paragraph (a)."
2.18.1 Sec 124(1) of the previous Constitution established for the Republic of South Africa the following nine provinces whose respective areas were defined in Part 1 of Schedule 1 to the previous Constitution :-
(a) Eastern Cape; (b) Eastern Transvaal; (c) KwaZulu/Natal; (d) Northern Cape; (e) Northern Transvaal; (f) North-West; (g) Orange Free State ; (h) Pretoria- Witwatersrand-Vereeniging and (i) Western Cape.
2.18.2 Sec 103 of the new Constitution reads as follows -
" 103(1) The Republic has the following provinces:
- Eastern Cape
- Free State
- Gauteng
- KwaZulu-Natal
- Mpumalanga
- Northern Cape
- Northern Province
- North West
- Western Cape
(2) The boundaries of the provinces are those that existed when the Constitution took effect."
2.19 Broadly speaking the increase from four to nine provinces was achieved :-
- GAUTENG, consisting of the small central area of the old Transvaal in which both Pretoria and Johannesburg are situated ;
- MPUMALANGA, consisting of the large territory lying to the east of Gauteng and previously known as the Eastern Transvaal ;
- NORTHERN PROVINCE, consisting of the large territory lying to the North of Gauteng and previously known as the Northern Transvaal ; and
- NORTH WEST, consisting of the large territory lying to the west of Gauteng and previously known as the Western Transvaal.
2.20 In what follows collective reference to the three new provinces of Mpumalanga, Northern Province and North West will be made as "the three adjoining provinces".
2.21 Both Pretoria (the seat of the Transvaal Provincial Division) and Johannesburg (the seat of the Witwatersrand Local Division) fall within the province of Gauteng. However, it is a consequence of the establishment of Gauteng and the three adjoining provinces that none of the three adjoining provinces has a provincial or local division of the High Court.
2.22 On the other hand, of the remaining five provinces:-
2.23 Within the national territory of the Republic of South Africa there are High Courts (which are neither provincial nor local divisions of the High Court) in each of the territories which were respectively part of the former Republics of Transkei, Bophuthatswana, Venda and Ciskei.
2.24 The Transkei High Court (with its seat at Umtata) and the Ciskei High Court (with its seat at Bisho) both fall within the territory of the Eastern Cape. Bisho is now the legislative and administrative capital of the Eastern Cape.
2.25 The Bophuthatswana High Court (with its seat at Mmabatho/Mafikeng) falls within the territory of the North West and the Free State. Mmabatho/Mafikeng is now the legislative and administrative capital of the North West.
2.26 The Venda High Court (with its seat at Thohoyandou) falls within the territory of the Northern Province.
2.27 The provincial territory of the Orange Free State as defined in Part 1 of Schedule 1 to the previous Constitution coincides with the area of jurisdiction of the Orange Free State Provincial Division as defined in Schedule 1 to the Supreme Court Act.
2.28 The respective provincial territories of the Western Cape, the Eastern Cape , the Northern Cape and KwaZulu/Natal as defined in Part 1 of Schedule 1 to the previous Constitution do not coincide with the areas of jurisdiction of the Cape of Good Hope Provincial Division, the Eastern Cape Division , the Northern Cape Division and the Natal Provincial Division as respectively defined in Schedule 1 to the Supreme Court Act .
2.29 The five magisterial districts of Namaqualand, Calvinia, Williston, Sutherland and Fraserburg which in terms of Schedule 1 to the Supreme Court Act fall within the area of jurisdiction of the Cape of Good Hope Provincial Division now belong territorially to the Northern Cape Province. The magisterial district of Willowmore which in terms of Schedule 1 to the Supreme Court Act falls within the area of jurisdiction of the Cape of Good Hope Provincial Division now belongs territorially to the Eastern Cape Province.
2.30 The magisterial district of Murraysburg which in terms of Schedule 1 to the Supreme Court Act falls within the jurisdiction of the Eastern Cape Division now belongs territorially to the Western Cape Province.
2.31 The three magisterial districts of Hanover, Colesberg and Noupoort which in terms of Schedule 1 to the Supreme Court Act fall within the area of jurisdiction of the Eastern Cape Division now belong territorially to the Northern Cape Province.
2.32 The magisterial district of Vryburg which in terms of Schedule 1 to the Supreme Court Act falls within the area of jurisdiction of the Northern Cape Division now belongs territorially to the North West Province.
2.33 The eastern segment of the magisterial district of Piet Retief, the whole of which district in terms of Schedule 1 to the Supreme Court Act falls within the area of jurisdiction of the Transvaal Provincial Division now belongs territorially to KwaZulu-Natal.
2.34 The magisterial district of Delmas, which in terms of Schedule 1 to the Supreme Court Act falls within the area of civil jurisdiction of the Witwatersrand Local Division, now belongs territorially to the province of Mpumalanga.
3.1 INVITATION TO INTERESTED PARTIES TO MAKE WRITTEN SUBMISSIONS AND/OR ORAL REPRESENTATIONS TO THE COMMISSION
3.1.1 During April 1995 the Commission prepared and disseminated a written CALL FOR SUBMISSIONS. This document announced the appointment of the Commission and quoted its Terms of Reference. It also explained the background to the issues raised in sub-paragraph (1)(b) of the Terms of Reference.
3.1.2 The CALL FOR SUBMISSIONS invited interested parties to make submissions to the Commission by way of written responses to any or all of the matters set forth in sub-paragraphs (a) to (f) of paragraph (1) of the Terms of Reference. At the same time interested parties were requested to state in their written responses whether they wished to appear in person before the Commission in order to support or amplify their written responses by oral representations.
3.1.3 The deadline for written responses to reach the Commission was initially 30 June 1995. At the instance of various interested parties the deadline was extended to 30 August 1995.
3.1.4 A copy of the CALL FOR SUBMISSIONS is contained in APPENDIX "B" at page 125 of VOLUME I of this report.
3.1.5 A list of those persons and associations to whom a copy of the CALL FOR SUBMISSIONS was directly addressed by the Commission appears in APPENDIX "C" at page 128 of VOLUME I of this report.
3.1.6 The Commission further caused copies of the CALL FOR SUBMISSIONS to be displayed on public notice boards in every division of the Supreme Court and in every magistrates court office throughout the Republic. The Commission is indebted to the SABC for its generous assistance to the Commission in publicising the work of the Commission. The SABC transmitted television and radio flashes in which the task of the Commission was explained and in which viewers and listeners were invited to make written submissions and/or oral representations to the Commission. In addition Mr. Fikile Bam was interviewed in a television programme about the work of the Commission.
3.1.7 The Commission caused to be widely published in the daily press, notices informing the public of the Commission's work and inviting readers to make written submissions and/or oral representations to the Commission. A list of the newspapers in which such notices were published appears in APPENDIX "D" at page 129 of VOLUME I of this report.
3.1.8 285 written responses to the CALL FOR SUBMISSIONS were received by the Commission. A list of these respondents appears in APPENDIX "E" at page 130 of VOLUME I of this report.
3.2 RECIPROCAL DISCLOSURE OF WRITTEN RESPONSES BETWEEN RESPONDENTS
3.2.1 The regulations governing the Commission prohibit the publication of the contents of written responses to the Commission without the written permission of the Chairman.
3.2.2 Since various interested parties conveyed to the Commission a wish to have sight of responses submitted to the Commission by others, each respondent was requested in writing to signify to the Commission (by completing an enclosed form and by posting it to the Commission) whether he or she was willing, subject to the written permission of the Chairman, to have his or her response disclosed to other interested parties. Copies of the request and enclosed consent form are to be found in APPENDIX "F" at page 140 of VOLUME I of this report.
3.2.3 The vast majority of respondents communicated their consent to such disclosure. Thereafter copies of the responses requested were supplied by the Commission to the interested parties applying therefor, through the post, by courier service, or by personal delivery by members of the Secretariat.
3.3 INFORMAL MEETINGS WITH JUDGES, ATTORNEYS-GENERAL, PRACTITIONERS AND COURT OFFICIALS
3.3.1 During the period April to December 1995 the Chairman and the Secretariat visited various provincial and local divisions of the Supreme Court as well as the Ciskei Supreme Court, the Transkei Supreme Court and the Venda Supreme Court.
3.3.2 During the visits aforesaid, informal interviews were held with Judges President, Judges, Attorneys-General, members of the Registrar's Office and practitioners. During such interviews general information was gathered and an attempt was made to identify problem areas.
3.3.3 Details of the dates of such visits and of the persons interviewed are set forth in APPENDIX "G" at page 142 of VOLUME I of this report.
3.4 INSPECTIONS OF SUPREME COURT BUILDINGS, MAGISTRATES COURTS BUILDINGS AND BUILDINGS SUGGESTED BY INTERESTED PARTIES AS BEING SUITABLE FOR ADAPTATION TO USE AS A SUPREME COURT
3.4.1 At various times the Commission and its Secretariat carried out inspections of the following buildings housing Supreme Courts or Magistrates Courts:-
3.4.2 The Commission and its Secretariat further inspected the following buildings which had been suggested as being suitable, subject to appropriate structural alteration, to house a division of the Supreme Court :-
(a) IN PIETERSBURG
the old Magistrates Court presently used by the South African Police Services ;
(b) IN POTCHEFSTROOM
the former Barnard-Huis Student Residence, being the property of the University of Potchefstoom and presently being used by the South African Police Services ;
(c) IN KLERKSDORP
the old Central West Headquarters ;
the West-End Building ; and
the Klerksdorp Medical Centre.
(d) IN RUSTENBURG
the Tlhabane Magistrates Court ; and
the Phokeng Civic Centre which is used as a Circuit Court for the Bafokeng District by the Bophuthatswana Supreme Court.
3.4.3 With the assistance of the Hon. Mr. Justice Pickard, Judge President of the
Ciskei Supreme Court, and with the co-operation of the South African Police Services, the
Commission and its Researcher undertook an aerial inspection of the area of jurisdiction
of the Ciskei Supreme Court and the adjoining East London area.
3.5 PUBLIC SITTINGS OF THE COMMISSION AT WHICH ORAL REPRESENTATIONS BY INTERESTED PARTIES WERE RECEIVED
3.5.1 During the period October 1995 to August 1996 the Commission held fifteen public sittings at which oral representations by various interested parties (listed in Appendix "H" at page 143 of VOLUME I) were heard at the places mentioned in the first column hereunder on the dates respectively mentioned in the second column hereunder:-
3.5.2 Advance notice to the public of the venues and dates of the Commission's public sittings was published by way of SAPA press releases. In this connection the Commission expresses its appreciation to SAPA and in particular to SAPA's Bloemfontein representative, Mrs. E. Rhodes, for her excellent assistance.
3.6 THE COMMISSION'S OVERSEAS FACT-FINDING TRIP
3.6.1 From 26 August to 9 October 1996 the Commission and its Secretariat visited Australia, New Zealand, Canada, the United States of America, Scotland and England on a fact-finding mission.
3.6.2 In the course thereof the Commission and its Secretariat conducted intensive consultations in fifteen different cities (Perth, Sydney, Wellington, Auckland, Vancouver, Victoria BC, Denver, Minneapolis, Chicago, Ottawa, Toronto, Washington DC, New York, Edinburgh and London) with many Judges, Judges clerks, academic jurists, practitioners, mediators, court management consultants, court managers, registrars, registrar/magistrates, referees, social scientists in domestic relations, and senior Government officials, etc. In addition the Commission and its Secretariat had the advantage of witnessing court proceedings and mediation sessions.
3.6.3 The persons so consulted by the Commission, all of whom took great pains in giving the Commission every possible assistance, were all experts in one or more of the fields of caseflow management, alternative dispute resolution techniques, commercial courts, bankruptcy courts, specialist courts for the adjudication of intellectual property law matters, and domestic relations courts (including family courts of comprehensive jurisdiction).
3.6.4 In its Final Report the Commission will describe in detail its conclusions based on the impressions formed by it in the course of its overseas fact-finding mission, and the significance of those conclusions in relation to the recommendations which the Commission will make in regard to the matters already set forth in paragraphs 1.8.1(a) to (h) at pages 5 - 6 in Chapter 1 of this Report. The Final Report will also list the many foreign Judges, experts and practitioners by whom the Commission was cordially received and all of whom took much time and endless trouble in consulting with and advising the Commission and its Secretariat.
3.7 ASSISTANCE GIVEN TO THE COMMISSION BY MR. L.O. FOURIE
3.7.1 In terms of regulation 6 of the regulations applicable to the Commission the Chairman may designate a person to assist the Commission, in a capacity other than that of a member, in the performance of certain of its functions.
3.7.2 In the course of its investigations the Commission wished to determine the broad nature and the approximate extent of the case-loads respectively carried by the following courts: (1) the South-Eastern Cape Local Division; (2) the Ciskei Supreme Court; (3) the Supreme Court at Grahamstown (including the East London Circuit Local Division); and the Bophuthatswana Supreme Court.
3.7.3 In terms of reg. 6 Mr. L.O. Fourie, a former Registrar of the Supreme Court, was designated by the Chairman to extract from the court files of the courts mentioned in 3.7.2 above, certain particulars in respect of the trials, motions and appeals heard in each such court.
3.7.4 In due course Mr. Fourie was appointed by the Department of Justice on a temporary basis to assist the Commission in the above connection. The Commission having thereafter sought and gained the prior formal approval of the Judge President of each court concerned, Mr. Fourie began his work. In the execution thereof Mr. Fourie examined such court files as were still available at the court centres mentioned in the first column hereunder during the periods mentioned in the second column hereunder:-
| Port Elizabeth | ................... | 1 March to 23 May 1996 ; |
| Bisho | ................... | 3 June to 29 July 1996 ; |
| Grahamstown | ................... | 1 August to 15 November 1996 ; and |
| Mmabatho | ................... | 25 November to 20 December 1996 . |
3.7.5 The Commission wishes to express its appreciation to Mr. Fourie for the conscientious manner in which he carried out his mandate in circumstances not always congenial.
4.1 The Eastern Cape Province
4.1.1 Single Seat
4.1.1.1 Should there be a single seat in the Eastern Cape Division ?
4.1.2 Grahamstown
4.1.2.1 Should Grahamstown retain its status as the seat of the Eastern Cape Division ?
4.1.2.2 If Grahamstown does not retain its status as the seat of the Eastern Cape Division, what should become of it ?
4.1.3 Bisho
4.1.3.1 Should Bisho become the seat of the Eastern Cape Division ?
4.1.3.2 If Bisho does not become the seat of the Eastern Cape Division, should the Ciskei Court become a local division of the Eastern Cape Division ?
4.1.3.3 If the Bisho Court does not become the seat of the Eastern Cape Division, and it is not converted into a local division, should it be closed down ?
4.1.4 Umtata
4.1.4.1 Should the Transkei Supreme Court become an autonomous division ?
4.1.4.2 If so, what should be the name of such an autonomous division, and what should be the strength of its bench ?
4.1.4.3 If the Transkei Supreme Court does not become an autonomous division, should it be converted into a local division of the Eastern Cape Division ?
4.1.4.4 If so, what should be its name, and what should be the strength of its bench ?
4.1.4.5 Should the jurisdictional area of the Transkei Supreme Court be expanded ?
4.1.5 Port Elizabeth
4.1.5.1 Should the South-Eastern Cape Local Division at Port Elizabeth be retained ?
4.1.6 East London
4.1.6.1 Should the Circuit Local Division for the District of East London be retained as such ?
4.1.6.2 Should the East London Court become a local division of the Eastern Cape Division with jurisdiction over the districts of East London, Mdantsane and Komga ?
4.1.7 General
4.1.7.1 Should jurisdictional areas of divisions of the Supreme Court be co-extensive with the provincial boundaries of provinces ?
4.1.7.2 Should each province have its own provincial division ?4.2 Gauteng
4.2.1 Witwatersrand Local Division
4.2.1.1 Should the Witwatersrand Local Division become an autonomous division of the Supreme Court in Gauteng with its seat at Johannesburg and its own Judge President?
4.2.1.2 Should the Witwatersrand Local Division of the Supreme Court retain its present status ?
4.2.2 General
4.2.2.1 Should a new Supreme Court seat be established at Midrand in Gauteng?
4.2.2.2 Should divisions of the Supreme Court be created in Mpumalanga, the Northern Province and the North West Province ?
4.3 Kwazulu-Natal
4.3.1 Pietermaritzburg
4.3.1.1 Should Pietermaritzburg remain the seat of the Natal Provincial Division with Durban remaining the seat of the Durban and Coast Local Division ?
4.3.2 Durban
4.3.2.1 Should the seat of the Natal Provincial Division be moved from Pietermaritzburg to Durban ?
4.3.3 General
4.3.3.1 Should jurisdictional areas of divisions of the Supreme Court be co-extensive with the provincial boundaries of provinces?
4.4 Mpumalanga
4.4.1 Provincial Division
4.4.1.1 Should Mpumalanga become an autonomous provincial division of the Supreme Court?
4.4.2 Circuit Local Division
4.4.2.1 Should Mpumalanga remain a Circuit Local Division of the Supreme Court at Pretoria?
4.5. North West Province
4.5.1 Provincial Division
4.5.1.1 Should the North West Province become an autonomous provincial division of the Supreme Court ?
4.5.1.2 If so, should provision nevertheless be made for the Pretoria Supreme Court to have concurrent jurisdiction over certain parts of the North West Province ?
4.5.2 Circuit Local Division
4.5.2.1 Should the North West Province remain a Circuit Local Division of the Supreme Court at Pretoria ?
4.5.2.2 Should there be concurrent jurisdiction across provincial boundaries ?
4.6 Northern Cape
4.6.1 Jurisdiction
4.6.1.1 Should the jurisdiction of a provincial division be confined to provincial boundaries ?
4.6.1.2 Should the Cape of Good Hope Provincial Division exercise concurrent jurisdiction over the magisterial district of Namaqualand which now forms part of the territory of the Northern Cape Province ?
4.6.3 General
4.6.3.1 Should the seat of the Northern Cape Division remain at Kimberley ?
4.6.3.2 What should the Northern Cape Division be called ?
4.7 Northern Province
4.7.1 Provincial Division
4.7.1.1 Should the Northern Province become an autonomous provincial division of the Supreme Court ?
4.7.2 Local Division
4.7.2.1 Should the Northern Province become a local division of the Supreme Court at Pretoria ?
4.7.3 Venda Supreme Court
4.7.3.1 What should be done about the Venda Supreme Court situated at Thohoyandou ?
4.8 Western Cape
4.8.1 Jurisdiction
4.8.1.1 Should jurisdictional areas of divisions of the Supreme Court coincide with the provincial boundaries of provinces ?
4.8.2 General
4.8.2.1 What should be the name of the Cape of Good Hope Provincial Division ?
5.1 Eastern Cape
5.1.1 Should there be a single seat in the Eastern Cape Division ?
(a) The Honourable B. de V Pickard, Judge President of the Ciskei Supreme Court states -
" where sub-division needs to occur in a particular Provincial Division of the Supreme Court, it should be done on an area of jurisdiction basis (as is presently the case with Local Divisions) and that all such sub-divisions to have equal standing and that none of them is regarded as something superior and representing the so-called 'seat of the court'."
(b) Pickard JP goes on to state that a Judge President who will be resident in the area of one of the court venues should be appointed to have overall control and that -
" At each of these venues there should be a Deputy Judge President in charge. "
(c) The views of Pickard JP are supported by the King William's Town Transitional Local Council.
(d) The National Association of Democratic Lawyers (Border) -
"The area of the Eastern Cape Province is very large and should therefore be divided into several areas in which there will be a 'seat' or court venue"
(e) Attorney-General of Bisho -
" the size and demography of the province demand that it be served by more than one seat of this single Division."
(f) In reply to the views expressed by Pickard JP, the Hon Mr Justice N.W. Zietsman Judge President of the Eastern Cape Division, submits -
"Such a suggestion is, in my opinion, undesirable, impractical and contrary to the good administration of Justice "
5.1.2 Should Grahamstown retain its status as the seat of the Eastern Cape Division ?
(a) The Port Elizabeth and Districts branch of the National Association of Democratic Lawyers -
" The Provincial Division of the Supreme Court (judicial capital) should remain in Grahamstown with jurisdiction over the entire Province."
(b) Attorneys Neave, Stötter & Associates of Port Alfred -
" We write to advise that the Partners and Consultants of this firm support the retention of the seat of the Provincial Division in Grahamstown with minimum changes in geographical jurisdiction."
(c) Attorney-General for the Eastern Cape Division -
" The Attorney-General of the Eastern Cape Division supports these arguments for the retention of Grahamstown, whether it be the seat of a large, all-encompassing Eastern Cape Division or only of a geographically smaller Division west of the Kei River "
(d) Attorney Ralph Human of Grahamstown -
"I submit that the seat of the court should remain in Grahamstown."
(e) The East London Attorneys Association -
" that Grahamstown remain as the seat of the Court in the Eastern Cape"
(f) City of Grahamstown -
"There are clearly strong historical reasons for the location of the Supreme Court in Grahamstown over 100 years ago. Its domain and its authority were established over many decades, and these were only interfered with by the creation of the Transkei and Ciskei bantustans which were required to establish their own Supreme Courts because of their 'independent' status. Given the imminent demise of these artificial creations of apartheid government, the domain of the new Provincial Supreme Court will be restored, and its Seat should be declared in Grahamstown where it always has been and logically belongs."
(g) Zietsman JP -
"That Grahamstown should be the Judicial capital of the Eastern Cape and that the Grahamstown Court should have jurisdiction over the whole area."
(h) Judges' Committee of the Eastern Cape Division, Grahamstown -
"The city of Grahamstown is a cultural and educational centre which can properly be described as politically neutral. There is nothing controversial about it. It has been the seat of the local Supreme Court for well over a hundred years . to speak of the effect of the withdrawal of the greater legal community upon the economic life of an already economically depressed city as 'devastating' is not an exaggeration The seat of the Supreme Court should remain in Grahamstown."
(j) Advocates and Attorneys Liaison Committee of the Eastern Cape -
"The seat of the Provincial Division should be situated at Grahamstown and that court should have jurisdiction over the whole of the Eastern Cape Province. The court at Bisho cannot accommodate the work load at present borne by the court in Grahamstown."
(k) Attorney I.M. Spence of Greyvenstein & Spence at Barkly East -
" the Eastern Division of the Supreme Court of South Africa should continue in Grahamstown "
5.1.3 If Grahamstown does not retain its status as the seat of the Eastern Cape Division, what should become of it ?
(a) The National Association of Democratic Lawyers (Border) -
" there should be Local Divisions in Umtata, Grahamstown "
(b) King William's Town Attorneys Association -
"A Local Division to be known as the Central Eastern Cape Local Division should be established in Grahamstown."
(c) Black Lawyers Association (Eastern Cape) -
"It is equally fallacious to argue as has been submitted in some quarters that Grahamstown should be the Judicial Capital The truth is that Grahamstown has not had that status over the area of the Eastern Cape for some twenty years already, and has not crumbled down."
(d) Pickard JP, supported by the King William's Town Transitional Local Council -
"It seems to me that, Grahamstown has the least claim to survival. However, the wise approach in my view would be to retain also Grahamstown at least until the laws of supply and demand phase it out automatically as Prof. Davies seems to suggest may happen."
(e) Professor B. Davies, a Professor of Development Studies, makes the following statements in his submission in collaboration with the city of Grahamstown -
"The city has a fragile economic base Even the most minor shocks or dislocation, in this kind of situation, which results in a decrease in income through the loss of business activity, has immediate and severe effects The removal of the Seat of the Supreme Court from Grahamstown would have precisely this effect the removal of the Supreme Court would constitute a direct threat to 259 jobs in Grahamstown, together with 'an estimated 200 secondary jobs in domestic employ' an average of 40 percent of workers currently employed by the business interests surveyed would probably be retrenched it is submitted that the case for the retention of the seat of the Supreme Court in Grahamstown is sound, and is based on strong historical, practical and economic evidence."
5.1.2 Should Bisho become the seat of the Eastern Cape Division ?
(a) The National Association of Democratic Lawyers (Border) -
"Should the Commission be of the view that it is necessary to have a Seat of the Supreme Court Bisho should be the Seat of the Supreme Court."
(b) Attorney E.F. Henning of Squire Smith & Laurie at Bisho -
"I cannot find one good reason why the seat of the Supreme Court should remain in Grahamstown I believe that the Seat of the Eastern Cape Division should be moved to Bisho "
(c) Attorneys Hutton & Cook of King William's Town-
"That the seat of the provincial division be Bisho/King William's Town alternatively Grahamstown "
(d) Pickard JP supported by the King William's Town Transitional Local Council -
"Bisho is without any doubt geographically the best suited for the Provincial Division and is, in terms of the communication networks, the most accessible to all inhabitants of the province. At any rate it simply seems logical and proper that the Provincial Division should be seated in the Capital."
(e) King William's Town Attorneys Association -
"Bisho should be made the seat of the Provincial Division of the Supreme CourtBisho is the Administrative and Legislative Capital of the Province It would be more convenient to the Government to litigate at the seat of Government It is the most centrally situated area of the Eastern Cape and within easy reach of all the inhabitants in the area "
(f) Society of Advocates of Ciskei -
"It is submitted that Bisho must be the obvious venue for the seat of the court, being the most centrally situated and being the capital of the Province."
5.1.5 If Bisho does not become the seat of the Eastern Cape Division, should the Ciskei Court become a local division of the Eastern Cape Division ?
(a) Attorney-General (Ciskei) -
"...Three local divisions within that single Provincial Division...The Umtata Local Division...The Bisho Local Division for roughly the central third of the Province...The Port Elizabeth/Grahamstown Local Division..."
(b) National Association of Democratic Lawyers (Border Branch) -
"The area of the Eastern Cape Province is very large and should therefore be divided into several areas in which there will be a "seat" or court venue..The following court areas...Umtata...Bisho...Grahamstown...Port Elizabeth..."
5.1.6 If the Bisho Court does not become the seat of the Eastern Cape Division, and it is not converted into a local division, should it be closed down ?
(a) National Association of Democratic Lawyers (Port Elizabeth and Districts Branch)-
"The Supreme Court presently operating at Bisho should be closed down and a permanent Local Division be created in East London."
(b) Zietsman JP -
"It is the view of all of the Judges in this Division that Bisho, or the Ciskei area, does not justify having a seat of the Supreme Court."
5.1.7 Should the Transkei Supreme Court become an autonomous division ? If so, what should be the name of such an autonomous division and what should be the strength of its bench ?
(a) Advocate V.O.T. Vakalisa of the Umtata Bar -
" the Transkei Supreme Court should be accorded provincial status with a full bench."
(b) Transkei Attorneys Association -
" that the Supreme Court of Transkei be retained and that it be retained under its present jurisdiction, with full bench status."
(c) Attorney-General of the Transkei -
"Transkeian legal structures are so firmly embedded - historically, culturally, economically and practically submitting or reverting to administration from elsewhere would not be feasible as against retention of a separate and autonomous Transkeian Division of the Supreme Court in all its manifestations."
(d) The Hon Mr Justice C.E.L. Beck, Judge President of the Supreme Court of Transkei -
" it would be preferable for the Court to have exclusive jurisdiction over its area, and not to have another distant Court that would enjoy concurrent jurisdiction over the area of Transkei We think therefore that the Court should be the Transkei Provincial Division A minimum of 7 Judges is presently required "
(e) Department of Justice Regional Representative of Transkei -
"An appeal is hereby made that the present Supreme Court of Transkei should be converted to a Provincial Division of the Supreme Court of South Africa"
5.1.8 If the Transkei Supreme Court does not become an autonomous division, should it be converted into a local division of the Eastern Cape Division? If so, what should be its name?
(a) The National Association of Democratic Lawyers (Port Elizabeth and Districts Branch) -
"A Local Division to be known as the Transkei Local Divsion should be situated at Umtata "
(b) Attorney E.F. Henning of Squire Smith & Laurie at Bisho -
"That local Divisions be established in Umtata "
(c) Attorney-General of the Ciskei -
"These local Divisions being...the Umtata Local Division for roughly the Eastern third of the Province The Bisho Local Division for roughly the Central third of the Province...The Port Elizabeth/Grahamstown Local Division for roughly the Western third of the Province."
(d) Attorneys Hutton & Cook of King William's Town -
"That there be three local divisions, namelySouth Eastern Cape...Central Eastern Cape...Transkei - Umtata."
(e) East London Attorneys Association -
"...that Umtata become a Local Division falling under Grahamstown with its area of jurisdiction encompassing the 'old Transkei' area of jurisdiction "
(f) Zietsman JP -
" local division in Umtata with jurisdiction over the Transkei area "
(g) Judges' Committee, Grahamstown -
" a local division for the area presently served by the Transkei Supreme Court could be established "
(h) Pickard JP supported by the King William's Town Transitional Local Council -
" Umtata must retain its Court."
(j) Advocates and Attorneys Liaison Committee, Eastern Cape -
"The Transkei Local Division should be situated in Umtata and should retain substantially the same geographical area of jurisdiction as the Supreme Court of the Republic of Transkei previously."
(k) King William's Town Attorneys Association -
"There appears to be general consensus on the situation of Local Divisions in Port Elizabeth and Umtata. We too, are in general agreement with this view."
5.1.9 Should the jurisdictional area of the Transkei Supreme Court be expanded ?
(a) The Transkei Attorneys Association -
" it would make sense for the jurisdiction of the Transkei Supreme Court to be increased to include the areas of Kokstad, Aliwal North, Barkly East, Elliot and Maclear "
(b) Black Lawyers Association (Eastern Cape) -
"Umtata serving the districts of the former Transkei, plus Kokstad, Maclear, Matatiele, Ugie, Elliot and Barkly East."
(c) Society of Advocates of Ciskei -
" due to the proximity, the districts of Indwe, Elliot and Maclear must fall under the Umtata court's jurisdiction."
5.1.10 Should the South-Eastern Cape Local Division at Port Elizabeth be retained ?
(a) National Association of Democratic Lawyers (Port Elizabeth and Districts Branch) -
"The South East Cape Local Division should continue to exist in Port Elizabeth with the same area of jurisdiction it presently has, but including the area west of Humansdorp up to the western boundary of the Province."
(b) Attorneys Hutton & Cook of King William's Town -
"That there be three local divisions...South Eastern Cape - Port Elizabeth...Central Eastern Cape...Transkei Umtata..."
(c) East London Attorneys Association -
"The Supreme Court Local Division situated at Port Elizabeth should remain for obvious reasons."
(d) Zietsman JP -
"Port Elizabeth has had its own local division for many years and we feel that this situation should remain."
(e) Judges' Committee, Grahamstown -
"The existing South Eastern Cape Local Division should remain with its present jurisdiction and its seat at Port Elizabeth "
(f) Pickard JP supported by the King William's Town Transitional Local Council -
"Port Elizabeth cannot be left without a Court.It has a large workload, a strong economy and a huge population in its area"
(g) Advocates and Attorneys Liaison Committee (Eastern Cape) -
"A local division of the Supreme Court for the Eastern Cape Province should be situated at Port Elizabeth."
(h) King William's Town Attorneys Association -
"that Local Division be established at Port Elizabeth, Grahamstown and Umtata"
(j) Attorney E.F. Henning of Squire Smith & Laurie at Bisho -
"That local Divisions be established in Umtata and Port Elizabeth."
(k) Attorney-General of the Ciskei -
"The Port Elizabeth/Grahamstown Local Division it is a very safe prediction to make that the Port Elizabeth Court will grow at the expense of the Grahamstown Court .."
5.1.11 Should the Circuit Local Division for the District of East London be retained as such ?
(a) King William's Town Attorneys Association -
"The Circuit Local Division situated in East London currently serves only the East London area. The area of jurisdiction of this Court should be extended to include that area which currently falls within the jurisdiction of its Transitional Local Council, and would continue to be known as the East London Circuit Local Division."
(b) Society of Advocates of Ciskei -
" the East London court should remain as a local circuit court managed from Bisho."
(c) Judges' Committee, Grahamstown -
"East London should remain as a permanent circuit local division with its former area of jurisdiction restored to it. This involves restoring Mdantsane to East London, where it belongs They are part of one and the same city."
5.1.12 Should the East London Court become a local division of the Eastern Cape Division with jurisdiction over the districts of East London, Mdantsane and Komga ?
(a) National Association of Democratic Lawyers (Port Elizabeth and Districts Branch) -
" a permanent Local Division be created in East London. Its area of jurisdiction should be the Magisterial Districts of East London, Mdantsane and Komga."
(b) East London Attorneys Association -
" East London becoming a Local Division with re-incorporation of the Mdantsane and Komga areas into its jurisdiction."
(c) Zietsman JP -
"A local division situated in East London to deal with the work arising from East London, Mdantsane and Komga areas could also be considered if the work justifies it. We see no merit in the suggestion that the East London and Mdantsane work should be handled in Bisho "
(d) Advocates and Attorneys Liaison Committee (Eastern Cape) -
"A local division of the Supreme Court for the Eastern Cape Province should be situated at East London in suitably upgraded accommodation and should service a geographical area of jurisdiction which would include the magisterial districts of East London, Mdantsane and Komga."
5.1.13 Should jurisdictional areas of Divisions of the Supreme Court be co-extensive with the provincial boundaries of provinces ?
(a) Pickard JP -
" a situation where the various Supreme Courts have jurisdiction which transcends the Provincial boundaries would be highly impracticable if not entirely intolerable."
5.1.14 Should each province have its own provincial division ?
(a) Pickard JP -
" each Province should eventually be served by its own Provincial Division throughout the whole of its territory."
5.2 Free State
The Free State has retained its provincial boundaries. It has a provincial division of the High Court whose jurisdictional area is co-extensive with its provincial boundaries. No pressing problems were raised by respondents from the Free State.
5.3 Gauteng
5.3.1 Should the Witwatersrand Local Division become an autonomous division of the Supreme Court in Gauteng with its seat at Johannesburg and its own Judge President ?
(a) The Hon. Mr Justice P.E. Streicher, on behalf of the Johannesburg Judges -
"The Supreme Court in Johannesburg is by far the busiest division of the Supreme Court in South Africa We believe that the time has now arrived for the court in Johannesburg to be given the status of an independent division of the Supreme Court have its own judge president who can devote all his time to this division the efficiency of the court must of necessity benefit from such an arrangement."
(b) The Johannesburg Bar -
" that the time has now arrived for the creation of an independent division in Johannesburg, with exclusive jurisdiction over the magisterial districts in respect of which the TPD and WLD currently exercise concurrent jurisdiction, and with its own Judge President, Bench, and administrative structure."
(c) The Hon. Mr Justice C.F. Eloff, Judge President of the Transvaal Provincial Division -
"Although the Johannesburg court is a local division it in reality functioned as a provincial division It is submitted that in the interests of justice that any restructuring of the Transvaal Provincial and the Witwatersrand Local Division should be done on the basis of retention of a unitary bench under the control of a single judge president The headquarters of the court shall be at Pretoria Within the area of jurisdiction of what was the Witwatersrand Local Division of the Supreme Court of South Africa there shall be a division named the Witwatersrand Division of the Supreme Court. That division shall have the jurisdiction of a provincial division."
(d) Mrs. H. Schutte of Pretoria -
"Die Gauteng Provinsie is die provinsie met die hoogste bevolkingsdigtheid. Die bestaan van twee howe in hierdie provinsie, naamlik die Witwatersrand Provinsiale Afdeling en die Transvaalse Provinsiale Afdeling is dus geregverdig."
(e) Attorney P.A. Bracher of Deneys Reitz Attorneys at Johannesburg -
"There is no longer any legal nor commercial justification for the Transvaal Provincial Division of the Supreme Court in Pretoria having superior jurisdiction to the Witwatersrand Local Division of the Supreme Court."
5.3.2 Should the Witwatersrand Local Division of the Supreme Court retain its present status ?
(a) Association of Pretoria Attorneys -
"The existing Courts in Johannesburg and Pretoria should be retained ... The Johannesburg Supreme Court should retain its jurisdiction, whereas the Pretoria Supreme Court should be accorded supra provincial status "
(b) The Pretoria Bar -
"the Johannesburg Supreme Court should retain its present status and jurisdictionPretoria should retain the seat of the Court."
(c) Greater Pretoria Metropolitan Council -
"We have read the submissions of the Pretoria Bar and the Association of Pretoria Attorneys, which we wholly endorse
(d) Eloff JP, on behalf the judges of the TPD -
"That the status quo of the TPD and the WLD should otherwise remain unchanged (this is the view of the majority)"
(e) J.A. van S d'Oliveira, SC, Attorney-General of the Transvaal -
"The present Pretoria Division handles all the work in the largest geographical part of Gauteng The question which arises is whether there is any convincing reason to change the existing practice."
5.3.3 Should a new Supreme Court seat be established at Midrand in Gauteng ?
(a) Midrand Metropolitan Sub-Structure -
"Midrand's position midway between Pretoria and Johannesburg the Midrand MSS makes so bold as to suggest to the Commission the merits of locating the seat of courts for Gauteng in Midrand ... extremely accessible from Pretoria, Johannesburg "
(b) The Hon. Mr Justice G. Leveson, Acting Deputy Judge President -
"A unified court at Midrand would extinguish the rival claims of the Johannesburg and Pretoria Bars to the business of both courts. It has the advantage of being more or less equidistant to the homes of both bars and the existing superior courts."
(c) Mrs. H. Schutte of Pretoria -
" met die afskaffing van die doodstraf sal die misdaadsyfer verder toeneem daar kan eerder gedink word aan die oprigting van 'n derde Hooggeregshof in die Gauteng Provinsie."
5.3.4 Should divisions of the Supreme Court be created in Mpumalanga, the Northern Province and the North West Province ?
(a) The Association of Pretoria Attorneys -
"The Pretoria Supreme Court should serve outlying areas in all provinces in its present area of jurisdiction and in the jurisdictional area of Venda and the Northwest Province with Civil Circuit Courts where such needs exists That no new divisions of the Supreme Court be created in the light of the lack of any need therefore."
(b) The Pretoria Bar -
"We respectfully submit that, by creating provincial divisions with exclusive jurisdiction in the new provinces, parties and witnesses from the main population concentrations and the main districts of economic activity would be forced to litigate in a Supreme Court which would be far removed from these centres, while Supreme Court structures in Pretoria and Johannesburg are much closer and offer every imaginable facility for the conduct of such trials ... In summary, not one of the new provinces has a legitimate demand for the creation of a Supreme Court, other than a Civil Circuit Court."
(c) The General Council of the Bar of South Africa -
" there is no justification on the grounds of practicality for establishing provincial divisions in each of the provinces of the North West, the Northern Transvaal and Mpumalanga."
(d) Greater Pretoria Metropolitan Council -
"Political demarcation does not provide a rational basis for the demarcation of areas of jurisdiction for the Supreme Court Pretoria as a seat of a Supreme Court serves the regional functional area fully and the rural areas around it sufficiently, and can serve the North-West, North and Mpumalanga Provinces as seat of the Circuit Court There is no logical political imperative for the proposition that each Province must have its own Supreme Court, contrarily, that it will reflect negatively in the public perception regarding the independence of the judiciary if its seat should be coupled to Provincial Government ..."
(e) Eloff JP, on behalf the judges of the TPD -
"That neither provincial nor local divisions should be established for any of the three provinces Eastern Transvaal, Northern Transvaal and North-West That the area of jurisdiction of the Supreme Court of Bophuthatswana and Venda should be added to the area of jurisdiction of the TPD That Circuit systems for the hearing of civil cases should not be introduced."
(f) Eloff JP -
"It is unlikely that sufficient civil work is likely to be generated in any of the three provinces to justify the high cost of the establishment of superior courts in any of the provinces The establishment of a number of new provincial or local divisions is likely to result in a lowering of standards and a weakening of the quality of administration of justice It is unlikely that good judicial material will be attracted to such small divisions."
(g) Attorney-General of the Transvaal -
"The present Pretoria Division adequately handles all the work in our present Eastern, Northern and North-Western jurisdictional sectors, and in the past was also responsible for the areas which became Bophuthatswana and Venda. It also handles all the work in the largest geographical part of Gauteng The question which arises is whether there is any convincing reason to change the existing practice the establishment of full divisions in the three new areas may be accepted as long-term projects commencing with an expanded Circuit system."
"The two separate Supreme Courts, viz of Bophuthatswana and Venda There is in any event, no justification for their continued existence as separate entities and their fate must be considered along with the new provincial areas in which they happen to fall."
5.4 Kwazulu-Natal
5.4.1 Should Pietermaritzburg remain the seat of the Natal Provincial Division with Durban remaining the seat of the Durban and Coast Local Division ?
(a) The Honourable Mr Justice J.A. Howard, Judge President of the Natal Provincial Division -
"The seats of the Provincial and Local Division should remain where they are, in Pietermaritzburg and Durban respectively."
(b) Venn Nemeth & Hart of Pietermaritzburg -
" we submit that Pietermaritzburg should remain as the seat of the Supreme Court with Durban having a local division "
(c) Pietermaritzburg Legal Circle -
"Pietermaritzburg should remain the seat of the Supreme Court of Kwazulu-Natal, with Durban having a Local Division "
5.4.2 Should the seat of the Natal Provincial Division be moved from Pietermaritzburg to Durban ?
(a) The Chatsworth Legal Circle -
" the seat of the Provincial Division in Kwazulu-Natal ought to be in Durban rather than in Pietermaritzburg."
5.4.3 Should jurisdictional areas of divisions of the Supreme Court be co-extensive with the provincial boundaries of provinces ?
(a) Howard JP -
"The area of jurisdiction of the Provincial Division should be the province of Kwazulu-Natal. The area of jurisdiction of the Local Division should remain unaltered."
5.5 Mpumalanga
5.5.1 Should Mpumalanga become an autonomous provincial division of the Supreme Court ?
(a) The Attorneys Association of Nelspruit submits that Mpumalanga should have its own Provincial Seat of the Supreme Court of South Africa at Nelspruit -
"Die Nelspruit Prokureursvereniging is eenparig die mening toegedaan dat die Mpumalanga Provinsie 'n eie Provinsiale setel van die Hooggeregshof van Suid-Afrika moet hê, en verder dat Nelspruit die setel van sodanige Hooggeregshof moet wees."
(b) Highveldrif Attorneys Association supports the creation of a Provincial division of the Supreme Court with its seat at Secunda -
"Die plasing van 'n Judisiêle Streeksetel in die Oos-Transvaal in Secunda "
(c) The Premier of Mpumalanga -
"That an own Provincial Division is justified with its own Registrar's office and should be seated in either Nelspruit or Middelburg in consultation with the Provincial Government. The name of the proposed Division ought to be 'the Provincial Division of the Province Eastern Transvaal' or any such other name as may be given to the Province in the future."
(d) The Society of Advocates of the Eastern Transvaal supports the creation of a Provincial Division of the Supreme Court in Mpumalanga with its seat at Nelspruit -
"Vestig 'n Provinsiale Afdeling van die Hooggeregshof in die Provinsie Oos-Transvaal. Die Setel van sodanige Afdeling in dié verband stel ek Nelspruit voor."
5.5.2 Should Mpumalanga remain a Circuit Local Division of the Supreme Court at Pretoria ?
(a) The Association of Witbank Attorneys -
"That a series of circuit civil courts be established That seats of the circuit courts concerned be Middelburg, Witbank, Nelspruit and Secunda."
5.6 North West Province
5.6.1 Should the North West Province become an autonomous provincial division of the Supreme Court ?
(a) The North West Bar Association -
"the people of the North-West Province are entitled to a Provincial Division of the Supreme Court for its area it is suggested that Mmabatho be the seat There are at present six judges in Mmabatho It is suggested that the name be the SUPREME COURT OF SOUTH AFRICA (NORTH-WEST PROVINCIAL DIVISION)."
(b) The Molopo Circle of Attorneys -
" the Circle fully aligns itself with the sentiments expressed by the North West Bar Association with regard to the establishment of a Supreme Court for the North West Province and its location in Mmabatho."
(c) The Circle Council, North West Province, of the Law Society of South Africa -
"Dat lede van Noord-Wes ten gunste van die instelling van 'n onafhanklike Hooggeregshof vir die Noord-Wes Provinsie is."
(d) The Law Society of Bophuthatswana -
"Therefore the establishment of a North West Provincial Division with two Local Divisions, one in Odi and one in Klerksdorp with two full time resident judges in the two respective Local Division will serve a useful purposes to the people "
(e) Prof. T.J. Kruger, Head of the Department of Applied Legal studies, University of Potchefstroom -
"Die Hooggeregshof van die gewese Bophuthatswana bestaan steeds Die setel van die hof kan gerieflik in Mmabatho gehou word Die getalsterkte van die regbank behoort met drie of vier regters uitgebrei te word."
(f) Attorney Frans Kruger of Potchefstroom -
"Daarom is dit dan my voorstel dat dit oorweeg word om bv. plaaslike setels van die Hooggeregshof te plaas in Klerksdorp, Potchefstroom en Rustenburg die Provinsiale Afdeling, in hierdie geval Mmabatho "
(g) City Council of Klerksdorp -
"After having assessed the data received from everyone approached, it was apparent that there was a strong perception that the Supreme Court be localised and that the seat of the Supreme Court, or a division thereof, be in Klerksdorp."
5.6.2 Should the North West Province remain a Circuit Local Division of the Supreme Court at Pretoria ?
(a) The Brits Attorneys Association -
" dat die Transvaalse Provinsiale Afdeling van die Hooggeregshof van Suid-Afrika voort bestaan onder 'n ander naam byvoorbeeld Noordelike Afdeling van die Hooggeregshof van Suid-Afrika as alternatief termynsittings op sekere hoofsentra, byvoorbeeld Mmabatho ..."
5.6.3 Should there be concurrent jurisdiction across Provincial boundaries ?
(a) The Brits Attorneys Association -
"Indien die afsonderlike provinsies hulle eie afsonderlike afdelings van die Hooggeregshof verkry, word versoek dat konkurrente jurisdiksie verleen word aan ander provinsies se Hooggeregshowe, dit wil sê vir 'n radius van byvoorbeeld 80 kilometer aangrensend tot 'n bepaalde provinsie se Hooggeregshofsetel."
(b) Attorneys Van Velden - Duffey of Rustenburg -
"Ek bepleit dus konkurrente jurisdiksie waar 'n setel van die Hooggeregshof buite my provinsie geografies nader is vir my en die verweerder as die betrokke provinsiale setel van die Hooggeregshof."
5.7 Northern Cape
5.7.1 Should the jurisdiction of a provincial division be confined to provincial boundaries ?
(a) Premier E.M. Dipico -
" my submission is that only districts which fall within the borders of the Northern Cape Province should fall under the area of jurisdiction of the Northern Cape Division ... likewise other Provincial Divisions in other provinces should have their areas of jurisdictions within the borders of their respective provinces."
(b) Circle 16 of the Law Society of the Cape of Good Hope -
" each province should be served with its own Supreme Court and that its area of jurisdiction should coincide with the geographical area of the province it serves."
(c) Circle 19 of the Law Society of the Cape of Good Hope -
" dat die jurisdiksiegrense van die Noord-Kaapse Hooggeregshof die provinsiale grense vir die provinsie Noord-Kaap sal volg."
(d) The Hon. Mr Justice, J. J. Kriek, Judge President of the Northern Cape Division, supported by the Northern Cape Society of Advocates -
" the whole of the area which is subject to the laws made by a Provincial Legislature should fall within the area of jurisdiction of the same Division of the Supreme Court."
(e) Attorney-General of the Northern Cape -
"van 'n suiwer regsoogpunt gesien, is dit gewens dat die jurisdiksionele grense van die Noord-Kaapse Afdeling ooreenstem met die provinsiale grense."
(f) The General Council of the Bar of South Africa -
"adjustment to the areas of jurisdiction of the different courts in the former Cape Province to confine their jurisdiction to the Provincial boundaries."
5.7.2 Should the Cape of Good Hope Provincial Division exercise concurrent jurisdiction over the magisterial district of Namaqualand which now forms part of the territory of the Northern Cape Province ?
(a) Attorney A.N. Schreuder on behalf of the attorneys of Namaqualand, Calvinia & Williston -
" en verkies derhalwe die huidige bedeling met ander woorde om onder die Hof in en vanaf Kaapstad te bly praktiseer indien hulle wel ingeskakel moet en sal word onder 'n Afdeling in die provinsie Noord-Kaap (wat hulle sal betreur) dan is hulle voorstelle die volgende daar 'n plaaslike afdeling vir Upington ingestel word "
(b) Attorney Arno van Zyl of Springbok -
" dat Springbok steeds onder die jurisdiksie van die Hooggeregshof in Kaapstad moet bly dit is baie makliker om in Kaapstad te kom of dokumentasie in Kaapstad te kry vanaf Springbok en omgekeerd as wat dit die geval sou wees tussen Springbok en Kimberley."
5.7.3 Should the seat of the Northern Cape Division remain at Kimberley ?
(a) Premier E.M. Dipico -
"My submission in this regard is that the seat of the Northern Cape Division of the Supreme Court should remain in Kimberley."
(b) Circle 16 of the Law Society of the Cape of Good Hope -
"It would be illogical and prohibitively expensive to move the seat of the Court elsewhere and the seat should remain in Kimberley."
(c) Attorney-General of the Northern Cape -
"Alhoewel Kimberley nie baie sentraal geleë is in die Noord-Kaap nie, sal dit ongetwyfeld die setel van die Afdeling moet bly."
5.7.4 What should the Northern Cape Division be called ?
(a) Premier E.M. Dipico -
"It is submitted that the name of the division of the Supreme Court in this province ought to remain the Northern Cape Division."
(b) Circle 16 of the Law Society of the Cape of Good Hope -
"We believe very strongly that the present name viz Northern Cape Division, should be retained."
(c) Attorney-General of the Northern Cape Division -
"Die naam van die Afdeling behoort te verander na 'Noord-Kaapse Provinsiale Afdeling'."
5.8 Northern Province
5.8.1 Should the Northern Province become an autonomous Provincial Division of the Supreme Court ?
(a) Pietersburg Chamber of Business -
" for the establishment of a division of the Supreme Court of South Africa in the Northern Province the seat of the proposed Supreme Court must be in Pietersburg "
(b) The Acting Regional Representative of Justice (Venda) -
"The view of the Regional Representative is that there should be a Provincial Division in Pietersburg, the capital of the province, with the Supreme Court of Venda serving as a local division "
(c) Prof. B.C. Majola, Dean of the Faculty of Law (University of the North) -
"That a Provincial Supreme Court be established with its seat in Pietersburg and which should exercise jurisdiction in the Northern Province."
(d) Northern Transvaal Province Commission on Constitutional Affairs -
"A Provincial Division of the Supreme Court of South Africa to be referred to as Northern Province Division of the Supreme Court of South Africa be established the seat of the Provincial Division will be Pietersburg "
(e) Adv. M. van Eyk, Office of the MEC for Safety and Security (Pietersburg) -
"It is recommended that a Provincial Division for the Northern Province be established the seat for Provincial Division : Pietersburg Proposed numerical strength 6 Judges Proposed names The Northern Provincial Division "
(f) Attorney H. Mathivha of Mathiva & Molope at Pietersburg -
"Each Province should have its own Supreme Court."
(g) The Registrar of the Venda Supreme Court -
"The provincial division of this province can be situated in Pietersburg "
(h) The Attorney-General of Venda -
" A provincial division established at Pietersburg "
(j) P.R. Mawila, Senior lecturer, University of Venda -
"It is desirable that each province have its own court(s)...A provincial division with its seat at Pietersburg be set up."
(k) The Northern Region of the Law Society of Transvaal -
" our submission is that the Venda Supreme Court should be relocated to Pietersburg The area of jurisdiction of such a Division It should be the Northern Province we suggest that it be called the Northern Provincial Division of the Supreme Court of South Africa."
5.8.2 Should the Northern Province become a local division of the Supreme Court at Pretoria ?
(a) Pietersburg Attorneys Association -
"daar plaaslike afdelings vir elkeen van die Provinsies van Gauteng, Noordwes, Oos Trasvaal asook die Noordelike Provinsie gevestig sal word (indien aangeneem word dat daar orals in hierdie provinsies 'n behoefte aan 'n Hooggeregshof is)..."
(b) Transitional Local Council of Pietersburg/Polokwane is in favour of a local division of the Supreme Court -
"Ek glo en vertrou dat jarelange werk, behoeftebepalings en vertoë uiteindelik nou gestalte sal kry in die vestiging van 'n plaaslike afdeling van die Hooggeregshof in hierdie Provinsie."
5.8.3 What should be done about the Venda Supreme Court situated at Thohoyandou ?
(a) The Northern Region of the Law Society of Transvaal -
" the Venda Supreme Court should be relocated to Pietersburg "
(b) The Acting Regional Representative of Justice (Venda) -
" that the Supreme Court of Venda be retained as a local division "
(c) Prof. B.C. Majola, Dean of the Faculty of Law (University of the North) -
"That a Local Division of the said Supreme Court, be created and have its seat at Thohoyandou (Venda), where the former Venda Supreme Court used to operate."
(d) Adv. M. van Eyk, Office of the MEC for Safety and Security (Pietersburg) -
"An independent Supreme Court of Venda It is recommended that this court be converted into a Local Division and the area of jurisdiction be increased."
(e) The Registrar of the Venda Supreme Court -
" the existing Supreme Court situated in the former Republic of Venda can be the local division of the Supreme Court serving the areas of the Far North of this province "
(f) The Attorney-general of Venda -
"There is already a Supreme Court here in Thohoyandou with the addition of very few staff members these divisions could cope with the additional work should this court's jurisdiction be extended to serve the 'Far North' as a local division."
(g) P.R. Mawila, Senior lecturer of the University of Venda -
"A local division with seat at Thohoyandou be established."
(h) Northern Transvaal Province Commission on Constitutional Affairs -
" that the Supreme Court in Venda formerly known as Venda Supreme Court be abolished."
(j) Eloff JP -
"Thohoyandou can not serve as the centre of any future superior court. The court buildings might be used for criminal circuits."
5.9 Western Cape
5.9.1 Should jurisdictional areas of divisions of the Supreme Court be co-extensive with the provincial boundaries of provinces ?
(a) The Hon. Mr Justice G. Friedman, Judge President of the Cape of Good Hope Provincial Division -
"As far as the Cape Provincial Division of the Supreme Court is concerned, the territorial jurisdiction should be co-extensive with the boundaries of the province of the Western Cape."
(b) The Law Society of the Cape of Good Hope -
" the Cape of Good Hope Provincial Division should serve the area falling within the boundaries of the Province of the Western Cape only. It does not make jurisdictional sense to have a Supreme Court with a seat in one province exercising jurisdiction within the geographical area of another province."
(c) NADEL, Cape Town -
"It is Nadel's submission that the existing areas of jurisdiction must be adjusted so as to accommodate the changes made to provincial entities and boundaries a provincial division of the Supreme Court should be established within each of the nine provinces "
(d) Attorney-General of the Cape of Good Hope -
"Dit is my uitgangspunt dat die regsgebiede van die Hooggeregshowe aangepas en beperk moet word tot daardie distrikte wat binne die nuwe provinsiale grense val "
(e) Premier H J Kriel -
" word voorgestel dat die jurisdiksiegebied van die Provinsiale Afdeling Kaap die Goeie Hoop gewysig word om dieselfde geografiese gebied as die provinsie Wes-Kaap te hê."
(f) Attorney P J Potgieter of De Klerk & van Gend Attorneys, Cape Town -
"Dit is na ons mening nie noodsaaklik dat die regsgebiede van die howe en die provinsiale grense moet ooreenstem nie en wat die Provinsiale Afdeling Kaap die Goeie Hoop van die Hooggeregshof aanbetref betoog ons dat die status quo gehandhaaf behoort te word "
5.9.2 What should be the name of the Cape of Good Hope Provincial Division ?
(a) Friedman JP -
"The name 'Cape of Good Hope Provincial Division' should for historical reasons be retained."
(b) Acting Judge President J J Fagan on behalf of the Judges of the Cape of Good Hope Provincial Division -
"the name of the Division should be the Cape of Good Hope Provincial Division"
(c) Premier H J Kriel -
" die Provinsiale Afdeling Kaap die Goeie Hoop, is 'n gevestigde naam en dit word voorgestel dat dit net so behou word."
6.1 INTRODUCTION
In approaching the problem of rationalising the divisions of the High Court the Commission has tried to apply a number of guide-lines to which all its members subscribe. It is useful here to indicate what these are. At the same time it is convenient to point out certain matters of principle, and in particular the crucial issue of the immediate future of the three provinces adjoining Gauteng, in regard to which individual members hold sharply divergent opinions.
6.2 FINANCIAL CONSTRAINTS IN RELATION TO THE PROBLEM OF ACCESS TO CIVIL JUSTICE IN SOUTH AFRICA
6.2.1 In trying to decide where and how the State should spend money in the improvement of access to civil justice in South Africa one bears in mind that South Africa is, relatively speaking, a poor country; that it is expensive to build, equip, and staff High Courts; and, last but not least, that capital is urgently needed to satisfy more crying wants elsewhere.
6.2.2 In his address to the Commission Mr Malcolm Wallis, SC, Chairman of the General Council of the Bar of South Africa, defined what he saw as the priorities in regard to capital expenditure as follows -
" We are very mindful of the fact that the establishment of additional facilities by way of additional Courts, additional judicial appointments, support staff, libraries and, one would hope, working recording machines... is a very expensive project..."
" You have been given figures in regard to the cost of establishing Courts in various centres. The new Courts in Pretoria have cost in excess of R40 million...R26 million was spent in establishing Courts in Mmabatho, according to the submissions from the North-West. So that is a general idea of what would have to be spent to establish new Courts in centres around the country..."
" We are mindful of the budgetary constraints which operate in South Africa, we would believe, in broad principle, that provided an acceptable level of legal services and access to Courts can be provided throughout the country without the need to resort to these expensive capital projects, it is desirable at this stage in our history that that be done. The capital is more urgently needed as we see it in the fields of education, housing, medical facilities: to spend R40 million on new Court rooms in a centre when the people who will go to that Court room do not have houses, running water and electricity, verges close upon obscenity frankly..."
6.2.3 The Commission unanimously endorses the views so expressed on behalf of the General Council of the Bar.
6.2.4 South Africa's penury has a twofold significance for the problem of improved access to civil justice. The first is that we can ill afford new High Court buildings. The second is this. Access to civil justice is provided by both the High Courts and the Magistrates Courts. Civil litigation in the former is prohibitively expensive while in the latter it is comparatively cheap.
6.2.5 It is perfectly true, of course, that the standard of civil justice in the Magistrates Courts is often weak. Indeed, in the Magistrates Courts of the Ciskei and the Transkei it is appalling (see, for example, the oral representations in VOLUME II of Pickard JP at p.48 para (41); Adv Dickson , SC at pp 64/5, paras (12) and (13); the Hon Mr Justice W.H. Heath at p. 83 para (10); and Beck JP at p. 90 para (14)). Nevertheless it must be borne in mind that in monetary terms the civil jurisdiction of the Magistrates Courts (except in the former TBVC territories) now stands at R100 000. For most people in South Africa R100 000 represents a very large sum of money. When the new Act on the Rationalisation of the Magistrates Courts comes into operation on 1 April 1997 the civil jurisdictional limit of R100 000 in the Magistrates Court will apply uniformly throughout the RSA. There are no less than 427 Magistrates Courts scattered all over South Africa.
6.2.6 The important fact that much of the civil litigation presently conducted in the High Courts involves amounts justiciable in the Magistrates Courts is generally recognised. Of some significance in this respect are certain comparative figures based on the investigations undertaken on behalf of the Commission in four High Courts in the Eastern Cape, and in the Bophuthatswana High Court, by Mr L.O. Fourie. Mr Fourie extracted data from the files of the abovementioned Courts for the years 1994 and 1995. In respect of judgments sounding in money granted in civil trials during the said two-year period, it is apparent from the data collected by Mr Fourie that (save for the Circuit Local Division in East London) the average amount awarded in civil trials was, in the case of each of the High Courts, far below the figure of R100 000. The comparative figures are set forth in the Table below :-
| COURT | NUMBER OF TRIALS ON WHICH AVERAGE IS BASED | NUMBER OF JUDG-MENTS IN WHICH A SUM IN EXCESS OF R100 000 WAS AWARDED | AVERAGE SUM OF MONEY AWARDED | |
| (A) | Eastern Cape | |||
| (1) SECLD (Port Elizabeth) | 54 | 3 | R 40 033 | |
| (2) Seat of Court (Grahamstown) | 54 | 6 | R 35 029 | |
| (3) East London Circuit Local Division | 27 | 7 | R120 696 | |
| (4) Ciskei High Court (Bisho) | 148 | 9 | R 27 810 | |
| (B) | Bophuthatswana High Court (Mmabatho) | 31 | 1 | R 28 977 |
6.2.7 Since the Magistrates Court is almost at the doorstep of most potential civil litigants countrywide, there is a very strong argument that the first charge upon any available capital should be the improvement of the quality of civil justice in the Magistrates Courts. Such an improvement will require the following four urgent steps:-
(a) the payment of adequate and market-related salaries to prosecutors in the lower courts. The prosecutorial component is the nursery of the justice system in the lower courts. The salaries paid to prosecutors were described by the Attorney-General of the Transvaal, Dr J.A. van S d'Oliveira as "a national disgrace". The Commission agrees with that description. The inevitable consequence of the woefully inadequate remuneration of prosecutors was spelt out by Dr d'Oliveira in the following words -
"The average experience of regional prosecutors in the province is 9,8 months, and the magistrates court prosecutors 8,8 months...Now there is a tremendous turnover there and why ? It is when my advocates who do the cases in the regional courts see that attorneys or counsel appointed by the Legal Aid Society ...are paid R3 800 or R4 000 a day, whereas those prosecutors get that out at the end of the month."
Adv K.P.C.O. von Lieres und Wilkau, SC, who was the Attorney- General of the WLD from November 1983 to May 1995, remarked in the course of his evidence -
"...but up until today there is no enduring or lasting or efficient professional staffing policy, not under the old regime and not by the new regime. And that is your fundamental problem, I would contend, why you suffer staff inadequacies in the prosecutorial section."
(b) the payment of adequate salaries to magistrates who are grossly underpaid. One of the Transvaal Judges who made oral representations to the Commission was the Hon Mr Justice K. van Dijkhorst. Judge van Dijkhorst is the Chairman of the Magistrates Commission. In regard to the salaries of Magistrates he remarked as follows -
"Mnr. die Voorsitter, ons weet die landdroste is onderbetaal, absoluut onderbetaal...Dit is die grootste grief wat die landdroste het...As daar nie gou na gekyk word, en behoorlik na gekyk word nie, dan gaan daar al meer en meer mense die diens verlaat. In Durban het ons in twee maande ses landdroste verloor, manne wat bekwame manne was."
(c) the large-scale and intensive training of those magistrates who are interested in specialising in civil rather than criminal trial work.
(d) the vigorous recruitment of Magistrates (as soon as their salaries have been suitably increased) from the ranks of experienced advocates and attorneys in private practice.
6.3 GEOGRAPHICAL CONSTRAINTS UPON ACCESS OF CIVIL LITIGANTS TO THE HIGH COURTS
6.3.1 A slogan often enthusiastically uttered by interested parties in their submissions to the Commission was -
" Bring the Courts to the people."
This praiseworthy goal may to a large extent be capable of realisation in the case of the Magistrates Courts, because there are 427 of them. But it is impossible to ensure that every potential litigant in South Africa should be within easy reach, in terms of distance, of a High Court. In this connection Mr Wallis SC observed to the Commission -
"...that however desirable it is that everybody should be able to walk into a Supreme Court just down the road, that is simply not feasible - and all over the world people in large countries like our own have to travel to Courts..."
6.3.2 The large size of South Africa means that, however much one tries to juggle with seats of the divisions of the High Court, some litigants will always find themselves living at a place which is far removed from the High Court within whose area of jurisdiction they fall. This simple truth is neatly illustrated in the dialogue quoted below which took place between a member of the Commission and Mr Attorney E.G. Harris who made representations to the Commission on behalf of the Molopo Circle of Attorneys -
" MR MALULEKE: ...we have heard suggestions that...people in Odi might find it a lot cheaper to get a bus and go to Pretoria and instruct an attorney directly to litigate in the TPD rather than be faced with the great cost...of instructing two firms of attorneys to litigate in Mmabatho, simply for the luxury of a province having the status of a provincial division. That is why I wanted to get your comment on that.
MR HARRIS: Mr Maluleke, I fully agree with you that it certainly would probably be cheaper for persons living in the Moretele and Odi area to commute to Pretoria and instruct an attorney directly rather than use an attorney there as correspondent with a Mmabatho firm. But then again, the same applies to Vryburg which is in the south-west portion of the North-West Province,...We state categorically, it must be in a province, and you are going to have logistical problems wherever you go, one way or another. Yes, it will be easier for a party to litigate direct with Pretoria in the