TABLE OF CONTENTS

EXTRACTS FROM ORAL REPRESENTATIONS HEARD AT MIDRAND,
MIDDELBURG, NELSPRUIT, PIETERSBURG AND SUN CITY

EXTRACTS GAUTENG (MIDRAND)

EXTRACTS MIDDELBURG

EXTRACTS MIDDELBURG & NELSPRUIT

EXTRACTS PIETERSBURG

EXTRACTS SUN CITY

EXTRACTS GAUTENG

(I) THE HON. MR. JUSTICE C.F. ELOFF JUDGE PRESIDENT OF THE TRANSVAAL PROVINCIAL DIVISION

In the course of his oral representations to the Commission some of the points made by Eloff JP were the following:-

(1) "By way of introduction I should say that the Transvaal Supreme Court presently has 56 judges which includes a Judge President, two Deputy Judges President and 53 puisne Judges."

(2) "The memoranda submitted to the Commission, of which I have had sight, indicate a relation between two questions, namely (a) whether Provincial or Local Divisions should be established in the three provinces other than Gauteng and ... Secondly whether the present Witwatersrand Local Division should be accorded independent provincial status and the relationship between these two issues is possibly related to the following: if the Commission accepts the submission that in principle every one of the nine provinces now in South Africa should have a Superior Court, the question arises why should Gauteng have two separate independent Superior Courts, the one at Johannesburg and the other at Pretoria? The logical consequence for example urged by the Johannesburg Bar is that the Witwatersrand Local Division should be converted into an independent Provincial Division, severed from the Transvaal Provincial Division, presumably leaving what is left of the Transvaal Provincial Division as a Provincial Division. There will then be two Provincial Divisions in Gauteng alone. But more importantly Chairperson, would that be constitutional?"

(3) "If the Commission accepts that the Transvaal Provincial Division should retain jurisdiction in the adjoining provinces, the role to be played by Johannesburg becomes important. Is Pretoria alone then to discharge the function of providing criminal circuits or of discharging other itinerant functions in the three provinces? Is Johannesburg to be given the character of being an urbanised provincial division with hardly any itinerant functions except possibly for the Springs or Vereeniging circuits? You have to visualise that what the one memorandum of the Johannesburg Bar amounts to is that Witwatersrand should become an independent Provincial Division with its borders being the area of jurisdiction of the Witwatersrand and no functions beyond. If Pretoria is to be saddled with the function of administering justice in the adjoining provinces, as well as what is left of Gauteng, it is going to be saddled with an enormous burden in regard to circuits. At present the circuits that have to be arranged for the adjoining provinces amount to about 22 per year and that is a very substantial burden. The question is, is Pretoria alone to carry that burden?"

(4) "I think that the word "provincial" should be scrapped. I have given thought to what other word can be used. That means of course that the Supreme Court Act may have to be amended because it creates certain jurisdictions to the Supreme Court, other Statutes may also have to be amended, for instance the Attorneys' Act provides that attorneys may be admitted only in a Provincial Division, not in a Local Division. So that may also have to be reconsidered but I want to suggest to the Commission that when it makes recommendations it should include one that in all Statutes dealing with these matters the word "provincial" should be dropped and another word used in its place."

(5) "CHAIRMAN: I apologise for interrupting you but just before you take up the thread of your resumé, at the moment does Johannesburg do the Springs and Vereeniging circuits?

ELOFF JP: Yes, those are the only circuits that it attends to.

CHAIRMAN: And is that exclusive, only Johannesburg provides the judges for those circuits?

ELOFF JP: No, it is the Judge President who decides - but as a matter of convenience because Springs is close to Johannesburg it is normally convenient to assign that task to Johannesburg judges.

CHAIRMAN: So, in general Johannesburg judges are assigned to the Springs circuit and the Vereeniging circuit as a broad generalisation?

ELOFF JP: Well, I should say that two out of three times Johannesburg judges are sent to Springs or Vereeniging, but certainly Pretoria judges do that as well. The Attorney General of Transvaal administers those circuits, it is not the jurisdiction of the Attorney General of WLD."

(6) "I turn now to one of the major issues with which this Commission is saddled and that is the question of the desirability of creating Provincial or Local Divisions for the three provinces. Just before I discuss this I would like to emphasise something which should be self evident, but may I say it again and that is that the prime question is how is the administration of justice best to be served or the allied question, what is the most beneficial deployment of judicial manpower and in summary what is in the best interests of justice? Not what will make Mpumalanga happy or what will serve the interests of the Sakekamer of Pietersburg or what will serve the interests of the local circle of lawyers from Klerksdorp. One has to look at what is best for justice."

(7) "...there is the question of criminal matters, criminal trials and I contend that there is no doubt that these can adequately be dealt with by circuits. That has taken place in the past and circuits have been sent off to all the corners of Transvaal, very often to small towns, very often to hear a single criminal case in a small place like - in small places like Nylstroom or...(intervenes)

CHAIRMAN: Christiana.

ELOFF JP: Christiana, yes indeed Christiana and that will continue to be the position. Normally there are five circuits, there is the Eastern circuit, two circuits go up per quarter to the Eastern Transvaal; there is the Northern circuit going right up to Messina; there is the Western circuit going right to Christiana and then of course the Springs and the Vereeniging circuits and very often when the need arises, an additional circuit is sent off. It has happened quite a number of times that the Attorney General finds that there is a backlog and I lay on another circuit. On average five circuits per quarter but very often more."

(8) "Then at the foot of page 3, I make the point which I would like to emphasize that it is unlikely that sufficient civil work is likely to be generated in any of the three provinces to justify the high cost of establishment of Superior Courts in any of the provinces. In my memorandum I deal with this but may I emphasize just a few factors? If you are going to establish a Superior Court, say in Mpumalanga there is no infrastructure at present, you have to build a Superior Court, you cannot just house this court in the Magistrates Court, it has to be seen as a Superior Court with rights of appeal from magistrates. Consequently, that has to be constructed. You have to provide - that has to be constructed at great cost, I have heard figures like R40 million and so on. The Supreme Court in Pretoria, the new Supreme Court cost R48 million. That is of course a bigger court than is likely to be established say for Mpumalanga but even so, you would probably think of something like R30 million. The cost of providing Law Libraries for the judges is enormous, that is also a figure of millions. You have to think of the infrastructure, the Registrar's office, you have to think of all that goes with it. You have the attendant cost then of establishing an Attorney General's office, a Master's office, you may have to establish a Deeds Registry, you have all of these difficulties which, and the question arises, is it and can it be justified?"

(9) You have had the benefit of the memorandum of the Pretoria Bar, that has done an analysis based on Professor Martins' research which indicates that in view of the various factors which have occurred of late, it is not likely that there will be more than I think 94 civil cases per year from North West and a figure of that sort for Northern province and a figure of that sort from Mpumalanga. What has happened, of course, is emphasized in my original memoranda - the civil jurisdiction of magistrates has been set up at R100 000,00. Professor Martins estimates that that will mean that about two-thirds of civil actions will now have to be in magistrates courts...(intervenes)

CHAIRMAN: Or may be?

ELOFF JP: May be, yes of course the litigant always has the right to sue in the Superior Court and run the risk of getting magistrate courts costs only. Time will tell what the impact of that is going to be."

(10) "Then there is of course the possibility that a Family Division will be established, which will take care of divorces and even if the increase in civil jurisdiction has not got the impact which one believes, even if that is so, then it is hardly likely that there will be sufficient civil work, because that is a determining factor, generated in those three provinces to justify the high cost of establishing the infrastructure of a Superior Court in any of those provinces."

(11) "There can be no doubt about it that there is a tremendous advantage in being associated with a big, strong bench to compare notes, to discuss matters, to have the exposure to the variety of work which occurs in a large division. Without sounding derogatory of smaller divisions, one knows that the type of litigation that occurs there is at present matrimonial matters, third party actions, debt collecting and the likes. None of the interesting review matters, matters like review matters, real rights, commercial matters, contractual matters, matters involving companies and the like..."

(12) "At the time of the Hefer report, attorneys did not have rights of audience in the Supreme Courts. I say that it is unlikely that attorneys will exercise their new rights in all, but relatively simple uncomplicated matters. Advocates will still be in demand for important litigation in Superior Courts. The validity of the point made in the Hefer report that it is unlikely that talented advocates will be attracted to such decentralised divisions as might be established, remains. I would like to emphasize this that the men of talent at the bar, the attorneys of talent would prefer to practice in the centres where rewarding work and work of interest is likely to be dealt with."

(13) "If Superior Courts are established in one or more of the three adjoining provinces, litigants in those provinces, except for those coming from the seat of the court, will still have to employ correspondents." Thus if you have a Superior Court at Nelspruit, a person from Middelburg or Belfast or Barberton or somewhere will have to employ a correspondent at Nelspruit to take care of his case. But more importantly is 2.3.2: "the cost of travelling is a relatively unimportant component in the cost of litigation." Legal fees and the cost of expert witnesses make up the biggest element in the cost of litigation and, in any event, if decentralised divisions are established in any one of the three provinces, the cost of litigation may well be increased in certain circumstances. Counsel from Johannesburg or Pretoria might often be briefed and they are likely to charge more for appearing in Nelspruit or Pietersburg than they would for appearing in Pretoria."

(14) "A few words now about the court at Venda... When Venda was brought to an end, the Minister of Justice requested me to administer what was left of that court, but there was a problem in that the Premier of Northern Province was unwilling to accept any step which would recognise that that court should not have been brought about or served no need. I was, nevertheless, since 1994 involved in the running of that court in the sense that I looked at the duty roster, the work, the workload and arranged for judges to be sent there and it is my considered view that even one judge can cope very adequately with what is involved there, he can do all the criminal work and all the civil work...It is a pity that the high cost was involved in the establishment of the buildings, it might be wasted capital, but that is just one of the other elements of wasted capital which will have to be dealt with in the New South Africa. However, the court buildings might be used for criminal circuits or for other administrative purposes."

(15) "In regard to Bophuthatswana with which I deal now at the foot of page 6, here too this court and its headquarters would never have been established as it was had it not been for the creation of the State of Bophuthatswana. The jurisdictional area of this court is an odd one, I think you have diagrams and maps here, but the most dense population in Bophuthatswana is that which lies just north of Pretoria and is within 30, 40, 50 kilometres of Pretoria. If this court is to continue in some way or another it is going to mean that literally millions of people living in the area of jurisdiction of the one time court of Bophuthatswana will have to go to Mafikeng which is about 300 kilometres away rather than be served by Pretoria which is a mere 30, 40 kilometres away. The area of jurisdiction of that court was established of course to coincide with the borders of the State of Bophuthatswana, but I have to refer only to one or two of the memoranda which have been placed before you, to make it clear that never can the court of Bophuthatswana or its nerve centre at Mafikeng, serve as the nerve centre of any new division for the North Western Province. Particularly the memorandum from Klerksdorp, you may recall it is diagrammatically demonstrated what large concentration of population, industries and so on occurs in the Klerksdorp/Potchefstroom area. It is enormous compared to the relatively small town appearance of Mafikeng and if of course serious consideration is given to the establishment of a Superior Court in North West, that is very closely related to the question, where the nerve centre should be?"

(16) "I say a few words at 2.5.4 about the memorandum of the Judge President of Bophuthatswana. He does not appear to address the point made in my original memorandum and demonstrated in the Martins report that only approximately 103 civil actions are in the future likely to be generated in the North-West province. The statistics mentioned by the Judge President concerning the number of civil actions instituted in 1994 are likely to be drastically affected by the increase in civil jurisdiction of magistrates."

(17) "I close off this part of my submissions, with great respect there is no case made out at all, no justification for any Superior Courts to be established in any of the three adjoining provinces. In time to come that may be possible, but not in the foreseeable future and that is what this Commission is concerned about."

(18) "I turn then to the other major question and that is whether the present Witwatersrand Local Division should be separated and established as a Provincial Division?"

(19) "The fact that the two courts were served by a single body of judges under the control of a single Judge President has great advantages: it permitted flexibility in the employment of the available judicial manpower - could I pause there for a moment? It sometimes happens that there is a log jam in Johannesburg, civil cases are piling up. It then so happens that a Pretoria judge who was going to deal with a criminal case but the case had to be postponed, is then sent over to Johannesburg on a few hours notice to go and help there."

(20) " It is true that since I became Judge President I have not, to the same extent as my predecessors did, provided for interchange to and fro. I think that at the time of my predecessors on average five Pretoria judges served in Johannesburg and five Johannesburg judges in Pretoria or perhaps four each way. I decided to limit that, to limit the travelling and to rather adopt a policy of enabling the more younger judges to be exposed to that sort of advantage. Over the years that I have been Judge President I have arranged things so that I think all the younger Johannesburg judges served for a term in Pretoria to get exposed to the work there and all younger Pretoria judges served for at least a term in Johannesburg. This may have meant that in certain periods only two Johannesburg judges came to Pretoria, but more Pretoria judges served in Johannesburg. In this term that we have just ended, I think five Pretoria judges served in Johannesburg and had the advantage of exposure to the Johannesburg work."

(21) "Over the 23 years that I have been on the bench, I have heard nothing but appreciation by Johannesburg judges at being afforded the opportunity of coming to Pretoria, they welcome it. Of course the travelling is burdensome, but I have yet to hear of a Johannesburg judge who did not end a stint in Pretoria which he did not think enriched him."

(22) "The establishment of a large pool of judges was of great value in the assignment of specific tasks. Thus when intellectual property matters had to be heard in Pretoria it was advisable to draw on judicial talent from Johannesburg. On another occasion there were conflicting decisions in the Witwatersrand Local Division on a point relating to drunken driving prosecutions." Judge Streicher may remember that case, I set up a full bench consisting of myself, Judge Van Dijkhorst and Judge Du Plessis, two from the one and one from the other division and having a pool of 56 judges to draw from, that enables that sort of thing to be done very beneficially. You are hampered if you have a small division. If Pretoria were to be cut down, to say a single independent division of 20 judges, it is going to be difficult to set up this sort of tribunal on short notice and it happens quite often that you have to set up a tribunal."

(23) "Although the Johannesburg court is a local division it is in reality functioning as a provincial division. This started already with the Diemont Commission and I myself have I think now arranged things so that all work, starting off in Johannesburg or in the Witwatersrand, is heard in Johannesburg."

(24) "I also, in exercise of my powers in the Supreme Court act, directed that all appeals from all magisterial cases and civil cases are heard in Johannesburg and I did this advisedly so that mainly or absolutely for the convenience of litigants so that it can no longer be said that it is inconvenient when you have an appeal from a magistrate sitting in Germiston that counsel who are briefed from Johannesburg, have to travel to Pretoria, that no longer exists. So advocates may be admitted there, in all, in practical terms Johannesburg functions as a fully fledged independent division."

(25) "As Judge President, I exercise overall control over the WLD. It is my practice to spend alternate weeks in Pretoria and in Johannesburg, although I at times begin my day in Pretoria and end off in Johannesburg. When I am not in Johannesburg I can usually be reached by telephone. The Deputy Judge President exercises control when I am in Johannesburg and certain specific tasks were delegated to him, amongst others to oversee the staff and also to deal for instance with preferential dates and other matters, there are numerous other matters and we are in constant communication. It is, to a large extent the administration of the division, is team work between the DJP and myself and, therefore, the system works I suggest reasonably well."

(26) "The most important function of the Judge President in a division such as this, is the planning of the rolls, this is an enormous task, assigning tasks to 53 judges or 55 judges for an entire term of nine or 10 weeks. Then when alterations have to be made because a judge falls ill or a case did not finish, that is the main task of the DJP, that very often occurs in consultation with the DJP. Smaller matters which require continuous attention are, for instance, the following: an increasing source of work is bail appeals, these come up as often I should imagine as one a week. A judge has to be assigned on short notice for that task. When I am in Johannesburg I do that, when I am not the DJP does that. But it is - what I am trying to say is that there is no difficulty with a single Judge President administering two divisions."

(27) "Whatever you, Commission, recommend about the WLD and the TPD I suggest that it is imperative that in some shape or form there should be reserved the concept of a unitary bench with the possibility of movements to and fro and that entails the retention of a system of a single controlling authority, a single Judge President."

(28) "Complete severance of the two divisions is likely to create short-term and long- term problems. In the short-term, where are the judges to come from? If you visualise the requirements of a new independent Johannesburg division, you will require at least 35 judges to man the Johannesburg division. I say that because at present I need, for the ordinary work in Johannesburg, I need 29 judges and even then the workload is very substantial. You then, if it is going to be independent, you have to make allowance for judges on long leave, illness and also taking care possibly of the two circuits of Springs and Vereeniging. Of the present incumbent, Johannesburg judges a few are not likely to be serving much longer and it is unfortunately a fact that it is no longer possible to attract Johannesburg advocates of adequate standing to accept permanent judicial appointments."

(29) "I mentioned earlier that the present complement is 56 judges, 29 then are Johannesburg based and the others are Pretoria based. It is frequently necessary to bring judges from Pretoria, simply because there are not sufficient Johannesburg judges to do the work. If you give effect to the suggestion of the Johannesburg Bar and create an independent judicial Superior Division for Johannesburg, Pretoria judges are not likely to accept appointment there so where are the judges going to come from?"

(30) "CHAIRMAN: Well pausing to consider that scenario, in that eventuality, in that theoretical eventuality, what complement of judges do you think Pretoria would require, roughly?

ELOFF JP: On the basis that...(intervenes)

CHAIRMAN: That is serves the adjoining provinces, it and only

it serves the adjoining provinces?

ELOFF JP: It requires a complement of 25 at least."

(31) "CHAIRMAN: I know that you sit often in court, could you give the Commission some rough idea of the time which the planning of the rolls requires, it must be a matter of weeks and weeks and weeks?

ELOFF JP: The planning of the rolls is about a fortnight, fulltime.

CHAIRMAN: A fortnight quarterly?

ELOFF JP: Every quarter is a fortnight's work yes and it is a tremendous task for a big division like this, there are wheels within wheels, you have to think; it involves just studying the appeals that come up, full bench and magistrate appeals, to decide who should deal with what appeal. I do pursue the policy of horses for courses, for tax cases for instance I have to set up special benches, for intellectual property cases I have to set up special benches, for trade mark issues I have to take care of that too and every so often I have to set up a full bench where there are conflicting decisions and that again involves a delectus personae which is quite complicated."

(31a) "The middle of page 13, "the matter of Transvaal Provincial Division having concurrent jurisdiction as mentioned by some respondents." The advantage of retaining it is that it may overcome jurisdictional problems. It is, however, of little practical importance and if that troubles Johannesburg one can do away with that and give Johannesburg exclusive jurisdiction over the WLD."

(32) "On average one can say that Pretoria handles motion court matters, appeals and civil trials about two-thirds of what is managed in Johannesburg. Of course Pretoria has other burdens which Johannesburg does not have, for instance more patent cases, review matters and the like. It is unquestionably a fact that Johannesburg is the financial centre, not only of the Transvaal but of Southern Africa and it is the centre in which the most litigation in the country is initiated."

(33) "I contend the fact that Johannesburg is the financial centre of the Republic and of Southern Africa and that the volume of work dealt with exceeds that of other divisions, is of relative importance. It has not been my experience that it is necessary for me to spend more time in Johannesburg than Pretoria. The problems there do not increase proportionate to the number of cases, very often Pretoria has more exacting problems than Johannesburg. But more importantly, it is often seen that the nerve centre of an organisation is not situated where the greatest activity takes place."

(34) I suggest there should be a new division with a new name, it should be the Northern Division of the Supreme Court or the High Court of South Africa. Its headquarters should be in Pretoria ..."

(35) "I suggest that you recommend that a statute be passed providing for this Northern Division, a unitary division within which recognition can be given to the position of Johannesburg which can be given, for all practical purposes, the status of a provincial division, but retention of a unitary bench with single control and, turning the page, the area of jurisdiction shall embrace the areas with boundaries of the three provinces."

(36) "MR MALULEKE: The Johannesburg Bar made the submission that the time has come to make the Johannesburg court or the WLD an independent division. If that was to be the recommendation say of this Commission and coupled with a recommendation that the three provinces should have their own courts, it would be a disaster for the Pretoria court would you not say?"

ELOFF JP: Well disaster, it would have the practical consequence that the workload in what is left would be substantially reduced. The Chairman asked me a little while ago what the complement should be if the three provinces are retained under the jurisdiction but if that is not to take place it will substantially reduce the workload. We then have to deal with the work which is generated in Gauteng outside of Johannesburg. I have given thought to this and I find it difficult to quantify in terms of how many judges are required but it will certainly be less, it will certainly be less and at a rough guess I should imagine that Pretoria will then be able to do with about 18 judges."

(37) "MR MALULEKE: Because I am quite worried ... you make a very good point that there is a reluctance for instance amongst eminent advocates say in Johannesburg in particular, to consider appointments to the bench and that difficulty would actually be multiplied if you were to create small courts in the outlying areas or adjoining provinces, that you would not find people keen to accept appointments?

ELOFF JP: That is correct.

MR MALULEKE: But can I find out something, why would you say, I just want to get your opinion, that the advocates in Johannesburg in particular should show this type of reluctance of accepting appointments to the bench, even to Pretoria or Johannesburg?

ELOFF JP: It is mainly personal reasons, there are a variety of reasons, I can only best answer your question by giving you the reasons which have been given me by counsel whom I have approached. The many promising talented men find the cost of maintaining their children and putting them through schools and universities such that they cannot do that on a judge's salary. A second inhibiting factor is the creation of the Judicial Service Commission with the involvement that a man's name is put up and he has to be interrogated, answer questions in public and then may find at the end of the day that he is not accepted which may be interpreted to many as being found wanting. That sort of situation is not attractive and it is an inhibiting factor.

CHAIRMAN: Is your impression that that is a compelling inhibiting factor?

ELOFF JP: Indeed."

(38) "MR MALULEKE: One of the complaints ... I think from Advocate Wallis of the General Bar Council, and I think from other attorneys as well, is that because of the size of the court in Johannesburg and Pretoria it is really a problem for litigants to litigate there even for some advocates because of the congestion; and you yourself have mentioned that it is a mammoth task to administer 53 judges and create their rolls. It takes you often two weeks to do that per quarter. You spend a lot of time, good judge as you are, you spend a lot of time on administration. Would you not say that to have a more streamlined court of say 20 to 25 judges for a Judge President it is a better administration hurdle than to run a very huge bench of 50 to 60 judges for one Judge President?

ELOFF JP: It means if the one Judge President has to plan a duty roster for 50 judges then he has simply to sit in court less than he would otherwise."

(39) "CHAIRMAN: A further... hypothetical question I put to you is the following: assume that the Commission were to recommend that the WLD be given complete judicial autonomy, what in your submission should be the workload of the WLD in such a situation, for example Vereeniging, Springs, what else? What, if that were to be the scenario, what in your considered judgment would be an equitable division of labour to put it thus?

ELOFF JP: I think that they may also give thought to establish circuits elsewhere. I have had an occasion in the past to set up a circuit at Roodepoort, there was a case where there were 35 accused and they could not be accommodated anywhere else so I set up a circuit court at Roodepoort where they could accommodate that sort of case. It could, the possibility could also be considered of perhaps a circuit in Soweto."

(40) "CHAIRMAN: If the recommendation should be that the WLD should be constituted an independent, autonomous court with its own Judge President then as between Johannesburg and the rest of Gauteng and the adjoining provinces, what in your judgment would represent a fair division of work?

ELOFF JP: Well what it should not be is that which is suggested in the memorandum of the GBC as a third alternative, they suggest that Johannesburg should now take in a sort of strip extending to Carletonville and Klerksdorp on the one hand and I think Bethal on the other hand. That, with respect, is not practicable and it solves no problems at all."

(41) If Johannesburg is to be completely severed and have its own Judge President, I suppose that one has to accept the reality, it will have to be a unique sort of division, mainly an urbanised, unlike any other, unlike Cape Town, unlike any other division, a completely urbanised division with very limited circuit functions, perhaps Springs, Vereeniging and I imagine Roodepoort. But even Roodeport is so much part of the WLD it does not add anything. So it will be a unique division with and frankly I am sitting thinking hard of how to answer your question, certainly it will not add to the equities or the judicial functioning if it were to be given the two strips suggested by the General Bar Council, and with respect to the draughtsmen I do not think that is a well considered idea at all."

LATER AND BY WAY OF REJOINDER, SOME OF THE POINTS MADE BY THE LEARNED JUDGE PRESIDENT WERE THE FOLLOWING:

(42) I myself have, over the past years, frequently sat in divorce matters in the WLD where children are involved or some problem of access or that sort is involved it has been invaluable to have had the professional assistance of the Family Advocate. Since that system has been invoked, numerous cases have been settled because parties respect the view of the Family Advocate and it has been of great importance in coming to and amicable settlement."

(43) "I now would like to make a few statements in regard to the possibility of Superior Courts being established in the three adjoining provinces. You have had the advantage of the submission by the Pretoria Bar and, with respect, it does seem quite manifest from that that there is no justification for Superior Courts, whether Provincial or Local, at this stage. But that is not to say that that may not take place in the future. Time will show that and I suggest there is some virtue in the suggestion that emanated from Judge Flemming that one should perhaps start of by channelling work to the provinces where there is a potential for the growth of a division by exercising the functions of the Judge President under section 7 of the Supreme Court Act and that is to provide for circuit local divisions to hear also civil cases."

(44) "I said earlier and that is, I think accepted all around, that as far as criminal cases are concerned that is being dealt with very adequately by the circuit courts which attend all the centres, all the small centres and it is really adequately dealt with by the Attorney General. I think that there has been no challenge of what we contend that the only real justification for the establishment of Provincial or Local Divisions in the adjoining provinces is if there is adequate civil litigation likely to be generated there."

(45) "We must think short-term and long-term. In the short-term I suggest that there is no justification whatsoever but Nelspruit might grow, it might attract sufficient industries, it might generate sufficient litigation and from a circuit local division could grow to possibly first of all a local division and a provincial division ultimately, but that is the way, putting it differently of testing the market, testing the needs is first of all if there is that call for a circuit local division and while I am Judge President I shall make it my business if there is that need, to establish circuit local divisions."

(46) "I should mention that it has been mentioned by Judge Flemming that judges going on circuit could hear divorces and proposed motions. With respect, that is just not on. In these days judges going on circuit have such full programmes they can hardly cope. They are loaded, they start the morning very often at 08:00 and sit through to 20:00 Judge Curlewis just recently finished the eastern circuits and he finished 70 cases in a short space of two months and to do that he had to start in the mornings at 08:00 and sometimes sit through it until 20:00."

(47) "I return now to the question of the Witwatersand Local Division and whether it should be given complete autonomy. I suggest that if the Commission does recommend that the WLD should be given complete autonomy and severed from the TPD, it should also recommend a change to the law to facilitate the easy exchange of judges. At present the Supreme Court Act provides that judges may be seconded from one division to the other, I have had occasion to use this and you need the concurrence to the Minister ...(intervenes)

CHAIRMAN: You say the whole present procedure is far too cumbersome and time consuming?

ELOFF JP: I recommend that this Commission should recommend an alteration, amendment of the Supreme Court Act to provide that when two Judges President agree, the judge can be - and they can agree orally, it will vest the judge who is then seconded with jurisdiction to serve in another division. And that may overcome the difficulty I have mentioned earlier that very often the TPD has a log jam and you need a judge from the WLD and if that can be done by one JP ringing the other it will certainly go far to alleviate the position."

(48) "I would like now to turn to one of the aspects mentioned by Judge Streicher about argument and support of Johannesburg being given complete autonomy and he mentioned that there are problems in regard to the Supreme Court, Johannesburg, it was mentioned that it is dirty, slovenly and that there are staff problems. With respect those problems are not going to fly away or become any easier if you have a Judge President solely for Johannesburg."

(48a) "We are dealing with a real problem, a department that moves slowly, appointments not being made, the appointment of a Registrar was delayed for about a year, posts are not being filled. I myself wrote letters to the Minister of Administration and it is just, I do not know whether even if you had three or four Judges President it would not have improved that situation in any way."

(49) "Again something else, a member of the Commission raised the question whether, if Johannesburg is to be given autonomy, it should not have added to its area of jurisdiction possibly Heidelberg on the one hand and Oberholzer on the other. With respect, for what? Is it going to serve the needs of the people living in Oberholzer or Heidelberg, is it going to make any difference to them whether they send their appeals to Pretoria or Johannesburg, one is as close or as far as the other."

(50) "MR MALULEKE: I just want to get a bit of clarity. I think Advocate Van

der Linde this morning made references to the Supreme Court Act relating to the appointment of judges and made the point that in fact the notion that they are Johannesburg judges so to speak is not entirely correct because all the judges are appointed by the TPD. Would that be the correct ...(intervenes)

ELOFF JP: No, they are appointed by the State President as judges of the Transvaal Provincial Division and the Witwatersand Local Division. But what he meant I think, what he meant was that I myself I think am responsible for that or rather put it this way, when a judge is appointed he is appointed a judge of a particular division, in this case the TPD. He has, however for certain reasons to choose a domicile and the people coming from the Johannesburg Bar normally opt for a domicile in Johannesburg and other judges opt for a domicile in Pretoria. But I myself have, in order to limit travelling time to and fro, have largely kept the Johannesburg judges if I might term them as such, to serve in Johannesburg and that is I think what he meant."

(II) THE HON. MR. JUSTICE H.C.J. FLEMMING, DEPUTY JUDGE PRESIDENT OF THE WITWATERSRAND LOCAL DIVISION OF THE SUPREME COURT

In the course of his oral representations to the Commission some of the points made by Flemming DJP were the following:-

(1) "Let me deal shortly with the different divisions. I want to preface it by saying that I talk on the basis of a firm belief that Pretoria will not be harmed at all by giving the WLD the status which the Judge President has conceded, that is a complete jurisdiction of its own."

(2) "The notion that judges in that smaller division have a lesser experience than in the

larger division is, unfortunately, contrary to my experience. In the Free State for the five years that I was there I did the Income Tax court, locally I have sat on two or three Income Tax appeals but never done any Income Tax court. One did the intellectual property, infringement of trade rights, copyrights, whatever there was you did, farming disputes which I do not come across here."

(3) "I accept what the Judge President has said about his assessment in Pretoria because I have nothing better to go on but I believe that even if the other three provinces split off, this will be a division in view of the government's presence which will never be smaller than Cape Town or Natal."

(4) "...I think the bottom line is simply that you cannot expect those provinces to be otherwise than clamouring for their own division and their own universities. I do not think that is even debatable and I am not going to stand there, it is a reality of life, it is a question of time schedule."

(5) "Let me concentrate on Johannesburg. Apart from the fact that 35 plus 18 cannot humanly be adequately coped with, it simply does not work except at the price of a waste of time, delay and expense."

(6) "...the Judge President nowadays does the civil trials in Johannesburg, that is a section of the work which he does every second week and I am not criticising him because his work is there and the Law Society is there, so often he has to leave early and go back to Pretoria so I find a judge coming to me and saying look I have been standing there for 10 minutes for the JP to come back, what is going on and I say I think he has probably left. Before I interfere I must run down and go and find out, it takes his time, it takes my time. You find the situation where a judge now wanted a part-heard matter to be postponed. I have not got the authority to arrange with him either that he goes through that week to Pretoria, he is only there for one week, he does circuit court, then it is recess, then he has got long leave so it is October. I have not got the authority to say sit there in Pretoria to complete that case that week."

(7) "In this past week I have made a note of the incidents, a Registrar wasting 25 minutes of his time, judges their time, taking my time, all things that can be avoided by more effective administration. The previous week I, not this week that is past, I had to give judgment on a Friday and because of that I could not take another criminal trial on the Wednesday and the Thursday. I hoped to be able to work on the specific judgment which I did not find particularly easy, in fact both those days I ran around until about 12:00 before I could attend to my own things and mostly to sort out things that go wrong which I believe could have been avoided if we had immediate administration. I prefer not to go into detail unnecessarily because you will realise this is an area where there are two perceptions, the Judge President whom I respect and with whom I have to work has certain views, my view is it is not effective."

(8) "If one takes the total population of, let us say Witbank, Middelburg and Nelspruit and you compare that with the total population of let us say the Free State, and I choose the Free State because that is the only one which is a small division and which is not like the Eastern Cape, split into three, then one can have a good idea of what litigation you may expect. One will obviously also have to count the corporate bodies registered in that area but I think if you look at that, it is a sustainable source of work."

(9) "Now I believe that if you have the prospect there that the work will come there, attorneys will go there, barristers will settle there and the growth will take place naturally as it has done, if you will remember there was a stage when it was announced with great importance that it has now been decided that there will always during the week be one judge available in Johannesburg. It started with one judge, Durban started with little, I believe but I may be corrected, George now also hears civil matters in circuit court but I am not quite certain."

(10) "Then lastly the Judicial Services Commission. The idea of such a commission was mooted with the previous Minister of Justice before Constitutional Courts began. ...I urged on the Minister not to introduce that for one reason inter alia if the Minister appoints a wrong person he must get different parliaments, he is accountable for it, he can be asked why did you appoint so and not so, he takes full responsibility. With this commission it becomes possible for the Minister to have a rigged commission if I could call it that, I am not saying that he did so, I am saying it is possible. That commission will take any politically convenient or desirable decisions and if the appointment comes through the Minister just puts up his hands and says I cannot do any better which means that instead of having increased responsibility for appointments, you have a decreased one. We have seen that from members of that commission a person applies for the post and despite his ability, the first question to him is where were you during the struggle - end of his appointment. As the JP has mentioned you get another man who is able and who is grilled to the extent that he leaves the meeting or that he, for his life long is blemished as somebody who applied for a post and was not seen fit. I do not think this is acceptable, I do not think it is just and I think it is counter-productive in the sense that is loses those able men who otherwise might, might just be persuaded to come to the bench.

CHAIRMAN: You share the views of the Judge President?

FLEMMING DJP: I do certainly."

(11) "MR MALULEKE: On this very last point are you suggesting that this Commission must recommend that the JSC should be scrapped and possibly revert to the old system where the Minister of Justice just appointed whoever he pleased?

FLEMMING DJP: Yes I am suggesting the return to the stage where the Minister of Justice, who is a political appointee, exercises that prerogative by going to the State President and the State President makes the appointment on the recommendation of him and other people will go according to their knowledge of the people and of the needs. To put it shortly, if the JP needs a man on patents in Pretoria in the old system he would come and say look I suggest A he is able, B he has got special skills, C if I have requirements at the moment I recommend him, look at his qualities. The department do that, the security people do that, they look at his credentials, everybody investigates him, they can consult and the Minister of Justice goes to the State President and he takes the final decision.

MR MALULEKE: Well as you are aware it does not quite really fall within our Terms of Reference, that is my personal view in any event but nonetheless I would say that this is an issue which parties would have made very strong representations to the Constitutional Assembly on it because as I understand it, it was not a decision of lawyers or judges, it was a whole national issue and people debated this. Possibly it can be a wrong conclusion, I do not know but I do not know whether the Commission can now come and recommend that?"

(III) THE HON. MR. JUSTICE P.E. STREICHER OF THE TRANSVAAL PROVINCIAL DIVISION OF THE SUPREME COURT

In the course of his oral representations to the Commission some of the points made by Streicher J were the following:-

(1) "In the memorandum submitted by us, we expressed the belief that the time has now arrived for the court in Johannesburg to be given the status of an Independent Division of the Supreme Court, implying that it should have its own Judge President who can devote all his time to the administration of this court."

(2) "The memorandum that was submitted by us contained the signatures of 17 of the, at that time 23 permanent judges of the Witwatersrand Local Division. Since the memorandum was submitted, three more judges have been appointed to the Witwatersrand Local Division. All three of those judges have signed and addendum to the memorandum indicating their agreement with the submissions set out in the memorandum. In addition three judges who had not preciously signed the memorandum have now done so."

(3) "Judge Leveson submitted his own memorandum in which he proposed a single court for the whole of Transvaal seated at Midrand. He has now also signed the memorandum, the addendum to our memorandum as an alternative to his proposal."

(4) "Judge Flemming submitted his own memorandum in which he proposed that the Johannesburg court should be independent and should have its own Judge President and that is what he submitted today as well."

(5) "Judge Schabort has not signed the memorandum but has given me a copy of a note addressed to the Chairman of the Hoexter Commission, and the first paragraph thereof says:

"I hereby wish to state that I support in principle the idea of an Independent Division of the Supreme Court with an own Judge President for the area presently constituting the Witwatersrand Local Division. It follows that, on the assumption that the Johannesburg court will remain in Johannesburg, all the permanent judges of the Witwatersrand Local Division are in favour of the Johannesburg court being given the status of an Independent Division of the Supreme Court with its own Judge President."

(6) "The Johannesburg judges who have signed for submissions to the Commission are in favour of an Independent Division with its own Judge President because they believe that the Johannesburg court requires the fulltime services of a Judge President and that the efficiency of the court can only benefit from such fulltime services. Their view in this regard is shared by the Johannesburg Bar. Furthermore, the interests of the Johannesburg court often differ from those of the Pretoria court. We believe that the judges of the Johannesburg court should have an effective voice on issues where the interests of Johannesburg and Pretoria may differ."

(7) "The administrative personnel of the Johannesburg court consist of a Chief Registrar, two Senior Registrars, 10 Registrars and 124 other employees. During each day of the second term of this year 27 to 32 judges will be doing duty in the Johannesburg court. Three Johannesburg judges will be on circuit during the term."

(8) "The headquarters of the Transvaal Provincial Division are at Pretoria. Every second week the Judge President commutes from Pretoria to Johannesburg. When he is in Johannesburg he is in charge of the Johannesburg court and makes decisions in respect of the Johannesburg court. Even when he is in Pretoria he makes decisions concerning the administration of the Johannesburg court. He deals direct with the Johannesburg judges, with the Registrar and his personnel, with the Attorney General, the advocates and the attorneys. As can be expected, the Judge President does not inform the Deputy Judge President of every decision that he makes. His predecessor did not do so and his successor will not do so. The result is that the Deputy Judge President often does not know what is happening in the division which he is supposed to control and that he does not know what the judges, whose work he is supposed to organise, are doing and the same would apply to his predecessor and will apply to his successor."

(9) "The division has in the past suffered as a result of not having had its own Judge President and will continue to suffer for as long as it does not have its own Judge President with its headquarters in Johannesburg. I doubt that any Judge who has had the experience of sitting in Johannesburg and Pretoria, will deny that the general administration of the courts in Pretoria is better than in Johannesburg; that the maintenance and cleaning services in Pretoria are better than in Johannesburg, that the security arrangements in Pretoria are better than in Johannesburg and that the courts and the judge's chambers in Pretoria are better equipped than in Johannesburg."

(10) "The court needs a person who can, on a continuous basis and with the authority of a Judge President, deal with the Registrar of the court, the Attorney General, the Advocates and the attorneys in respect of problems concerning the administration of the court and who can add his voice and authority to that of the Registrar in the Registrar's dealing with the various state departments in order to get things done at the Court."

(11) "In his written submissions to the Commission, the Judge President advanced four arguments against the granting of the independent status to the Johannesburg court. The first argument is that the present system has the advantage of crosspollination, of exposure of Transvaal judges of the circumstances of work of both centres and of facility of collective wisdom of a large bench. I agree that these are advantages of the present system. However, the exchange of judges also has disadvantages. Many hours and nervous energy are lost on the road and inconvenience is caused by having to give up one's chambers for the use of another judge and having to use other chambers."

(12) "In any event, since appeals are being heard in Johannesburg the exchange of judges has diminished considerably. According to the Diemot Commission Report the system used to be that judges of the Transvaal Provincial Division were divided into two groups, each of which was required to do duty for approximately half a term or one month in each court. In the second term of this year only one Johannesburg judge will be doing duty in Pretoria for the full duration of the term and one other Johannesburg judge will be doing duty in the Pretoria court for five days. Four Pretoria judges will be doing duty in Johannesburg most of the time, two Pretoria judges will be doing civil appeals and full bench appeals doing the first week of the terms and on four days of the terms one Pretoria judge will be doing labour appeals in Johannesburg."

(13) "The fourth argument is that the Johannesburg court will require the availability of approximately 35 judges and that it is not clear from which source these judges will be drawn. In 1989 there were 12 permanent Johannesburg judges. There are now, seven years later, 26 permanent Johannesburg judges. If nine more judges have to be found for the Johannesburg court they will be found, if not from amongst the ranks of the 551 advocates practising at the Johannesburg Bar the 2,084 practising in Johannesburg, the East Rand and the West Rand or the academics at the two universities in Johannesburg, then from elsewhere in the country. In any event, if the Pretoria judges are prepared to work in the Johannesburg court while the Johannesburg Court froms part of the Transvaal Provincial Division they would presumably also be prepared to do so when the Johannesburg court has been granted the status of an independent court. The same would apply to Pretoria judges, if they are prepared - Pretoria advocates, if they are prepared to sit in Johannesburg if there are no vacancies in Pretoria."

(14) "The Judge President also mentioned the difficulty that may arise with circuits and he stated that there are 22 circuits that have to be manned per year. Of course at present the Springs circuit and the Vereeniging circuit are manned by Johannesburg judges most of the time and I believe in Springs there are three circuits per year and in Vereeniging four, so seven of those 22 are at present in the main manned by Johannesburg judges. In any event the Johannesburg judges, I doubt that the Johannesburg judges will have any objection to the addition of other circuits as their responsibility."

(15) "As the busiest division of the Supreme Court which is served by more judges than any other division in the country and whose administration is more demanding than any other court in the country, the Johannesburg is, more than any other court in the country, entitled to be granted independent status with its own Judge President. The granting of such independence to the Johannesburg court will merely recognise the de facto position, it will not affect the administration of justice adversely and will enhance the efficiency of the Johannesburg court."

(16) "In our view the law giver should hesitate not to give effect to the opinion of all the permanent judges of the Johannesburg court, even more so in the light of the fact that their opinion is shared by the Johannesburg Bar. We, therefore, urge the Commission to strongly recommend that the Johannesburg court be made an Independent Division with the status of a Provincial Division with its own Judge President."

(IV) THE HON. MR. JUSTICE J.F. MYBURGH OF THE TRANSVAAL PROVINCIAL DIVISION OF THE SUPREME COURT

In the course of his oral representations to the Commission some of the points made by Myburgh J were the following:-

(1) " ... I would like to emphasize three points to the Commission. The first is an obvious point and that is that we speak on behalf of 26 judges, the whole Johannesburg Court and this is not a maverick group nor is it a coterie of malcontents. It is a unanimous view of the largest court in the country. It is a decision arrived at not lightly and after much debate."

(2) "The second point I would like to make is how did it come about that 26 judges have come to a unanimous view? You yourself have sat in the Appellate Division and will appreciate how difficult it is to get five people to agree. Johannesburg has a reputation for consisting of prima donnas, our Judge President will give evidence to that effect. I would like to suggest that the reason this came about is because of a deep rooted dissatisfaction with the present system. I can speak of that because I am there every day of my working life."

(3) "I am sure you have received the impression from the Judge President's submissions, both his written and oral submissions, that the Johannesburg court functions effectively. I would not like you to leave today with that impression. This is a court that is not functioning properly, hence the dissatisfaction. We are badly served by the Department of Public Works ..."

(4) "The Department of Public Works is responsible for our building. It is a building which was built in the late 1970's it has never been maintained, it has never been re-painted or re-wallpapered, it was left in the condition from the late 1970's until today when now, in this year they have started re-painting at our request some of the dirtier aspects of our court; no proper maintenance. The toilets which the public use do not function properly, that has been a matter of public debate in the newspapers as a result of a memorandum prepared by the Chairman of the Johannesburg Bar Council. We have doors on our floors which not only do not lock, they do not have door handles on them, the doors just swing open and shut. In other words there is no physical security to judges chambers whatsoever. Any member of the public can walk through a door, it is entirely open to him."

(5) "In regard to the Department of Justice which of course administers the Registrar's office we have an inefficient Registrar's office and let us deal with one aspect just give you a concrete example that we deal with on a daily basis. The Department of Justice is responsible for security. I have told you about the lack of physical security but we have security officers, we are satisfied that at least one of their number was stealing from judges cambers, we eventually got the police in to investigate, they could not find the person. Eventually one of the number of security officers was arrested stealing from a hawker, arrested by his colleagues and the Department of Justice refused to suspend him so he remained on the roll."

(6) "CHAIRMAN: ... last year we were told that of the 10 Registrars, nine

were - in the words of the Senior Registrar, taken off the street \without any prior experience.

MYBURGH J: Yes he will also tell you that there are no formal facilities for the training of his staff so when he gets given an inexperienced person, there is no basis on which he gets sent away for a month to be trained, the training takes place while they have to run that busy office, in-house with over 100 people involved."

(7) "Now I am not suggesting for the moment that our present Judge President or Deputy Judge President are to blame for this but that is the work environment, that is why you need somebody there fulltime to do all this work, to ensure that other people do their work properly. We in the end, after a great deal of debate amongst ourselves, have come to the conclusion that this is our solution, we need a fulltime Judge President. The last remark I would like to make is this that you will be aware that since 1946 to various Commission representations have been made that Johannesburg should get its own division. Here we are, 50 years later, making the same submissions that have been made in the past or similar submissions."

(8) "STREICHER J: ... I do not think that Johannesburg will have any objection to take over some of the circuits that are presently being manned by Pretoria judges. But as it is, Johannesburg in the main serves the Springs circuit and the Vereeniging circuit and those are seven of the 22 circuits of the Transvaal Provincial Division.

MR MALULEKE: But then if the Commission may know, what is the Johannesburg judges' independent view about the question of whether each province should have its division, particularly having regard to the former Transvaal provinces?

STREICHER J: The Johannesburg judges said in the memorandum which they signed that they support the Pretoria judges in this regard."

(V) ADV P.R. VAN ROOYEN SC, OF THE PRETORIA BAR ON BEHALF BOTH OF THE PRETORIA BAR AND THE PRETORIA ATTORNEYS ASSOCIATION

In the course of his oral representations to the Commission some of the points made by Adv. Van Rooyen SC were the following :-

(1) "From the outset we decided, that is the Pretoria attorneys, more than 450 in amount and us of course more than 250 in number, decided that we would like to approach the Commission on an objective basis and for that we required scientific investigation and for that we jointly appointed the Bureau of Market Research of the University of South Africa, Professor Martins and his team. So, therefore, we have jointly incurred that expense, we have had numerous consultations and broadly speaking on all material points we are ad idem and, therefor, I have been requested by the Pretoria Attorneys Association, who are also present here, that I must mention that this is in reality a joint presentation."

(2) "As a basic point of departure access to justice is a prime consideration. The words of the Minister when he opened his budget speech in 1995 he said the key objective of the justice system in the new democratic South Africa is expressed in three words "access to justice". But of course access to justice does not mean merely a question of proximity, it means vastly more. It means access to quality justice and it also means access to justice in an affordable manner. It also requires that there must be cost effectiveness throughout the system. When we talk about quality, it is the quality of the bench, the capability of having a wide spectrum of talent available to deal with all conceivable types of cases."

(3) "That is the first aspect but it is not only quality of the bench. It is the quality of the Bar and the Side Bar. Exactly the same spread of talent is required because to achieve successful access to justice there must be knowledgeable and expert assistance to the client who knows that he is in good hands."

(4) "Then of course there is also vital the whole questions of cost effectiveness and that question of cost effectiveness also had or has wide ramifications. It touches the aspect of capital costs, it costs many millions to build Supreme Courts with all the necessary support facilities. There is a vast amount of capital involved also in creating the necessary support departments."

(5) "...and we think of cost effectiveness obviously there is also the cost of the litigant and in that regard the Judge President also referred to it that travelling costs as such, subsistence in transport is really negligible in comparison to the cost of representation and experts. It is much cheaper for a client and a few witnesses or a few interested parties to travel and maintain themselves than it is to pay for the transportation and subsistence and additional fees of people, experts and representatives who are being taken away from their home base."

(6) "But especially also thinking of the disadvantaged communities, we say that the contact point is in the fields of criminal law, magistrates court, regional court, very seldom in the Supreme Court but then in the outlying areas before a circuit which is held locally..."

(7) "The second contact point in civil matters, especially for the disadvantaged communities will also be at magistrates Court level where jurisdiction now runs up to R100 000,00."

(8) "Then there is a third major contact point and that is, that goes for all communities, and that is in the field of matrimonial matters, divorces just simply are extremely high in number and as far as matrimonial matters, where my learned friend Mr Bertelsman will elaborate on a bit, it seems to be that we are satisfied, also showing our objectivity that matrimonial matters should be taken to the people. They should not be forced to travel long distances to come to, for example, Pretoria in order to attain an unopposed divorce."

(9) "...basically speaking it boils down to this that these family matters, which also include maintenance, should be adjudicated upon in an expert forum as a division of the Supreme Court or with the same status as the Supreme Court being brought closer to the people but where time and attention can be given to quality and to make use of a multi-disciplinary approach and I feel I have said more than enough now, my learned friend will expand on it."

(10) "As far as motions are concerned, it is not necessary, it is on affidavit, you do not need immediate access distance wise. As far as appeals are concerned, that is all on the record, the witnesses are not there, they are not called, you do not require immediate proximity and then we come to the points which deal directly with your Terms of Reference and that is, let us think of access to the Supreme Court or the High Court. There we once again have the two facets, criminal trials and civil trials. Now the criminal trials have, for many years, been dealt with on a circuit basis and the circuit goes to where the need is and the Judge President has said that it has worked well and we can only endorse it that as far as criminal circuits are concerned, being brought to the towns where they are required, has worked well and is working well and certainly there is no need to create any new divisions of the Supreme Court in order to deal effectively and satisfactorily with criminal matters."

(11) "Then we come to the question of the civil trials in the Supreme Court. That is really the crux of the matter, the brunt of the matter as to whether the present system works efficaciously or whether there are problems or where there is a need for new divisions, etcetera. That is really where the crux is, what is the need as far as civil trials are concerned, what is the quality, what will the cost effectiveness be, present system, possible alternatives and that is immediately where the Professor Martin's investigation becomes vitally important."

(12) "In Pretoria roughly 35,4% of the cases involved sums of R100 000,00 or more and 64,6% of the cases involved sums below R100 000,00. The number of cases with plaintiff and defendant resident in the same province is expected to decline to 44 in the North West; 58 in the Eastern Transvaal and 40 in the Northern Province. That is now in table 7 on the next page."

(13) "That then leads us to the submissions which we made on the next page of our representations, page 9 -5.6 "Based on these figures it is our respectful submission that the demand for access to the Supreme Court in matters where the amount in dispute is more than R100 000,00 does not justify the creation of new Supreme Courts at all." Then we carry on with the next point: "As will be demonstrated herein below, the geographical and demographic realities of the old jurisdiction actually indicate that the creation of new Supreme Courts will be done to the detriment of the public rather than making the Supreme Court more accessible." Then we say: "The small number of cases would, in our respectful submission, justify neither the creation of a local nor a provincial division of the Supreme Court in any other province other than Gauteng at all."

(14) "We say: Mmabatho is poorly located, close to the Botswana border, far removed from the main population concentrations and centres of economic activity in the province. Twenty six percent of the total population of the North West province live in the districts of Odi and Moretele."

(15) "...We must also bear in mind that there is a very considerable industrial component and manufacturing component in Garankuwa. In fact, when Rosslyn, which was in the Republic, Rosslyn 2 was proclaimed and attempted to be marketed by the developers, Gencor, there were no takers, why? Because everybody was going to the Garankuwa industrial area which was in Bophuthatswana and where there were very considerable tax and other concessions available. So Rosslyn 2 died a total natural death, in fact it was bought thereafter for conversion to residential development due to the Garankuwa industrial development. It not only has the highest concentration of people in the north West province, it also has a very substantial industrial base. That is around the corner from Pretoria, 300 kilometres away from Mmabatho but between 30 and 50 kilometres from Pretoria."

(16) "Now under the system which was, where Bophuthatswana, where the court in Mmabatho and exclusive jurisdiction over the entire Bophuthatswana wherever situate, these people, as far as access to court was concerned, were deprived of access to the courts in Pretoria, around the corner, the Supreme Court and they were forced to access the court at Mmabatho and I am informed that it led to very considerable hardship as far as access to court is concerned for those people because, it is not only the question of distance, it is also the question of transportation routes. If you start thinking of this entire Garankuwa/Mabopane area, they have rail links, they have bus services, they have taxis, the commuting distance and time to Pretoria is peanuts, it is done every day by millions of people but the entire transport system is so organised that how do you get from there to Mmabatho, that is not so easy."

(17) "Another 15,8% of the North West province population lives in the Klerksdorp and Potchefstroom districts, once again far removed from Mmabatho. The Rustenburg, Klerksdorp and Potchefstroom districts are undoubtedly the prime districts in which economic activity takes place and gross geographich product is created and are consequently also the principal source of litigation in contested civil actions involving claims in excess of R100 000,00. We again say that 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 activities will 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 trials."

(18) "...if we think of the Mmabatho Court as it exists today, we are led to the inevitable conclusion that it should not have exclusive jurisdiction in the North West province. People should not be forced to go to Mmabatho. That means that a Provincial Division with exclusive jurisdiction is out, it just cannot work, it is directly in conflict with the basic principle of access to quality justice as close as possible."

(19) "That means that one will be forced to the next question and that is what about concurrent jurisdiction and the moment you think about concurrent jurisdiction then you say to yourself now what is going to happen? The main population concentrations and the main generators of economic activities and of possibly disputes of claims in excess of R100 000,00 are very far removed from Mmabatho, they are much closer to Pretoria and Johannesburg. The moment there is a concurrent jurisdiction the gravitation of the quality of justice to be found and the quality of the Bar and the Side Bar and all the support services is to be found and all the transportation routes which are centred on the major centres, is going to pull these cases on a basis of concurrent jurisdiction to, for example, Pretoria end of story."

(20) "So there is only one solution and that is that the political justification for that court being created having disappeared, that court will also have to be phased out."

(21) "If there are cases there which emanate from close to Mmabatho, for example it is the capital of a province, if there are cases there which could best be heard and the request is made that a civil circuit should sit there, then obviously it will be arranged but, therefore, we suggest that those judges should be seconded back and that the departments should be integrated with Pretoria..."

(22) "Places such as Rustenburg, they have just over 100 kilometres to Pretoria and they have more than 200 kilometres to Mmabatho. Brits 48 kilometres to Pretoria, 263 kilometres to Mmabatho and then of course Garankuwa, Mabopane, the Odi and Moretele districts are between 30 and 50 kilometres from Pretoria and between 290 and 320 kilometres from Mmabatho."

(23) "When we come to Mpumalanga...we say a similar position prevails there. The number of contested cases involving more than R100 000,00 is expected to be extremely low. The centres of economic activity, population density and creation of gross geographic product are in Witbank, Middelburg, Highveld Ridge and Bethal. The Witbank, Middelburg, and Bethal districts have a combined gross geographic product of more than ten thousand million rands per annum compared to one thousand eight hundred million for Nelspruit and these centres of economic activities are much closer to Pretoria and Johannesburg than they are to Nelspruit and the suggestion that litigation from these centres should be forced to go to Nelspruit whereas immediate and direct access to Pretoria would be available, would clearly be unfair and inimical. Again the creation of a Provincial Division of the Supreme Court with exlusive jurisdiction over the whole of Mpumalanga would be to the detriment of the public, exactly the same as on the old exclusive jurisdiction of Mmabatho. So we say exclusive jurisdiction is out, you cannot force the people who are much closer to Pretoria to go to Nelspruit to a brand new court with no support infrastructure, with no Bar, no Side Bar who have the necessary expertise, etcetera."

(24) "Then we come to Witbank, Witbank is 99 kilometres from Pretoria and 201 from Nelspruit. You cannot force Witbank people to go to an at present non-existent centre with no facilities or quality available and which would take many years to build up, whereas they have within 100 kilometres from them, the Pretoria situation. The Middelburg one, 128 kilometres to Pretoria, 177 to Nelspruit and the one is a freeway and the other one not so much of a freeway."

(25) "Then we come to Bethal, Bethal 178 kilometres from Pretoria and 247 from Nelspruit so Bethal is also clearly within the Pretoria sphere of influence. Let us make it even worse, Standerton 197 from Pretoria and 317 from Nelspruit. The routes are just such that they also do not travel straight, not even to talk about the absence of public transport in the sense of rail or bus services."

(26) "...so the dividing line distance wise runs through Ermelo and Piet Retief and everything to the south and to the west thereof falls within the Pretoria sphere of influence. Delmas 74 to Pretoria, 264 to Nelspruit; Secunda 154 to Pretoria, 277 to Nelspruit; Balfour 138 to Pretoria, 320 to Nelspruit along very indirect routes."

(27) "The moment you think of concurrent jurisdiction of the very few number of cases which can be expected above R100 000,00 much more than half will be drawn to Pretoria in any case on the basis of concurrent jurisdiction. There just simply is no basis whatsoever on which one can consider the creation of new courts at many millions of rands."

(28) "In the Northern Province Pietersburg, for example Thohoyandou is out, it is obvious that Thohoyandou cannot live, it is completely off centre, there is nothing going on there. If you were to consider Pietersburg yes it would be better located geographically but once again the same would apply. For example thinking of a place like Thabazimbi, Thabazimbi is much closer to Pretoria than it is to Pietersburg due to the transportation routes, in fact it is 185 kilometres from Pretoria and 284 - 100 kilometres further from Thabazimbi to Pietersburg."

(29) "Then of course we made the point and we need not elaborate on it, the very important point of quality that also for the Bar and the Side Bar it is of vital importance to have your colleagues, to do interesting work, to do complex work, to be able to consult thereon with your colleagues."

(30) "That intellectual and collegial stimulation is of absolutely vital importance and you have a vicious circle with a small Bar and a small inexperienced Side Bar. After all work is drawn only, complex interesting work, important work, is drawn only to the most able. It is a terribly individualistic profession, the practice of law. Clients seek the best attorneys, attorneys seek the best advocates and there is a vicious circle involved where the moment you give a concurrent jurisdiction the work is just simply drawn away by the large and the competent groups and drawn away to the bench."

(31) "What these adjoining provinces require from a Supreme Court point of view is that they require the maintenance of the criminal circuit system which goes to various towns, it does not sit in a particular spot far away from people. It requires matrimonial matters to be dealt with on the same sort of basis as your criminal circuit. The matrimonial matters, your family law, your maintenance must be brought to the people on a circuit basis. Not to a provincial or local division far removed from the people, but on a circuit basis and as far as civil trials are concerned there may be those of the few which will be generated where it could be advisable or desirable to have the court sit as a circuit civil court. Under those circumstances it would be for the parties to approach the Judge President and say could we please have a civil circuit for this case or for these cases."

(32) "MR JAPPIE: Well what concerns me is the principle, for example a court in Gauteng having jurisdiction over an Administrative Government of say North West or Northern Province?

MR VAN ROOYEN: It does not worry us Mr Chairman for the simple reason that the administration of justice is a national matter, not a provincial matter.

MR JAPPIE: So your suggestion then is that one must look at the administration of justice as a broader question rather than a separate provincial or regional matter?

MR VAN ROOYEN: Oh yes, it certainly is a national matter also in terms of the Constitution.

MR JAPPIE: Thank you."

(33) "...if I may now hand over to my learned friend, Mr Bertelsmann, who will deal with Johannesburg and with the additional questions which were asked by the Commission."

(VI) ADV E. BERTELSMANN SC OF THE PRETORIA BAR ON BEHALF BOTH OF THE PRETORIA BAR AND THE PRETORIA ATTORNEYS ASSOCIATION

In the course of his oral representations to the Commission some of the points made by Adv Bertelsmann SC were the following :-

(1) "As far as the balance of our submissions are concerned I first wish to deal with the issue of Johannesburg. May I say in advance that in general we would respectfully associate ourselves with what the Honourable Judge President of the Transvaal said yesterday, there are one or two issues where we have perhaps a slight difference, notably on the area of concurrent jurisdiction."

(2) "But we argue, and we argue strenuously that one Judge President and one bench should be retained in Johannesburg and in Pretoria. We agree wholeheartedly with the fact that the present system certainly delivers the optimal justice and quality of justice and accessibility of justice to the people of Gauteng. I think the statistics which the Honourable Judge President provided yesterday speak for themselves."

(3) "To change it into two hermetically sealed divisions we believe would create administrative problems, it would create delays, it would necessitate the appointment of additional judges and it would generally speaking work to the detriment of the public in the sense that the delivery of justice, the speed thereof would probably be less and the accessibility of judges, both as far as the pool of knowledge is concerned and the availability on both sides of the Jukskei River is concerned, would be less."

(4) "While we have sympathy and appreciation for what Johannesburg is going to present to you, if one analyses what Johannesburg says it basically amounts to one thing: "we want a separate division with our own JP because we are the largest commercial centre and we are the largest centre of forensic activity."

CHAIRMAN: Well was the thrust of the argument yesterday not that it would be better administered?"

(5) "Johannesburg also argues that the concurrent jurisdiction which exists at the moment in the 17 magisterial districts in which Pretoria enjoys concurrent jurisdiction, should be abolished. Now the argument which Johannesburg presents in that regard is also premised on the basis that we are the biggest and the largest and, consequently, we should have sole jurisdiction. They do not say that they are dependent upon the income which that would produce from the forensic point of view, nor do they say that the litigants in those 17 magisterial districts have expressed a need or a desire for exclusive jurisdiction in Johannesburg. The fact of the matter is that as far as we have been able to establish from enquiring from our colleagues, and that has not been done on a strictly scientific basis, so it is a guestimate rather than a scientific fact, that approximately 20% of the work which is done, the civil litigation which is done in Pretoria emanates from the concurrent jurisdiction and we believe that there are various reasons why these 17 magisterial districts have approximately 20% of our litigating public or provide 20% of our litigating public which is a comparatively sizeable proportion and which of course accounts for our self interest in this argument as well. We believe that litigants come to Pretoria for reasons of inter alia the fact that Johannesburg, both in the attorneys profession and in the advocates profession, has a higher fee structure and it is, consequently, more expensive."

(6) "The statistic which we present now we obtained from the South African police's National Crime Information Management Centre and they present a frightening picture. Only for the central business district which is centred around the Supreme Court in Johannesburg ordinary robberies 529 in the period from 1 January 1995 to 31 December 1995; armed robberies 7,073 and the other figures speak for themselves; car highjackings, murder, rape, drugs and child abuse. Now certainly, with the possible exception of the last, all of these impact upon the quality of the service which can be delivered after hours, I think it is a fact of life. We have said this in our written submissions as well that our colleagues both in the attorneys profession and the advocates prefer not to consult in the CBD after 16:00. Their clients certainly do, if at all possible, prefer to litigate somewhere else and under those circumstances that may also account for some of the pull to Pretoria."

(7) "But at the root of the argument of retention of concurrent jurisdiction lies, in our respectful submission, eventually again the question of access. The question of access to justice also involves the question of choice, of forum if it is available, the question of choice of litigator and in this case a fee structure which is approximately 30% lower in Pretoria than it is across the board in Johannesburg. If the two divisions were to be created, we believe that the service to the public would suffer, Pretoria would suffer obviously, also if the concurrent jurisdiction were to be abolished in a certain measure as far as income is concerned, but I think the public and we believe that the public would be less well served because its access to the very privileged situation which we have at the moment in Gauteng of a very large pool of judges, a very efficient bench, a very efficient administration, a very effective Bar in Johannesburg and we like to believe also in Pretoria, an excellent attorneys profession in Johannesburg and we know also in Pretoria, all of these combine to provide access to justice in Gauteng of a nature which should not be tinkered with if it is not absolutely essential."

(8) "CHAIRMAN: Before you get there just help the Commission, historically or logically what considerations dictate, for example jurisdiction in criminal matters that Vanderbijlpark, Vereeniging, Heidelberg should fall under Pretoria's criminal

jurisdiction?

MR BERTELSMANN: Well Mr Chairman I believe that historically it developed because of the fact that Pretoria at that stage was probably better situated to provide the circuit justice at that stage."

(9) "CHAIRMAN: As far as civil jurisdiction is concerned it does, on the face of things, appear curious that Heidelberg falls under Pretoria and Oberholzer under Pretoria?

MR BERTELSMANN: Well these are matters of particular historical development, exactly why they occurred I would not be able to say but what we can say is that there are quite a number of litigants in Heidelberg who, if they have the choice, come to Pretoria and if that is the kind of access to justice which the public desires, why take it away and we believe that the quality of justice which Pretoria delivers is the same as that of Johannesburg and we would like to keep it that way. That is why we say please allow the mix of judges from both sides of the Jukskei River to continue and the mix of colleagues on both levels of the profession."

(10) "As far as the third question is concerned, the question of the Family Court, in our written submission we envisaged or we accepted, as a given fact, that a Family Court would be instituted and more or less along the lines of the suggested amendment to the Magistrates Court Act on a Magistrates Court level. Having had the opportunity of reconsidering, we are in favour of the establishment of a Family Court but as a division of the Supreme Court on a circuit basis and into which court should be integrated the existing Black Divorce Courts."

(11) "MR MALULEKE: You dealt with what I think is a very interesting observation relating to the differences in fee structure, that generally it costs you more to litigate in Johannesburg than in Pretoria and personally I share that view but I would like to imagine that it must cost more to litigate in Pretoria than in Mmabatho, by the same token and let us say for the sake of argument, it must?

MR BERTELSMANN: ...the ordinary run of the mill case in Mmabatho would probably, if members of the local Bar were involved, be litigated at marginally lower costs than in Pretoria and I say marginally lower costs advisedly, I do not think that the fee structures are very different."

(12) "...however, the cost on the public purse to provide that kind of service in Mmabatho is vastly in excess than the cost of maintaining the existing services in Pretoria and Johannesburg and depending on where the litigant comes from, I in my answer to you have assumed that the litigant is living in or around Mmabatho. If the litigant is living in Odi and he is forced to go to Mmabatho the costs just of accessing justice there will be prohibitive and if I could hand over to Mr Van Rooyen who wants to follow on this point?

MR VAN ROOYEN: My colleague mentioned the cost to the State which is a considerable drain. I just referred to the Martins report and in the summary, also on the same page where I did the correction right at the start, (ii) middle of the page the comparison of the cost to the State process issued by the Supreme Court divisions in Johannesburg, Pretoria, Mmabatho and Thohoyondou reveals the following ratio: 1 Johannesburg; 1,1 in Pretoria; 5 in Mmabatho and 33,7 in Thohoyondou. The cost of hearing a Supreme Court case in Thohoyondou would, therefore, be about 32,7 times more expensive than in Johannesburg; four times more expensive in Mmabatho and about equally expensive in Pretoria and Johannesburg. The small divisions do cost much more per case."

(VII) MR ATTORNEY C.P. FOURIE, SPEAKING ON BEHALF OF THE PRETORIA ATTORNEYS ASSOCIATION

(1) "MR FOURIE: Mr Maluleke if I understood you correctly you asked as to the cost structure of unopposed divorces?

MR MALULEKE: On average of unopposed divorce cases in the Supreme Court?

MR FOURIE: I personally do not practice in the area of family law but my colleague, Mr Ehlers does and he advises me that the average cost of an unopposed divorce in the Supreme Court in Pretoria at the moment would be between R1 500,00 and R2 500,00 for an unopposed divorce, depending on the amount of work to be done and he also advises me that although an unopposed divorce takes two or three minutes I think the Judge President said yesterday, there is obviously behind the scenes a lot of work to be done, especially where children are involved, assets are to be divided, the family advocate that is involved and the drawing of whatever settlement agreement is then reached. So that in Pretoria is the situation and that would include disbursements, that would include counsel's fees."

(2) "There was a question earlier as to the functioning of the Maintenance Court in the magistrates court. We are of the opinion that it is in fact totally inadequate and we are also of the opinion that that should be incorporated or integrated in the whole new Family Court structure.

CHAIRMAN: Just in a nutshell what are the main criticisms you would level against the Maintenance Court at the moment?

MR FOURIE: I think they are burdened to a very large extent, I think the matters do not get any or very little attention and I think at the end of the day it is really a situation where the things are just run through without being properly considered. Mr Ehlers adds that the fact that there are also no cost orders being made in the Maintenance Court also has a very serious affect on the whole situation.

MR MALULEKE: Do I understand this correctly, does Mr Ehlers say that it would improve the situation if cost orders were made, particularly where one of the parties is represented by an attorney?

MR FOURIE: Yes, it would improve the representation.

(VIII) ADV W.H.G. VAN DER LINDE ON BEHALF OF THE JOHANNESBURG BAR

In the course of his oral representations to the Commission some of the points made by Adv van der Linde were the following :-

(1) "The first is the question of a Family Court. In principle the Johannesburg Bar is in favour of the notion of specialisation, it does not adhere to the traditionally supported notion that an appointed judge is automatically qualified best to adjudicate in all matters that society brings before him. That being the principle, the question arises as to whether family matters ought to be addressed as an adjunct of the Magistrates Court or whether there ought to be a separate Family Court and if so, what the relationship ought to be between the separate Family Court and the Supreme Court. We are opposed to a Family Court being an adjunct to the Magistrates Court for the very reason that we have advanced, that is that we believe in specialisation of courts. If for the reason of specialisation of courts there ought to be created a Family Court, because not all judges are qualified also to hear or best qualified to hear family matters, the same would apply to the magistrates. So for the same reason that the notion disqualifies the magistrates court as being the appropriate court within which to hear family matters."

(2) "...on the question of the autonomy of the WLD...The argument is simply this, firstly the present status of the WLD is a function of a history of more than a century born in a then very unique and certainly not to be repeated political milieu. So that what confronts the Commission at this time is what I submit is an historical oddity and secondly an historical oddity which is even more incongruous to defend when regard is had to the fact that the largest court of the land is not autonomous and the principle notion which I am advancing is the autonomy of the WLD and everything else, with respect, flows from that, also the question of concurrent jurisdiction and that is the third point that I make and it is that concurrent jurisdiction by another autonomous division in respect of the area of jurisdiction of an autonomous division, is in principle unsound and unless reasons can be advanced why that should be so, you would not permit it."

(3) "...the Commission is probably aware of the judgment of His Lordship GA Coetzee J in Trade Fairs and Promotions v Thompson 1984 (4) 177 in which his lordship set out at pages 180G to 183A the history of the two divisions in the old Transvaal. The statutory result or statutory subordination which has resulted from that history is as we speak the following: firstly there are no judges of the WLD, the judges that are appointed are appointed in the Provincial Divisions as I read section 3(4) of the Act provides that:

"Any court of the Durban and coast or of the Witwatersrand or the South Eastern Cape Local Division shall be presided over by a judge of the Provincial Division"

(4) "The second statutory subordination is the concurrent jurisdiction referred to in section 6(2) of the Act. The third is the fact that it has no Judge President, that is section 3(2) of the Act; the fourth is that it can only hear its own appeals if a Judge President from another division, in this case the Transvaal Provincial Division, so directs and that is section 20(3)(c)(ii) of the Act; the fifth is that it only has appeal and review jurisdiction to the extent permitted by the Judge President of another division, that is section 19(2)(b) of the Act; the sixth is that it is the Judge President of another division, the Transvaal Provincial Division, which makes the rules for the local division, that is section 43 of the Act and finally it has no Master's office."

(5) "Of course de facto today we know that the WLD does its own appeals and reviews from the lower courts in its 17 magisterial districts; it does its own judges appeals; its judges are sourced on the whole from the community which it serves, certainly from a geographical point of view and it has its own Deputy Judge President. Now those are all measure that, by their very nature tell us that they were taken in order to support the autonomy of that division. That being so it is inconsistent, unless some argument is raised, it is inconsistent why the autonomy should not be complete."

(6) "Johannesburg and the WLD has grown exponentially in terms of three important things, population firstly, secondly economic growth and thirdly a demand for legal services. That is despite just the argument raised that there is a need for concurrent jurisdiction in Pretoria because it is cheaper to go there. Well the proof of the pudding is in the eating, the demand for legal services in Johannesburg has grown exponentially in relation to Pretoria."

(7) "If I may conclude on this part, one is confronted with what I termed an historical oddity and the question is whether it should be retained and I articulate the question that a way because the submission is that you ought to approach it from the point of view as to whether you have been persuaded that it ought to be retained, not the other way around. Now the case that has been put up for its retention is the access to justice argument articulated by Mr Bertelsmann this morning. Now I want to proffer answers to it if I may, firstly I say on the facts the argument is doubtful, on the facts we have submitted that there is no meaningful demand for concurrent jurisdiction in Pretoria but the response was that 20% of the work comes from there and that it is cheaper to go to Pretoria. We say that the statistics do not bear that out, we say the fact that the demand for legal services in Johannesburg has grown exponentially in relation to Pretoria is destructive of that argument on the facts."

(8) "But more importantly in principle the moment that one accepts that there ought to be an autonomous division as I understood Mr Bertelsmann to accept, it is incongruous and inconsistent with that notion that there be an imposition into that autonomy by way of concurrent jurisdiction."

(9) "MR MALULEKE: If I go back to the matter which I will put very colloquially about the tale of two cities, Pretoria and Johannesburg, to me it sounds more like a pleading for emancipation from this colonial master and the master using every excuse to refuse. I would like to know if Johannesburg were to get its independence and this Commission recommended that the three adjoining provinces would have no courts of their own and we were involved in the exercise of re-drawing boundaries, given the numbers and the statistics would Johannesburg be able to take on Potchefstroom or Klerksdorp as part of its jurisdictional areas or any other area which, for instance, may not geographically be conveniently served by Pretoria?

MR VAN DER LINDE: Mr Chairman with respect it is really how long is a piece of string because one does not really know how much extra will be coming Johannesburg's way by way of legal services but may I put it this way, if there is one centre of infrastructure which is able to provide it, it must be Johannesburg because it has all of the legal practitioners both on the East and West Rand, it has the vast numbers of legal practitioners who now all appear in the Supreme Court or are able to appear in the Supreme Court, it has a Bar which is by far the largest Bar in the country so it has the manpower and infrastructure if compared with any of the other potential candidates for increase in jurisdiction."

(10) "MR MALULEKE: Then lastly on page 14 of I think your submissions, paragraph 15.4 I think you made the point that the magisterial districts that are served by Johannesburg roughly would be populations of about 6 million people and that which was served by Pretoria for Gauteng purposes only, is just about 1½ million and I am trying to make out what value to attach to that? If this Commission were to recommend that the three provinces must have their courts, Pretoria would remain with about roughly 1½ million people and of course Central Government. Would it be your view that in that event Pretoria would be over served by having too big, too large a bench, too large a Bar, too large a Side Bar?

MR VAN DER LINDE: That might very well be the consequence."

(IX) ADV. K.P.C.O. VON LIERES und WILKAU SC, SUBPOENAED BY THE COMMISSION, DULY SWORN

In the course of his oral evidence before the Commission some of the points made by Adv. von Lieres SC were the following:-

(1) "My area of specialisation is broadly speaking that of criminal law and matters complementary thereto. And I have had some 33 years of experience in this field, the last 14½ years as the First Attorney General of the Witwatersrand Local Division which was established on 1 November 1983 and I have continued in that position until I relinquished my appointment as attorney general on 25 May of 1995. Now these experiences, these 33 years of experience Mr Chairman and gentlemen commissioners, also included the management of the allotted professional and administrative staff in order to perform the task and frequent interaction with the justice department head office in connection with the administration of the criminal justice system in my area of jurisdiction both in my capacity as the senior public prosecutor of Johannesburg where I had some, in those days some 90 at the present moment about 129 staff and some 60 to 66 courts which were operating there daily. And later from 1 November 83 as the attorney general for the ten districts for which the Witwatersrand Local Division exercised criminal jurisdiction."

(2) "The Commission will see that the Witwatersrand Local Division comprised of ten magisterial districts namely Alberton, Boksburg, Johannesburg, Kempton Park, Krugersdorp, Randburg, Randfontein, Roodepoort and Westonaria."

(3) "Now there is Mr Chairman a difference between the Witwatersrand Local Division's civil jurisdiction and criminal jurisdiction. The civil jurisdiction is substantially wider and it includes a number of other districts which I will refer to later which can be found in the schedule to the Supreme Court Act No, 59 of 1959. These would include Springs, Heidelberg, Vereeniging, Vanderbijl, Brakpan if remember correctly, Nigel and I think Benoni."

(4) "In the ten districts over which the Attorney General Witwatersrand exercised criminal jurisdiction we had some 92 district courts in session daily and some 40 regional courts in session daily, that is within these ten districts."

(5) "And at the same time in the Supreme Court we ran ten Supreme Court criminal courts in Johannesburg per day with another five courts sitting as courts of appeal during the week. That Mr Chairman and gentlemen gave you a number of courts for the Witwatersrand daily session of 142 to 143 which includes the five Appeal Courts that sit weekly."

(6) "MR MALULEKE: ... Was there any particular reason why the criminal jurisdiction was small in number at least than the civil section? -- I believe that if the Johannesburg office had taken all the civil jurisdiction districts in Pretoria would not have had any criminal work to do or it would have been substantially reduced because in Springs and in Vereeniging, Vanderbijl there are circuit courts sitting virtually on a full-time basis. So it was in order to balance the work load between Pretoria and Johannesburg that the criminal jurisdiction of the Witwatersrand was smaller than the civil jurisdiction."

(7) "ADV VON LIERES: Now Chairman and gentlemen if we have regard to the personnel, the authorised establishment tables, that is the staff that was made available to the attorney general, and this staff is substantially the same today, to do his task of administering the criminal law you will see that the attorney general himself had a staff of authorised establishment of 62 professionals, that is 62 advocates and an administrative staff of 22. When the attorney general's office was originally established as a full blown office with effect 1 November 1983 he had 22 professional staff members and they increased from 1983 to 1995 when I left to 62. So that is virtually a 300% increase in 10/11 years which reflects the enormous amount of work, of criminal work which is in fact being generated in the Witwatersrand Local Division from 22 advocates in 1983 to 62 in 1994/1995."

(8) " In the districts Mr Chairman and gentlemen I have set out per district exactly what we had. You will see that there are three very small districts. There is Westonaria which only has a staff of three prosecutors but they run two courts per day and they get regional court assistance from Randfontein. Then there is Randfontein which has a staff of five and Alberton a staff of eight. All other districts exceed 10 prosecutors with the largest being Johannesburg which at present has a staff of 128 prosecutors and is managed by a deputy-attorney general. The total staff complEment Mr Chairman including administrative staff for the Witwatersrand Local Division amounted to some 313 which were directly the responsibility of the attorney general. If you take the administrative staff away it is about 289 or so. During 1984 the average experience excluding the senior prosecutors was about two years per prosecutor. Now obviously Mr Chairman you will appreciate that for involved and intricate regional court cases this experience is sadly lacking and it does not allow justice to be done to involved criminal prosecutions."

(9) "Also Mr Chairman because you lack experience the prosecutor is sometimes averse to taking up the cudgels in an involved case because he does not quite know how to deal with it. And once your experience level in your attorney general's office has decreased significantly not much help can be expected from those quarters either. Because the attorney general himself he has got to run 10 criminal courts a day and he has got to read all the other dockets and the - and everything that comes in."

(10) "At the time when I joined the Department of Justice in 1962 and after I gained my LLB in 1996 I had four years of experience which I was transferred to the attorney general's office. That was an enormous shock in those days because the going rate was a minimum of seven years experience before you would even be considered to go to the attorney general's office."

(11) "The level of experience has shown a steady drop over the years to the detriment of the proper application of the criminal law, and that is regrettably a fact."

(12) "... we had the problem that the Public Service Commission and I think the Department of Justice to a certain extent both were perceived to fail to understand the importance of having efficient professional people within the department. There have been continuous problem with regards to the proper payment of professional people."

(13) "... 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."

(14) "...the prosecution because ... does not get the efficient service it should get from the supporting institutions. The quality of investigation is poor. The experience level of the prosecution is generally poor. At least I can talk authoritatively of the Witwatersrand and to a lesser degree of Pretoria. I am not committing myself on Cape Town and the other areas because I am not quite sure what their position is. You will please read my remarks as restricted to my geographical field of experience. But if the prosecutor has not got the skills he cannot train and advise the investigator to investigate properly and what he requires. And often only by losing a case in court he realises what he never foresaw. And that annoys people. If I am a complainant in a case I want to see efficient justice, I do not want to see the criminal get away because of some technical blue the prosecutor made. That discredits the criminal justice system."

(15) "It is obviously from a political point of view desirable that a provincial government has all its tools of government available to it. It needs its state attorney. It needs its Supreme Court registrar, its Master of the Supreme Court, it needs its attorney general from a practical point of view. It is an impossible position to expect of an attorney general to service three or four provincial premiers with advice. The provincial interests might be totally different and one attorney general simply cannot be expected to service three or four different provincial premiers with advice on criminal matters. The emphasis of crime in the various provinces can differ markedly from one another. If we take Johannesburg you have got a completely different type of crime to for example North-West or the Northern Province or Mpumalanga. So firstly there is a question of policy. A premier wants to know that criminal justice is administered in each district in the same way. Secondly, we sit with this practical example that in the Witwatersrand the attorney general say I make the docket available if the accused asks for it. In Pretoria the regulation is you have got to apply to court to get the docket."

(16) "At this stage everybody expects the people to come to justice. But if we look at the practical situation Mr Chairman the public transport system has just about collapsed. People now have to pay through their noses to travel in a taxi from wherever he may sit in a squatter camp to the nearest court. Provision is made in the magistrate's court for the establishment of detached magistrate's courts. There is no reason why we should not take justice to the people. Why can we not have detached magistrate's courts in large squatter communities for example? And why can we not have satellite police stations where there are large concentrations of people who are not being serviced by the existing structures? People just do not come to court because many of them cannot afford to come to court and that has an effect of discrediting the criminal justice system. We cannot allow the criminal justice system to be discredited any further. Self-help is becoming the order of the day."

(17) "I believe that each province if it has its own attorney general and its own Supreme Court will in fact be adequate equipped with the local provincial judge president to take the initiative to extend the criminal justice services to the furthest outreaches of that particular province. I know the argument which is made against my suggestion is that we are going to lose skills, we are not going to have the highest quality of justice because people do not want to go this place or that place or the next place. That may be so Mr Chairman, but the fact is that even if the quality of justice takes a dip for the first two or three years, after that a satellite will form around the provincial capital and will ensure as development comes and goes on that the quality of justice increases and it will bring justice to the people."

(18) "I believe there is not a single prosecutorial advocate or experienced prosecutor advocate who has ever served in Justice Head Office over the last 30 years. I also do not think there is a single state attorney with practical experience who has served in Justice Head Office except for one who is involved in indemnities I think. That is a specialised job. But the practical experience of the chief magistrate with a middle level advocate who has got skill and knows what goes on in practice in the courts of the state attorney who knows what the practice in civil work is, is missing in Justice Head Office because these people are not drawn in to strengthen Justice Head Office therefore the knowledge of what goes on is really not there. I think these are professional people, bugger them sort of attitude which is a perception which I have heard from various sources."

(19) "CHAIRMAN: What does a public prosecutor who starts today get in round figures?

ADV VON LIERES: I suppose about 33 to 36 a year. I am not 100% sure but that is what sticks in my mind, is that about right? The secretary confirms sir. That is what he gets. In other words, he is going to get about what a police constable after six months training at the Police College is going to get from 1 July. I grant you Mr Chairman that a prosecutor only needs experience, but he also needs to live. And we cannot succeed in creating the environment and the work condition in which this man can concentrate on his work and not worry where he is going to buy the next bread tomorrow, we are not going to keep him, they are going to go out. They are going to leave us and we cannot afford this. Our society will go to ruin if we do that."

(20) "So I would in conclusion Mr Chairman I would say that I would urge the Commission to consider that we take the political realities of this country as we know them, that is there are these various provinces, that each province should have its own Supreme Court, its own attorney general and other supporting staff and that the professional personnel staffing policy now becomes a reality, that it becomes an enduring one with strategic qualities which will enable the state in its various provinces to have sufficient manpower to ensure the peace and tranquillity society is entitled to. I think it is counter-productive to have overlapping jurisdictions as between attorney general in various provinces, I think there should be one for one if I can put it that way."

(X) MR ATTORNEY C.K. PETTY OF PRETORIA, A COUNCIL MEMBER OF THE TRANSVAAL LAW SOCIETY

In the course of his oral representations to the Commission some of the points made by Mr. Petty were the following:-

(1) "I am a council member of the Law Society of the Transvaal and what I say today I have been mandated to say on behalf of that council. There are also certain aspects which I will deal with later where I have been mandated to speak on behalf of the Association of Law Societies who have not been represented here previously."

(2) "Because of the new dispensation which came into being when the old Transvaal was divided into four provinces it was decided that the circles as they existed then were really not representative of the areas which they served, and the Transvaal Law Society with the concurrence of the attorneys in the four provinces disbanded the circles and created what is in effect four provincial law societies that operate in the area that was Transvaal. And those areas represent Gauteng, North West, Northern Province and what is now known as Mpumalanga."

(3) "The Transvaal Law Society has a statutory function which it is obliged to fulfil in regard to all attorneys that practice in the old Transvaal and that is the questions of discipline, the questions of registration and various other matters. And what has been delegated at this stage because none of those statutory powers can be delegated to the provincial law societies are the so-called trade union functions. In other words, the functions of looking after the interests of the members in those provinces. And at the moment the provincial law societies, if on can call them that, whilst not statutory bodies have been given recognition by the Transvaal Law Society and have been encouraged by the Transvaal Law Society to in fact look after the interests of their members."

(4) " It is perhaps interesting to note that in what was the old Transvaal there were at the end of March this year just over 5 000 attorneys. And that these are made up as follows, there are 4 179 in Gauteng, 331 in Mpumalanga, 236 in the

Northern Province and 272 in the North West Province which makes a total of 5 018. So it is easy to see that there is a large body of attorneys that practice in Gauteng and that the rest of the attorneys are fairly evenly spread amongst the smaller provinces."

(5) " Now it is clear from the written representations that have been made to you that there is a great divergence of opinion between the attorneys practising in Gauteng on the one side and the attorneys practising in the smaller provinces on the other side as to where the seats of the court should be, if there is going to be any change. And it is quite clear that everybody who has made submissions to you has actually got a self-interest in this matter."

(6) "And for all of these reasons the Transvaal Law Society felt that it would not be right for us to come as body and to make representations with regard to where the seats are.

CHAIRMAN: To pick sides.

MR PETTY: To pick sides because we represent nationally everybody and that therefore precludes us from making any real input."

(7) "... it is my council's view that it is most important that the Supreme Court especially as it practises in the area which is served by the Transvaal Provincial Division and the Witwatersrand Local Division should not be fragmented to such an extent that its efficiency is adversely affected. Now there are other considerations which the Transvaal Law Society feels should be taken into account when making the decisions as to whether each province should have its own court or whether some of the provinces should have courts, and those are the questions of cost. And it is not only the question of cost to litigants, but it is also the question of the cost to the state. That it is our submission that any material change which is made should be cost effective on an over all basis looked at from the interests of the public, the litigants and from the interests of the state."

(8) "And then depending on the decision or the recommendations that your Commission makes or what flows there from we feel that if there are going to be courts at seats other than in Pretoria and Johannesburg in ...the adjoining provinces, that provision should be made for concurrent jurisdiction in certain instances. The purpose of this is to ensure that the courts are as freely available to people near to the seat of the court as possible. One only has to think of the question of Brits and ...(intervenes)

CHAIRMAN: North West is the obvious example.

MR PETTY: Is the obvious example and that provision should be made for concurrent jurisdiction so that people can then have an election of litigating in the court which is most convenient to them and this obviously has a cost implication."

(9) "... it is the view of both the ALS and the Law Society of the Transvaal that matrimonial matters should be simplified and that they should as far as is possible be brought close to the people. You will have seen from the figures that were submitted by the Pretoria Attorneys Association and the Pretoria Bar that a substantial number of matters which come before the Supreme Courts both in Pretoria and Johannesburg are matrimonial matters and that of that substantial number a very small proportion is actually opposed. Now inasmuch as the vast majority of matrimonial matters are undefended or become undefended because the parties arrive at a settlement, the Transvaal Law Society and the ALS feel that it is not possible to justify the enormous cost and inconvenience of forcing people who are in the process of getting divorced to travel great distances to get to the seats of the courts in Pretoria and Johannesburg and also to incur enormous cost in doing this. And the cost relates not only to the question of the fact that they in most cases have to use two attorneys, obviously is an expensive matter, but also that the