COMMISSION OF INQUIRY INTO THE RATIONALISATION OF THE PROVINCIAL AND LOCAL DIVISIONS OF THE SUPREME COURT

BOOK 1

CONTENTS

(XXXIII) MR ATTORNEY D.F. SHEPPARD OF ADAMS AND ADAMS IN PRETORIA ON BEHALF THE LITIGATION PARTNERS OF HIS FIRM

In the course of his oral submissions to the Commission at Midrand on 12 April 1996 some of the points made by Mr Sheppard were the following:

(1) "I am an attorney in the Transvaal. I have been an attorney since 1975. I am a South African Patent Agent which are now known as patent attorneys since 1971. I came to this country in 1969 and previously qualified as a British Chartered Patent Agent in 1963 and practised as such in the UK until 1969."

(2) "I practised in London initially with a small firm of patent agents of four partners who specialised in chemical patent work and then because I have a degree in chemistry I then went to the patent department of Wyeth Pharmaceuticals, it was known as John Wyeth and Brother Limited near Maidenhead in England...they are the British subsidiary of American Home Products Corporation, an enormous American organisation. And through those links I ended up doing patent work throughout the world apart from USA and Canada."

(3) "I am a member of various bodies such as the South African Institute of Intellectual Property Law who will be giving a presentation here, the Chartered Institute of Patent Agents, then in addition I am a member of the American Bar Association, a foreign member, and of the American Institute of Intellectual Property Law. I attend a number of their conferences and have built up personal relationships with many people there which has enabled me to obtain information, some of which I put in my previous letter."

(4) "I am speaking on behalf of the partners of Adams and Adams who have 36 partners mainly in Pretoria and of those we have 14 involved in litigation, of which I am one of them. And obviously quite a bit of what I say is following meetings with other of the litigation partners."

(5) "If I can now turn to my letter which I sent in to the Commission on 23 June 1995, my first point I made was about the necessity for litigants to have the right to a reasonably wide choice of legal advisers and not be inconvenienced by a substantial delay before appearing in court. And I submitted that there needed to be a pool of judges as well as a pool of appropriate legal advisers for that to happen."

(6) "To give my reasons for that I believe that although each attorney usually from counsel a limited number of counsel to decide when arguing a case, I believe it is helpful to have quite a pool of counsel from which one can select depending on the particular nature of the case concerned. Another reason for this is when there is an appeal and I have had situations where we have been unsuccessful in the lower courts and we have changed one of the counsel..."

(7) "CHAIRMAN: May I just seek clarity on the pool of legal advisers. I understand why that is necessary. What practical steps do you advocate to increase the size of the pool?

MR SHEPPARD: I had not so much looked at increasing the size as having courts where there is the pool."

(8) "Obviously I cannot speak for judges but I am aware...from judges that I have spoken to that there is discussion on legal points amongst the judges as well. And if there is not a pool of judges that will fall away."

(9) "And it so happens that this last week I saw a paper by Jacob J of the U.K. to the Chartered Institute of Patent Agents,...I do have a couple of full copies if you would like me to leave this with you of the total paper.

CHAIRMAN: Thank you, that would be helpful."

[A copy of the report of the proceedings of the 702^nd Ordinary General Meeting of the Chartered Institute of Patent Agents held in London on 17 January 1996 which includes the address to the Institute by Mr Justice Jacob, of the Chancery Division and the senior Patents Judge, is to be found in Appendix "N" in VOLUME II of this Report]

(10) "MR SHEPPARD: The passage that I indicated at this time as being relevant is on page 152 where he pleads that judges...should not be allowed to be in ivory towers. He said I think one thing that has changed is the attitude of the judges as regards communication with the outside world. I think we have learnt that even though nobody would describe the law courts as an ivory tower it is not a place in which we can sit isolated."

(11) "From the many people that I speak to around the world in patent matters most countries are infamous for the long time it takes to get to court. This has been recognised in the U.K. and Mr Justice Jacob in that paper [see Appendix "N" in VOLUME II] at an earlier passage on page 151 at the top, he said next, look at British litigation: 'If the parties want a fight, if one party wants a fight, within a short time, by world standards I believe we stand out as one of the fastest countries in the world' ."

(12) "Now I am aware in the U.K. that was not the situation a few years ago. Although he talks about being one of the fastest countries in the world, if a South African and a U.K. infringement matter, patent court matter where there would be oral evidence started on the same dates, the South African matter would get to court earlier."

(13) "I mentioned in my letter which I sent in June 1995 of this particular Stauffer Chemical Co v Safsan Marketing [1983 BP 44] case where the U.S.A. case started much earlier than the South African case. We got to court in I think it was nine months, maybe 12 months, something like that. Both parties wanted to get to court. There was no fooling around, we had discovery and there was large discovery very rapidly and we went to court quickly and we got a decision quickly."

(14) "And the U.S.A. legal people were very impressed. Both sides wanted to see how the witnesses stood up under cross-examination for what to us was a large matter but to them was momentarily a very small matter compared with the U.S. litigation and then they would have a better idea how to proceed in the U.S.A. And that is still the case I am glad to say. South Africa does have a very good name for speed at litigation."

(15) "There is the other factor which I deal with here about - which in fact is slightly out of place, I deal with it later when I come to the court of the Commissioner of Patents with a plea that there is not just one specialist judge in a specialist court."

(16) "The point that I make in paragraph 3.2 of the notes that I have handed to you is that this has been tried in the U.K. What they wanted to do there is they had a big backlog in the patent high court in the Strand in London and they set up a county court under one judge in North London and in effect said all small matters or matters that are not extremely big matters should go to the county court."

(17) "And people followed this at the start but they found that with just one judge there had been a large number of difficulties that they did not expect and there is some dissatisfaction with it.

CHAIRMAN: It was not a complete success?

MR SHEPPARD: I would rather say it is far from being a complete success. They are now stuck with it and it looks from what I have heard from discussions of people in London that they would like in fact to close down the county court but they cannot easily do it at this time. May be when this particular judge reaches retirement age they may take that opportunity, they may instead do something else. But just having one judge on his own has not been a success."

(18) "I am aware that the South African Institute of Intellectual Property law, of which I am a member, will be making their presentation on Monday, and all I wanted to say is that we have had a Commissioner of Patents who has been selected from a group of judges who have had experience over a considerable number of years of different patent matters and it has worked very well. And I like the idea of it not just being one judge but being one from a group of judges."

(19) "CHAIRMAN: May I enquire Mr Sheppard, are you in broad agreement with the proposals which will be advanced by Mr Le Roux on behalf of the Institute on Monday?

MR SHEPPARD: I would love to say yes because I am not quite sure what they are because he was away and he and I just spoke on the telephone and the answer is yes, I am in broad agreement but I do not know the detail of it."

(20) "CHAIRMAN: Well, if you like, we can adjourn for five minutes because it would be useful to the Commission to have your considered...(intervenes)

MR SHEPPARD: If you feel it is correct that I should at this time before he has made it then I certainly will.

CHAIRMAN: Yes perfectly sir. Then we will take a brief adjournment for ten minutes and then we shall hear Mr Sheppard further.

CHAIRMAN: Time is 11:55. After a brief adjournment we proceed with the oral representations of Mr Attorney Sheppard."

(21) MR SHEPPARD: Thank you for allowing me to read that. In fact, the president who wrote that is one of my partners but I did not know the detail of the content. I hesitate to say so, there is a minor mistake in it as you will see from the pages I have given you the British High Court list of judges who are specialists in intellectual property law are four in number now, there used only to be one. It is Laddie J, Aldous LJ, Lord Hoffman and Jacob J are the four. So they do have this pool of four judges..."

(22) "The other thing of course is that, as you well know Sir, there are a number of other judges who have become expert at hearing matters since that letter was done or had even done some before then. So here in South Africa we also do have more judges than the limited number specified there...but I do agree with that, that the idea of expanding it into an intellectual property court is one which I definitely favour.

CHAIRMAN: Which should ideally have its headquarters at?

MR SHEPPARD: In Pretoria because that is where all the documentation is that is served...the Patent Office is where the documentation is served and obviously can be taken by foot just two blocks away to the court."

(23) "May I now go onto the family law matters where questions were asked?

CHAIRMAN: Yes thank you.

MR SHEPPARD: And I have taken quite a bit of advice on this and submit that there should be a specialist family court with a - and I have omitted the word judge at the start, I have put presiding officer who is a judicial officer with practice in this field. I feel it important that being this particular field he should be sympathetic and be a person who has the status of a Supreme Court judge."

(24) "In any divorce people who suffer most invariably are the children, and divorces, one gets the impression that too many are rushed into possibly, not enough arrangements are made...I have of course statistically quite a number of people coming to me who are in this situation and wanting advice and it is sympathetic advice, sometimes very logical advice, but advice that they need and they cannot make the decisions themselves."

(25) "It is a presiding person who is able, from the bench, to give that sort of advice is what I am suggesting here. And I said it could be a judge, attorney, and advocate or possibly some other experienced person with knowledge of law and family matters. And I have been advised that there are such people who already become involved in divorces at sometime or another and the door should not be closed on them as the person who would preside at this."

(26) "The next question is whether it should be a division of the Supreme Court or should it be an independent court with a status equivalent to that of a Supreme Court? My belief is that it should not be a division but that it should be an independent court with the status equivalent to the Supreme Court."

(27) "Then the next question concerned whether it should operate at two levels, one for unopposed divorces and one for opposed. I believe there should only be one court and it should operate at that one level."

(28) "I am advised that the problems of a roll sometimes tend to cause divorce matters to be settled in the corridors of the court and then people have second thoughts afterwards on many things. And this is one of the factors that I would like to see avoided. I therefore believe that if there is just one roll and everyone goes along with it, contested or uncontested, the people should be coming to court better prepared and even if it is uncontested something may happen at the end or if it is contested something may happen at the end and one would get better justice I think for those concerned on both sides if there was only the one court."

(29) "Then there was a question somewhere here about the LLB and obviously a person with an LLB is good legal qualifications but...People with legal qualifications other than a LLB but sympathetic and knowledge of family law should also be considered."

(30) "Again, the next question really is who it serves. I feel that the same family court should serve everyone and it appears to me that the only way that it could do this will be some sort of circuit system."

(31) "And then the fifth question asked whether the Black Divorce Courts should be made accessible to all race groups be appropriately renamed and be expanded and remodelled into a family court of comprehensive jurisdiction. I have answered that I believe the reverse is what is needed, that the family court be expanded to take in and use the good parts of the Black Divorce Court.

CHAIRMAN: Absorb them.

MR SHEPPARD: Absorb it yes."

(32) "I had been trying to discuss this with the Dean of the Anglican Church in Pretoria who is Dr Seoke who has obviously had a lot of experience of dealing with black people under the Black Divorce Courts where he has ministered in townships."

(33) "We eventually ended up speaking this morning and he did give me a little bit of information that one of the things is that when a person marries they marry into the community and the community is intensely interested and, in fact, not knowing that, I prepared this in advance, and such people who had been intensely interested and have become experts in matters of this type may be people who could be made use of in the general family court."

(34) "The other point was that he said there is always mediation first off. That is something which is lacking in some instances in the existing divorce procedure in the Supreme Court. And it is opening up a whole new area that maybe there has to be - might be an idea for some mediation first before it got as far as the court which would put on a different level of person to deal with it who dealt with the two levels, one by a mediator and those that were not successfully dealt with by the court. And that was an idea which I picked up from Dr Seoke this morning."

(XXXIV) MR'S ATTORNEY C. JOB, M. LE ROUX AND DR T. BURRELL ON BEHALF OF THE SOUTH AFRICAN INSTITUTE OF INTELLECTUAL PROPERTY

In the course of their oral submissions to the Commission at Midrand on 15 April 1996 some of the points respectively made by Mr Job, Mr Le Roux and Dr Burrell were the following :-

(1) "MR JOB: Mr Chairman, members of the Commission, thank you very much. I am the President of the Institute and I will simply make a very brief introduction and hand the submission over to Mr Le Roux. Mr Chairman, we would like to thank you sincerely on behalf of our Institute for finding us the time to appear before you today. We have prepared written heads of submission which we trust are with you. We have also prepared some supporting documentation which essentially includes relevant copies of the Intellectual Property Statutes and other statistical information and lists of cases."

(2) "I would like initially just to give some background on the Institute. It is a voluntary association which was founded in 1954, having its own constitution. Its members are practitioners in the field of intellectual property law and I believe in quantitative terms probably deal with in excess of 90 % of intellectual property litigation and matters in South Africa."

(3) "In order to qualify for fellowship of the Institute a practitioner must be an attorney of the Supreme Court and must in addition pass a series of examinations conducted under the auspices of the Patent Examinations Board or of the Institute. The examinations which normally take three years to complete, cover the entire spectrum of intellectual property law and are structured to enable a practitioner to qualify either as a patent attorney or as a trade mark practitioner."

(4) "The qualification of patent attorney is statutory in terms of the Patents Act, whilst the trade mark practitioner qualification is an institute qualification in terms of examinations that it sets."

(5) "Membership of the Institute is currently, Fellows: 91; Associate Members: 24, and student members: 73. The members of the Institute practise primarily in the Gauteng, essentially Pretoria and Johannesburg areas, but also in Midrand, Randburg, Sandton, Durban and Cape Town. I think I can say that the Institute is an acknowledged body representing not only practitioners but the interests of the owners of Intellectual Property rights in South Africa and obviously foreign owners, which we will come to, of which there are many. Several of the members of the Institute are also members of the Minister of Trade and Industries' Advisory Committee on Patents Trade Mark Copyright and Designs."

(6) "MR LE ROUX: Thank you, Mr Chairman, members of the Commission. There are written heads of submission which have been placed before you...My name is Marius le Roux, I have a degree in engineering and in law.

CHAIRMAN: What branch of engineering?

MR LE ROUX: Mechanical engineering. I am a registered patent attorney and most of my work concerns patent law design law and at times copyright law. I have been in this field since 1971 and I am a partner at one of the Intellectual Property law firms which has its main office in Sandton....I am in fact the managing partner of DM Kisch Inc."

(7) "On page 2 of the written heads of submission we say that the submission of the Institute concerns only the issue of specialisation in terms of paragraph (1)(c)(i) of the Commission's terms of reference. It is the respectful submission of the Institute that a specialist court should be established which will have jurisdiction in intellectual property matters. That jurisdiction should be exclusive in the case of certain registered rights, to which I will shortly refer, and concurrent with the provincial and local divisions of the Supreme Court in the case of other matters."

(8) "At the risk of stating the obvious, if I could say that intellectual property law involves both statutory and common law. As far as statutory law is concerned it is for the most part encapsulated in four Acts. Those are the Patents Act, the Trade Marks Act, the Designs Act and the Copyright Act. There are a number of lesser known Acts which also fall within this field of law which relate, inter alia, to business names, merchandise marks, plant breeders' rights, performers' rights and others, and also the registration of copyright in Cinematograph Films Act."

(9) "On page 4 of the heads we say that of the Acts which I have mentioned by name, they are all characterised, with the exception of the Copyright Act, in that they make provision for the maintenance of registries, which are situated in Pretoria. As far as common law is concerned, intellectual property involves the Law of Unlawful Competition, Passing Off and Trade Secrets."

(10) "CHAIRMAN: Do you share the impression of your Institute that approximately 90 % of intellectual property litigation occurs in Gauteng?

MR LE ROUX: Mr Chairman, perhaps not 90 % occurring in Gauteng. I think the president of the Institute alluded to the fact that at least 90 % of intellectual property law matters are dealt with by members of the Institute, by the practitioners. I am a little hesitant to try to estimate the weight of matters being heard in the various provinces, but I would certainly submit that the majority of matters, the bulk, the majority is held in Pretoria with some amount of litigation in Johannesburg as well."

(11) "I think one must distinguish between the registration of intellectual property rights and litigation that flows from those rights. I think all registration obviously takes place in Pretoria specifically, whereas litigation, I would say the substantial majority occurs in the Gauteng province."

(12) "I am still at page 4 of the written heads. I thought it would be convenient to summarise the existing jurisdictional position as far as the important intellectual property acts are concerned. If one can start with the Patents Act - the first point to be made is that the Commissioner of Patents established under the Patents Act has exclusive jurisdiction in the first instance to hear and decide any proceedings, other than criminal proceedings, under the Act. That is in terms of section 18 of the Patents Act."

(13) "We then proceed to say that the Commissioner of Patents has all the powers and jurisdiction of a single judge in a civil action before a Provincial Division of the Supreme Court and that is in terms of section 17 of the Patents Act."

(14) "The Commissioner is appointed by the Judge-President of the Transvaal Provincial Division of the Supreme Court from the members of the Transvaal Bench in terms of section 8 of the Patents Act. If I may quote that section:

'The Judge-President of the Transvaal Provincial Division of the Supreme Court of South Africa shall from time to time designate one or more judges or acting judges of that division as commissioner or commissioners of patents to exercise the powers and perform the duties conferred or imposed upon the Commissioner by this Act."

(15) "On page 5 of the heads we proceed to say that proceedings before the Commissioner of Patents are heard in Pretoria, save where the Commissioner otherwise directs, and that is in terms of section 16(2) of the Patents Act on page 4 of the supporting bundle.

CHAIRMAN: As a matter of practice, in the past, has the Commissioner sat elsewhere?

MR LE ROUX: Indeed, occasionally the Commissioner of Patents has at the request of the parties agreed to sit in Johannesburg, but again, the bulk of the matters are inevitably heard in Pretoria."

(16) "Proceedings before the Commissioner of Patents are in accordance with the Rules of the Transvaal Provincial Division, that is in terms of section 19 of the Patents Act. In effect therefore, the Transvaal Provincial Division doubles as the Court of Commissioner of Patents and exercises exclusive jurisdiction in patent matters."

(17) "There is also the Registrar of Patents appointed under the Patents Act who has a wide range of powers under the Act. The Registrar may, for example, receive evidence by affidavit or viva voce upon oath and may award and tax costs. That is in terms of section 15 of the Patents Act."

(18) "Then finally, under the Patents Act, an appeal from a decision of the Registrar lies to the Commissioner and an appeal from a decision of the Commissioner is dealt with as an appeal against a civil order or decision of a single judge in the Supreme Court. This is in terms of section 75 and 76 of the Patents Act.

CHAIRMAN: Who is the present Registrar?

MR LE ROUX: The present Registrar is Ms Van Greunen."

(19) "The very last page of the written heads consists of a letter from the Registrar. It is marked as Annexure "A", which in principle supports the Institute's proposal for a specialist court. I may just mention that the letter is signed by Ms Van Greunen as Registrar of Patents, but of course, she is Registrar, not only of patents, but of trade marks, copyright and designs as well."

(20) "CHAIRMAN: I see her letterhead indicates the relevant department as being the Department of Trade and Industry.

MR LE ROUX: That is correct. That is the department under which all the registries resort, the registries concerned with intellectual property Acts.

CHAIRMAN: Is that a satisfactory arrangement as far as the Institute is concerned?"

(21) "MR JOB: Mr Chairman, not an easy question to answer, but I think in general terms, yes. It really is a recognition of the importance of intellectual property to the economy. This has been acknowledged certainly on many occasions. So it is very comfortably located from that point of view. When it comes to judicial functions sometimes there are difficulties, but administratively it is a comfortable arrangement."

(22) "MR LE ROUX: Mr Chairman, I am still on page 5 of the written heads, at the foot of the page. I would like to turn to the Trade Marks Act and deal with the existing jurisdictional position. In this case the Transvaal Provincial Division of the Supreme Court, again, has virtually exclusive jurisdiction over all matters arising under the Trade Marks Act in respect of the removal, amendment, variation or other relief affecting any entry in the Register of Trade Marks. It serves that jurisdiction with the other divisions of the Supreme Court in very limited circumstances.

CHAIRMAN: As the decided cases show?

MR LE ROUX: I will ask Mr Job to deal with that."

(23) MR JOB: ...Under the Trade Marks Act of 1963, which is no longer in force, there was a case involving the removal of a trade mark in the Cape Provincial Division and the judge in that case held that the matter had to be heard in the Transvaal. But I would like to point out that in terms of the new Trade Marks Act of 1993 the Transvaal Provincial Division is given exclusive jurisdiction in matters pertaining to entries in the register, validity of trade marks. Unless proceedings are instituted based on infringement in another division and as part of a counter-claim in that division, there might be an attack on the trade mark, and in those specific instances it is competent to launch a counter-application in another provincial division.

CHAIRMAN: Thank you."

(24) "MR LE ROUX: Mr Chairman, the jurisdiction in relation to trade mark matters is dealt with under the definition of "Court" in section 2(1) of the Trade Marks Act. The Transvaal Provincial Division further has exclusive jurisdiction in appeals from all decisions of the Registrar of Trade Marks. That is in terms of section 53(1) and 53(2) of the Trade Marks Act."

(25) "In order to complete the picture under the Trade Marks Act the Registrar of Trade Marks has concurrent jurisdiction with the court in respect of several matters and here one should refer to sections 21, 24, 26 and 27 of the Trade Marks Act. These sections deal with opposition, rectification and removal or variation of trade mark registrations on various grounds. For the purpose of these sections the Registrar has in connection with proceedings before him, all the powers and jurisdiction of a single judge in a civil action before the Transvaal Provincial Division. That is in terms of section 45 of the Trade Marks Act."

(26) "Further in connection with the Trade Marks Act, proceedings before the Registrar are in accordance with the rules of the Transvaal Provincial Division in terms of section 45(2) of the Trade Marks Act."

(27) "CHAIRMAN: Proceedings heard at the Trade Marks Office, do they proceed smoothly in practice?

MR LE ROUX: This is a question which I would like Mr Job to address.

MR JOB: The answer is yes. Matters are set down with relative ease. It is obviously a specialist court of sorts, dealing with these matters and it has been a very satisfactory arrangement.

CHAIRMAN: And the premises are suitable?

MR JOB: Very suitable."

(28) "MR LE ROUX: Then finally, Mr Chairman, the Minister, in terms of section 6(3) of the Trade Marks Act may appoint a judge or retired judge or an advocate or an attorney to exercise any power or perform any duty of the Registrar. Section 6(3) is reflected on page 15 of the bundle. To my knowledge there has been one such appointment during 1995.

CHAIRMAN: Is that an ad hoc appointment?"

(29) MR JOB: Mr Chairman, in fact several matters have been heard this year on this basis. The ad hoc appointment is correct, but as matters have developed this years, one retired trade mark attorney practitioner has been appointed on a few occasions and one professor of intellectual property. It was a professor at the University of South Africa."

(30) "MR LE ROUX: Mr Chairman, the existing jurisdictional position as far as the Designs Act is concerned - and I am on page 7 of the written heads - is that all divisions of the Supreme Court have jurisdiction under this Act in terms of the definition of "court" in section 1(1) of the Designs Act. The Registrar of Designs also has various powers under the Act, but none of the special powers equating the Registrar to a judge as in the case of the Registrar of Trade Marks."

(31) "As far as the Copyright Act is concerned, there is no definition of court. It is submitted that any court of competent jurisdiction, including the magistrate's court, can hear matters under the Copyright Act. Indeed, because of its criminal sanctions copyright matters can conveniently be brought before a magistrate's court.

CHAIRMAN: I suppose in practice that happens very rarely?"

(32) "MR LE ROUX: Mr Chairman, it has been known to happen, but as far as copyright infringement is concerned, which is again the vast majority of all copyright litigious matters, because of the relatively complicated nature of copyright law these infringement matters invariably proceed before the Supreme Court."

(33) "Then lastly, on page 8 of the heads, the position under the Cinematograph Films Act is that all divisions of the Supreme Court have jurisdiction under this Act. That is again in terms of the definition of "court" in section 1(a) of the Act. The Registrar of Copyright under this Act, as in the case of the Trade Marks Act, has in connection with any proceedings before him, all the powers and jurisdiction of a single judge of a provincial division of the Supreme Court. That is in terms of section 25(1) of the Act. I may just make the point that the Cinematograph Films Act is an Act which makes provision for registration of copyright in cinematograph films. It is quite distinct from the Copyright Act itself, in the case of which there is no registration."

(34) "Mr Chairman, if I may come to the main business of the day. That is the Institute's motivation for the establishment of an Intellectual Property Court. At page 8 of the written heads, and at paragraph 5.1, we say in the first instance that it is our submission that intellectual property law is a specialised subject which requires adjudication by judges who have sound experience and knowledge in this field of law."

(35) "In the case of patent law there is an undeniable need for a judge with substantial prior experience at the bar or in practice. That patent law requires specialist attention is borne out by the fact that the Court of Commissioner of Patents exists."

(36) "In the case of design law a new Act came into force in 1995 which made substantial changes to the then existing design law and which makes provision for the first time for functional designs in addition to the traditional ornamental or aesthetic designs.

CHAIRMAN: It is a marked departure in the law.

MR LE ROUX: It is indeed, and it has, in the case of a functional design rendered design law more technical in nature which, in our submission, makes it more suitable for adjudication in a specialist court. Our submission is that an opportunity now exists to place design law in a sphere of a specialist court to ensure that sound law is made in the interpretation of the Designs Act.

CHAIRMAN: I take it the 1995 amendment brought our law in line with foreign jurisdiction?"

(37) "MR LE ROUX: Yes, and no. To some extent our 1995 Act is sui generis and in a certain sense leads the way even internationally. Is that a fair statement, Mr Job?

MR JOB: Mr Chairman, also in trade mark law did a new Act come into force last year which itself will require exceptional skill in interpretation. The new Trade Marks Act has liberalised trade marks law in South Africa and has brought it into line with international trends.

CHAIRMAN: In a nutshell, how is the tendency reflected, very briefly?"

(38) "MR LE ROUX: Perhaps I will ask Mr Job to reflect on that for a moment, but I can give, say, two examples. We now have in the Trade Marks Act the concept of a well-known trade mark which can be enforced even if unregistered; we have the anti-dilution provisions which are entirely new, in the Act, and these are going to be difficult matters to deal with in the courts and especially will one need judges of exceptional experience."

(39) "MR JOB: Mr Chairman, if I can just elaborate very slightly, those are two very important new provisions in our Act. There are others, one of which is the extension of infringement protection in trade mark matters to similar goods and services and various others, but the essential point I wish to make is that our trade mark legislation is state of the art in the sense that it has followed the approach adopted by the European Union which was laid out in the directive of the European Union in relation to the harmonisation of trade mark law in Europe."

(40) "The consequence of this is that even in Europe some of these concepts, and particularly the concept of a well-known trade mark, the dilution concept to which Mr Le Roux has referred, are of uncertain meaning even in that context, and in the American and other First World context...Dilution is a concept of trade mark law, involving the use of the well-known trade mark on goods or services which are completely distinct from those in respect of which the well-known trade mark is generally used."

(41) "If I could use as an example the use of the trade mark "Coca-Cola", on brief cases or on shoe laces, something which is completely out of the ordinary, where members of the public might not be confused as to origin, but there is a tarnishment and an abuse of the intellectual property right by another trader. Now the concept of dilution internationally is extremely hotly debated and it is hoped that our courts will consistently follow an approach to these matters and will also be in step with jurisprudence in other countries, particularly Europe."

(42) "MR LE ROUX: Mr Chairman, although trade mark law is not a technical subject, it is an esoteric field of the law and in the heads I say that it requires a feel which is not commonly found. That is part of our submission for the referral of trade mark litigation to a specialist court."

(43) "As far as Cinematograph Film Law is concerned it is of small prevalence but its ambit can be included within the jurisdiction of an Intellectual Property Court since it shares with the abovementioned fields of law, the characteristic that it involves the keeping of a registry in Pretoria."

(44) "Still at page 9 of the heads we say that the four areas of Intellectual Property Law referred to above would, in our respectful submission, form ideal subject matter for exclusive adjudication by an Intellectual Property court. This would have the following results: firstly litigants will be ensured of gaining access to a judge who is skilled and experienced in the relevant field of law and who is comfortable in dealing with the subject matter of the relevant dispute. Secondly access to court will be improved for litigants who will not have to become entangled in the opposed Motion Court and trial rolls of the relevant provincial and local divisions. The access which we, therefore, refer to is twofold - it is in the first instance access to competence and in the second instance it is the procedural access to the court."

(45) "We also say that judgments will not only be of a high standard in this field of law but will be characterized by consistency. There will be an overall improvement in the administration of justice for litigants in an important specialized field and an improvement in the efficiency with which this field of law is dealt with in the courts will result."

(46) "Also where in intellectual property matters disputes of more than one kind of right is involved, for example a patent and a design or a trade secret, litigants will be relieved of the burden of proceeding simultaneously in different courts with its concomitant difficulties. This is a matter which does crop up from time to time Mr Chairman, where more than one intellectual property right is sought to be enforced but in the one case one may be before the Commissioner of Patents and, simultaneously, one has to be before another judge, for example where there is a trade secret or a design registration involved as well."

(47) "MR JOB: Mr Chairman I think it is safe to say that the general experience of practitioners in our field of law at this time is that increasingly one is giving a mixed bag if I can put it that way, that the conflict involving infringement very often involves more than one area of intellectual property law."

(48) "MR LE ROUX: There are other areas of intellectual property law which could equally be served by an Intellectual Property Court but not necessarily exclusively so. The most important of these is copyright law which differs fundamentally from patent, design and trade mark law in that copyright is not registered and hence there is no registry. It is, nonetheless, a specialized field of law which historically and by its nature, forms part of intellectual property law."

(49) "CHAIRMAN: May I interrupt there, just to see how far the argument on behalf of the Institute extends. In the scenario for which you plead, assume a large copyright action were to be instituted in Cape Town, how would it be dealt with?

MR LE ROUX: Mr Chairman as the law stands at present a large copyright matter could be instituted and dealt with in Cape Town. In our proposal that action could, as an alternative...(intervenes)

CHAIRMAN: Concurrent jurisdiction?

MR LE ROUX: Indeed, be instituted in the Intellectual Property Court in Pretoria if the litigant so desired.

CHAIRMAN: By consent?

MR LE ROUX: That is not a point that we have specifically considered, whether a consent would be required as in the case of the Commercial Court in Johannesburg, but it is a distinct possibility."

(50) "It is our submission, that is on page 11, that there are areas of Common Law which could competently be dealt with by an Intellectual Property Court. These aspects of Common Law are those which concern the law of passing off which is closely allied to trade mark infringement and it is often a concurrent cause of action in a trade mark infringement case.

CHAIRMAN: An alternative cause of action?

MR LE ROUX: Exactly."

(51) "Also the law of unlawful competition and the law of trade secrets, and we refer to these areas of the law as Non-Statutory Intellectual Property."

(52) In summary, our recommendation based on specialization would result in exclusive jurisdiction being conferred on an Intellectual Property Court in the case of patents, designs, trade marks and cinematograph films and concurrent jurisdiction with other divisions of the Supreme Court in the case of copyright and the non-statutory intellectual property which I have referred to a moment ago."

(53) "I am on page 11 of the written heads and there is a point which concerns intellectual property law which is perhaps not always fully appreciated and that is the importance of intellectual property to foreigners."

(54) "Simply put, foreign companies will not invest in South Africa if their intellectual property is not capable of protection and of vigorous enforcement in our courts. As an indication of the importance of intellectual property to foreigners we have compiled certain statistics: firstly the extent to which rights are registered in South Africa, that is on page 12 of the heads where the Commission will see that in the last five years from 1991 to 1995 a total in excess of 51,000 patent applications were filed at the Patent Office. Of these over 24,000 or 47 % were received from foreign countries. As far as trade marks are concerned in the same five years from 1991 to 1995 a total of over 66,000 trade mark applications were filed at the Trade Mark Office. Of these over 26,000 or 40 % were of foreign origin."

(55) "These statistics have been obtained with the assistance of the personnel at the Patents and Trade Marks offices and I would like to think that they are substantially correct. The prevalence of design application is not as great but there again we can accept that a substantial percentage emanates from abroad. On page 13 of the heads, in the case of cinematograph films substantially all applications for registration which are filed at the Copyright office are of foreign origin and these number in excess of 200 per annum. Those are the registrations."

(56) "As far as litigation is concerned and we say that litigation invariably in this field has serious economic and commercial implications for the litigants, it is clear that foreigners have a strong interest in the protection of their intellectual property. In the case of patents in the years from 1990 to 1995, these are statistics to which Dr Burrell has already alluded, 51 patent judgments were handed down of which 19 or 37 % involved one or more foreign parties."

(57) "In the case of trade marks 107 trade mark judgments emanated from the Transvaal Provincial Division, the Witwatersrand Local Division and from the Registrar of Trade Marks in the same six year period. Of the 107 cases, 64 or almost 60 % involved one or more foreign parties. The percentage involving foreign parties before the Transvaal Provincial Division was 41 %, that is 19 out of 46 cases and before the Registrar it was 73 % - 45 out of 61 cases. So the point is that there is a very strong foreign flavour in the litigation in these two fields in South Africa."

(58) "As far as designs and cinematograph films are concerned the litigation has been very limited, but not so in the case of copyright as Dr Burrell has already pointed out."

(59) "Still on page 14, it could conceivably be argued against the submission of the Institute that it is elitist and that it will tend to overlook the man in the street. As to such an argument our submission is not based on elitism but on the factors which we have set out above and on the practical realities which we as practitioners have observed. Intellectual Property is a sophisticated, esoteric branch of law which is specialized as a matter of fact and which will best be served by a specialist court."

(60) "An Intellectual Property Court will not raise the cost of litigation as the same or a similar tariff of costs as in a Supreme Court will apply in an Intellectual Property Court. On that point there is already provision in the Trade Marks Act for the Supreme Court tariff to be applied. I believe there is provision for that on page 14 of the bundle in section 48. Indeed Mr Chairman, Dr Burrell reminds me that the Supreme Court tariff for all purposes apply across the field in Intellectual Property matters. Also in the case of a small litigant, litigation in a specialist court will, in our respectful submission, be more effective and there will generally be improved access to justice for all litigants in this field of law, including small litigants."

(61) "On page 14 of the heads we then come to the seat and structure of the proposed court. As far as the seat of the court is concerned it is respectfully submitted that the seat of the court should be in Pretoria in view of the fact that the relevant Registries are located there. Not only are the Registrars often cited in proceedings but they also hear matters in their respective Registries and appeals from their decisions could conveniently proceed in Pretoria."

(62) "On page 15 of the heads it has been pointed out that the Transvaal Provincial Division effectively already has exclusive jurisdiction in patent matters and in most matters under the Trade Marks Act. A further advantage attaching to the seat of the court being situated in Pretoria is more of a political nature but it will give foreign litigants who, as we have already pointed out, are an important component in Intellectual Property litigation, an opportunity of conducting proceedings in a substantial centre in South Africa as opposed to seeking out defendants in localities throughout the country. This again, in our submission, has a bearing on the image which South Africa will display to the outside world."

(62(A)) "As far as the structure of the court is concerned it is the Institute's respectful submission that an Intellectual Property Court should consist of a President permanently appointed to the position. The President should be a Judge with sound experience of Intellectual Property Law and practice. Two or possibly three other judges should be designated as being available for being assigned to the Intellectual Property Court as and when the need arises.

CHAIRMAN: They would be ad hoc appointments whereas the President would be permanent?

MR LE ROUX: That is correct Mr Chairman."

(63) "As an alternative to that structure but very much as a second choice it is submitted that the position of President could be dispensed with and judges or other suitably qualified persons could be assigned on an ad hoc basis by the Judge President of the Transvaal Provincial Division to hear matters as and when required."

(64) "CHAIRMAN: What does the Institute see as the manifest advantages of having a permanent President?

MR LE ROUX: Mr Chairman if I may say so quite frankly this is a subject on which there is some disagreement within the Institute and differences of opinion.

CHAIRMAN: Your personal opinion? I imagine that consistency would be a basic consideration?"

(65) "MR LE ROUX: That is the point, it is the question of the quality of the jurisprudence which is handed down by the courts and the consistency thereof. Mr Chairman you asked me for my personal opinion and to be brutally frank I personally prefer the alternative which I have stated here but it is the Institute's proposal that a permanent appointment be made."

(66) "MR JOB: Mr Chairman this is, as you will appreciate there is some unease at this end, it is a controversial issue. I can certainly speak for myself and members of my firm, we are in favour of the second alternative but the appointment of a President...(intervenes)

CHAIRMAN: Pausing there, why?

MR JOB: Well frankly we are concerned that in the event of a permanent President being appointed, that the person might not be appropriately qualified.

CHAIRMAN: You do not want to be landed with a dud?"

(67) "MR JOB: Thank you Mr Chairman, we are very concerned about that and it is considered in the more perhaps conservative ranks of our Institute that it would be better to extend the current system of Commissioner of Patents who is appointed ad hoc by the Judge President from normally a body of several judges who have experience in these matters, that we would rather spread the risk as it were...but in an ideal world, and I emphasize that, a permanent President would be an advantage but we are uncertain at this point as to who might fill that position."

(68) "DR BURRELL: Mr Chairman, I am of the dissenting school as it were really representing the view of the institute, namely that there should be a permanent President of this court. One recognises one has got to choose one's words very carefully but the problems with the existing structure and certainly in the field of patents is that there are simply less and less judges available to us who have any experience...(intervenes)

CHAIRMAN: The problem is identified in the earlier submission.

DR BURRELL: Yes I think so, really at page 10 where the reasons are set out there Mr Chairman but that is a real problem. Not weighing that problem up against the possibility of getting a dud as it were...I would nonetheless prefer to take that risk."

(69) "I as a patent attorney am one of the few patent attorneys who actually appears, not regularly but not infrequently before the court and I have been doing so well before the passing of the new Act relating to the rights of audience of attorneys before the Supreme Court and it is not always as easy as perhaps it could be appearing there and being rather the penguin dressed in the unusual colours as it were in the court itself."

(70) "CHAIRMAN: But do you think that is going to alter?

DR BURRELL: I think yes certainly as things progress I perceive that to be altering, to what extent and how quickly that will happen I just do not know but I do emphasize that the first choice which we have set out in our submissions here is certainly the prevailing view of the Institute."

(71) "MR LE ROUX: Mr Chairman, just to round off that point then and I am dealing with the alternative structure, we say that this is presently the case, that is the concept of a pool of judges with ad hoc appointment by the Judge President of the Transvaal Provincial Division. This is presently the case where the Judge President so assigns judges from the Transvaal Provincial Division to hear patent matters but it is not without its shortcomings."

(72) "CHAIRMAN: Sorry to interrupt again, just looking at the main argument namely the appointment of a permanent President - in the Institute's submission were that to happen, by whom should he be appointed?

MR LE ROUX: Mr Chairman again I must apologise, it is not something which we have addressed our minds to but possibly in consultations...(intervenes)

CHAIRMAN: Well if you would like to reflect upon the matter the Institute is free to put up a brief written submission afterwards, it may be something which requires some thought.

MR LE ROUX: As the Chairman pleases.

CHAIRMAN: Particularly in the light of the earlier question I put to you and the somewhat discordant responses.

MR LE ROUX: As the Chairman pleases, the Institute will certainly do so."

(73) MR JOB: At the very least Mr Chairman we would hope to be consulted as an Institute. Whoever makes the appointment, be in the Judge President or whoever, that we would be consulted.

CHAIRMAN: Well technically it might be possible, it might be an appointment from one of the professions theoretically. If that were to be the position would the Institute, I can imagine that is vitally important for the Institute to have a right of representation. Would it have to go the route of the Judicial Service Commission or some other route?

MR JOB: Mr Chairman I think we would like to reflect on that point and revert to you as you have suggested.

CHAIRMAN: Certainly."

(74) "MR LE ROUX: Then on page 16 of the heads the point is made that the infrastructure of the Court of the Commissioner of Patents already exists at the Patent office in Pretoria where there is a full-time Registrar of the Court of the Commissioner of Patents. This Registrar could continue as the Registrar of the proposed Intellectual Property Court. If I may emphasize that it is our submission, I think the point has been made very forcibly already, that judges or other suitably qualified persons who are assigned to hear matters in the Intellectual Property Court should not only have a sound experience of Intellectual Property Law in practice but also of litigation in this field and this...(intervenes)

CHAIRMAN: Practical experience?"

(75) "MR LE ROUX: Exactly, Mr Chairman, and this is in fact the sine qua non of the Institute's proposal. As far as the right of audience is concerned we would submit that the right of audience before an Intellectual Property Court should be the same as that before the Supreme Court with the one proviso that in patent matters a practitioner seeking audience other than an advocate should meet the requirements set out in the Patents Act, that is in terms of the definition of "agent" in that Act."

(76) "MR MALULEKE; The question of right of audience, the attorneys profession, as you might know, have battled very strenuously to get right of audience in the Supreme Court. I am very curious to know about this distinction that the advocate, according to you, should have the right of audience and not the ordinary attorney who has not passed the special examinations. What is the reason for that?"

(77) "MR LE ROUX: Mr Commissioner may I ask Dr Burrell to answer that because he has some experience in this area?

CHAIRMAN: Certainly."

(78) "DR BURRELL: Thank you Mr Chairman. Well a little bit of history. Under the repealed Act, Act 37 of 1952 the attorneys did have the right of audience in the Court of the Commissioner of Patents and it did not work very well. In fact there were not many representations made by such attorneys, submissions made by such attorneys to the Court of the Commissioner of Patents. Then came the new Act, that Act that has been brought into operation now in 1979, Act 57 of 1978; and in terms of section 22 of that Act the rights of audience are confined to people who are qualified in terms of the Act, namely patent agents and patent attorneys."

(79) "Effectively almost everybody now is a patent attorney, to wit an attorney who is qualified both as a patent agent, registered as a patent agent and as an attorney. That is the one body of persons who have right of audience, and the other being advocates in the ordinary sense."

(80) "So that limitation has been brought about quite deliberately. When that Act, Act 57 of 1978 was brought into operation there was the earlier sub-section of section 22, section 22(1) which provided a grandfather clause in terms of which attorneys had a period of five years within which to qualify as patent attorneys if they wanted to be able to practise before the Court of the Commissioner of Patents and have the right of audience before the Court of the Commissioner of Patents."

(81) "As things turned out no attorney so much as attempted to obtain any of the rights of audience. It was a dead letter. The point really being that patent law has become such a specialized field now that it is almost impossible for people other than specialists in that particular field to be able to make sense, quite frankly, to the Court of the Commissioner of Patents."

(82) "MR MALULEKE: Well I really would like to get a more definitive reply on this, I do appreciate the historical background you have given to me but I still do not understand how a green advocate with a LLB degree with four or five months pupillage would be better qualified to appear there than an attorney who may be an attorney for 10 years and has not got the qualifications?"

(83) "DR BURRELL: Perhaps the answer to that is just this that whilst it is true that such green advocates can appear, they would always almost invariably be backed up by a team or at least one patent attorney who would be able to instruct him fairly comprehensively in the field of Patent Law and what all the technical background...(intervenes)

CHAIRMAN: It might be disastrous if he were briefed by a non-patent attorney?

DR BURRELL: Precisely or, if as you say Mr Chairman, if a green or even an attorney of 10 years standing were to simply go along and appear in that court he simply, with respect, could not do it, that is the submission."

(84) "MR MALULEKE: On a follow up to that...I am talking now about advocates, they can become judges in this specialist court. Attorneys with similar qualifications as advocates legally, must be subjected to the discriminatory rigorous examination of three years and that is my problem that what do you think the reaction of the profession will be to this? Why must the other category of practitioners qualify by experience whereas the others must be subjected to this examination, that is what I am trying to find out?"

(85) "DR BURRELL: Yes well, again I must refer back I think to the historical thing here, I mean that opportunity was given when the new Act, the 1978 Act came into operation at the beginning of 1979 the five year period was there and nobody took any advantage of that grandfather provision whatsoever. One of the main reasons or one of the reasons behind the submission today before you of the Institute that there should be a specialist court relates to a very appreciable extent to patent matters."

(86) "MR MALULEKE: Can I make a last suggestion? Could it be contemplated that Advocates who write their Board exams possibly should also introduce a course to write a paper on Intellectual Property Law or practice to qualify to practice also in that specialist court and then you would introduce that measure of equality, do you not agree?

DR BURRELL: It is doing it the other way around as I think Mr Job whispers on the other side here, but whether you would be able to persuade the Bar to undertake that sort of examination I do not know.

CHAIRMAN: It might add three years onto an LLB."

(87) DR BURRELL: Exactly and it is a rigorous thing, I mean it is not as though it is a light exam, these examinations are really tough and especially when it comes to things sometimes advocates are not all that good at and that is writing patent specifications. To write a patent specification is really a very skilled thing and to interpret patent specifications but the writing of those and in addition to that some sort of technical qualification is required."

(88) "MR JOB: Mr Chairman could I simply add that as an Institute we would much rather see the raising of the standard of practitioners before the court as has been suggested by the Commissioner to require some additional hurdle for advocates rather than lower the entire standard of allowing all attorneys to appear. I think unequivocally we can put that point to you."

(89) "MR LE ROUX: Mr Chairman just to clarify one point, it is of course so that our submission is that all attorneys should have the right of audience before an Intellectual Property Court except in the case of patent matters, it is only in patent matters that we have the reservation."

(90) "MR MALULEKE: The proposal that a fully fledged court, specialist court with its President and perhaps two or three judges, a pool of two or three judges would be available would also be closely related to the cost aspect, by cost I mean cost to the State. If it can be shown that the cost of setting up such a court is not out of proportion with the service which it serves you may find greater sympathy possibly from Government but if it is shown that the cost is completely out of proportion would you then be in agreement that setting up such a specialist court with its own President may be placing an undue burden on the taxpayers of this country if it is out of proportion with the real service it serves in comparison with other court structures?"

(91) "MR JOB: Mr Commissioner broadly I would agree with that statement, perhaps that is where the second, the alternative that we have put forward comes in and that the extension, as it were, of the existing court of the Commissioner of Patents would not require the establishment of a separate court."

(92) "I would, however, point out that as far as a separate court is concerned there is already physically, the bones as it were, the skeleton of such a system, the Registrar of Patents and not the Registrar of the Supreme Court, serves as the Registrar of the Court of the Commissioner of Patents."

(93) "The infrastructure actually exists already and of course the Registrar of Patents is also the Registrar of Trade Marks so that in fact practically there would be very little administrative extension or further expansion."

(94) "CHAIRMAN: The Institute's proposal I take it does not involve the building of an elaborate separate physical structure?

MR JOB: Definitely not Mr Chairman, the current Transvaal Provincial Division, whatever its fate may be could well serve, there are facilities at the Patent and Trade Marks Office at the moment as well. So in effect in so far as cost is concerned the way we see it, if a permanent President were to be appointed it would really only be the cost of that President, the other judges that we have suggested in our first submission would be chosen presumably from an existing pool of judges so we see actually fairly minimal further cost involved."

(XXXV) MR I.C. PRINSLOO FROM THE JUSTICE COLLEGE IN PRETORIA ON BEHALF OF TEN LECTURERS AT THE JUSTICE COLLEGE

In the course of his oral submissions to the Commission at Midrand on 15 April 1996 some of the points made by Mr Prinsloo were the following :-

(1) "I am from Justice College. At the moment we have a vacancy, Dr van der Merwe has retired as Head of the College. I am the Director of the Private Law Training Section, we have two directorates - Private Law Training and Public Law Training."

(2) "We are mainly concerned with all the Private Law training and that entails mainly civil court training as far as functional training is concerned and Mr Burger who is assisting me is specifically tasked with the Family Court Magistrate, the candidate for the proposed Family Court as it is and the Clerks of the Courts in this connection."

(3) "We also, when the Act was amended and introduced providing then for Family Courts and Senior Civil Courts, were very excited about the whole idea of it because we were convinced that this would be a way to make the court more accessible to the people of South Africa and we acted pro-actively."

(4) "Therefore, in August 1994 already for four weeks we presented a seminar for candidate Family Court Magistrates and then the second one in the beginning of 1995 also a four week course and after that as we saw it we presented a similar course for Clerks of the Family Court."

(5) "Now at the outset we have, with the introduction and the establishment of the Magistrate's Commission, submitted to the Commission for all Magistrate seminars and courses, a syllabus for Criminal Court Magistrates, Regional Court Magistrates, Civil Court Magistrates and also pro-actively for Family Court Magistrates a syllabus which all of them the Magistrate's Commission approved."

(6) "In terms of the rules of the Commission, as you will know, it is required that a candidate Magistrate successfully completes a course at Justice College, then be appointed acting and then only be appointed as Magistrate. Though the Family Court Magistrates have not yet, or the Family Courts have not been implemented yet we acted pro-actively and introduced these two courses."

(7) "CHAIRMAN: What was the content of this syllabus, very briefly?

MR PRINSLOO: I have available the syllabus and I would like to present a copy to each member of the Commission...It starts off with the legal subjectivity; the classes of children; age as a factor influencing a person's status; conclusion of a marriage; void, voidable and putative marriages; consequences of a valid marriage; page 7 dissolution of marriage; the consequences of divorce; the miscellaneous matters in connection with divorce would include then the draft rules of the Family Courts; the role of the Family Advocate; on page 9 the relationship between parents and children; the Law of Evidence and, where applicable, also the other legislation which we envisage and hope will eventually be under the jurisdiction of the Family Court."

(8) "CHAIRMAN: Yes, of course at the moment if one looks at the terms of the Magistrate's Court Amendment Act the term Family Court and Family Magistrate is a misnomer because the task assigned to them under the contemplated legislation is simply to deal with undefended divorces, full stop."

(9) "MR PRINSLOO: Correct, Mr Chairman though we again pro-actively foresaw, and we have also submitted various memoranda to the Department of Justice with the hope that it would reach the Minister, arguing that the jurisdiction of the Family Court should be extended as to include all matters relating to the family and children as well as maintenance."

(10) "The motivation for that being that at the moment, and no one is to deny that in our experience, we coming from the Magistrate's Court ourselves and through all the lines, that maintenance is quite in a shambles it is handled in the Magistrate Court at the moment. As we all know prosecutors handle these matters and that is not the task of the prosecutor and, therefore, you will find that prosecutors are rather reluctant to deal with these matters properly. No matter what avenue you try to follow to do it properly it just does not work out like that in practice and, therefore, we would like to see that a proper Family Court is constituted and implemented which will deal with all family matters."

(11) "I would also like to submit to the Commission a copy of the list of Family Court Magistrates who attended the first course in 1994. You will notice Mr Chairman and members of the Commission that all the Magistrates and there I have set it out very clearly, all of them had the LLB qualification as envisaged by the Act."

(12) "You will also see that a number of them have LLM degrees in family matters. You will also notice that many of them or a number of them were attorneys, practising attorneys who joined the department and also practising advocates who joined the department. You will also notice that their experience is vast in the Civil Court and as far as family matters are concerned. The point I would like to stress is that these people are highly qualified to deal with family matters on the magisterial level."

(13) "CHAIRMAN: I am interested to hear what you say about attorneys and advocates who joined the department. On the list you handed us could you just point out those candidates who were either from the attorneys profession or the advocates?"

(14) In response to the invitation in (13) above Mr Prinsloo gave particulars of a number of candidates indicating their professional qualifications and practical experience

(15) "CHAIRMAN: Now apart from court structure and names, if you wanted to put people into the field to do this work how many Magistrates and in how many Magistrates Courts throughout the country could this be done effectively and practically tomorrow?

MR PRINSLOO: Sixty-five...we envisage that the Family Court would function on the same basis as the Criminal Regional Court. At the moment so we have seven Regional Districts if you would like to call them that, depending on the volume of work. However, there might be instituted more Family Court Magistrates and we envisage, if we look at the volume of work as far as family matters is concerned, that we would be able to utilize all 65 who were trained."

(16) "CHAIRMAN: Now you know where you have a Family Court Presiding Officer you need a bit of social backup, social welfare backup. What are your submissions in that regard?

MR PRINSLOO: Mr Chairman all depending on what the infrastructure of the Family Advocate is at the moment, and I believe that the Family Advocate has done quite a substantial amount of work in this regard, and I would not be able to answer, the social backup would come from the Family Advocate's office and that I think we would have to hear from Mrs Bosman who I see will be giving evidence.

CHAIRMAN: No she will not be giving evidence unfortunately, we have had the benefit of listening to Mr Van Zyl."

(17) "CHAIRMAN: ...Now let me put this to you, assume that for a start your Family Magistrate does only undefended divorces, where would you position, where would you place such Family Court Magistrates in the country? Give us a few practical examples as to towns, obviously you would need one wherever there is a Chief Magistrate, that takes care about 12?

MR PRINSLOO: I think that would be a good starter Mr Chairman, as a trial."

(18) "CHAIRMAN: Do you think that perhaps, if the notion is viable, a pilot scheme might be appropriate?

MR PRINSLOO: I think and that is what we also have suggested to the Department, I would think one will have to start in Gauteng with Johannesburg and Pretoria where the need is great and then also in perhaps Queenstown which would be central to the Eastern Cape, Durban which would be rather central to KwaZulu Natal, Pietersburg I could also think of.

CHAIRMAN: Port Elizabeth?

MR PRINSLOO: Port Elizabeth, Cape Town, Bloemfontein and perhaps also Rustenburg.

CHAIRMAN: Kimberley?

MR PRINSLOO: Yes I do think that would be a good suggestion Mr Chairman."

(19) "CHAIRMAN: Now on your proposal, let us say we start off with a pilot project, should these courts have exclusive jurisdiction in undefended divorces or should they have jurisdiction concurrent with that of the Supreme Court?

MR PRINSLOO: I think they should have jurisdiction concurrent with the Supreme Court at this moment seeing that it is a pilot project."

(20) "CHAIRMAN: Now also you advocate the abolition of the Black Divorce Courts?

MR PRINSLOO: Correct Mr Chairman."

(21) "CHAIRMAN: Now we have had a number of submissions before this Commission, the effect of which is the following: they say the Black Divorce Courts have operated for a long time and successfully, quickly, cheaply, they say the Black Divorce Courts satisfy a definite need and the suggestion has been that so far from abolishing the Black Divorce Courts, they ought to be used, incorporated as a nucleus into a system of Family Courts. What do you say about the feasibility of such?"

(22) MR PRINSLOO: I do think it is feasible in the sense that they could be incorporated and their functions be usurped by the Family Court. The whole idea about the Family Court as we envisage it is that the Clerk of the Family Court, the Family Court will operate on a regional basis and on a circuit basis having a few districts amongst them. The Clerks would be situated at each Magistrate's Court, so at B, C, D, E and F district you would have Family Court Clerks who would be able to draw up the pleadings for the litigants, the issuing officer being the Chief Family Court Clerk at, for instance, A who will keep all the records and see that the court can function on a circuit basis."

(23) "CHAIRMAN: How in the proposed Family Courts at magisterial level would you cure what you described as the shambles in the Maintenance Court?

MR PRINSLOO: By the Clerk of the Court dealing with the maintenance matters also and putting it on roll for the Family Court. The Clerk will also be trained where there could be settlements, we would also like to see and we I think are capable of equipping him with skills to do alternative dispute resolution matters mediation and mediate between the parties..."

(24) "CHAIRMAN: What about defended divorces, should the Magisterial Family Court have jurisdiction to deal with defended divorces?

MR PRINSLOO: I think that the Family Courts would be well equipped and well enough equipped to deal with it but as in intermediary provision I would suggest, therefore, that the Supreme Court has a concurrent jurisdiction or that the Family Court has a concurrent jurisdiction with the Supreme Court in order to provide for the parties who would like to be represented either in the Family Court to do it there or at their wish then to litigate in the Supreme Court."

(25) "CHAIRMAN: In your personal view what ought to be the minimum legal qualification of a Senior Civil Magistrate?

MR PRINSLOO: The LLB qualification as we have it at the moment as well for the Family Court, as well for the High Criminal Court or Regional Court as we know it at the moment, as it is also envisaged by the Act."

(26) "CHAIRMAN: ...do you envisage a selection committee drawn from senior magistrates, attorneys, advocates, judges to do the selection or what mode of selection would you favour?

MR PRINSLOO: I would suggest, quite opposed to what we have in the Regional Court at the moment, the so called formal testing for six months in practice which is not satisfactory I think. It also comes from the magistrates themselves that it is not a satisfactory method of selection. I would suggest, and I think that Justice College is quite equipped to do it, that as a prerequisite that they attend a course and pass that successfully at Justice College for starters; but after that being appointed also acting in practice for at least six months..."

(27) "CHAIRMAN: Now I have listened with interest to what you have said about the duties you would assign to Clerks of the Court. Your scheme, would that not involve very intensive training programme for the people who are to become clerks, after all they are going to do important and responsible work such as pleadings which is a fairly specialized function?"

(28) "MR PRINSLOO: Indeed, I would like also Mr Chairman if you would allow that Mr Burger elaborates on this but I would like to point out that of the Clerks of the Court that we have trained and those were 19 and of the 19 - I would like all of them of course in possession of the Matric qualification, they were doing Civil Court Clerk work at the moment or either being Registrars of the Supreme Court."

(29) "CHAIRMAN: The suggestion has also been thrown out that perhaps if such a scheme were to be implemented, the Presiding Officers be not called Magistrates or Family Court Magistrates but perhaps Commissioners?

MR PRINSLOO: Mr Chairman yes, we are not hooked on the term Magistrate, in fact our suggestion would be in the end that all the Magistrates are called Judges, be it a Lower Court judge, a High Court judge or a Supreme Court judge like I believe we have it in the UK or at least in Canada and Australia as well..."

(30) "...the last point I would like to stress Mr Chairman, and this is that I do not think that it would be preposterous to suggest that an advocate could walk from his chambers onto the bench and immediately make a success of it, nor could an attorney. For the same matter, neither could a Magistrate walk from his office and start practising as an advocate successfully or an attorney. It takes a certain person and especially when you start specializing, it takes a certain type of person, a certain composure, a certain attitude and experience on the bench to be successful on the bench as the Chairman himself would know very well."

(31) "MR JAPPIE: To be appointed as a Civil Magistrate is there any training beforehand or does the appointment simply come automatically from the rank of Prosecutors?

MR PRINSLOO: No, no, they are trained specifically. At the moment for instance we are very much pressured by the Magistrate's Commission who wishes to appoint Magistrates as Civil Court Magistrates. To become, to be appointed as a Civil Court Magistrate you have to undergo and pass a course for Civil Court Magistrate successfully at Justice College.

CHAIRMAN: How long does that course last?

MR PRINSLOO: Four weeks at the moment, we have a total - perhaps I should explain it like that Mr Chairman, we have a total of six weeks of which four is allocated to Civil Court training and two weeks to Criminal Court training."

(32) MR JAPPIE: And a Maintenance Officer, does he receive any training?

MR PRINSLOO: At the moment no, not the Maintenance Officer. We do not do specific training aimed at the maintenance matters no, we do include a subject to which we allocate a certain amount of period dealing with maintenance matters in the Prosecutor's course."

(33) "MR JAPPIE: If I may just come to the thrust of what you were saying, if this Commission should recommend the establishment of a Family Court, you are saying that the department has sufficient personnel to man such a court at a Presiding Officer level, is that correct?

MR PRINSLOO: That is correct Mr Chairman yes certainly."

(34) "MR MALULEKE: One last point, and this would go to the efficacy or sufficiency of the Justice Training College. This Commission has heard evidence that I think in parts of the Eastern Cape, Magistrates in those former TBVC states and some homelands never really got the opportunity to benefit from the training courses at the Justice College, either because of other bureaucratic arrangements or because of the unavailability of space. Are you able to enlighten us more, are there areas in this country where you have Magistrates, senior ones at that, who have not had the benefit of any training from your College?"

(35) MR PRINSLOO: That is correct and it was especially the case before 1994 and mostly it was the case because of financial reasons, it was economic reasons because the former TBVC States and self-governing territories did not have the money to send the people to Pretoria, that was the case. We countered this to a great extent, for instance we were for more or less four weeks in November in Umtata where we trained all the Magistrates in the former Transkei...(intervenes)

CHAIRMAN: How many were on the course?

MR PRINSLOO: Between 30 and 35 but it was all the Magistrates in the former Transkei and there were also a few from Ciskei included. In November we did as well a Criminal Court course in Umtata and specifically in the Private Law section which I am concerned with, we developed a course for Heads of Offices to deal specifically with the quasi judicial matters. That we did in November and shortly after that I believe that the Inspectorate of the Department of Justice went down to Umtata and trained them specifically on the administrative side about the nuts and the bolts, filling in the forms and accounts and whatever. In January my section went back there and we did a full five-week Civil court course."

(36) "CHAIRMAN: What is the numerical strength of the Justice College, of the lecturers, in round figures?

MR PRINSLOO: I would say 50 lecturers in round figures and that includes all the training, Interpreters, Civil Court, Private Law Training and Public Law Training."

(XXXVI) MR ATTORNEY A. BURGER, A LECTURER AT THE JUSTICE COLLEGE IN PRETORIA

In the course of his oral submissions to the Commission at Midrand on 15 April 1996 some of the points made by Mr Burger were the following :-

(1) "I am an attorney, I am functioning now as a lecturer at Justice College and what I wish to address the Commission on is simply the, if I could put it the departmental infrastructure concerning the Clerks of the Family Court."

(2) "We envisage...that the Family Courts will function more or less in similar places or in the same places as do the Regional Criminal Courts presently."

(3) "In other words in the self-same Regional Division that existed hitherto we will possibly in all those areas also have a Family Court. It will, like the Regional Courts, operate on a circuit basis, in other words that the law will be seen to be brought to all the peoples of our country and as such our proposal is that supposing a Family Division comprises five districts to which the circuit would regularly travel, that to obviate burdening the entire Division with five paralegal Clerks, that you in fact have one graduate, one .... Clerk who controls all the District Clerks under his command."

(4) "MR MALULEKE: Can I disturb you Mr Burger because I might forget to get back to this point...you being an attorney, you do not see resistance from the profession that you are socialising a major area of their income that is point one. But point two also, is whether this will not impact negatively on the quality of justice you are going to get from these Family Courts or Magistrate's cum Family Courts if you have a high number of illiterate people unrepresented, with pleadings drawn by these Registrars, appearing for themselves. Can I perhaps hear your comments on that?"

(5) "MR BURGER: Mr Commissioner, with respect, on the papers annexed to the invitation seeking our presence here today is an extract, I think it comes from the Law Society, wherein accolades are in fact paid to both the President of the Black Divorce Courts as well as the Clerks in the administration of justice in those particular fields. These people are all people who are or were previously Magistrates. The Clerks are of the same calibre as those who service the Magistrate's Court currently."

(6) "Now in so far as it derogates from my profession at large, I submit that yes unfortunately that will impact upon them but I submit and it is my firm belief that it will only be certain people, possibly in the rural areas who will in fact go to a Clerk for the drafting of pleadings. It is actually very trite that attorneys do appear, advocates do appear in divorce proceedings and whether or not people elect to make use of them or do the divorce themselves as a great amount of litigants currently do, that is for the litigant himself to choose..."

(7) "In summary, then, may I just state that I believe that the department is eminently well qualified to nominate people to man and run the Family Courts and Senior Civil Courts as we have mooted."

(8) "I have also experience in lecturing for the Association of Law Societies as do a number of my colleagues so we can gauge the ability of people to draft pleadings and I am eminently satisfied that the people whom I have lectured to and my colleagues have lectured to at Justice College, that they will do a fine job as draft-persons of the pleadings."

(XXXVII) MR ATTORNEY A TUGENDHAFT OF MOSS-MORRIS INC. OF SANDTON

In the course of his oral submissions to the Commission at Midrand on 15 April 1996 some of the points made by Mr Tugendhaft were the following:

(1) "I am the Chairman and one of the senior partners of Moss Morris Inc. It is a firm of attorneys practising in Sandton City, Sandton. We have approximately 20 partners, a number of associates and candidate attorneys and I have practised, I was admitted in 1973."

(2) "I would just like to very briefly amplify what I said in my letter to the Commission,...of 13 June 1995. In essence what I was trying to suggest was a more pro-active civil procedure in commercial matters, one in which the Commercial Court would be seized of the matter at inception, not as it is at the moment. It is a voluntary submission to the jurisdiction of the Commercial court."

(3) "I understand that in England commercial matters designated as such appear on the Commercial Court roll and it is not a matter of consent on the part of the defendant. They are automatically designated as commercial matters and then receive the attention of the Commercial Court."

(4) "That is what I was proposing here both in respect of matters which commence by way of Summons and matters which commence by way of Application. I understand the procedure at the moment is that application proceedings cannot be referred to the Commercial Court although there may have been some amendment to that, I am not quite sure but certainly that was the position until relatively recently."

(5) "So in essence I am suggesting that those matters be designated as commercial matters at inception and that a Judge is assigned those matters immediately or that particular matter immediately at the close of pleadings stage and with the help of the judicial officer who would supervise pre-trial formalities, I think one would be able to curtail the proceedings quite drastically."

(6) "CHAIRMAN: You want to see case management?

MR TUGENDHAFT: Case management, absolutely. I realise that one may not be able to go as far as they have gone in certain American jurisdictions because there the Judge of course is sitting more as an umpire and he is not ultimately going to hear the case, that the case will be decided by a jury but I still think within the confines of our own system we could have much more effective case management."

(7) "For example, a number of years ago I remember being involved in a case where there were about a dozen witnesses called on really trivial issues, it took a lot of time of the court and all of that could have been curtailed I think with the intervention of a judge at the pre-trial stage where he could have clarified exactly what the issues are and effectively cut out the nonsense and that is the kind of pro-active steps that I am suggesting should be taken."

(8) "It may also be an idea, and I mention it in the letter, to have a compulsory exchange of witness statements, following on the American procedure where you do have interrogatories. You have an opportunity of canvassing witness statements in such a way that you may decide that in the case of certain witnesses you do not want to contest their evidence at all. You could be quite content to accept a witness statement, be it in affidavit form or signed, without contest instead of having to call that witness, inconvenience him and inconvenience the court and, of course, the parties."

(9) "CHAIRMAN: Of course in England in certain quarters the preparation of witness statements for the purpose of exchange has burgeoned into a fair industry and has resulted in chasing up costs. Some suggestions to the Commission have been that perhaps a summary of a witness statement, the exchange of summaries rather than a statement in extenso might be better. Have you any thoughts on that?"

(10) "MR TUGENDHAFT: I would tend to agree with that in the same was as we exchange at the moment expert summaries. At least one could see what the outline of that evidence is, is it going to be necessary to contest, is it going to be necessary to call that witness or can we just agree at a pre-trial conference on the evidence?"

(XXXVIII) THE HON MR JUSTICE K. VAN DIJKHORST OF THE TRANSVAAL PROVINCIAL DIVISION

In the course of his oral submissions to the Commission at Midrand on 16 April 1996 some of the points made by van Dijkhorst J were the following:-

(1) "Ek wil 'n paar woorde sê oor die gesinshof. My uitgangspunt is dat egskeidingsake hoort net by hoë uitsondering in die Hooggeregshof, by hoë uitsondering, en 'n hoë uitsondering is nie omdat daar kinders betrokke is nie. 'n Hoë uitsondering kan wees as dit ingewikkelde regspunte is of 'n verskriklike boedel waar hierdie magnate van Johannesburg nou graag in die Hooggeregshof wil baklei. Laat hulle dan daar baklei, hulle het geld om dit te doen, maar niemand anders het dit nie."

(2) "Onbestrede egskeidings - ons doen 50 of 60 per oggend. Dit is infra dig vir 'n regter; dit is ook infra dig vir 'n landdros.

VOORSITTER: En les bes is dit infra dig vir die gedingvoerder.

VAN DIJKHORST J: Absoluut. Die mense kom na die hof toe met hoë verwagtings, die ma en suster sit daar in die hof en sy kry nie haar kans om haar storie te vertel van begin tot end nie, want die regsgeleerdes dink dit is irrelevant, wat dit waarskynlik is. Maar die publiek hou nie daarvan nie."

(3) "'n Onbestrede egskeiding , as 'n landdros persone in die eg kan verbind, kan 'n landdros egskeidings behartig. Waarom nie? Dit is op dieselfde vlak - veral onbestrede egskeidings. Dus my siening is die plaaslike landdros moet die onbestrede egskeidings plaaslik afhandel. Dit spaar tyd, dit spaar geld en dit kos niemand iets nie."

(4) "Bestrede egskeidings kan ons op 'n bietjie hoër vlak hanteer. Ons kan dit in 'n gesinshof inbou. Normaalweg is 'n bestrede egskeiding baie keer oor kinders, soms oor die bates. Maar in elk geval hoort dit nie in die hooggeregshof nie, op daardie vlak nie. Ons het die hulp van die gesinsadvokaat wat goeie diens lewer en veral waar betwiste toesig en beheer is, en in byna 90% van die gevalle of meer word die verslag van die gesinsadvokaat gevolg; met ander woorde, het jy nie meer 'n betwiste egskeiding nie wanneer daardie gesinsadvokaat-verslag uit is. Dus dit behoort dus nie moeilik te wees nie, dit kan maklik afgehandel word in die gesinshof."

(5) "VOORSITTER: Sien u die gesinshof as 'n selfstandige, eie hof?

VAN DIJKHORST J: Ek sou dit kombineer met 'n senior landdroshof om mannekrag te bespaar. Daardie landdros het die bekwaamheid en hy kan dit net so goed ook hanteer - as jy nie van die gesinshof gaan maak wat sekere voorstaanders van die gesinshof van hom wil maak nie, dit wil sê alles wat op die gesin betrekking het, daar insleep nie."

(6) "Ek wil daaroor 'n paar woorde sê. Met ander woorde, as dit net egskeidings is en as dus die bestrede egskeidings op die senior landdrosvlak gedoen word en die onbestrede egskeidings op die junior landdrosvlak, met ander woorde, die gewone landdrosvlak, dan het ons nie 'n probleem daarmee nie. As ek nou praat van die senior landdrosvlak dan is dit nie die amp, seniorlanddros, nie, maar dan is dit 'n senior landdroshof waarvan ek praat."

(7) "As 'n mens nou die gedagte opvolg wat sekere voorstaanders het, dat alles wat op die gesin betrekking het in die gesinshof verhoor moet word dan vra jy jouself af: Nou wat beteken dit in die praktyk? 'n Mens moet nie akademies oor die goed dink nie. 'n Aanranding van 'n man op sy vrou sal dan daar moet plaasvind. Wat, as dit sy vrymeisie is? Dan is dit nie daar nie. Waarom die onderskeid? As jy 'n maand by haar ingetrek het, moet dit dan daar wees, of moes hy dan drie jaar by haar gebly het voordat dit in die gesinshof land, of moet hulle 'n kind hê ? Aanranding op ouers en grootouers - moet dit in die gesinshof kom? Dit is tog deel van die "extended family"."

(8) "Aanranding op kinders deur ouers, natuurlik moet dit daar kom, maar wat as die aanrander die buite-egtelike vader is? Moet dit dan daar kom? Aanranding op kinders deur familielede wat nie ouers is nie? Ooms wat met kleintjies lol, waar moet dit kom? Dit is tog seker in gesinsverband. Hulle bly gewoonlik bymekaar, dit is ons probleem."

(9) "Onderhoud vir die vrou of vir die man, onderhoud vir die kinders, misdade deur kinders, aanranding deur kinders, moord deur kinders, diefstalle en roof? As alles daar kom en al daardie sake nou weggeneem word uit die landdroshof en die streekhof, waar dit goed gedoen word op die oomblik, bloot om 'n akademiese verbeeldingsvlug te bevredig, waar kom ons? Ons skep 'n hof wat oorwerk is met 'n spesialis landdros wat ons daar sit as gesinslanddros en hy doen winkeldiefstalsakies. Ons kan dit nie doen nie."

(10) "Ons moet die gesinshof beperk tot 'n spesifieke ding, dit wil sê egskeidings en onderhoud en toesigbeheer van kinders en dan sal die ding werk. Ons kan altyd, as ons dit 'n tyd aan die gang het, kan ons weer na hom kyk oor vyf jaar en sê: Is daar nog dit of dat wat ook daar moet bykom?"

VOORSITTER: Dan is daar ruimte vir uitbreiding."

(11) "VAN DIJKHORST J: Dan sit ons dit by, maar ons moet die ding eers in die praktyk toets soos dit is, en ek vind dit jammer dat daar voorstaanders was wat die afkondiging van die vorige wet wat die gesinshof moontlik gemaak het in die wiele gery het omdat hulle nie alles gekry het wat hulle wou gehad het in daardie wet nie. Dit sou baie meer prakties gewees het om die ding in te stel, dat ons gekyk het hoe loop hy en dan kyk waar ons hom moet uitbrei.'

(12) "VOORSITTER: Dink u dat daar meriete skuil in die gedagte dat hierdie onbestrede egskeidings by wyse van 'n loodsprojek van stapel gestuur word.

VAN DIJKHORST J: Ek dink so, ons kan dit trouens en alleen in Pretoria begin of hier in Johannesburg.

VOORSITTER: Of in 'n paar groot sentra."

(13) "VAN DIJKHORST J: Ons kan trouens net op een plek, as ons dit wil monitor, en sê: Kyk, ons het nie genoeg gesinsadvokaat-ondersteuning nie. Dit is op die oomblik ons probleem, dat ons dit dan op 'n plek doen waar ons gesinsadvokaat-ondersteuning het en kyk hoe werk dit."

(14) "En 'n mens moet ook met die gesinsadvokaat-ondersteuning dit sê: U weet, 'n mens kan werk toe ry in 'n Rolls Royce, maar jy kan ook werk toe ry in 'n Volkswagen. Ons het reggekom voor die gesinsadvokaat in die tyd toe ons almal gepraktiseer het. Ons probleem was toe dat ons nie daardie verslae uit die beamptes van Volkswelsyn kry nie. Ons het maande gewag, maar wanneer ons uiteindelik die verslag gekry het, het ons tog reggekom."

(15) "Nou met die gesinsadvokaat, omdat hulle behoorlik gerat is en wakker is kry 'n mens darem die verslag baie vinnig en dit is baie handig, maar 'n mens het nie regtig alles nodig in alle gevalle nie en op die oomblik kry ek die indruk asof hulle alles moet doen in alle gvalle, met ander woorde, asof ons besig is om hulle beperkte magte en kragte te dissipeer waar dit nie orals nodig is nie. Dit is lekker en 'n mens kan 'n empire bou, maar 'n empire kos geld."

(XXXIX) MR ATTORNEY L. VILJOEN OF PRETORIA

In the course of his oral submissions to the Commission at Midrand on 16 April 1996 some of the points made by Mr L. Viljoen were the following :-

(1) "Ek is 'n prokureur van Pretoria en ek praktiseer onder my eie naam...Ek praktiseer alreeds sedert 1982 met 'n geskiedenis van voor dit van leerklerkskap en dies meer."

(2) "Ek wil eerste handel oor die agt kilometer vereistes soos wat dit in die Hooggeregshofreëls uiteengesit word. Ek doen nie 'n beroep vir die afskaffing daarvan in sy geheel nie, maar met die ontwikkeling van tegnologie en rekenaarwetenskap is dit deesdae baie makliker vir litigante om onderling met mekaar stukke uit te ruil deur middel van die elektroniese proses."

(3) "Onder die huidige bedeling sit ons dat 'n plattelandse prokureur of 'n prokureur wat verder as agt kilometer van die hofsetel geleë is gebruik moet maak van 'n korrespondent binne 'n agt kilometer merk. Hierdie stelsel veroorsaak 'n duplikasie van werk en funksies waarvoor litigante moet betaal ongeag of hulle die saak wen of verloor."

(4) "Deur wat prokureurs betref die agt kilometer-vereiste af te stel sit ons dat ons nou rondom die setel van 'n hooggeregshof nie meer 'n agt kilometer beperking het op prokureurs nie, maar dit is wyd oop vir die hele provinsie en die gevolg is dat 'n prokureur wat in Nelspruit is kan stukke uitreik, hy kan stukke teken en hy kan sorg dat dit ter rolle geplaas word in die setel van 'n hof sonder om gebruik te maak van 'n ander prokureur as sy korrespondent, want die stelsel van om van korrespondente gebruik te maak lei onteenseglik tot verhoogde koste."

(5) "VOORSITTER: Nou watter verslapping gee u ter oorweging?

MNR VILJOEN: Ek vra vir die afskaffing van die agt kilometer wat prokureurs betref, dat dit wydoop kan wees sodat die prokureur wat in die platteland is nie gebonde is aan 'n agt kilometer weg van die hof af nie.

VOORSITTER: Ek dag u het ter aanvang gesê u beywer u nie vir 'n algehele afskaffing nie."

(6) "MNR VILJOEN: Ek sal vir u sê, daar is 'n praktiese probleem wat ek voorsien daarmee. Ons mag 'n litigant kry wat iewers in Messina is en nou stukke, argumentsonthalwe, in Pretoria se hooggeregshof uitreik, net om 'n voorbeeld te noem. Dit is wel nie 'n praktiese voorbeeld nie, maar dit is so ver weg, nou moet die repondent of verweerder verdedig en nou moet hy hom uitkry daar by daardie persoon. Dit is die probleem wat ek voorsien. Ek voorsien nie probleme tussen prokureurs en regsverteenwoordigers onderling nie, maar die leek wat in eie naam litigeer. Dit is vir hom wat ek 'n probleem voorsien."

(7) "Ek voorsien nie dat daardie agt kilometer noodwending die adres moet wees van 'n prokureur soos in baie van die Hooggeregshofreëls bepaal nie. Dit kan 'n adres wees wat dit naby en gerieflik maak vir prokureurs om te beteken. Dit is om daardie rede wat ons daarvoor vra."

(8) "Wat daarmee saamloop is die kwessie oor die betekening van stukke. Die koste verbonde aan die betekening van stukke is somtyds astronomies hoog veral omdat respondente of verweerders nie deur die balju identifiseer kan word nie en dan lei dit tot 'n heen en weer versending van stukke en 'n verhoogde koste."

(9) "My submissie is dat 'n eiser of 'n litigant baie makliker in staat gaan wees om sy respondent of verweerder te identifiseer en saam met 'n bevoegde getuie vir hom te sê: Meneer, hier is jou dagvaardiging. Hy skakel al daardie kostes van betekening uit."

(10) "In Nieu-Seeland, byvoorbeeld, verstaan ek dat hulle reëls die afgelope jaar of wat gewysig is deur tred te hou met betekening deurdat 'n versending of transmissie van hofstukke deur middel van 'n faks of 'n rekenaar nou toelaatbaar is maar met die voorbehoud dat die oorspronklike stukke per geregistreerde pos gestuur word binne sewe dae na versending."

(11) "My derde voorstel gaan oor 'n inkorting van hofprosedure. Die voorstel wat ek daar het, het ten doel om die hofprosedure in te kort deur middel van voorverhoor-konferensies waar 'n regter voorsit. Die eerste van hierdie voorverhoor-konferensies geskied net na die sluiting van pleitstukke en dan gebruik 'n mens basies die uitbreiding van Hofreël 37 soos wat ons dit deesdae nog ken."

(12) "Maar my ondervinding die afgelope 20 jaar is dat wanneer ons in 'n hof land en die geskilpunte is basies uiteengesit, dan kom 'n regter baiekeer na die regsverteenwoordigers en sê: Gaan skenk oorweging aan skikking. Dit het nou al baie gebeur waar ek self betrokke is of waar ek teenwoordig was. Dan het die partye uitgegaan en dan kry 'n mens hierdie populêre uitdrukking van: Hierdie saak is op die trappe van die hof geskik."

(13) "My voorstel het veral ten doel waar jy die leek-litigant het want nou het hy nie presies kennis van die hofreëls nie. Nou sit hy voor 'n regter by 'n voorverhoorkonferensie; die geskilpunte word uitgestip; hy word nie geïntimideer deur sy opponent wat 'n prokureur of 'n advokaat is nie, want nou sit daar 'n onafhanklike persoon voor hom wat sê: Gaan kyk 'n bietjie na hierdie en ek dink miskien moet julle kyk om eerder hierdie saak te skik voordat die kostes te hoog word."

(14) "Die voorverhoor-konferensie deel ek op in twee fases, want as daar dan nou nie geskik kan word en blootlegging en dies meer plaasvind by daardie eerste voorverhoor-konferensie nie, om oor te gaan na 'n tweede en finale wat kort voor verhoor is."

(15) "Daar word dan stukke voorgelê waarvan 'n baie goeie voorbeeld is dié van deskundige getuies. 'n Deskundige getuie word baie kere wekelank ondervra in 'n hof terwyl daar deur middel van verslae en beëdigde verklarings voor die tyd 'n mens al klaar die geskilpunte kon identifiseer en dan kan 'n mens by een van hierdie twee voorverhoor-konferensies sê: Nee, maar ons erken sekere van die punte of ons erken die hele verslag. Die gevolg is dat 'n mens nie daardie hoë koste van 'n deskundige nodig het om twee of drie weke in 'n hof te wees nie."

(16) "Dit is wat my voorstelle ten doel het, dat wanneer 'n mens kom by 'n tweede voorverhoor dat jy 'n klomp van jou erkennings klaar afgehandel het en 'n mens is in staat om 'n verhoor in enkele dae klaar te maak in plaas van weke."

(17) "Ek steun ook die gedagte van 'n gesinshof. Ek het nog nie vir myself uitgemaak waar daardie hof geleë moet wees nie, of dit in die Hooggeregshof moet wees en of dit in die verhoogde landdroshof se siviele afdeling moet wees nie."

(18) "Maar ek het nou na baie van die aspekte sit en luister en ek het net tot die gevolgtrekking gekom dat in 'n gesinshof kan 'n mens nie alle gesinsregtelike aangeleenthede wil inpas nie, want dit is regtig 'n groot probleem om alle aangeleenthede oor gesinsregtelike sake binne 'n gesinshof in the pas."

(19) "Die gesinshof sal baie goed gestruktureer moet wees oor wat hy moet doen, maar wat duidelik vasstaan is dat een van die aspekte is egskeiding, en is onbestrede egskeidings.

VOORSITTER: Onderhoud?

MNR VILJOEN: Onderhoud, meen ek ook hoort daarby, en byvoorbeeld aannemings hoort ook daar."

(20) "Maar ek het ook 'n probleem wanneer dit kom by aspekte soos gesinsgeweld. Die kriminele jurisdiksiegedeelte - ek moet sommer sê dat ek my bedenkings daaroor het want ek kan al klaar sien dat daardie hof onmiddellik uit sy nate uit gaan bars as alles daar ingepas word.

VOORSITTER: Dit gaan hom toegooi.

MNR VILJOEN: Hy sal toegegooi word, heeltemal korrek."

(21) "Ek wil net terugkom na die gesinshof. Hoewel ek voorstel dat die seëlreg R100 moet wees mag sekere litgante dalk nie in staat wees om R100 se seëls op die dagvaarding te plak om te betaal vir die inisiële proses nie...Ek kan geen rede sien waarom daardie litigant nie kan gaan na die klerk van die hof of die griffier of wat ookal die benaming sal wees van die amptenaar in daardie hof, en sê: Ek is nie in staat - amper soos 'n mens in die verlede gehad het, die in forma pauperis prosedure, dat so 'n litigant dit kan doen."

(22) "Ek kan ook geen rede insien waarom daar nie 'n gestandardiseerde dagvaardingvorm moet wees wat basies net voltooi hoef te wees nie en wat 'n egskeidingslitigant self kan voltooi en te laat uitreik.

(23) "VOORSITTER: Het u miskien persoonlike ondervinding van die swart egskedingshowe?

MNR VILJOEN: Ek het, mnr die Voorsitter.

VOORSITTER: Na u oordeel, hoe goed of hoe sleg werk daardie stelsel?

MNR VILJOEN: Daardie stelsel werk inderdaat baie goed en ek ondersteun mnr Helman se gedagtes daaroor. Inderdaat kan ek nie sien waarom 'n mens dit nie oorkoepelend kan maak nie, want dit is basies ook hoe ek dit voorstel en daardeur, veral wat egskeidings betref, kan dit geweldig kostebesparend inwerk."

(25) "Eintlik soveel meer so dat daar R8,1 miljoen is, as ek reg kan onthou, die begroting vir die Regshulpraad. Nou as ons kyk na hierdie voorstel soos wat ek dit hier formuleer dan gaan dit beteken dat 'n litigant nie nodig gaan hê om na die die Regshulpraad te gaan vir regshulpegskeiding nie, want die prosedure is eenvoudig en hy kan dit self gaan uitreik en hy kan self die hele proses doen en op 'n baie goedkoop en eenvoudige manier."

(XL) MR ATTORNEY A.P BRANDMULLER OF MIDDELBURG ON BEHALF OF THE MIDDELBURG ATTORNEYS ASSOCIATION

In the course of his oral submissions to the Commission at Middelburg on 22 April 1996 some of the points made by Mr Brandmuller were the following:-

(1) "MR JAPPIE: We have heard proposals that a separate Family Court is desirable, what are your feelings about such a court, dealing specifically with Family Law matters?

MR BRANDMULLER: Well we believe that it is a good idea at the moment and specifically because of our accessibility problem with regard to divorces, etcetera, to Johannesburg. I mean we have to travel every time we have to do something and then we have to use counsel. If the Family Courts as we see that they are envisaged, can deal with them quickly and efficiently from an attorneys level and it brings relief quicker to our clients, we believe that would be a good idea."

(2) "CHAIRMAN: Just to help the Commission, in your experience, I gather you travel not infrequently to Pretoria for divorces,...if a man from Middelburg or Witbank or take an area close to you, Secunda, Hendrina, Carolina comes to you in Middelburg and you handle the whole thing, at the end of the day what does it cost that man or woman?

MR BRANDMULLER: It would cost him on an unopposed basis approximately R 2 500,00."

(3) "JUDGE LEON: Now supposing that that same case were heard in Middelburg by a Family Court or a Circuit Court, what do you think the costs would be?

CHAIRMAN: Without using counsel?

JUDGE LEON: Without using counsel?

MR BRANDMULLER: Well we could reduce the costs by R 1 000,00 easily."

(XLI) MR ATTORNEY D. VAN DER MERWE ON BEHALF OF THE HIGHVELD RIDGE ATTORNEYS ASSOCIATION

In the course of his oral submissions to the Commission at Middelburg on 22 April 1996 some of the points made by Mr van der Merwe were the following:-

(1) "MR MALULEKE: Then on divorce matters, finally, a Family Court, do you support the concept of a Family Court?

MR VAN DER MERWE: For sure.

MR MALULEKE: If this Commission were to recommend that Black Divorce Courts such as they are now, should form the basis of a Family Court to hear mainly unopposed matters, what would your view be?

MR VAN DER MERWE: Mainly unopposed? Will there be a curtailment on jurisdiction for an amount of the value of the estate?

(2) "MR MALULEKE: The argument would be that the Supreme Court would retain its jurisdiction to hear divorce matters, concurrent jurisdiction but the Family Court would be a court primarily for unopposed divorce matters and that the sittings, it would be based around the concept of the Black Divorce Courts such as they are now, they sit in circuit and various centres.

MR VAN DER MERWE: Well presumably there will be a seat of this court in every Magistrate's court?

MR MALULEKE: Yes.

MR VAN DER MERWE: Taking that into consideration I have got no objection to that.

MR MALULEKE: You support that?

MR VAN DER MERWE: Ja, I support that."

(XLII) ADV D.D.J. ROSSOUW OF NELSPRUIT ON BEHALF OF THE PREMIER OF THE PROVINCE OF MPUMALANGA AND ALSO ON BEHALF OF THE ASSOCIATION OF ADVOCATES OF NELSPRUIT

In the course of his oral submissions to the Commission at Nelspruit on 22 April 1996 some of the points made by Mr Rossouw were the following:-

(1) "Die Familiehof : Ons vereenselwig ons ten volle met die voorleggings van die Vereniging van Prokureursordes in the Republiek van Suid-Afrika en die Assosiasie van Familiepraktisyns wat die kwessie van die voorgestelde Familiehof aanbetref en wel vir die volgende redes: u sal onthou dat daardie voorleggings lees dat die Familiehof moet 'n spesialis afdeling van die Hooggeregshof wees en nie die Landdroshof nie, tewens dit word baie sterk uitgedruk deur die Prokureursvereniging dat die wysigings in die Landdroshof 1993 om voorsiening te maak vir hierdie Familiehof moet so gou as moontlik omgekeer word."

(2) "Nou die redes waarom ons ten gunste daarvan is, ons sê die familie vorm die hoeksteen van die samelewing om mee te begin, dit is 'n ernstige situasie, dit is nie 'n ding wat woeps waps in 'n Landdroshof kan mee gehandel word nie. Die baie belangrike punt is die Hooggeregshof is die oppervoog van die minderjariges, gaan ons daardie posisie nou wegvat en sê die Hooggeregshof is nie meer nie, want hier is nou 'n Familiehof by die Landdroshof, hy moet dit nou maar hanteer of bly die Hooggeregshof die oppervoog?

(3) "Die huwelik en die ontbinding daarvan is 'n statusaangeleentheid wat tradisioneel en om baie ander baie goeie redes in die Hooggeregshof tuis hoort. Die landdros afdeling gaan deur die geskiedenis gebuk onder 'n ewige tekort aan gekwalifiseerde en bevoegde personeel en dit spreek duidelik uit die Jaarverslae van die Direkteur-Generaal van Justisie. Ons hoef maar net te kyk hoeveel landdrosdistrikte daar is, hoeveel poste daar is wat gevul word deur gekwalifiseerde mense, hoeveel deur ongekwalifiseerde mense en ek kan vir u sê die posisie is benard in die platteland veral. Jou stedelike gebiede sal nog gekwalifiseerde mense hê maar in die platteland is dit benard."

(4) "Nou nadat ek dan gesê h