Houston, we have a problem! Gaps, glitches and gremlins in recent amendments to the law of civil procedure pertaining to the magistrates' courts

AuthorStephen Pete,David Hulme
DOI10.10520/EJC135273
Published date01 January 2012
Date01 January 2012
Pages359-378
359
Houston, we have a problem! Gaps,
glitches and gremlins in recent
amendments to the law of civil procedure
pertaining to the magistrates’ courts
David Hulme
BA, LLB, LLM
Senior Lecturer of Law, School of Law, Howard College, University of KwaZulu-
Natal; Attorney of the High Court of South Africa
Stephen Peté
BA, LLB, LLM, MPhil
Associate Professor of Law, School of Law, Howard College, University of
KwaZulu-Natal; Attorney of the High Court of South Africa
OPSOMMING
Houston, ons het ’n probleem! Gapings, glipsies en goggas in onlangse
wysigings aan die siviele prosesreg in landdroshowe
Die tempo van verandering op die gebied van siviele prosesreg het onlangs
toegeneem. Grootskaalse verandering gaan egter dikwels gepaard met
verwarring en ontwrigting. Merkwaardige veranderinge aan die struktuur en
funksionering van die land se landdroshowe het onlangs ’n reeks “gapings,
glipsies en goggas” tot gevolg gehad. Die aard en omvang van hierdie
“gapings, glipsies en goggas” dui op ’n kommerwekken de ontwik keling,
naamlik dat onvoldoende sorg en aandag geskenk blyk te word gedurende
die proses van wetsontwerp en opstel van regulasies. Indien dit nie
aangespreek word nie, mag die verskeie probleme waarop hierdie artikel dui,
selfs die toekomstige vlot transformasie van die Suid-Afrikaanse regstelsel
verhinder.
1Introduction
For a decade and a half following the demise of Apartheid, with a few
significant exceptions, the law relating to civil procedure seemed
relatively unaffected by the momentous developments in South African
society.1 Recent years, however, have seen accelerating changes within
1 Significant changes in this area of the law during the early years following
the demise of apartheid included: the revamping of the s 65 debt collection
procedure in the wake of the decision of the Constitutional Court in
Coetzee
v Government of the Republic of South Africa; Matiso v Commanding
Officer, Port Elizabeth Prison
1995 4 SA 631 (CC); the scrapping and
reconfiguration of notice and prescription periods required for taking legal
proceedings against certain state bodies, following cases such as
Mohlomi v
Minister of Defence
1997 1 SA 124 (CC) and
Moise v Greater Germiston
Transitional Local Council
2001 4 SA 491 (CC), as well as the enactment of
The Institution of Legal Proceedings Against Certain Organs of the State Act
40 of 2002; the broader approach of the courts to
locus standi
when
360
2012 De Jure
the field of civil procedure, sometimes accompanied by a degree of
turmoil and confusion. These changes include the renaming of the high
courts in order to dispense with the names of the provinces which
existed during the Apartheid era,2 the proposed major reconfiguration of
the superior court system in terms of the Superior Courts Bill,3 as read
with the Constitution Seventeenth Amendment Bill,4 both tabled in
parliament on 2 June 2011,5 the establishment of an entirely new tier of
civil magistrates’ courts with greatly increased civil jurisdiction, including
the power to grant divorces and deal with matters related thereto;6 and
major changes to the Magistrates’ Courts Rules brought about by the
Rules Board.7
Significant change, however, often brings with it a degree of
dislocation, resulting in some difficulties (what we have termed “gaps,
glitches and gremlins”), which can lead to problems in the smooth
functioning of the legal system. Due to the nature of their work, lawyers
are averse to any lack of clarity and precision within their field of
operation. When this lack of clarity and precision affects civil procedure,
the engine of legal practice, it touches on an area of particular sensitivity
to the broader legal profession. The purpose of this short article is to
point to certain difficulties which have become apparent in the field of
civil procedure in recent years. The article will focus specifically on the
difficulties that pertain to the functioning of the magistrates’ courts, since
many of the proposed changes to the superior court system have yet to
be effected. It is hoped that the focus of this article will assist in the
process of eliminating some of the more serious difficulties, in order that
2 enforcing the Bill of Rights (and as set out in s 38 of the Constitution) in
cases such as
Coetzee v Comitis
2001 1 SA 1254 (C) and
Independent
Electoral Commission v Langeberg Municipality
2001 3 SA 925 (CC) par 15.
2 The changes were brought about in terms of the Renaming of High Courts
Act 30 of 2008, and took effect from 2009-03-01.
3 B 7-2011: An explanatory summary of the Bill was published in
GG
33216,
2010- 05- 21.
4 B 6-2011: Particulars of the proposed amendments were published in
GG
33216, 2012-05-21.
5 Ss 3, 4 Constitution Seventeenth Amendment Bill, which is currently before
parliament, propose amending the Constitution in such a way as to make
the Constitutional Court the final court of appeal in constitutional and in
other matters in respect of which the Constitutional Court has granted leave
to appeal on the grounds that the interests of justice require that the matter
be decided by it. See
GG
33216, 2012-05-21, not 414 of 2010.
6 These significant changes were brought about by the Regional Courts
Amendment Act 31 of 2008, which was brought into operation on 2010-08-
09 in terms of Proc R41
GG
33448, 2010-08-06.
7 The Rules Board was established by s 2 Rules Board for Courts of Law Act
107 of 1985. The Board was acting in compliance with a direction set out in
section 9(6)(a) Jurisdiction of Regional Courts Amendment Act 31 of 2008,
which required the Board to review and amend the existing rules of
magistrates’ courts, so as to ensure that the new courts of regional divisions
could exercise jurisdiction effectively and efficiently. The Rules Board used
this opportunity to bring the Magistrates’ Courts Rules closer to the high
court rules (ie to the Uniform Rules of Court).

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