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

• Published date: 01 January 2012
• Pages: 359-378
• Author: Stephen Pete,David Hulme
• Date: 01 January 2012
• DOI: 10.10520/EJC135273

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).