[SUBMISSION] SERI makes a submission on the draft Magistrates Bill and Lower Courts Bill (30 June 2022).
On 30 June 2022, the Socio-Economic Rights Institute of South Africa made a submission to the Department of Justice and Constitutional Development on the draft Magistrates Bill and the Lower Courts Bill issued for public comment in March and April 2022.
The Magistrates Bill is aimed at regulating the procedure relating to the appointment, dismissal and disciplinary action taken against magistrates, as well as providing for the establishment of a Magistrates Commission. The Lower Courts Bill, on the other hand, is concerned with court structure and aims to provide for the establishment of lower courts, as well as provisions for their administration. Both Bills aim to align the magistrates and lower court systems with the Constitution. The Bills will replace the existing Magistrates' Courts Act(Act No. 32 of 1944) as well as the Magistrates Act(Act No. 90 of 1993).
SERI notes that overall, both Bills seem to form part of a larger initiative to reform the judicial system in South Africa. While many of the goals of the reform are welcome, SERI notes with concern the atomized manner in which change is being implemented and calls for clarity from the Department on the vision of this reform and the means to achieving it. For example, it is unclear how the Bills currently under discission relate to other proposed legislation that the Department has introduced, for example, the 2021 Land Court Bill, on which SERI also made a submission. A holistic and interactive approach is essential for reform measures to meaningfully respond to the complexities of the court system, judiciary and needs of the general public in exercising their rights through litigation.
SERI has considered the Bills and makes this submission on the basis of extensive public interest litigation, research and advocacy experience. SERI draws specifically on a SERI research report recently launched, which deals specifically with how eviction matters are adjudicated at the magistrate’s court level. SERI makes this submission because the Bill could potentially re-enforce the findings of the research and therefore negatively affect poor and vulnerable households facing eviction in the Johannesburg inner city.
Although SERI acknowledges that there is merit in reforming outdated structures, guidelines and practices of both the magistrates and the structure of the lower courts, SERI's makes the following comments and recommendations:
- The Department of Justice and Constitutional Development should provide clarity on the vision of legal reform in South Africa and how these Bills and other proposed legislation, such as the Land Court Bill, relate to one another.
- A stronger stance is needed in the Magistrates Bill on compulsory, continuous training of magistrates, as motivated for by the findings of SERI’s research on the magistrates’ courts, as well as by other external research capturing the views of magistrates themselves.
- Stronger obligations should be placed in both Bills on magistrates to ensure that unrepresented respondents are duly protected by the courts in litigation processes.
- Section 7 of the Lower Courts Bill on the establishment of municipal courts should be removed as the involvement of two arms of state in the court structure has the potential to interfere with judicial independence, and such courts could disproportionally and negatively affect the poor and vulnerable.
- Section 114 in the Lower Courts Bill limiting the right to appeal should be removed as it has the potential to negatively affect access to justice for the poor and vulnerable.
- Download the full submission here.
Thursday, 16 June 2022 will mark 46 years since the 1976 Soweto youth-led uprisings when police opened fire on protesting students, killing and injuring hundreds. Since the end of apartheid, poor communities, workers, and young people have continued to suffer state and political violence meted out to stifle both dissent and legitimate concerns.
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