Mungo Soggot
Senior judges are considering a radical plan by the Department of Justice to overhaul the judiciary that could, among other things, eliminate the separation between magistrates and judges.
The plan would allow for the seamless promotion of magistrates to the high court or Supreme Court of Appeal. If the proposed changes go through, they will represent the biggest revolution in the history of the South African judiciary.
The proposed shake-up is contained in a draft White Paper on the judiciary that has been circulated to some judges for discussion. The document, drawn up by the Department of Justice’s policy unit, says: “There is no longer good reason for the dichotomy between judges and magistrates.
“Magistrates play as important a role in the administration of justice as judges do. They deserve the same respect that is accorded to judges and the expectation of attaining appointment to the bench of the high court if they prove to be good judicial officers.”
The report suggests magistrates have been unfairly accorded a lower “status” and that they have in the past been “perceived to be lacking in independence”.
It says: “Over the years the public images of judges and magistrates have been very different in that the status of magistrates has been much lower than that of judges and that they have not enjoyed the reputation for excellence and independence that judges have.”
The proposals are being greeted with concern by some high court judges and lawyers, who argue that many magistrates are ill-qualified and unfit for the high court, and that the plan is therefore founded in naivety. There have also been mutterings that the magistracy remains staffed by many who were among the apartheid regime’s most notorious collaborators.
The General Council of the Bar (GCB), the national body that represents advocates, gave a mixed reaction to the report this week, which it has not yet formally received for comment. Chair Jeremy Gauntlett, SC, said the GCB was in favour of any move to make the magistracy more independent, but expressed concern about whether funding existed for such ambitious, and possibly unworkable, plans.
“This is particularly because the paper contemplates a career judiciary, not one that draws (as it does now) on the skills and experience of private practice. Unfortunately, we have yet to be consulted on this,” Gauntlett said.
The former minister of justice, Dullah Omar, indicated during his tenure as minister that he was in favour of scrapping the separation between magistrates and judges. The discussion document circulating was drawn up when he was minister. It marks the first time such a proposal has been formally presented for discussion.
It is unclear where the new Minister of Justice, Penuell Maduna, stands on the matter, but officials in his office said this week he was perusing the document.
The document suggests that the merger of the judiciary and the magistracy would be an integral part of the Department of Justice’s drive to make the judiciary more racially representative. It notes that the judiciary has historically been staffed only by white, senior advocates and that “past policies and procedures pertaining to the appointment of judicial officers produced a judiciary which is generally conservative. This is a picture which needs to change.”
The report suggests a merger would make the justice system as a whole appear more efficient and committed to upholding the Constitution.
“It is important that the entire judiciary should be perceived to be administering justice in a skilled and efficient manner.”
It says that the main historical justification for separating the magistracy and the judiciary – that magistrates did not need formal legal qualifications – has fallen away.
“In recent years, no magistrates have been appointed to the bench without a university degree that would qualify them for legal practice.”
The report notes that in terms of 1997 legislation, the LLB is the only such degree.
It says one of the main problems with the separation of the two benches is that magistrates have concentrated on criminal law, whereas high court judges have focused on civil law.
“The consequence of this is that the standard of civil adjudication in the magistrate’s courts is generally not as high as it should be,” the report notes, adding that magistrates who develop an expertise in civil law often leave for private practice.
Magistrates preside over about 90% of criminal cases in South Africa, but can only deal with civil cases involving up to R100 000.
The justice department also proposes:
l absorbing the body that selects magistrates, the Magistrates Commission, into the Judicial Services Commission, the panel of politicians, lawyers and judges that controls appointments to the judiciary;
l changing the way judicial officers are addressed, signalling that “his lordship” (the way in which a high court judge is addressed) is an elitist anachronism – the report suggests calling all judges and magistrates “justice (surname)” or just “judge”, and proposes calling all court buildings “court houses”; and
l setting up a judicial training institute “to serve the education and training needs of all judicial officers”.
The airing of the discussion document coincides with moves on the part of the Ministry of Justice to investigate the feasibility of merging the Supreme Court of Appeal in Bloemfontein and the Constitutional Court.
Maduna’s office confirmed last week that he had ordered research into a possible merger of the two courts, but this week the minister sought to downplay his interest in the controversial proposal.