Former deputy chief justice Dikgang Moseneke. (Photo: Elmond Jiyane, GCIS)
Lawyers in Makhanda (formerly Grahamstown) are gearing up for yet another fight over the latest proposal by a government committee to move the seat of the Eastern Cape high court to Bhisho, the provincial capital.
They argue the move will add to Makhanda’s economic woes because other agencies associated with the high court — the provincial director of public prosecutions of the National Prosecuting Authority (NPA) and the Master’s Office — will follow suit.
The high court rationalisation committee, chaired by former deputy chief justice Dikgang Moseneke, aims to promote access to justice by aligning high court jurisdictions with municipal and magisterial boundaries, and taking account of population densities.
The apartheid-era jurisdictional boundary around the “white corridor” towns from East London to the north-eastern part of the province means people have to take their cases to Makhanda, yet are relatively close to Mthatha or Bhisho.
Recommendation on the divisional seat’s relocation has overshadowed Moseneke’s committee’s findings on other long-overdue issues.
“Ordinarily the main seat of a provincial division of the high court is located at the capital of the province,” the committee stated. “It follows that in the Eastern Cape too, the same situation should prevail.”
Brin Brody, the spokesperson for the Makhanda High Court Action Committee, which previously campaigned against the proposal, said all the town’s advocates and 30 out of 32 attorneys had supported a decision to resuscitate the action committee and to make submissions to Moseneke’s committee.
“We don’t subscribe to the argument that the seat of the court needs to be at the provincial capital because the constitutional court is in Johannesburg and not in Pretoria, the labour court is also in Joburg and the SCA [supreme court of appeal] is in Bloemfontein. We believe that argument is not a rational one.”
In 1998, the Hoexter Commission reported to the government that the retention of the Makhanda high court was conducive to the proper administration of justice. It found the city was economically depressed, unemployment was rife and that moving the seat of the court would cripple the city.
“Since then we have had four attempts to move the court seat,” said Brody. “This is now the fifth. But we’re going to be campaigning against it.”
The jurisdictional shifts will bump the estimated population served by the Bhisho high court to 1.8 million, including Buffalo City metro and the other former “white corridor” towns, making it the second-busiest court in the province, behind Mthatha.
Makhanda will see a reduction in its workload purely based on the jurisdictional proposals.
Brody said last week: “The next step will be to actually close the court.”
The economic effect on Makhanda’s residents of the relocation was the most important consideration, and Brody promised a two-decade-old economic impact study would be updated.
He said the cost of refurbishing the Bhisho high court would reach about “half-a-billion [rands] on infrastructure that already exists in Grahamstown”. The shortage of other infrastructure in Bhisho, for example, facilities for practitioners and accommodation establishments for witnesses attending hearings, was also a concern.
According to a submission to the committee by the Eastern Cape judge president, Selby Mbenenge, much of the proposed refurbishment was necessary because of the increase in the Bhisho high court’s territorial jurisdiction, and the pending “dramatic” increase in workload.
Out of 29 criminal cases allocated to Makhanda this year, 22 would have to be heard in Bhisho under the new dispensation.
Other criminal cases and civil matters previously heard by the Makhanda criminal and circuit courts sitting in East London would now also have to be heard in Bhisho.
“The proposed structural changes to the available infrastructure, which have been in the pipeline for many years, will now have to be expedited,” Mbenenge told the committee.
The corollary of this was that “the workload of Makhanda, which is currently not that huge, will be reduced remarkably”, Mbenenge said.
In August, Asanda Pakade, chair of the East London and Mdantsane Attorneys’ Association, and of the Eastern Cape Black Lawyers’ Association, said the benefits of the Bhisho high court being preferred as a seat for the province “completely outweigh the disadvantages”.
Moseneke’s committee has recommended that the Murraysburg area of the Western Cape must continue to be served by the Makhanda high court until a new high court is established at Thembalethu on the Garden Route.
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