The Committee on the Rationalisation of Areas under the Jurisdiction of the Divisions of the High Court of South Africa and Judicial Establishments (the Committee), led by retired Deputy Chief Justice Dikgang Moseneke, has been hard at work to help people access justice at their doorsteps. The Committee compiled an interim report, which they have handed over to the Minister of Justice and Correctional Services, Ronald Lamola, for public comment. In a proclamation notice, Minister Lamola pointed out that the rationalisation intends to align the territorial jurisdictions, thereby correcting the legacy of the old jurisdiction, which are still based on the defunct independent, self-governing states and pre-1994 Republic of South Africa (SA).

The interim report contains, among others –

• the introduction of rationalisation process;
• legislative overview of the court system;
• historical background; and
• rationalisation of the magisterial district.

The report also states the Committee had consultations with key stakeholders in the justice system, namely the Chief Justice of SA, the National Prosecuting Authority, Legal Aid South Africa, the Judge Presidents of all nine divisions of the High Courts, among others. The report shares details of these consultations. In a consultation with the Heads of Courts, judges, and Registrars, they were requested to provide information about –

• the number of judges currently in division;
• current area of jurisdiction of the seats;
• number and location of circuit court; and
• information about civil and criminal caseload and details backlogs.

The report states that during consultations with the Deputy Directors of the Public Prosecution of all nine provinces, the Committee presented an overall summary of the status quo of the areas of jurisdiction of the divisions of the High Court, existing anomalies, and recommendations by the Department of Justice in cases where the Judge Presidents had expressed recommendations. In a consultation with Magistrates Commission (the Commission), the Commission urged the Committee to consider the treatment of exclusive and appellate jurisdiction in local seats of each division of the High Court. The Commission also urged the Committee to consider whether there should be any limitation of access to courts by litigants to the High Court related to the amount of claim or the kind of cause action dispute.

In the depth of the report the Committee recommended that the following main seats remains where they are, namely the:

• Gauteng Division of the High Court main seat will remain in Pretoria.
• KwaZulu-Natal Division of the High Court main seat will remain in Pietermaritzburg.
• Limpopo Division of the High Court main seat will remain in Polokwane.
• Mpumalanga Division of the High Court main seat will remain at Mbombela.
• Northern Cape Division of the High Court main seat will remain at Kimberley.
• North West Division of the High Court main seat will remain in Mahikeng.
• Western Cape Division of the High Court main seat will remain in Cape Town.

Regarding the Eastern Cape Division of the High Court, a submission was made by the Judge President of the division, Judge President Selby Mbenenge titled ‘Representations on the proposed jurisdictional areas of the High Court of South Africa, Eastern Cape Division’. Judge President Mbenenge among other things, spoke to the courts in that division. The submission stated that the area of the proposed main seat in Makhanda is spread over a wide area consisting mainly of what may be described as rural and farming communities. Considering the population according to the statistics provided by the Department in its submissions, the proposed areas should not result in an increased workload insofar as criminal cases are concerned. On the contrary, according to statistics provided by the Director of Public Prosecutions (the DPP), the number of criminal cases may be reduced substantially. The allocation of those areas falling within what the Department refers to as the ‘White Corridor’ to the Bhisho High Court, may further result in a reduction of the number of civil matters serving before the Makhanda High Court. It pointed out that there is no doubt that the workload of Makhanda, which is currently not that substantial will be remarkably reduced. Resultantly, there will be a need to transfer two judges from Makhanda to the Bhisho High Court, especially if one has regard to the fact that the territorial jurisdiction of the Bhisho High Court and the workload will increase remarkably. This is so regardless of the fact that the main seat of the division has concurrent jurisdiction over matters falling within the jurisdiction of all local seats.

Regarding Gqeberha (local seat), it stated that obvious problems are anticipated by the proposed changes to the jurisdictional area of this seat. The proposed changes will –

• be conducive to the residents of the areas concerned having convenient access to a seat of the High Court; and
• not result in an increased work volume that may require increased court personnel or changes to the existing court infrastructure and facilities.

Regarding Bhisho’s local seat, the proposed jurisdictional area of the Bhisho Court will dramatically increase the size of the area, which will be served by this court. A rough calculation of the population in the proposed area is nearly 40% of the entire population of the province. This figure should, however, be seen against the fact that, save for the Buffalo City Metropolitan Municipality, the population is spread over a wide area of rural and farming communities, and the Eastern Cape has a negative population growth. It should, nevertheless, safely be anticipated that the proposed changes will result in the following:

• There is bound to be a dramatic increase in the number of criminal matters the seat will be required to deal with. This fact is confirmed by the statistics provided by the DPP showing that of the 29 criminal cases enrolled for hearing to date in Makhanda for the current year, 22 would under the new dispensation have had to be heard in the Bhisho High Court. At present, Bhisho has two criminal courts, and it will now also be required to deal with criminal matters that were previously dealt with by the East London Circuit Court emanating from the Buffalo City Metropolitan area.
• An increase of civil work with the addition of the Buffalo City Metropolitan area that was previously dealt with by the East London Circuit Court is bound to take place. Presently, there is a civil court sitting in Bhisho and East London respectively on a weekly basis. It is unlikely that one civil court sitting in Bhisho would be able to effectively deal with what is presently being dealt with by two courts on a weekly basis. It will also require an additional court to deal with motion court matters on a weekly basis as opposed to a bi-weekly dispensation.
• If, moving forward, criminal and civil matters are to be heard at the Bhisho High Court, the present number of courtrooms and the facilities available at those premises will be completely inadequate. The proposed structural changes to the available infrastructure, which have been in the pipeline for many years, will now have to be expedited by the Department to give effect to the proposed rationalisation. This should, however, not pose an immediate obstacle to the proposed new jurisdictional area for this seat.

Judge President Mbenenge stated that a concern has been raised that the right of access of litigants from the Buffalo City Metropolitan Municipality area will be diminished in having to travel to the Bhisho High Court if it is placed within the jurisdictional area of that court. However, it is evident that the Buffalo City Metropolitan Municipality area covers a wide area, which includes places such as Bhisho, Berlin, King William’s Town and Dimbaza.

He added that the only persons likely to fall in the category in the concern raised are the residents of East London itself. They will be required to travel 55 kilometres to Bhisho, which fades in comparison to litigants who must travel for hundreds of kilometres from areas such as Sterkspruit, Middelburg and other further outlying areas. Another concern raised in this regard is that there may be additional costs in court personnel having to travel from East London to Bhisho, daily. However, the position at present is that all the judges who are stationed in Bhisho chose to reside in East London. The same position applies to some of the court staff stationed at the Bhisho High Court.

Regarding the Mthatha local seat, Judge President Mbenenge said that this seat carries a heavy workload. The districts and areas proposed to constitute the jurisdictional area of this seat are unlikely to decrease the workload. The result is that the existing need for the creation of additional posts, to add to the complement of judges stationed at this seat, remains a matter that requires urgent attention.

Regarding Kokstad, Judge President Mbenenge added that it could be contended that Kokstad straddles Mount Ayliff and Matatiele, which are both served by the Mthatha High Court. The question may then be asked why Kokstad should be served by Pietermaritzburg, instead of Mthatha. Regard being had to s 6(3)(b) of the Superior Courts Act 10 of 2013, Kokstad could still be served by the Mthatha High Court even though it falls under the KwaZulu-Natal Province. From an access perspective, Kokstad residents may not lose out because the distance from Kokstad to Mthatha and Pietermaritzburg is 194 kilometres and 193 kilometres, respectively. One must readily concede that the administrative challenges associated with a court whose geographic area falls under another province are too ghastly to contemplate.

On Elliot, Judge President Mbenenge said no practical reason could be discerned for allotting Elliot to the Bhisho High Court. The distance from Elliot to Bhisho is 254 kilometres, while Mthatha is 142 kilometres away from Elliot. From the access perspective, the situation should be remedied. It is recommended that Elliot be allotted to the jurisdictional area of the Mthatha High Court. Regarding Tsomo and Cofimvaba, the submission stated that Tsomo is 148 kilometres to Bhisho and 134 kilometres to Mthatha. Cofimvaba is 193 kilometres to Bhisho and 150 kilometres to Mthatha. From the access perspective, the differences are negligible. Judge President said the question to be posed and answered is – why is it being recommended that these districts be served by Bhisho, and not Mthatha in terms of the current dispensation?

In a concluding statement, Judge President Mbenenge stated that without derogating from the above, the recommendations embodied herein are made bearing in mind that the Judge President is empowered to compile a single court roll for the division; and they may assign judges of the division within the division as they deem fit (s 4 of the Act). In addition, the Judge President has the power to establish circuit courts as contemplated in s 7 of the Act.

The closing date for the submission on comments for the interim report on Rationalisation of Areas under the Jurisdiction of the Divisions of the High Court of South Africa and Judicial Establishments was on 28 February 2023. The full interim report is available at: www.justice.gov.za

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.