By Luis Teixeira
In terms of s 1 of the Superior Courts Act 10 of 2013, the ‘High Court’ means the High Court of South Africa, referred to in s 6(1).
Section 6(1) lists nine High Courts next to letters (a) to (i). Next to letter (c) the following words appear:
‘Gauteng Division with its main seat in Pretoria’.
No mention is made in this section of the former South Gauteng High Court, formerly the Witwatersrand Local Division of the Supreme Court of South Africa. Prior thereto, it was called the High Court of the Witwatersrand, and acquired the status of a local division of the Supreme Court of South Africa by virtue of s 98 of the South Africa Act 1909.
In terms of s 50(1)(k) of the Superior Courts Act, the South Gauteng High Court, Johannesburg, becomes a local seat of the Gauteng division.
The status of that court, which was formerly a High Court in its own right, prior to the coming into operation of the South Africa Act, later a division of the Supreme Court of South Africa in its own right and thereafter, again, a High Court in its own right, has been reduced to that of a local seat of another court, namely the Gauteng Division. The same applies to the North Gauteng High Court. In the result, where there were formerly two High Courts, there is now only one, which sits in two places.
The preamble to the Superior Courts Act refers to s 165 of the Constitution, which states, inter alia, that no person or organ of state may interfere with the functioning of the courts. It also refers to s 166, which states that the courts include ‘the High Court of South Africa’.
The former South Gauteng High Court and North Gauteng High Courts acquired those names by virtue of the Renaming of High Courts Act 30 of 2008, and they are thus the very same courts to which the Constitution affords the protection from interference from any person or organ of state, referred to in s 165 (c) of the Constitution, the latter phrase including parliament.
Surely, the diminution of the status of a court from that of an independent division of the High Court of South Africa to that of a mere local seat of another High Court constitutes interference with the functioning of that court. For example s 50(4) of the Superior Courts Act provides, inter alia, that the Judge President and the Deputy Judge President of a court, referred to in subs (1) shall become the Judge President or Deputy Judge President of ‘ … the Division in question’. Where two divisions of a High Court, each with its own Judge President and Deputy Judge President, are reduced to one division of the High Court, the section makes provision for the existence only of a Judge President and Deputy Judge President of a division of the High Court and not for the existence of a Judge President and Deputy Judge President of a seat of a division, the questions that arise are:
Two possibilities exist. Either, the incumbents are to become Co-Judge Presidents and Co-Deputy Judge Presidents of the new single division of the High Court, or two of the incumbents are to lose that status. Regardless of the solution that is decided on, the effect of the statute is, in my view, to interfere with the functioning of the courts, and the power that is granted to organs of state, is to abolish whichever High Courts it chooses, and to deprive judges of their status, at its own discretion.
The Law Society of the Northern Provinces issued a notice on 28 January 2014, entitled ‘Citation of Courts on Pleadings and Erratum Notice’. This notice states that the former North Gauteng High Court is to be cited as ‘the Gauteng Division, Pretoria’ and that the former South Gauteng High Court is to be cited as ‘The Gauteng Local Division, Johannesburg’. By referring to these courts as a division and as a local division, this notice is inconsistent with the wording of ss 1, 6(1) and 50(1) of the Superior Courts Act, and the solution to the dilemma that it provides, being the maintenance of the fiction of two divisions of the High Court, where the statute recognises only one, is unsatisfactory.
I am of the view that the only solution to the above dilemma is for the Superior Courts Act to be amended retrospectively to restore the former South Gauteng High Court to its status as that of a division of the High Court, rather than as a mere local seat of the Gauteng Division of the High Court, and for the names of the resultant divisions of the High Court to be the North Gauteng Division and the South Gauteng Division of the High Court.
Luis Teixeira BCom (Wits) BProc (Unisa) is an acting magistrate and an attorney at Luis Teixeira Inc in Germiston.
This article was first published in De Rebus in 2014 (May) DR 30.