ANNEXURE C

DRAFT LETTER BY THE CHIEF JUSTICE TO THE DIRECTOR GENERAL: JUSTICE

Your ref: 8/6 Geregs/1/1 (DDW)

Dear Sir

re: MAGISTRATES’ COURT SECOND AMENDMENT BILL, 1997

I refer to your letter dated 2nd July and the envisaged Magistrate’s Court Second Amendment Bill, 1997.

After consultation with the relevant committee of members of this Court, I advise as follows:

1. We regretfully have come to the conclusion that the proposed Bill is defective and unacceptable.

2. The fundamental problem appears to be that the architects of the Bill have confused and assimilated two separate and diverging legal concepts, viz. the doctrine of ultra vires on the one hand and, on the other hand, the principle of constitutional invalidity. In a certain, lay sense of the word one can say that a statute which violates a constitutional clause is ultra vires. But in legal parlance and legislative practice, a distinction has always be drawn between the two concepts and each of them conforms to its own rules. (See i.a. Baxter, Administrative Law, 301 et seq.)

3. Sec 110 of the Magistrate’s Court Act 32 of 1944 deals only with the ultra vires question. It reads as follows:

Section 110: Jurisdiction as to plea of ultra vires

No magistrate’s court shall be competent to pronounce upon the validity of a provincial ordinance or an ordinance of the Legislative Assembly of the territory or of a statutory proclamation of the State President or of the Administrator of the territory, and every such court shall assume that every such ordinance or proclamation is valid; but every such court shall be competent to pronounce upon the validity of any statutory regulation, order or bye-law.

Whether this provision should be retained, will be discussed presently.

4. What needs to be done, however, is to make provision for a new problem, i.e the effect of s 170 of the 1996 Constitution which reads as follows:

Magistrate’s Courts and other courts

170. Magistrate’s Courts and all other courts may decide any matter determined by an Act of Parliament, but a court of a status lower than a High Court may not enquire into or rule on the constitutionality of any legislation or any conduct of the President. (Our underlining).

In our view, this provision deals with the problem of constitutionality, not with ultra vires. In order to bring the Magistrates’ Courts Act in line with the 1996 Constitution, a new section in the Act is required.

A section such as the following would be acceptable:

Jurisdiction as to plea of unconstitutionality

(1) If in any proceedings before a court it is alleged that any law or provision of such law or any conduct of the President is invalid on the ground of its inconsistency with a provision of the Constitution the court shall decide the matter on the assumption that the law, provision or conduct is valid.

(2) If in any proceedings referred to in subsection (1), the presiding officer is of the opinion that it is in the interest of justice to do so, he or she may postpone the proceedings to enable the party who has alleged that a relevant law or provision or conduct is invalid, to apply to a provincial or local division of the High Court for relief in terms of s 172 of the Constitution.

The section proposed above follows the wording of the clause submitted to us under cover of your letter of 2nd July, but omits, in subsection (1), the words “and the court does not have the competency to enquiry into the validity of such law, provision or conduct”after the word “Constitution”. We can see no reason for the inclusion of these words. They create the impression that the draftsperson of the clause was uncertain as to whether the magistrate’s court has/has not constitutional jurisdiction. In the light of s 170 of the Constitution, such uncertainty is unwarranted.

5. I now return to the matter of the existing s 110 of the Act and the problem relating to ultra vires.

Firstly, it is clear that if the principle enshrined in s 110 is to be retained, the wording will have to be changed and updated, as suggested below.

Secondly, should the jurisdiction of the magistrate’s court to pronounce upon the validity of any statutory regulation order or bye-law (on the basis that it is ultra vires the empowering enactment) be retained?

In our view, the answer should be in the affirmative. The competency under discussion was bestowed upon magistrates’ courts years ago, when the general jurisdiction of these courts were much lower than at present. On the whole, these courts have dealt with the provision in a competent manner (See the discussion of this topic in Jones and Buckle, The Civil Practice of the Magistrates’ Courts in South, 9th ed, Erasmus and Van Loggerenberg , 1996: 402 et seq.)

To deprive the magistrates' courts of this jurisdiction would, in our view, be a step in the wrong direction. These courts are very important and should be made more accessible and meaningful.

The Bill proposed by your Department does away with the existing s 110. We have not been told the reason for this rather drastic step. In the heading of that Bill reference is made to the object of further regulating the plea of ultra vires. What the Bill in effect sets out to do is to do away with the magistrates' courts' power to entertain such a plea. As pointed out before, the basis of such a view is erroneous.

Furthermore, s 110 afforded the magistrates’ courts also review powers in respect of administrative action (See Jones and Buckle 1996:402 - 404; Majola v Ibhayi City Council 1990(3) SA 540(E)). Why should this function be taken away? There is nothing in s 170 of the Constitution to justify such a course of conduct.

We would, therefor, contend for the retention of the magistrates’ courts jurisdiction to entertain, in limited circumstances, a plea of ultra vires.

6. We proposes a new s 110 of the Magistrates’ Courts Act, reading as follows:

110 Jurisdiction as to plea of unconstitutionality

110A Jurisdiction as to plea of ultra vires

(1) Subject to the provisions of s 170 of the Constitution of the Republic of South Africa, 1996, or any other national legislation a magistrate is competent to adjudicate upon a plea or pleading in which it is averred that

(a) a statutory regulation, order or bye-law, or

(b) any administrative action

is invalid.

Yours faithfully

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