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REPUBLIC OF SOUTH AFRICA
PORTFOLIO COMMITTEE AMENDMENTS
TO
MAGISTRATES’ COURTS
SECOND AMENDMENT BILL
[B 77—97]
(As agreed to by the Portfolio Committee on Justice (National Assembly))
[B 77A—97]
ISBN 0 621 27502 6
No. of copies printed .................................... 3 000
AMENDMENTS AGREED TO
MAGISTRATES’ COURTS SECOND AMENDMENT BILL
[B 77—97]
CLAUSE 1
Clause rejected.
NEW CLAUSE
1. That the following be a new Clause 1:
Substitution of section 110 of Act 32 of 1944, as substituted bysection 20 of Act 53 of 1970
1. The following section is hereby substituted for section 110 of the Magistrates’ Courts Act, 1944:
‘‘Pronouncements on validity of law or conduct of President
110. (1) A court shall not be competent to pronounce on the validity of any law or conduct of the President.
(2) If in any proceedings before a court it is alleged that—
(a) any law or any conduct of the President is invalid on the grounds of its inconsistency with a provision of the Constitution; or
(b) any law is invalid on any ground other than its constitutionality,
the court shall decide the matter on the assumption that such law or conduct is valid: Provided that the party which alleges that a law or conduct of the President is invalid, may adduce evidence regarding the invalidity of the law or conduct in question.’’.
LONG TITLE
1. On page 2, in the second line, to omit all the words after ‘‘of’’ up to and including ‘‘Court’’ in the fourth line and to substitute ‘‘any law or conduct of the President’’.
REPUBLIC OF SOUTH AFRICA
MAGISTRATES’ COURTS SECOND
AMENDMENT BILL
(As amended by the Portfolio Committee on Justice (National Assembly))
(MINISTER OF JUSTICE)
[B 77B—97]
ISBN 0 621 27503 4
No. of copies printed .................................... 3 000
GENERAL EXPLANATORY NOTE:
______________________ Words underlined with a solid line indicate insertions in existing enactments.
BILL
To amend the Magistrates’ Courts Act, 1944, so as to further regulate the power of
a magistrates’ court to pronounce on the validity of any law or conduct of the
President; to amend the Magistrates’ Courts Amendment Act, 1993, so as to repeal
an obsolete provision; and to provide for matters connected therewith.
BE IT ENACTED by the Parliament of the Republic of South Africa, as
follows:—
Substitution of section 110 of Act 32 of 1944, as substituted by section 20 of Act 53 of 1970
1. The following section is hereby substituted for section 110 of the Magistrates’ Courts Act, 1944:
‘‘Pronouncements on validity of law or conduct of President
110. (1) A court shall not be competent to pronounce on the validity of any law or conduct of the President.
(2) If in any proceedings before a court it is alleged that—
(a) any law or any conduct of the President is invalid on the grounds of its inconsistency with a provision of the Constitution; or
(b) any law is invalid on any ground other than its constitutionality,
the court shall decide the matter on the assumption that such law or conduct is valid: Provided that the party which alleges that a law or conduct of the President is invalid, may adduce evidence regarding the invalidity of the law or conduct in question.’’.
Repeal of section 66 of Act 120 of 1993
2. Section 66 of the Magistrates’ Courts Amendment Act, 1993, is hereby repealed.
Short title
3. This Act shall be called the Magistrates’ Courts Second Amendment Act, 1997.
MEMORANDUM ON THE OBJECTS OF THE MAGISTRATES’ COURTS SECOND AMENDMENT BILL, 1997
1. Section 170 of the Constitution makes it clear that magistrates’ courts and all other courts of a status lower than a High Court may not enquire into or rule on the constitutionality of any legislation (which includes statutory regulations, orders and bylaws) or any conduct of the President.
2. Section 110 of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), provides that magistrates’ courts may not pronounce upon the validity of a provincial ordinance or a statutory proclamation of the President, but that ‘‘every such court shall be competent to pronounce upon the validity of any statutory regulation, order or bye-law’’.
3. It is clear that section 110 of the Magistrates’ Courts Act, 1944, is inconsistent with section 170 of the Constitution in so far as enquiries relating to the constitutionality, as opposed to the general validity, of statutory regulations, orders and bylaws are concerned. Clause 1 therefore seeks to amend section 110 so as to bring it into line with section 170 of the Constitution.
4. Section 66 of the Magistrates’ Courts Amendment Act, 1993 (Act No. 120 of 1993), also amended section 110 of the Magistrates’ Courts Act, 1944. However, in view of the amendment envisaged by clause 1, the provisions of section 66, which have not yet been put into operation, have become redundant. Clause 2 seeks to repeal the said section 66.
PARTIES CONSULTED
The following interested parties were consulted:
PARLIAMENTARY PROCESS
The Department of Justice and the State Law Advisers are of the opinion that the procedure established by section 75 of the Constitution should be followed with regard to this Bill.
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URL: http://www.saflii.org/za/other/zalc/report/1999/5/1999_5-ANNEXURE-4.html