ANNEXURE E

Letter by the Chief Legal Administration Officer:

Legislation Development to the SA Law Commission

HH181197

HLC

CONSIDERATION BY MAGISTRATES’ COURTS OF CONSTITUTIONAL MATTERS

1. As you are aware, the State Law Advisers held the opinion that section 110 of the Magistrates’ Courts Act, 1944 (Act 32 of 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.

2. Section 1 of the Magistrates’ Courts Second Amendment Act, 1997 (Act 80 of 1997), amends section 110 of the Magistrates’ Courts Act, 1944, so as to bring it into line with the provisions of section 170 of the Constitution. It should be mentioned that the said Act, when it was introduced into Parliament as the Magistrates’ Courts Second Amendment Bill, 1997, retained the power of magistrates’ courts to pronounce on the general validity of statutory regulations, orders and bylaws.

3. The Portfolio Committee on Justice (National Assembly), for the reasons set out in its report on the Bill, deemed it appropriate to amend the Bill so as to create a mechanism in terms of which magistrates’ courts do not have the power to decide on the validity of any law which includes statutory regulations, orders or bylaws, but that all such cases must be heard by either the Constitutional Court or the High Courts. The said Committee, however, emphasised that this will only be an interim measure until the investigation by the Department, referred to in the report, has been finalised. Copies of the report and of the Bill, as approved by Parliament on 19 November 1997, are attached for your convenience.

4. In its report the Committee recommends that “the Minister of Justice be requested to direct that the possibility that magistrates' courts may enquire into or rule on certain constitutional matters be investigated, or, if such an investigation has already been instituted, that it be finalised urgently with a view to submitting legislation, if necessary, to Parliament at the earliest opportunity”. The Law Commission, it is understood, is already investigating this issue.

5. We have been informed that the power of magistrates’ courts to pronounce on the validity of subordinate legislation on the grounds of ultra vires does not form part of the Law Commission's investigation. We assume that the reason for this is due to the fact that magistrate’s courts, prior to the enactment of the Magistrates’ Courts Second Amendment Act, 1997, already had such power.

6. Since the above Amendment Act removes the existing power of magistrates' courts to pronounce on the validity of subordinate legislation on grounds of ultra vires, it will be appreciated if this issue could also be included in the above investigation.

7. If any further information is required, Johan Labuschagne may be contacted at telephone number (021) 455 939.

HDW

3. Report of the Portfolio Committee on Justice on the Magistrates’ Courts Second Amendment Bill (B 77- 97) National Assembly - sec 75), dated 5 November 1997, as follows:

The Portfolio Committee on Justice, having considered the subject of the Magistrates' Courts Second Amendment Bill (B 77 — 97) (National Assembly - sec 75), referred to it, begs to report the Bill with amendments [B 77A - 97].

The Committee wishes to report further, as follows:

During its deliberations on the Bill, the Committee noted that section 103(2) of the interim Constitution provided that in cases where it was alleged that a law is invalid on the ground of its inconsistency with a provision of that Constitution, and the court was not competent to pronounce on the validity of such law, it had to decide the matter on the assumption that such law was valid. The Committee’s attention was drawn to the fact that the Constitution does not contain a similar provision. However, from the provisions of section 170 of the Constitution, it is 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 conduct of the President.

The Committee further noted that in terms of section 110 of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), magistrates’ courts have the power to pronounce on the validity of any statutory regulation, order or bylaw. However, in terms of the said section 110, such courts are not competent to pronounce on the validity of a provincial ordinance or of a statutory proclamation of the President, and every such court must consequently assume that every such ordinance or proclamation is valid.

It was brought to the Committee’s attention that section 110 of the Magistrates’ Courts Act, 1944, is inconsistent with the provisions of 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. The Committee noted that the Bill as introduced in Parliament purported to bring the provisions of the said section 110 in line with the provisions of section 170 of the Constitution. The Bill, however, retained the power of magistrates’ courts to pronounce on the general validity of statutory regulations, orders and bylaws.

It was further brought to the Committee’s attention that there is such a narrow line, if any, to drawn between the concepts of “unconstitutionality” and ultra vires” in most cases where the validity of subordinate legislation is challenged, and that such challenges would invariably be based on both grounds of unconstitutionality and ultra vires. The effect thereof will be that magistrates’ courts will not have the power to pronounce on the validity of such legislation in respect of the issue of constitutionality. This, in terms of the Bill before the Committee, would mean that a magistrates’ court will be able to hear ultra vires aspects but not constitutional aspects. In the opinion of the Committee, such a situation could lead to anomalies and uncertainty. The Committee therefore deemed it appropriate to amend the Bill so as to create a mechanism in terms of which magistrates’ courts do not have the power to decide on the validity of any law, which includes statutory regulations, orders or bylaws, but that all such cases must be heard by either the Constitutional Court or the High Courts. The Committee appreciates the fact that the adjudication of matters in terms of the proposed mechanism could result in higher costs for the parties concerned and that it could also cause inconvenience to parties for whom the High Court is not freely accessible, especially to parties in rural areas.

As section 170 of the Constitution does not make provision for a procedure to be followed in courts, with a status lower than that of a High Court, where the unconstitutionality of a law or conduct of the President is alleged, the Committee is of the opinion that the Bill should be promoted urgently in order to obviate the lacuna created by section 170. The Committee therefore recommends that the Minister of Justice be requested to direct that the possibility that magistrates’ courts may enquire into or rule on certain constitutional matters be investigated, or, if such an investigation has already been instituted, that it be finalised urgently with a view to submitting legislation, if necessary, to Parliament at the earliest opportunity.

The Committee wishes to emphasise that the mechanism it proposes, will only be an interim measure until the investigation by the Department, which may possibly lead to the submission to Parliament of legislation further regulating the jurisdiction of magistrates’ courts, has been finalised.

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