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ANNEXURE F

Draft Bill contained in Discussion Paper 75

BILL

1. Proposed amendment of section 170 of the Constitution of the Republic of South Africa, 1996

By its substitution by the following:

“Magistrates’ 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 rule on the constitutional validity of any Act of Parliament, any legislation passed by the legislature of a province after 27 April 1994, or any conduct of the President.”

2. Proposed amendment of section 172 of the Constitution

By the insertion of the following provision as sub-section (3)

“(3)(a) The Full Bench of a High Court of competent jurisdiction must confirm any order of constitutional invalidity made by a Magistrates' Court or another court of a status lower than a High Court, before that order has any force.

(b) Subsections 2(b), (c) and (d) of this section apply with the necessary changes to an order of constitutional invalidity made by a Magistrates’ Court or another court of a status lower than a High Court, and to any referral of, appeal against, or application for the confirmation of, such order, to the Full Bench of a High Court of competent jurisdiction.”

3. Proposed amendment of section 110 of the Magistrates’ Courts Act, 1944

By its substitution by the following:

“(1) No magistrate’s court shall be competent to rule on the constitutional validity or validity for any other reason of any Act of Parliament, any legislation passed by the legislature of a province after 27 April 1994, or any conduct of the President, and every magistrate’s court shall assume that any such Act, legislation or conduct is valid.

(2) Subject to subsection (1), every magistrate’s court shall be competent to rule on the constitutional validity or for any other reason of:

(a) any administrative action, including any executive action and any statutory proclamation, regulation, order, bye-law or other legislation; but no magistrate’s court shall review and set aside or correct any administrative action or make any order directing an organ of state to legislate, decide or correct defects in any administrative action or in any state of affairs resulting from administrative action; and

(b) any rule of the common law, customary law and customary international law”.

4. Proposed amendment of the Magistrate’s Court Rules

By the insertion of the following new rule:

Confirmation of an order of constitutional invalidity

“(1) No magistrate’s court shall, in any matter in respect of which the relevant organ of state is not a party, make an order of constitutional invalidity in terms of section 110 of the Act unless such organ has been notified of the proceedings by service on it of the pleading or document in which such invalidity is asserted.

(2) The clerk of a magistrate’s court which has made an order of constitutional invalidity as contemplated in (1) above shall, within 15 days of such order, lodge a copy of such order with the registrar of the High Court having jurisdiction in the area.

(3) A person or organ of state entitled to do so and who desires to appeal against such order in terms of section 172(3)(b) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), read with section 172(2)(d) thereof, shall, within 21 days of the making of such order, lodge a notice of appeal with the registrar of the High Court having jurisdiction in the area and a copy thereof with the clerk of the magistrate’s court which made the order, whereupon the matter shall be disposed of by the Full Bench of such High Court in accordance with directions given by the Judge President.

(4) The appellant shall, in such notice of appeal, sent forth clearly the grounds on which the appeal is brought, indicating which findings of fact and / or law are appealed against and what order it is contended ought to have been made.

(5) A person or organ of state entitled to do so and who desires to apply for the confirmation of an order in terms of section 172(3)(b) of the Constitution, read with section 172(2)(d) thereof, shall, within 21 days of the making of such order, lodge an application for such confirmation with the registrar of the High Court having jurisdiction in the area and a copy thereof with the clerk of the magistrate’s court which made the order, whereupon the matter shall be disposed of by the Full Bench of such High Court in accordance with directions given by the Judge President.

(6) If no notice or application as contemplated in subrules (3) and (5) respectively, has been lodge within the time prescribed, the matter of the confirmation of the order of invalidity shall be disposed of by the Full Bench of the High Court having jurisdiction in the area in accordance with directions given by the Judge President.”

ANNEXURE F - ADDENDUM

If the amendments set out in Annexure F are to be effected, consideration needs to be given to making consequential amendments to section 117 of the Criminal Procedure Act, 51 of 1977, and section 46(b) of the Occupational Health and Safety Act, 85 of 1993. Both of these provisions resemble section 110 of the Magistrate’s Courts Act. The position of small claims courts should also be considered. At present, section 49 of the Small Claims Courts Act, 61 of 1984, is in the same terms as section 10 of the Magistrates’ Courts Act.