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1. On 8 December 1997, the Commission received from the Minister of Justice a request that its investigation commissioned earlier by the Minister of Justice into the constitutional jurisdiction of Magistrates’ Courts be widened. This request and the investigation initially commissioned arise in the following circumstances.
2. Section 103(2) of the Constitution of the Republic of South Africa Act, 1993 (“the interim Constitution”) provided that
“(i)f in any proceedings before a court referred to in subsection (1), it is alleged that any law or provision of such law is invalid on the ground of its inconsistency with a provision of this Constitution and the court does not have the competency to inquire into the validity of such a law or provision, the court shall subject to the other provisions of this section, decide the matter on the assumption that the law or provision is valid”.
3. No similar provision is to be found in the Constitution of the Republic of South Africa Act, 1996 (“the Constitution”).
4. Section 170 of the Constitution provides that:
“[m]agistrates’ 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 inquire into or rule on the constitutionality of any legislation or any conduct of the President”.
The Minister of Justice has been advised by his Department that this means that Magistrates’ Courts may inquire into or rule into constitutional matters other than those relating to “any legislation or any conduct of the President”. This viewpoint was supported in a legal opinion obtained by the Department from the State Law Advisers. A copy of this opinion is attached as annexure A. It will be evident that the principal conclusion of the State Law Advisers appears to be that while no jurisdiction in respect of constitutional matters has been expressly accorded to Magistrates’Courts by the Constitution, and while there can be no basis for contending that Magistrates’ Courts have what is termed implied jurisdiction in terms of the Magistrates’ Courts Act, 1944 in respect of the matters stipulated in paragraph 4.10 at p 8 of annexure A, Magistrates’ Courts
“in principle do have jurisdiction in constitutional matters as implied by sections 29 and 89 of the Magistrates’ Courts Act, 1944, but only to the extent that the finalisation of that case is dependent on the adjudication of a constitutional matter relevant to the case”
(Para 4.14 at p 12 of annexure A).
5. The State Law Advisers however state that they are “not able to assist the department with a numerus clausus of instances where the Magistrate’s Courts would have jurisdiction in constitutional matters”. The law advisers further agree with the Department that section 110 of the Magistrates’ Courts Act “does seem to be in conflict with the Constitution in respect of statutory regulations, and that it should be amended to reflect the position as set out in the Constitution”. Section 110 of the Magistrates’ Courts Act provides:
“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.
[S.110 substituted by s. 20 of Act 53 of 1970]
[N.B. S.110 has been substituted by s. 66 of the Magistrates’ Courts Amendment Act 120 of 1993, a provision which will be put into operation by proclamation. See PENDLEX]”.
6. As a result, on 22 May 1997, the Minister of Justice asked the Law Commission to include in its programme for investigation the need for remedial legislation in this regard. He concluded:
“I think that you will agree that an in-depth investigation will have to be conducted in order to make meaningful legislative proposals, which are not in conflict with the other provisions of the Constitution, providing for appropriate instances where Magistrates’ Courts should have jurisdiction in constitutional matters. I am of the opinion that such a comprehensive investigation which should inter alia include wide consultation with the Bench, legal [profession] and all other interested parties, as well as a comparative study of the legal position in other countries, has to be conducted by an experienced team [which] has the necessary knowledge of the provisions of the Constitution and all other Acts which could be [a]ffected”.
7. This discussion paper has accordingly been prepared to serve the purposes reflected in the first paragraph of the Preface.
8. Although the request set out in paragraph 6 had been directed to the Law Commission, the Department proceeded forthwith to prepare legislation for comment. This was in the form of the Magistrates’ Courts Second Amendment Bill [B 77-97] (a copy of which is attached as annexure B). Section 1 of this Bill proposed the substitution of section 110 of the Magistrates’ Courts Act, 1944 by the following:
“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”.
9. This was evidently thereafter referred to the Chief Justice (to whom in his separate capacity as chairperson of the Commission the initial request had been directed by the Minister to include this matter on the Commission’s programme) by the Director-General: Justice on 2 July 1997. A draft response was prepared by the relevant committee of members of the Supreme Court of Appeal, indicating with regret its conclusion that the proposed Bill was defective and unacceptable. The Commission has been much assisted by a copy of this response, which has been kindly furnished to it, and which states:
“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[en] drawn between the two concepts and each of them conforms to its own rules”.
A copy of the full draft response is attached as annexure C.
10. It will be noted both that the view expressed relating to constitutional jurisdiction in general is that in the light of section 170 of the Constitution, there can hardly be uncertainty relating to the question whether at present “constitutional jurisdiction” - in relation to any matters, it would seem - exists. Furthermore, the view is strongly advanced that the jurisdiction of the Magistrates’ Courts to pronounce upon the validity of statutory regulations, orders or by-laws (on the basis that these are ultra vires an empowering enactment) be retained. It is said that these are an important part of the jurisdiction of the Magistrates’ Courts, and the proposed abolition of this jurisdiction would be “a step in the wrong direction”. It has also pointed out that section 110 gives a review power to Magistrates’ Courts in respect of administrative action, and that there is nothing in section 170 of the Constitution to justify its removal.
11. Notwithstanding the referral of the matter to the Commission for investigation as described above, the matter was evidently thereafter considered by the Portfolio Committee on Justice (National Assembly). Its memorandum accompanying the Magistrates’ Courts Second Amendment Bill, 1997 states as follows:
“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 by-law’.
3. It is clear that section 110 of the Magistrates’ Courts Act, 1944, is inconsistent with section 170 of the Constitution insofar 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".
A copy of the Bill “as agreed to by the Portfolio Committee on Justice (National Assembly)”, B77A-97, is attached as annexure D.
12. In the Departmental letter to the Commission dated 8 December 1997 (annexure E), the following is stated:
“It should be mentioned that [the Bill] 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 by-laws.
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 magistrate’s courts do not have the power to decide on the validity of any law, which includes statutory regulations, orders or by-laws, but that all such cases must be heard by either the Constitutional Court or the High Courts. The said committee, however, emphasized that this will only be an interim measure until the investigation by the Department, referred to in the report, has been finalised”.
Parallel to the “investigation by the Department” it appears from this letter, is that conducted by the Commission (page 2, para 4 of annexure E).
13. It would seem that the main inquiries which arise, listed in an appropriate sequence, are these:
(a) Do Magistrates’ Courts at present have any jurisdiction of a constitutional nature under the Constitution, and if so, to what extent?
(b) Is it desirable that Magistrates’ Courts have jurisdiction in respect of constitutional matters, and if so, to what extent ?
(c) If it is considered that Magistrates’ Courts lack jurisdiction in respect of constitutional matters, how is the situation to be remedied ?
(d) Is it desirable that Magistrates’ Courts retain their current jurisdiction in terms of section 110 of the Magistrates’ Courts Act, 1944 in relation to what its heading describes as a “plea of ultra vires” ?
14. This has been a matter of considerable controversy. Disparate answers have been given by, inter alia, the following decisions:
(a) Quozeleni v Minister of Law and Order 1994 (3) SA 625 (E) at 635C-638C (in which Froneman, J decided that in all cases, other than those involving Acts of Parliament, Magistrates’ Courts were entitled to apply the provisions of the interim Constitution).
(b) Mendes v Kitching 1996 (1) SA 259 (E) at 267I-268G (in which Kroon, J held that a magistrate’s court is competent to pronounce upon the alleged unconstitutionality of rules of the common law and any other laws of a non-statutory nature);
(c) Municipality of the City of Port Elizabeth v Prut NO 1996 (4) SA 318 (E) at 326G-329G (in which a Full Bench of the Eastern Cape Provincial Division reversed Port Elizabeth Municipality v Prut NO 1996 (3) SA 533 (SE) at 535F-537A, overruled Qozeleni and Mendes and held that magistrates did not have the power to pronounce on the constitutional matters listed in section 98(2) of the interim Constitution, but that they were obliged to ensure that the fundamental rights entrenched in Chapter 3 thereof were observed in the proceedings conducted before them);
(d) Bate v Regional Magistrate, Randburg 1996 (7) BCLR 974 (W) at 984I-988D (in which two judges of the WLD declined to follow Qozeleni’s case); and
(e) S v Scholtz, unreported, CPD, 2 April 1996, case no. A956/95 at 3-5 (in which a Full Bench of the Cape Provincial Division held that in the course of exercising their jurisdiction and performing their functions under the Magistrates’ Courts Act, 1944, the rules promulgated thereunder and the Criminal Procedure Act, 1977, magistrates could give decisions or rulings or make orders which impinge upon and relate to the interpretation, protection and enforcement of the provisions of the Constitution, including those relating to the fundamental rights entrenched in Chapter 3 thereof).
15. Two matters are immediately to be observed from the wording of section 170 of the Constitution. The first is the reference to “an Act of Parliament”. The second is the provision that “a court of a status lower than a High Court may not inquire into or rule on the constitutionality of any legislation or any conduct of the President”.
16. The reference to “an Act of Parliament” in section 170 may be contrasted with the reference to “national legislation” in section 171. “National legislation” is defined in section 239 to include “subordinate legislation made in terms of an Act of Parliament”. Accordingly, the use of “an Act of Parliament” in section 170 suggests that where jurisdiction is to be conferred on Magistrates’ Courts, that can indeed only be done by an Act of Parliament. It is not permissible to “confer” constitutional jurisdiction on Magistrates’ Courts by means of a proclamation, or regulations, or some other species of subordinate legislation made in terms of an Act of Parliament.
17. As indicated above, section 170 imposes a limitation on any Act of Parliament conferring constitutional jurisdiction: a Magistrate’s Court, being a court of a status lower than a High Court, may not inquire into or rule on the constitutionality of any legislation or any conduct of the President. The limitation is very broad, particularly as regards magistrates’ powers to rule on the constitutionality of legislation.
18. For one thing it relates to “any legislation”. “Legislation” means a statutory provision of any kind, even a by-law which regulates the keeping of chickens. For another, it not only prohibits magistrates from “ruling on” the constitutionality thereof; it also rules out “inquiries” by magistrates into its constitutionality. In other words, the limitation in section 170 is not limited to direct challenges to legislation; it extends to collateral challenges too.
19. The result is that magistrates may not inquire into the constitutionality of any legislation in the course of dealing with matters otherwise within their civil or criminal jurisdiction. For instance, if a person is charged in a Magistrate’s Court with a contravention of a municipal by-law, the magistrate is precluded from entertaining a defence that the by-law is unconstitutional, whether because it impermissibly infringes a fundamental right in Chapter 2 or because in making it the municipality acted ultra vires the powers conferred upon it by section 156(2) of the new Constitution. That defence is quite beyond it.
20. Moreover, although section 110 of the Magistrates’ Court Act, 1944, confers jurisdiction upon Magistrates’ Courts to pronounce upon the validity of any statutory regulation, order or by-law, that jurisdiction does not include the power to enquire into or rule on the constitutionality of legislation of that sort. Where constitutionality (as opposed to other attacks on validity, such as vagueness) begins and ends will not always be an easy question.
21. Finally, unlike section 103 of the interim Constitution, section 170 of the new Constitution makes no provision for the referral of questions relating to the constitutionality of legislation to the relevant High Court for its decision.
22. In the result, section 170 obliges a litigant who challenges the constitutionality of a municipal by-law to incur the expense and to suffer the practical difficulties attendant upon appellate proceedings in what is often a geographically remote High Court. Raising a constitutional issue for the first time on appeal has obvious hazards: no evidence, or inadequate evidence may have been adduced, and the result may either be to stultify the adjudication of the constitutional issue, or to oblige the appellate court either to resort to referring the matter back for evidence to be led, or to hear it itself (which is invariably a matter of great difficulty for such a court).
23. It would appear, therefore, that unless section 170 of the new Constitution is amended to deal with the problems outlined above, any Act of Parliament adopted to confer constitutional jurisdiction on the Magistrates’ Courts would at present be limited in its scope to the following:
(a) rules of common law (including common law rules relating to the conduct of proceedings in Magistrates’ Courts);
(b) rules of customary law;
(c) rules of customary international law;
(d) administrative action (including executive action), other than -
(i) conduct of the President, and
(ii) legislative administrative action, ie. administrative rules of general application or effect (in contrast to administrative rules
or decisions which are specific in application or effect) which are designed to endure over a period of time.
24. As regards (d)(ii) - “legislative administrative action” - it is to be noted that, as Milne JA pointed out in South African Roads Board v Johannesburg City Council 1991 (4) SA 1 (A) at 12A-D, a case concerning a decision to declare a toll-road:
“The categorization of statutory powers into those which are executive or administrative, on the one hand, and those on the other hand, which when exercised give rise to delegated legislation is not always an easy one. As explained by Gardiner, J in R v Koenig 1917 CPD 225 at 241-2, laws are general commands which place general obligations on persons; whereas a special command enjoining only particular action constitutes an administrative act (see also Byers v Chinn and Another 1928 AD 322 at 329; Mabaso v West Rand Administration Board and Another 1982 (3) SA 977 (W) at 987A-B). These broad criteria, however, do not, as Gardiner J conceded (at 242), afford any precise test by which in every instance the distinction between laws, or legislative acts, and non-legislative, administrative acts can be determined. And as Baxter (op cit at 350) observes:
‘The distinction between legislative and non-legislative administrative acts is often difficult or impossible to draw satisfactorily’.
(See also Wade op cit at 858-9; De Smith Judicial Review of Administrative Action 4th ed at 71-6)”.
25. Accordingly, in the South African Roads Board case, the Appellate Division abandoned the categorisation of statutory powers of action or decision into executive (or administrative), on the one hand, and legislative, on the other, for the purposes of determining the applicability of the rules of natural justice. In that case the Appellate Division adopted a new broader distinction between: (a) statutory powers “which, when exercised, affect equally members of a community at large”; and (b) statutory powers which, “while possibly also having a general impact, are calculated to cause particular prejudice to an individual or a group of individuals” (the word “calculated” in this context meaning no more than “likely in the ordinary course of things”).
26. It is respectfully suggested that these categories are, in themselves, equivocal. In particular, given the range of individuals’ life-styles, preferences and circumstances, it is difficult to imagine an exercise of governmental power which affects “equally all members of a community at large”. For example, the adverse impact of a universal direct tax (such as VAT) on people with a high propensity to spend relative to their level of income (the poor) will be greater than that on people with a high propensity to save (upper and upper-middle income earners).
27. In the result, the exclusion of magistrates from all inquiries into the constitutionality of all legislation presents difficult problems of definition. It is suggested that these problems further bolster the need to amend section 170 of the new Constitution, possibly to exclude only specific types of legislation from magistrates’ jurisdiction.
28. The proposed amendments to section 170 and 172 of the Constitution, and to section 110 of the Act and the Rules (set out in annexure F) are intended to achieve that result. The proposed amendment, it may be noted, would permit Magistrates’ Courts to deal with the constitutionality of pre-27 April 1994 provincial legislation for two reasons: that that legislation was adopted under the pre-democratic dispensation, and that such an approach would avoid the uncertain ambit of provincial legislation prior to 27 April 1994 (see especially in this regard the analysis in Jones and Buckle Civil Practice of the Magistrates’ Court (9th ed 1996) vol 1 pp 402-408 enclosed as annexure “G”). It will also be noted that the proposed amendment to section 110(2)(a) would not grant the Magistrates’ Court the power of either judicial review or mandamus. It is submitted that these remedies are by their nature appropriate to the High Court, and that from an overall viewpoint there would be a pronounced constitutional imbalance in granting a (single) judicial officer sitting in a court at the bottom of the judicial hierarchy of these powers.
29. It must be considered whether any real purpose is served by an approach which, in relation to Magistrates’ Courts,
(i) excludes all constitutional jurisdiction, but retains the so-called ultra vires jurisdiction which has applied since 1955; or
(ii) excludes both.
30. It is suggested that neither approach is desirable, and that the better approach would be to retain the ultra vires jurisdiction currently to be found in section 110 of the Magistrates’ Courts Act, but to add to it a concomitant constitutional jurisdiction, i.e., to pronounce upon the constitutionality of statutory regulations, orders or by-laws, in addition to those matters of what might be termed general or common law constitutional jurisdiction listed in paragraph 23 above.
31. Two important safeguards should operate: that it would (as section 170 of the Constitution currently provides) require an Act of Parliament to vest that jurisdiction in Magistrates’ Courts, and that any declaration of invalidity on constitutional grounds would not operate until confirmed by the Constitutional Court (requiring an adaptation to section 172 of the Constitution) or at least by a Full Bench of the apposite High Court.
32. Depending on the approach determined in relation to the desirability of constitutional jurisdiction, section 170 and 172 of the Constitution and section 110 of the Act and the Rules would require appropriate amendment to accommodate the aforegoing proposals. (The preliminary proposed amendments contained in discussion paper 75 are set out in Annexure F and the Commission’s final recommendations are contained in Annexure G.)
33. It is suggested that no useful purpose would be served by depriving the Magistrates’ Courts of the so-called ultra vires jurisdiction, exercised for nearly 50 years. Symmetry in jurisdiction would, it is suggested, be better achieved the other way: conferring a matching constitutional jurisdiction in relation to the same restricted categories of legislation. That approach would also obviate difficulties in determining in certain instances whether the contended invalidity is truly constitutional or ultra vires in character.
34. It was suggested that magistrates’ courts should be given a constitutional jurisdiction appropriate to their position in the court structure in South Africa. They represent the primary means of access to justice for most South Africans. An exclusion of all constitutional jurisdiction would be inappropriate, more particularly in view of the interactive growth between the common law and our developing constitutional law contemplated by section 8(3) of the Constitution.
35. If this approach is supported, the extent of an appropriate constitutional jurisdiction arises. It is proposed that this encompass not only the general or “common law” aspects listed in paragraph 23 above, but the legislative areas long encompassed by section 110 of the Magistrates’ Court Act.
36. It was proposed that the existing ultra vires jurisdiction of section 110 of the Magistrates’ Courts Act be retained.
37. It was proposed that sections 170 and 172 of the Constitution and section 110 of the Magistrates' Court Act be amended in terms of the draft amendments set out in annexure F.
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