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SUMMARY OF RECOMMENDATIONS

1. Earlier this year the Commission published Discussion Paper 75 in which it proposed certain amendments to sections 170 and 172 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”), section 110 of the Magistrates’ Courts Act, 1944 (“the Act”) and the Magistrates’ Courts Rules (“the Rules”).

1. The two main aims of the amendments were to confer constitutional jurisdiction on magistrate’s courts and to ensure symmetry between their constitutional jurisdiction and their ultra vires jurisdiction.

1. A number of responses to the Commission’s proposals were received. Generally speaking most respondents supported the aims of the amendments. However, opposing views were expressed on two aspects of the Commission’s proposals, namely:

3.1 that magistrates be precluded from ruling on the validity of Acts of Parliament, legislation passed by the provincial legislatures after 27 April 1994 and any conduct of the President; and

3.2 that confirmation by a Full Bench of a High Court be required before any order of constitutional invalidity made by a magistrate has any force.

1. Some respondents felt that magistrates should not be precluded from ruling on the validity of Acts of Parliament, legislation passed by the provincial legislatures after 27 April 1994 and any conduct of the President. They pointed out that if, as the Commission proposed, confirmation by a Full Bench of a High Court is to be required before any order of constitutional invalidity made by a magistrate has any force, the danger of conflicting or perverse magistrates’ court decisions was limited.

1. Others felt that acceptance of the Commission’s proposal that confirmation by a Full Bench of a High Court would lead to unnecessary inconvenience, costs and delays. They stressed that the decisions of magistrates’ courts set no precedents and in no way trigger the operation of the doctrine of stare decisis (see S v Guild Painters and Decorators (Pty) Ltd 1990 (1) SA 760 (C)). Some respondents in this category also pointed out that if the Commission’s other proposals were accepted, magistrates would be precluded from ruling on the validity of important legislation and executive and administrative action. Other respondents in this category, however, felt that in view of the inapplicability of stare decisis in the lower courts, the restrictions on magistrates’ courts jurisdiction should be abandoned as well.

1. As regards the suggestion that magistrates be permitted to rule on the validity of Acts of Parliament, legislation passed by the provincial legislatures after 27 April 1994 and any conduct of the President, it is to be noted that the Constitution affords a measure of procedural protection to Acts of Parliament and conduct of the President. Thus section 172 provides that High Courts may rule on their constitutional validity, but all rulings of invalidity must be confirmed by the Constitutional Court. In the Commission’s view the jurisdictional and procedural scheme established by the Constitution points to magistrates’ courts being precluded from ruling on the constitutionality of Acts of Parliament and conduct of the President. The Commission also considers it appropriate that magistrates be precluded from ruling on the constitutional validity of legislation passed after 27 April 1997 by the provincial legislatures, which are representative legislatures with significant constitutional status and a range of exclusive legislative powers. For these reasons, the Commission remains convinced that magistrates should be precluded from ruling on the validity of Acts of Parliament, legislation passed by the provincial legislatures after 27 April 1994 and any conduct of the President.

1. The Commission accepts the argument that in view of the inapplicability of stare decisis in the lower courts the compulsory referral to a Full Bench of a High Court of all rulings of constitutional invalidity by magistrates will result in unnecessary inconvenience, costs and delays. It accordingly proposes that the suggested compulsory referral mechanism be replaced with a requirement that magistrates’ courts making orders of constitutional invalidity forthwith notify the relevant organs of state thereof. The organs of state would then be in a position to seek a declarator from the High Court in appropriate cases - e.g. where there is no appeal, the organs of state have a sufficient interest in the matter and the other requirement for declaratory relief are met. It is considered desirable that the High Courts develop a set of rules and requirements for the granting of declaratory relief in such circumstances.

1. The Commission accordingly proposes that the amendments to sections 170 of the Constitution and 110 of the Magistrates’ Courts Act proposed in Working Paper 75 remain unchanged, that the proposed amendment to section 172 of the Constitution be abandoned and that the proposed new Magistrates’ Courts Rule be re-worded to require only that magistrates’ courts making orders of constitutional invalidity forthwith notify the relevant organs of state thereof.

1. The provisions now proposed by the Commission read as follows:

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 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.

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

(a) any administrative action, including any executive action and any statutory proclamation, regulation, order, bye-law or other legislation; and

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

1. Proposed amendment of the Magistrates’ Court Rules

By the insertion of the following new rule

“Reporting of orders of constitutional invalidity

If a magistrate’s court makes an order of constitutional invalidity in any proceedings in which the relevant organ of state is not a party, the clerk of the court shall, within 15 days of such order, notify the relevant organ of state of the proceedings and the order by service on it of the pleading or document in which such invalidity is asserted and the order of invalidity.”