IN the last month, there have been blistering attacks on the Superior Court Bill of 2010 that Minister Jeff Radebe put in the public domain for comments.
IN the last month, there have been blistering attacks on the Superior Court Bill of 2010 that Minister Jeff Radebe put in the public domain for comments.
I believe that the attacks have been based on a misreading of the Bill. To get beyond this, we need to understand what the Bill is designed to address and how it proposes to do so.
Before 2009 there were three judicial divisions in the Eastern Cape, the Ciskei, Transkei, and ‘Eastern Cape’ divisions (the old ‘white’ South Africa), with seats in Bhisho, Mthatha, and Grahamstown, respectively. In 2008, the Renaming of High Courts Act 30 was passed by Parliament.
It renamed these divisions as Eastern Cape High Court, Bhisho, Grahamstown, and Mthatha, and upgraded the local seat in Port Elizabeth.
The Act came into force in February 2009. If the 2008 Act undid the legacy of apartheid in terms of nomenclature and it left us with four ‘provincial divisions.’
The 2008 Act was understood as a half-way house to overhauling the apartheid judicial architecture. Item 16(6) of Schedule 6 of the Constitution was clear on the end-product: “As soon as is practical after the new Constitution took effect all courts, including their structure, composition, functioning and jurisdiction, and all relevant legislation, must be rationalised with a view to establishing a judicial system suited to the requirements of the new Constitution.”
Act 30 of 2008 also stated that the “policy framework” of the overhaul was “still being fi nalised in conjunction with all relevant role-players.”
The Superior Court Bill of 2010 is the outcome of that process. The Superior Court Bill 2010 provides for one “general division” of the High Court of South Africa in the Eastern Cape, with its seat in the provincial capital (see S7[1][a]of the Bill on p.14).
This is similar to other provinces of the republic. Only Gauteng has two general divisions (northern and southern divisions), on account of the size of its bar and bench. Unlike most other divisions, the Eastern Cape has three additional high courts (local seats).
Contrary to the disinformation campaign, the Bill does not call for “the closure of the High Court” in Grahamstown or the relocation of the Grahamstown High Court.
It is the seat of the new ECGD that will in Bhisho (see S7[1][a]of the Bill on p.14); which affects, in the main, the Judge President, the Registrar, the Master of the High Court.
The Bill provides for:
• Local seats of the ECGD in Grahamstown, Mthatha, and Port Elizabeth (see S60[1][b]to [d)]of the Bill on p.43). A High Court will continue to exist in Grahamstown.
• One or more deputy judge president of a general division (see S169[2][b]of the proposed amendment to the Constitution on p.3).
• One or more assistant registrars, and
• Pending the establishment of the seat of the ECGD in Bhisho, Grahamstown will function in that role (see S60[2][b]).
Up till now the Judge President of the old Eastern Cape division, based in Grahamstown, has served as the Acting President of the other divisions.
Rather than the conduct of an irresponsible government and minister, the transitional provisions are designed to minimise any disruption to the administration of justice.
In any case, only appeals to the full bench, from a decision of a high court, need to be heard at the seat of the general division.
Appeals to decisions of magistrate courts can be heard in any high court. Arguments of job loss and negative economic impact on Grahamstown derive from false assumptions: that the High Court in Grahamstown will be closed and all the jobs linked to the legal profession will disappear.
They won’t. Neither will the magistrate and other lower courts or the jobs linked to them. No specifi c economic impact has been demonstrated beyond thumb-sucking, no simulation or econometric model.
What is actually argued is based on a misreading of the Bill. The cost of refurbishing a forensic laboratory at the Fort England hospital or the High Court in Grahamstown,both funded from the fi scus, is hardly a valid argument.
The laboratory will serve the whole division and all other levels of the justice system. Similarly, the refurbished high courts will still be used.
The excellent court library will still be important for the works of the high court judges and magistrates. The Bill is not about asset-stripping.
Nothing in the Bill affects the many advantages of Grahamstown: the National Arts Festival, SciFest Africa, the elite schools, Rhodes University, a military base, a top psychiatry hospital, and so on.
These are big money spinners for the local business community. What the current campaign against the Bill is demanding is that a postapartheid government and minister should help preserve the privileges of 358 years of Settler- colonialism, and deepen the disadvantage of its victims.
If the attacks against the Bill succeed, the people in the old Ciskei and Transkei will be worse off than they were in 2008.
Someone in Lusikisiki, who needs to execute deeds of the estate of a deceased relative or process the liquidation of an insolvent estate, will have to travel to Grahamstown.
Previously, she could have done these in Mthatha. These are God’s children too. That it has taken 16 years to get to this point is the surprising part.
What people concerned with access to justice and transformation should be asking for are, that:
• The new ECGD should have at least two deputy judge presidents, based in Grahamstown and Mthatha, with similar arrangements for the Assistant Registrars of the High Court; and
• The functions of the Master of the High Court should be decentralised, with assistants in the local seats of the division.That way we can deliver on transformation without raising the cost of access to justice.
Jimi Adesina is Professor of Sociology at Rhodes University.
