Keynote address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at a Gala Dinner to recognise the voluntary services of Small Claims Court Commissioners, Somerset West
Programme Director,
Representatives of the Law Society,
Representatives of the SDC,
All Commissioners present,
Members of the legal profession,
Distinguished guests,
Colleagues from the Department of Justice and Constitutional Development,
Ladies and gentlemen.
When the Small Claims Act, Act 61 of 1984, commenced on 24 August 1985, the value of the monetary jurisdiction was R1000. The first 7 courts were established in Durban, Bloemfontein, Pietermaritzburg, Pretoria, Port Elizabeth, Rustenburg and Springs.
In 1994 there were only 120 Small Claims Courts in South Africa, mostly in white and urban areas.
Much has changed since then and much has been accomplished. Along with the dawn of our constitutional democracy came many initiatives and interventions to make justice more accessible. We have rolled out Small Claims Courts and strengthened the capacity and funding of Legal Aid SA. We have transformed our judiciary, passed many ground-breaking new laws and undertook education and awareness programs to inform people of their human rights.
We have, from the side of government, built new courts, renovated old ones, and brought the courts closer to the people. Improving access to justice for all and enhancing the rule of law have been critical priorities for Government and consequently, in the last two decades, specific initiatives were undertaken to extend access to justice – especially to the more rural areas.
We currently have 316 established Small Claims Courts across South Africa. We are therefore fast approaching our goal of having a functioning Small Claims Court in each of South Africa's 393 magisterial districts.
Where, in the past, courts were mostly in urban, or predominantly white areas, this is no longer the case, with the vast majority of the new courts and places of sitting are in rural areas and former black areas.
The rationalisation of magisterial districts so as to align them with municipal boundaries, which begins in the Northwest and Gauteng Provinces on 1 December, is a consolidation of this. The Small Claims Courts’ jurisdictional boundaries of these two provinces will be aligned with that of the new magisterial boundaries that the Minister of Justice gazetted last week.
This morning we launched the Small Claims Court in Khayelitsha. Small Claims Courts are our “frontline courts”, courts that are at the very coalface of our people’s need for an accessible and user-friendly justice system.
The Western Cape has 44 magisterial districts and there are currently 35 established Small Claims Courts in the Western Cape, which means that only 9 more are required in order to ensure that every magisterial district in the province has its own Small Claims Court. This means that the Western Cape has 79% coverage when it comes to Small Claims Courts. New small claims courts are already in the pipeline for Montagu, Piketberg, Simonstown, Swellendam, Heidelberg, Laingsburg and Uniondale.
With regards to the other provinces, I am pleased to say that Mpumalanga and Gauteng now have 100% coverage. In other words, there is an established Small Claims Court in each and every one of those two provinces’ magisterial districts. Limpopo only needs 1 more small claims court to be established.
The Free State has 80% coverage, with 11 courts still to be established. Kwazulu-Natal has 81% coverage, with 11 courts still to be established. North West has 75% coverage, with 7 courts still to be established. The Eastern Cape has 65% coverage, with 27 courts still to be established. Finally, the Northern Cape has 60% coverage, with 12 courts still to be established.
Our Department has set a target for itself of establishing 25 new small claims courts this financial year and we are very close to achieving this target, with 23 courts having been established. Of these 8 are here in the Western Cape, being Mitchells Plain, Clanwilliam, Calitzdorp, Goodwood, Kuils River, Wellington, Murraysburg and Hopefield.
I am pleased to say that with the assistance of our regional offices and provincial role-players we are busy finalizing a plan of action for the establishment of each of the remaining Small Claims Courts.
An accessible justice system must be inexpensive, easy to understand and deliver results speedily. This is exactly what our Small Claims Courts do. They are are a speedy, simple and cost-effective way to resolve disputes.
And the issues of legal costs and the costs of litigation, in particular, have been under the spotlight of late. The term “chequebook justice” has featured more than once in the media recently.
Some of you may recently have seen the article in the Cape Times by Bryan Rostron entitled “Money can indeed buy justice, the poor can’t afford expensive lawyers.” And the articles and reports were not only limited to our local media, but also the NY Times, amongst others, ran a piece about the Oscar Pistorius trial and said - “If you have got money, you are going to get a different kind of trial.”
Ladies and gentlemen,
And if we have to be brutally honest, much of what they are saying is true. One could very well believe that there are two justice systems at play in our country: one for the rich and another for the poor.
But herein lies the most positive aspects of small claims courts – it levels the playing the field. If there is one court where the parties are truly equal before the law, it is the small claims court. It doesn’t matter if one party to a dispute is unable to afford a lawyer, because the parties represent themselves. The service is rendered free of charge and all one needs to pay are the sheriffs’ fees. And if a person doesn’t know how to go about the process, the clerk of the court is there to assist.
The issue of legal costs brings me to the provisions of our new Legal Practice Act.
While the very poor and indigent will fall within the means test of Legal Aid SA and therefore qualify for legal aid, the working and middle classes are effectively falling through the cracks when it comes to legal representation. At the very heart of the Legal Practice Act lies the desire to ensure that all our people have access to affordable legal services of a high standard.
And then there is the issue of community service. And this is the second advantage of our Small Claims Courts, namely that it provides a platform which allows members of the legal profession to give back to the community.
The Legal Practice Act provides that the Minister of Justice must, after consultation with the Council, prescribe the requirements for community service which could include community service as a component of practical vocational training by candidate legal practitioners; or a minimum period of recurring community service by practising legal practitioners upon which continued enrolment as a legal practitioner is dependent. One of the forms of community service is to act as a Commissioner in a Small Claims Court.
The Commissioners really are the backbone of these courts. Without Commissioners and Advisory Board members, there cannot be a Small Claims Court. The Small Claims Courts usually sit after hours and these Commissioners assist on a voluntary basis, without any compensation.
Their only compensation is the richly rewarding knowledge that they have served society and the cause of justice. These are men and women who are imbued with a passion to serve justice and who are prepared to go the extra mile. They are an example, not only to others in the legal profession, but to society at large.
Nationwide there are 1 770 Commissioners.
This evening we will have the opportunity to recognise and present the long term service certificates and awards. The awards are made in the following categories: 10 to 15 years of service: Blue; 16 to 25 years: Silver and more than 25 years: Gold. And I would like to extend a word of appreciation to all our Commissioners and a special mention of the following: Mr JJ van Blerk, Mr S Levetan, Mr EK Conradie, Mr GA Raubenheimer, Mr JH Katz and Mr A du Toit who have 28 years of service in our Small Claims Courts, also Mr AJ van Zyl, Mr AT Maree, Prof DW Butler and Prof MM Loubser, who all have 27 years of service.
These certificates are our token of deep appreciation for all Commissioners’ sterling work, which is a priceless service to humanity. May I say that your pro bono services give us the hope that amongst us the spirit of service to humanity lives on, emulating the many compatriots who tirelessly fought to ensure our freedom and democracy. Your work is confirmation that we will leave no stone unturned to achieve justice for all.
You can be assured that our Department will continue to provide you with our support to ensure that the working environment in our Small Claims Courts is safe and conducive for all Commissioners, personnel and officials, so as to enable you to carry out you duties effectively and for the public to genuinely experience access to justice in every Small Claims Court they enter.
Ladies and gentlemen,
As I mentioned right at the beginning, much has changed and much has been accomplished. Journalist Marianne Thamm wrote an insightful article on South African courts, called “25 years later.” And I would like to conclude by reading 4 paragraphs from the article:
“There is a large heraldic carving of a lion and a unicorn, the Royal Coat of Arms of Great Britain and Northern Ireland, perched atop of the wood paneling behind Western Cape Deputy Judge President Jeanette Traverso’s bench where she sits with her assessors… No one in court has really taken notice of the lion and the unicorn or how it harks back to South Africa’s past as a member of the British Commonwealth. The lion, which is always placed to the left, symbolises England while the unicorn on the right represents Scotland.
But none of that matters now. The courtroom in the 21st Century in a democratic South Africa is completely transformed. The last time I was required to report from these spaces was in the 1980s in Apartheid South Africa where the law was a blunt instrument wielded entirely by white men in a courtroom populated by white male policemen doing the bidding of white male politicians. It was a hostile space for the media where court orderlies routinely denied journalists access to charge sheets or other relevant documents. It was a space where those who were accused were overwhelmingly black and charged for violating the hundreds of apartheid laws that attempted to regulate and regiment ordinary life.
The bricks, mortar and wood of what is now been renamed the Cape High Court have stood as mute testimony to this shameful and brutal past and it is, for this reporter at least, a particular thrill to find myself in the same building all these years later and to find its heart and soul and its physical contours utterly changed and transformed.
While justice may still be elusive for those who are poor and who cannot afford expensive legal teams, the fact is that justice is, at least theoretically, a notion that is possible. The law is as imperfect as society itself but South Africa and our legal system – with all its challenges and flaws – can stand proud in the international spotlight.”
Ladies and gentlemen,
We have indeed come a long way. Rationalisation of the courts and re-demarcation of the magisterial districts are underway, thus aligning the courts and their service delivery areas to where the people actually need them - in areas such as Khayelitsha.
The Office of the Chief Justice has been created and the independence of the judiciary has been strengthened. Our judiciary are being been transformed, and race and gender diversity has been receiving much attention. In fact our courts are now legitimate and much more accessible than they have ever been.
We have moved from what late Professor Etienne Mureinik called a culture of authority to a culture of justification. Our Constitution is now the supreme law and the manner of interpreting the law has changed substantially. Our courts are no longer bound to blindly apply the letter of the law in a formalistic manner, but judges are obliged to consider the purpose of laws and to uphold the spirit, purport and values entrenched in the Bill of Rights.
Much has changed and much has been accomplished.
A sincere thank you to all of you here this evening, who have assisted in making this possible. We salute you.
Thank you!
