Cornell Law School Logo - white on transparent background

Cornell International Law Journal Online

The Problems of Legitimacy of the South African Magistrate Court System as a Quasi-Judicial Entity: a Historical, Statutory, and Case-Based Analysis, Vol. 56.3

Zoé-Pascale de Saxe Roux and Claire Kamau

1 Mar 2024

INTRODUCTION:

This article aims to complete an in-depth analysis of an often-overlooked part of the South African judicial system, the Magistrate Court system. The article will highlight the historical evolution of the Magistrates’ Courts, and the negative public perception of the Magistrates’ Courts, especially worsened by the Magistrates’ Courts’ role in perpetuating the harms of apartheid. In the post-apartheid period, the statutory construction of the Magistrates’ Courts has resulted in a restricted set of judicial obligations and powers, which renders the Magistrates’ Courts quasi-judicial in nature. Furthermore, case-analysis of maintenance cases will show that since apartheid, the South African judiciary has attempted to reinforce the legitimacy of the Magistrates’ Courts, with limited success. This historical, statutory, and case-based analysis aims to emphasize the importance of the Magistrates’ Courts and to highlight how there needs to be a reconceptualization of the quasi-judicial role of magistrates within contemporary South Africa.

  1. WHY DOES THE MAGISTRATE’S COURT MATTER?

The judiciary of South Africa often engages in complex and influential cases. The Constitutional Court of South Africa, in particular, has set precedents for the entire continent and many international human rights tribunals.

Comparatively, the Magistrates’ Courts, are self-defined on the Ministry of Justice website as “lower courts which deal with the less serious criminal and civil cases.” This is especially considered true for civil Magistrate’s Court cases, which involve the day-to-day legal complaints of citizens, from divorce and maintenance (spousal and child support), to local property disputes.

However, reflecting on the Magistrate Court system is essential to be able to understand the effectiveness of the South African judiciary system as a whole. The Magistrates’ Courts deal with 95% of the cases that come into the court system. Magistrates are also the first line of legal officers who engage with the most vulnerable members of the population. For example, maintenance claims usually involve single mothers or fathers and minor children, advocating for enough money from their spouse or partner to survive day-to-day. Many of these maintenance claims are advocated by the individual, without any lawyers advising them on their claims. Magistrates’ Courts are essential to the everyday functioning of the South African legal system.

However, magistrates remain under executive branch oversight and lack judicial independence. This has led to clear generational perceptions, noted throughout this article, that magistrates are civil servants, not judges, and cannot be seen to be granted legitimacy as members of the judicial branch. Although that characterization might have been accurate in the colonial period, Magistrates’ Courts no longer engage simply as civil servants, but as judicial officers. The simplest proof of this is that individuals going in front of the magistrates surely view them as judges. Therefore, Magistrates’ Courts, as the frontline of legal practice in South Africa, must be seen as both independent and legitimate judicial actors.

II. HISTORICAL BACKGROUND OF THE MAGISTRATE COURT SYSTEM

  1. Origins of the Magistracy in England

The Magistrate Court system emerged in England during the medieval period. As early as 1200, King John began appointing knights in each county to serve as peacekeepers when interval courts were not in session. The knights exclusively served an executive function. Around 1327, King Edward III expanded their roles to be partly judicial. He authorized newly renamed justices of the peace to arrest suspects and commit them to jail, and to bear administrative responsibilities such as providing for the poor and orphaned, and maintaining roads and bridges. He additionally formed commissions of the peace—panels composed of knights and men of higher gentry and reputation who were considered learned in the law. The commissions checked the powers of the justices.

Justices of the peace ruled the counties and were often members of England’s elite. Over time, clergymen, and then during the industrial period, middle-class capitalists, filled the bench as the elite no longer sought the justice role. Some counties, however, often the rural ones, found it necessary to appoint men of lower gentry to the bench to ensure their courts could remain open.

Although they were sometimes politically criticized, justices of the peace operated efficient and economical governments. The justices created a court of petty sessions to exercise their more important judicial powers and special sessions to carry out administrative and pretrial police work, although sessions varied greatly between counties, and courts became badly serviced over time. Resiliently, by 1851, petty sessions and special sessions were regularized.

  1. Magistrate system in England today

The contemporary English Magistrate Court system has the status of the lowest level courts in both civil and criminal cases, and, as a result, hears a substantial number of cases. They are composed of unpaid laymen or paid professional magistrates, with the courts geographically distributed. Magistrates are appointed by the Lord Chancellor and can include practicing attorneys. They serve one day every two weeks and are considered to be volunteer public servants, even though they hold huge amounts of judicial authority. Magistrates primarily judge adult criminal matters. However, they also encompass areas such as juvenile criminal matters, and licensing of businesses, as well as family law disputes. Due to the geographic limitations, magistrates are not required to recuse themselves if they know of the parties unless they have a specific bias. Appeals to a higher court are rare, due to the limited severity of the crimes, resulting in extremely restricted sentencing guidelines.

  1. South African Magistrates’ Courts as a hybrid legal system

Magistrate courts in South Africa originated in the 17th century, set up by migrant farmers of Dutch descent who emigrated along the Orange River, to cover defined geographic districts. Due to the rural nature of the farming communities, the magistrates were a physical reminder of the government. Localized Dutch Boer landdrosten courts (landdrost being the title of magistrate), assisted by heemraden courts (courts of local laymen appointed to assist the landdrost, usually the most prominent men of the community) were granted both judicial and administrative capabilities. Magistrates’ roles were extremely broad during this period, managing everything from legal sentencing, notarial witnessing and even managing the finances of their district. Their role was not only legal, it involved keeping the community functioning, including managing public works, allowing permits for all economic activity, and even the sale of liquor licenses.

Modern-day South Africa has a split bar system that merged Dutch-Roman law with British law as the British colonized South Africa, with English law taking priority. For example, civil procedure followed British law, but the Roman-Dutch practice of civil procedure to prevent the flight of arrested individuals was added to the codes of South African civil procedure. Contemporary South African law has merged both forms of law to create a hybrid system.

III. THE MAGISTRATES’ COURTS’ LACK OF LEGITIMACY AND SELF-HATING PERCEPTION

  1. British colonial period

The legal profession in South Africa was generally dissatisfied with itself during the British colonial period. Firstly, wide disparities in education and social status between different members of the Bar were prevalent. Secondly, the new British Supreme Court desired to police the profession and establish itself as being ethically superior. Lastly, there was steep competition for clients among attorneys, yet a negative perception of retainer agreements made developing client relationships extremely difficult.

Magistrates were also subject to criticism, as judges resented being associated with the magistrates due to the magistrates’ lack of professional training. Many judges took issue when the magistrates’ jurisdiction was expanded in 1917 because they considered the magistrates unfit to carry out their duties.

The magistrates did not think highly of their own work themselves. In the criminal division, they found presiding over court monotonous and punishing. As one magistrate put it, “day after day” it was the magistrates’ duty to meet with “the lowest type of humanity.” Given that cynical view, it was no wonder that prosecutors preferred to bring their charges before Magistrates’ Courts. Magistrates were notorious for dealing out harsh sentences, particularly to Black Africans.

In 1914, a group of attorneys in Johannesburg turned their frustrations with the magistracy into a complaint to the Chief Magistrate. In the complaint, they alleged that 1) there was no separation between magistrates and prosecutors in power, 2) some magistrates were indebted to lawyers who argued before their benches, creating conflicts, and 3) there was an absence of proper recordkeeping in court proceedings. In response, the Chief Magistrate blamed the lack of civil service training for magistrates.A lack of proper training was a widely recognized problem highlighted by others outside the magistracy, including the country’s Chief Justice. In continuation, however, the Chief Magistrate concluded that “inferior courts are not expected to turn out the same class of justice as Superior Courts . . . Inferior Courts are, necessarily, a compromise between justice and economy.” This position seemingly acknowledged the existence of misconduct amongst the magistrates and approved of it on the basis that quality was not a characteristic expected of the lower courts. It appeared that the magistracy had internalized the profession’s disparaging attitude.

  1. The magistracy’s self-hating perception in contemporary South Africa

One of the primary factors undermining the legitimacy of the Magistrate Court system is the perception that they lack judicial independence, because magistrates, since 1944, have been selected by the executive branch, the Minister of Justice. Today, that reputation has resulted in a conception that magistrates lack competence compared to the judges. Due to the magistrates’ connection to the executive branch, the magistracy is often viewed as being subject to the whims of the political process. This perception was best highlighted in the 2002 Van Rooyen v. The State case from South Africa’s Constitutional Court. Van Rooyen and his co-plaintiffs argued that the lack of sufficient judicial independence by the Magistrate’s Court meant that any judgments made against them during the course of criminal proceedings were invalid. The Constitutional Court stated that independence could be understood by whether a reasoned outside observer found the magistrate to be acting independently, without outside pressure. The Constitutional Court found that the appointment process of magistrates did not restrict their judicial independence.[1]

IV. THE MAGISTRACY AND THE SPECTER OF APARTHEID WORSENS ITS LEGITIMACY

  1. The role of the magistracy during the apartheid period

Magistrates during the apartheid period were not conceptualized as independent judicial officers, they were considered civil servants within the executive branch, as codified in Section 9 of the Magistrates’ Courts Act 32 of 1917 and the Public Service Act 54 of 1957.

During apartheid, the Magistrates’ Courts were central to the enforcement of the apartheid system. Their positioning as public servants meant they managed many administrative aspects of the political process, like the census and local elections, all while also overseeing trials for political prisoners. Magistrates were often hired from the ranks of the state prosecutors during apartheid. The assumption of a magistracy post required the passing of the Public Service Law exam and encompassed both judicial and administrative work. Magistrates engaged in the recording of confessions and oversaw inquests into custodial deaths. These responsibilities often clashed with the question of the independence of the magistrates. Magistrates detailed that the apartheid regime continually politically interfered with their judicial functioning, including by not allowing them to criticize police action in open court; any attempt to do so would result in sanctions for misconduct. Chief magistrates often acted as the voice of the apartheid regime, criticizing magistrates who acted against the political goals of apartheid. If the executive branch thought the magistrates were acting against apartheid, magistrates were often immediately transferred. The Inspection Services division was perceived as the “Gestapo of the Department.” Many magistrates attempted to limit the actions of the apartheid regime by engaging in a formal, in-depth review of any police application for detention without trial, by relying on the statutory language “you have to satisfy the magistrate.” White South African magistrates were often pressured to join the Broederbond, a membership that aimed to represent the white elite of the Afrikaner society and promote apartheid. It was frequently hinted that Broederbond membership would lead to a more prestigious magistracy position. As the militarization of the apartheid system developed during the 1980s, additional pressure was added to the magistracy. A famous incident occurred in Durban in 1985 when magistrates and prosecutors arrived at a meeting and security police forced them to watch clips and images of political unrest in order to influence the magistrates to support apartheid. The judiciary ultimately found that the magistrates that had been present could not oversee cases dealing with political unrest, in order to remain impartial. During this period, the security police also attempted to recruit magistrates as informers.

Interestingly, during the apartheid period, there were already concerns about the perceived independence of the magistracy. The Hoexter Commission found additional safeguards were necessary to protect the independence of the magistracy, although no changes were made during the apartheid period.

  1. The failure of the magistracy to take accountability for their role in the apartheid regime

In the immediate post-apartheid period, the Truth and Reconciliation Commission (“TRC”) engaged, through the TRC Committee on Human Rights Violations, in attempting to understand the role of legal professionals in the apartheid human rights violations. Largely, the judiciary failed to engage with the TRC, arguing it would harm their independence, set a precedent of executive oversight of judicial activity, and create tensions between judges appointed during the apartheid and post-apartheid periods. Magistrates did not participate in the TRC process in any substantive fashion and were viewed as political actors as a result. The Magistrates Commission contended they did not understand the scope of the allegations made by the TRC, including who was accused, and whether they were going to be held responsible for the actions of other parts of the legal system. According to the Commission, magistrates did not have the capacity to question apartheid-era policies and were only interested in preventing a “recurrence of governmental abuse of power”, a position which validated the perception that magistrates lacked the opportunity and capacity to engage as members of the judiciary. There was also no attempt by the Magistrates Commission to convey an apology either directly to the TRC or more generally to the South African public. Many magistrates also contended that they needed to be distinguished from the more political regional court magistrates. Only one group attempted to engage with the TRC hearings, the Judicial Officers Association of South Africa (JOASA), for its members. They apologized for their role in enforcing apartheid, both publicly supporting apartheid and by covering up or allowing human rights violations, like forced confessions and detention deaths, although they contended that many magistrates attempted to limit the abuses of apartheid.

The Judge President of the Cape High Court, G. Friedman, made a submission to the TRC in his “personal capacity.” As the most prominent member of the judiciary speaking on this issue, his voice rang particularly loudly for the entire judicial system. He stated that judiciary powers during the apartheid period were limited by the structure of the parliamentary system. He also stated that the judiciary had an obligation to apply the laws of apartheid, and could only “ameliorate the harshness of these laws if they found them to be ambiguous.” He implied that the judicial system, in most cases, could not question the security police when detainees stated the security police had assaulted them, or when the security police stated detainees died by “jumping out of a building” or “accidently fallen down the stairs,” because there was no evidence of culpability, only suspicions. He also declared that the independence of the judiciary was not affected by the apartheid government, although he stated that the Appellate Division overturning regional court decisions that favored detainees was often contrary to the law, as in the case of Rossouw v. Sachs, where a detainee was not allowed access to reading materials. Judge Friedman’s public declaration was contrary to many other judges, like Judge White from Transkei, who believed the TRC’s investigations threatened the judiciary’s high esteem and Judge Eloff of Transvaal, who described the TRC’s efforts as a “meaningless exercise.” By contrast, Justice Ackermann of the Constitutional Court, who resigned as a Constitutional Court judge in 1987 due to his opposition to apartheid, stated in his submission to the TRC that all judges should “seek out rigorously, painful as that might be, our own particular prejudices, of whatever nature.”

The creation of the 1996 constitution and the TRC hearings constituted a singular opportunity for the magistracy to take accountability for their role in the apartheid regime. Their failure to take advantage of that transformative period has likely solidified the perception of the magistracy as inferior to the judicial branch, limited their capacity for larger-scale reforms to the legal system, and harmed their overall reputation.

V. STATUTES OF THE MAGISTRATES’ COURTS REFLECT THEIR QUASI-JUDICIAL FUNCTION

  1. Magistrates’ Courts Act

South Africa’s Magistrates’ Courts Act was first enacted in 1944. Among other things, it defined the nature of the Magistrates’ Courts and outlined the requirements for appointing magistrates. Under the Act, Magistrates’ Courts are described as courts of record. Additionally, decisions issued in such courts are intended to be enforceable throughout the country. Criminal proceedings are generally to be conducted in open court, but the Act also allows for exceptions to be made “in the interest of good order and public morals,” for example, to protect the identity of minors.

Magistrates are appointed by the Minister of Justice on condition that they swear to “uphold and protect the Constitution and human rights entrenched in it.” Their qualifications, however, are quite minimal. The Act describes in one sentence that candidates must be “appropriately qualified,” of South African citizenship, and additionally, “fit and proper.”

  1. Magistrates’ Act

The Magistrates’ Act was implemented post-Apartheid in 1993. The Magistrates’ Act created the Magistrates Commission, who are appointed by the president. The Magistrates Commission is composed of a judge, an officer of the Department of Justice, two magistrates of high rank, two regional court presidents, one academic of the legal system, an attorney, and an advocate. The purpose of the Magistrates Commission is to oversee the magistrates, to protect their judicial independence, and to develop judicial training. It also very importantly has the role of being the middle ground between the magistrates and the Minister of Justice, both in terms of communication and in recommendations for appointments of magistrates. The Magistrates Commission has broad powers over magistrates to achieve its goals. The magistrates’ powers and duties are constrained by state laws, and any decisions made by the Minister of Justice are made in consultation with the Magistrates Commission. The magistrates may not, under the Magistrates’ Act, perform other paid work.

In practice, for the selection of magistrates, the Magistrates Commission engages in a shortlisting process to move magistrates from acting to permanent positions. The minimum legal experience is 5 years for entry-level and 7 years for regional courts. Considerations when determining placements can include managerial experience as well as racial and gender imbalances. For example, in Magistrates Commission v. Lawrence, the Magistrates Commission did not grant the plaintiff a permanent position because he was a white male, which is technically impermissible; the selection criteria can consider race and gender, but a magistrate cannot be excluded from the shortlist process simply because of his race and gender, without consideration of other criteria, including his experiences and skill, and no quotas are allowed. A similar issue arose in Singh v. Minister of Justice, where the plaintiff was not shortlisted for any magistrate posts because there were too many “Indian females” within Kwazulu-Natal. In that case, the Magistrates Commission did not consider the plaintiff’s disability, which the High Court contended was contrary to the Equality Act. Another concern with the process has been that magistrates are sometimes appointed without the Magistrates Commission meeting in a quorate, which is contrary to the Magistrates’ Act.  As noted by the High Court of South Africa in Amos  v. Minister of Justice, “As a constitutional state we cannot allow the process of the appointment of magistrates, who are the backbone of our legal system, to be dealt with in a haphazard or lackadaisical fashion.

VI. JUDICIAL ATTEMPTS TO LEGITIMIZE THE AUTHORITY OF THE MAGISTRATE COURT SYSTEM THROUGH MAINTENANCE CASES

Recent maintenance cases have reflected the judiciary’s desire to reinforce the role of magistrates. Maintenance cases are particularly insightful because they reflect most accurately the type of cases magistrates engage with, often vulnerable individuals, specifically single mothers and young children, who come to court as a last resort. The Magistrate’s Court is hobbled when defendants reject its decisions on the basis of lack of authority and appeal.

The Supreme Court of Appeals of South Africa, on January 21, 2022, in the case of Simon Arcus v. Jill Arcus, found in favor of the Magistrate’s Court’s authority. As part of a divorce consent in 1993, a magistrate awarded maintenance for two minor children until they became self-supporting, in 2002 and 2005, and for a wife, Jill Arcus, until her remarriage or death. Decades later, the question before the court was whether a maintenance order qualified as a (a) regular debt, with a prescription period of three years, or (b) a judgment debt, which would be subject to a 30 years prescriptive period. Simon Arcus, Jill’s former husband, did not pay maintenance prior to 2018 but started paying in January 2019, although the issue remained about arrears. He argued in 2020 that he was not obligated to pay arrears because maintenance obligations prior to 2017 were “extinguished by prescription.” His argument stated that the capacity of maintenance orders to be modified by maintenance courts rendered them unable to be qualified as judgment debts. He contended further that maintenance was for “consumption and not accumulation,” and as such, had to be enforced promptly and prescribed within the three-year period of traditional debts. According to Simon, maintenance orders were interlocutory rulings and maintenance debts were contingent on further litigation. He further claimed that maintenance orders were not civil judgments and therefore could not be judgment debts.

The court disagreed and held that maintenance court judgments were judgment debts. It explained that “maintenance orders are: (a) dispositive of the relief claimed and definitive rights of the parties, to the extent that they decide a just amount of maintenance payable based on the facts in existence at that time; (b) final and enforceable until varied or canceled; (c) capable of execution without any further proof; and (d) appealable.”

The court further found the argument that maintenance orders were interlocutory orders implausible and determined that they instead had the full force and effect of res judicata law. The court also disagreed with the contention that maintenance court orders were not civil judgments and cited the statutory language in Section 24(1) of the Maintenance Act, providing that “any order or direction made by a maintenance court under this Act shall have the effect of an order or direction of the said court made in a civil action” as support.

Lastly, the court was unpersuaded by Simon’s underlying policy argument that a 30-year prescription period for maintenance was overly burdensome and imposed unfair hardships on debtors. Instead, the court viewed prejudice to the debtor as lesser than the value to the vulnerable creditors, who were usually mothers and children.

A concurring opinion by Judges Mocumie and Kgoele additionally noted that Simon’s claims would “perpetuate the hardships suffered by the most vulnerable groups in our society: women and children.” The court found it necessary to support the enforcement of maintenance orders, and support the prior holding of the Constitutional Court in Bannatyne v. Bannatyne, a 2003 Constitutional Court case that aimed to emphasize the authority of maintenance orders on behalf of the rights of children.

The Arcus decision is similar to the lower court decision in the January 2022 case MBJ v. MBP, whereby a debtor willfully misled the court over his finances, but argued he should have nonetheless had the opportunity to appeal a willful contempt charge for failure to pay maintenance. The court refused his appeal, stating that his refusal to pay maintenance for his minor children was without acceptable explanation and he therefore should not have the opportunity to further appeal. These two maintenance cases highlight attempts by the judicial system to reinforce the authoritative power of decisions made by the Magistrates’ Court.

The question of how to deal with arrears in maintenance payments has plagued both the magistracy and the judicial systems for years. InJ v. L, the High Court of South Africa (Free State Provincial Division) heard a case whereby the respondent had not paid maintenance since 2010. In the 2019 case, the court criticized the choices of parents to force “innocent children into immature battles and power games.” Finding that the respondent was in contempt of court for his failure to pay maintenance, the court suspended his 90-day prison sentence for three years as long as he decided to follow the maintenance order. The court considered imprisonment traumatic to the child, and unhelpful to the payment of maintenance.

Comparatively, in S v. Karolus, the Western Cape Division of the High Court heard a case where the accused failed to pay maintenance from 2008 to 2018. The accused argued in his defense that he only engaged in seasonal and temporary work, was incarcerated for a period of time, and had another child to maintain. The Magistrate convicted the accused for a twelve-month period. The High Court on review contended that in order to prove the prima facie case of contempt, the state has to prove every element of the failure to pay maintenance. The High Court found that due process was not followed due to a lack of legal representation and the failure of the magistrate to subject the accused to cross-examination sufficient to prove a prima facie case, as the defendant did have valid points in his defense. The High Court overturned the accused man’s sentence and demanded a new trial on the merits. This kind of contrast in decisions reinforces judicial concern about the Magistrate’s Court’s capacity to enact common standards of judicial decision making.

These cases reflect the reality that magistrates are acting in practice as judges and are primarily submitted to judicial supervision. However, defendants continue to claim that magistrates fail to have judicial authority, and the judicial system has primarily engaged in case by case, limited decisions, to enforce magistrates’ judicial authority. These kinds of questions backlog the system and undermine the role of the Magistrates’ Courts within South Africa.

CONCLUSION:

The specific role of the Magistrates’ Courts developed within the colonial context of South Africa, as a judicial entity straddling the legal and political lines. The failure of Magistrates’ Courts to exercise independence during the apartheid or post-apartheid period has led to its characterization as a political entity with limited legitimacy. The current statutory authority of the Magistrates’ Courts only reflects that limited power and authority. Legislative changes have failed to redefine the role of the Magistrates’ Courts in contemporary matters. The judicial courts have attempted to reinforce the authority of the Magistrates’ Courts in a piecemeal fashion. Magistrates’ Court cases manage an enormous amount of caseload and are consistently engaging with citizens on a day-to-day basis. They are especially engaging with vulnerable individuals and are the first port of call for all legal activity in South Africa. The colonial perception of the Magistrates’ Courts no longer functions because magistrates are acting as quasi-judges. Discussions in the magistracy, judiciary, and in the executive branch must be had on how to redefine the role of the Magistrate Court system to grant magistrates more judicial authority and reinforce their legitimacy within the South African legal system.


[1] See, Explanatory note to TFH van Rooyen and Two Others v The State and Six Others (note that this case is not currently published). An article analyzing the decision that is of interest is C Okpaluba, Institutional Independence and the Constitutionality of Legislation Establishing Lower courts and Tribunals: Part II 29(3) Journal for Juridical Science 149-172 (2004).

Zoé-Pascale de Saxe Roux is a M.A. Honours in International Relations and Ancient History graduate of the University of St Andrews in the United Kingdom. She is a current J.D. and LLM in International and Comparative Law joint degree candidate in the Cornell Law School class of 2024.
Claire Kamau is a graduate of Boston University and a current J.D. candidate in the Cornell Law School Class of 2024.