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SUMMARY OF RECOMMENDATIONS IN THE COMMISSION'S THIRD AND FINAL REPORT WHICH WAS HANDED TO THE DIRECTOR-GENERAL OF THE OFFICE OF THE PRESIDENT ON WEDNESDAY, 17 DECEMBER 1997 -

BOOK 1 of VOLUME III contains a SYNOPSIS of the main findings and recommendations set forth in the Commission's Third and Final Report.

For the sake of convenience the SYNOPSIS is reproduced. The SYNOPSIS consists of ten paragraphs, the subject matter of each paragraph being indicated in the Table of Contents below.

TABLE OF CONTENTS OF THE SYNOPSIS -

1. Recommendations in respect of a proposed Family Court of comprehensive jurisdiction
2. Recommendation in respect of a proposed Specialist Court for intellectual property law matters
3. Recommendation in respect of a proposed specialist Insolvency Court
4. Recommendations in respect of court-annexed alternative dispute resolution
5. Recommendations in respect of a circuit system for the adjudication of civil cases
6. Recommendations in respect of a Commercial Court
7. Recommendations in respect of a department for Courts in South Africa
8. Recommendations in respect of a public information service of the Courts
9. Recommendations in respect of a fast-track Criminal Court
10. Recommendations in respect of paragraph (1)(D) of the Terms of Reference

1. SUMMARY OF RECOMMENDATIONS IN REGARD TO A FAMILY COURT OF COMPREHENSIVE JURISDICTION (SEE PART TWO IN BOOK 1):

1.1 The Commission unanimously recommends the establishment in South Africa of a specialist Family Court of comprehensive jurisdiction. It will be an independent Court having the status of a Superior Court.

1.2 As an essential first step towards the establishment of a Family Court the Mediation in Certain Divorce Matters Act. No 24 of 1987, must be repealed and replaced by statute to by styled "THE FAMILY ADVOCATE AND FAMILY COUNSELLING ACT" (the FAFCS Act).

1.3 The FAFCS Act will, inter alia, give the Family Advocate locus standi in all divorces, irrespective of the racial groups to which the parties belong, and in customary unions and in religious marriages not recognised by the civil law. It will also give the Family Advocate locus standi to inquire into and to report to the Family Court in connection with any child, whether born in or out of wedlock, and whether or not a divorce action affecting the child has been instituted.

1.4 The FAFCS Act will establish, as part of the Family Advocate's office, a FAMILY COUNSELLING SERVICE, which will be staffed by a separate specialised Branch of Family Counsellors (within either the Department of Justice or the Department of Welfare) designed to provide experienced social welfare workers to the Office of the Family Advocate on a regular and reliable basis. This Branch should have its own budget.

1.5 The Family Counselling Service will be attached to the Family Court, and it will provide the social agency component in the Court. In addition the services of the Family Counselling Service will be available to members of the public, free of charge, and irrespective whether or not they are involved in divorce or other family litigation.

1.6 The Family Counselling Service will, inter alia, provide:

(1) the reception process at the reception centre of the Family Court;

(2) the conciliation process aimed at helping estranged spouses to communicate directly with each other in order to make their parting less traumatic for them and their children;

(3) a supporting service for the court component of the Family Court, by ensuring that any further social welfare investigation which the Court may require is promptly undertaken.

1.7 The passing of the FAFCS Act will be followed by the passing of a statute to be styled "THE FAMILY COURT ACT" to provide for the establishment of a Family Court of comprehensive Jurisdiction.

1.8 There will ultimately be a Family Court in each provincial division of the High Court in which there is an Office of the Family Advocate. The Family Court will also proceed on circuit in rural areas. As and when a Family Court is established within the territorial area of any provincial division, then within that area the jurisdiction of the divorce courts established under section 10 of Act 9 of 1929 (whether functioning as at present or whether functioning pursuant to the Divorce Courts Amendment Act. 1997), should be phased out.

1.9 The Judges in the Family Court will be designated "FAMILY COURT JUDGES". The procedure for their appointment and their salaries will be the same as those of High Court Judges. Their term of office (subject to renewal) will be seven years.

1.10 Family Court Judges will be assisted by judicial officers called FAMILY COURT COMMISSIONERS who will perform certain judicial functions (such as hearing undefended divorces, maintenance cases, and interlocutory applications) and who will preside at pre-trial and mediation conferences. Family Court Commissioners will be appointed by the Minister of Justice upon the recommendation of a small Appointments Committee consisting of Family Law experts whose chairman will be a Family Court Judge. They will be appointed for a period of seven years; and they will be paid a salary equivalent to 75% of a Judge's salary.

1.11 Candidates for appointment either as a Family Court Judge or a Family Court Commissioner will be required to have: (a) an appropriate professional legal qualification; and (b) appropriate practical experience in Family Law work; and (c) a predilection for Family Law work in all its ramifications; and (d) a compassionate personality.

1.12 Each division of the Family Court will have its own Registry and Registrar. It will also have a staff of trained clerks who will assist unrepresented litigants both at the seat of the Court and on circuit.

1.13 At each circuit town visited by the Family Court the clerk of the local Magistrate's Court will act on behalf of the Registrar by receiving pleading filed by litigants whose matters will be heard at the forthcoming circuit.

1.14 Each division of the Family Court will have an administrative officer styled "THE COUNSELLING CO-ORDINATOR" who will be in charge of the Family Court's social agency component provided by the Family Counselling Service.

1.15 The Family Court will have jurisdiction concurrently with the High Court:

(a) to hear those matters which are at present heard in the divorce court of the High Court and which, in addition to divorce itself, will include all matters ancillary to divorce such as the division of matrimonial assets; maintenance for a spouse and minor children; custody of and access to minor children; and guardianship of minor children; applications pendente lite for a contribution towards the costs of a divorce action, for maintenance and for interim custody of and access to children; applications for maintenance as between parent and child and grandparent and grandchild; and applications for interdicts in matrimonial matters;

(b) to hear the matters at present heard by the High Court under the Age of Majority Act. 1972;

(c) to grant consent to the marriage of a minor if such minor's parent or guardian refuses such consent; which power is at present exercised by a Judge of the High Court under sec 25(4) of the Marriage Act, 1961;

(d) to hear cases in which paternity is sought to be determined and which affect the status of a woman or child.

1.16 The Family Court will have jurisdiction to hear matters involving disputes between a man and a women arising from a spousal union subsisting (or which earlier subsisted) between them, which union is recognised by their own customs or religious beliefs but not by our civil marriage laws.

1.17 The Family Court will have jurisdiction concurrently with the Magistrates' Court: (a) to hear the matters at present heard by the Commissioner of Child Welfare under the Child Care Act. No 74 of 1983; (b) to hear the matters at present heard in the Maintenance Court under the Maintenance Act. 1963; (c) to carry out the duties and exercise the powers assigned to Magistrates in terms of Chapter 3 (see secs 8 to 18) of the Mental Health Act. 1973; to investigate the accommodation or care of aged or debilitated persons under sec 6 of the Aged Persons Act. 1967, and to carry out the duties under secs 5(3) and 5(4) of that Act; to hold enquiries under the Abuse of Dependence-Producing Substances and Rehabilitation Centres Act. 1971, and commit persons to rehabilitation centres.

1.18 The Family Court will not exercise any criminal jurisdiction.

1.19 Family Courts will be launched by means of a single monitored pilot project operating in the territory falling within the jurisdiction of the Natal Provincial Division of the High Court. Such pilot Court will also undertake regular circuits to country districts within the Provincial Division.

1.20 From the date of the establishment of the Family Court in the province of KwaZulu-Natal no further cases will be enrolled in the divorce courts established under section 10 of Act 9 of 1929 (whether functioning as at present or whether functioning pursuant to the Divorce Courts Amendment Act. 1997), in any district falling within the jurisdiction of the Natal Provincial Division. Part-heard cases in these divorce courts will be completed in the divorce court concerned by the judicial officer seized of the particular case.

1.21 The pilot project in KwaZulu-Natal will be monitored for a period of twelve months, whereafter the Government will decide when and within the area of what other provincial divisions of the High Court in South Africa Family Courts should be established.

1.22 From the date of the establishment of any further Family Court within the area of any provincial division of the High Court elsewhere in South Africa:

(a) no further cases will be enrolled in the divorce courts established under section 10 of Act 9 of 1929, (whether functioning as at present on whether functioning pursuant to the Divorce Courts Amendment Act, 1997) in any district falling within the area of jurisdiction of such provincial division;

(b) part-heard cases in the divorce courts mentioned in (a) above will be completed by the judicial officer seized of the particular case.

1.23 The Family Court will have a very modest tariff of costs which will be based essentially on the tariff of costs in the Magistrate's Court.

1.24 In the Family Court, divorce will not be granted by any system of summary dissolution of marriage under which the plaintiff's testimony will be accepted in affidavit form. The plaintiff will be required to testify in open court.

1.25 As far as is reasonably possible the Family Court will be housed separately from other courts : and, where that is not possible, the Family Court should have its own separate entrance. The lay-out and appointments of the Family Court will be such as to create a relaxed and informal atmosphere with cheerful waiting-rooms equipped with playthings for children; and comfortable offices in which interviews and conciliation sessions may be conducted. Adequate child-care facilities for infants are essential. At the reception centre an informed and sympathetic receptionist will be on duty.

1.26 Appeals from the judgments of the Family Court will lie to the Full Court of the High Court.

2. THE COMMISSION'S RECOMMENDATION IN REGARD TO A PROPOSED SPECIALIST INTELLECTUAL PROPERTY LAW COURT (SEE SECTION (A) OF PART THREE IN BOOK 2):

2.1 The unanimous recommendation of the Commission is that a specialist intellectual property law court should NOT be established in South Africa.

3. THE COMMISSION'S RECOMMENDATION IN REGARD TO A PROPOSED SPECIALIST INSOLVENCY COURT (SEE SECTION (B) OF PART THREE IN BOOK 2):

3.1 The unanimous recommendation of the Commission is that a specialist insolvency court should NOT be established in South Africa.

4. THE COMMISSION'S FINDINGS AND RECOMMENDATIONS IN REGARD TO CASE MANAGEMENT AND COURT-ANNEXED ALTERNATIVE DISPUTE RESOLUTION (ADR) (see PART FOUR in BOOK 3):

4.1 FINDINGS:

4.1.1 The progress of defended actions through the High Court in South Africa is too sluggish and too expensive because of unnecessary delays. The delays supervene because the court supinely allows the parties to dictate the pace of litigation.

4.1.2 Radical reform is essential. Case management and court- annexed ADR are urgently needed in the High Court in South Africa.

4.1.3 Case management involves control of the pace and manner of litigation by the court and not the parties.

4.1.4 The case management model best suited to South Africa is the basic model involving a routine court control which requires the parties to report to the court at a number of strategically fixed intervals or events known as "milestones". The intervals must be just long enough to allow proper preparation by the parties and just short enough to require the parties to act briskly. There must be strict compliance with deadlines.

4.1.5 The form of court-annexed ADR best suited to South Africa is mediation. Judges and those members of the court's personnel involved in case management must attend training courses in mediation. The Judges themselves, however, should not participate in mediation sessions.

4.1.6 The new Rule 37A (see GN R1352 published on 10 October 1997) which applies only to the Cape of Good Hope Provincial Division (CPD), is to be welcomed as the first step in this country towards case management. However, its provisions do not go nearly far enough to sustain the operation of an effective case management system in the High Court.

4.1.7 Case management should be introduced to South Africa experimentally by means of a monitored Case Management Pilot Project. The obvious choice of a venue for the pilot project is the CPD.

4.2 RECOMMENDATIONS:

4.2.1 As soon as is reasonably possible a case management pilot project (CM pilot project) should be launched in the CPD.

4.2.2 The launching of the CM pilot project should be preceded:-

(a) by the installation of a COMPUTER SYSTEM TOGETHER WITH THE APPROPRIATE SOFTWARE in the court building of the CPD;

(b) by the appointment to the court personnel of the CPD (at a market-related salary) of a CASE MANAGEMENT CONTROLLER (CM controller), who shall be an advocate or attorney experienced in High Court civil litigation who has practised for at least ten years;

(c) by the compilation by the JUDGE PRESIDENT of the CPD of a list of suitably qualified and experienced mediators within the metropolitan area of Cape Town who are prepared to preside at mediation sessions held as part of a court-annexed mediation service.

4.2.3 The CM controller will be in charge of the administration and monitoring of the CM pilot project; and he or she will also preside at the PROGRESS CONFERENCE.

4.2.4 The parties will be obliged to exchange WITNESS SUMMARIES and to file them with the court BEFORE the Progress Conference is held. The witness summaries will be open to the scrutiny of the CM controller.

4.2.5 The Judge who makes directions pursuant to the MINUTE must be empowered to refer the matter to court-annexed mediation.

5. THE COMMISSION'S FINDINGS AND RECOMMENDATIONS IN REGARD TO A CIRCUIT SYSTEM FOR THE ADJUDICATION OF CIVIL CASES (see PART FOUR IN BOOK 3)

5.1 FINDINGS:

5.1.1 The regular civil circuits held in the Western Cape Province function smoothly and they improve access to justice for civil litigants living in or near the circuit towns.

5.1.2 At present no civil circuits are needed in the provinces of Gauteng, Free State, KwaZulu-Natal and the Eastern Cape. No civil circuits are needed in the Northern Cape Province additional to the civil circuits about to be established by the Judge President of that province.

5.1.3 Unless and until effect is given to the Commission's recommendations in its First Interim Report in regard to the new provinces of Mpumalanga, the Northern Province and North West (the adjoining provinces), it may well be that access to justice for civil justice in the larger towns of the adjoining provinces would be enhanced if they were to receive regular visits from a civil circuit court.

5.2 RECOMMENDATIONS:

5.2.1 Until effect is given to the First Interim Report's recommendations in regard to the adjoining provinces, the relevant Judge President in Gauteng should consult with the Attorneys Association in the larger towns in the adjoining provinces (such as Nelspruit, Middelburg, Pietersburg, Potchefstroom, Klerksdorp and Rustenburg) in order to determine whether or not a need for a civil circuit in any such town exists.

5.2.2 Should a civil circuit in any of the larger towns in the adjoining provinces prove to be necessary, the Western Cape procedure of a pre-trial conference held in the circuit town six weeks in advance of the actual circuit should be adopted.

6. THE COMMISSION'S FINDINGS AND RECOMMENDATIONS IN REGARD TO THE COMMERCIAL COURT (see PART FOUR in BOOK 3):

6.1 FINDINGS:

6.1.1 In Johannesburg (but nowhere else in the country) there is a need for a special forum within the High Court for the resolution of complex commercial disputes.

6.1.2 In order that the Johannesburg Commercial Court should function properly the designation of a case as a commercial action should not require the approval or consent of both parties.

6.1.3 A commercial case should not be accorded special treatment in the form of individual case management in preference to a non-commercial action whose speedy disposition, objectively viewed, is a matter of urgency for either or both parties.

6.2 RECOMMENDATIONS:

6.2.1 The Commercial Court in Johannesburg should continue and the Supreme Court Act should be amended to give authority to the Judge President to designate an action as a commercial action upon the application of either party to the action.

6.2.2 The exchange of WITNESS SUMMARIES should be mandatory in all cases before the Commercial Court.

7. THE COMMISSION'S FINDINGS AND RECOMMENDATIONS IN REGARD TO A DEPARTMENT FOR COURTS IN SOUTH AFRICA (see PART FOUR in BOOK 3):

7.1 FINDINGS:

7.1.1 The administration of the courts and the provision of adequate support services for the judiciary are highly specialised functions. In South Africa the courts are administered by the Department of Justice in an unsatisfactory fashion.

7.1.2 The court system would function more efficiently and productively if South Africa were to have its own Department for Courts.

7.2 RECOMMENDATIONS:

7.2.1 The feasibility of establishing a Department for Courts in South Africa should be considered as a matter of urgency.

7.2.2 A small committee composed of a few senior Judges, a senior Magistrate, a senior official in the Department of Justice and a chartered accountant should undertake in New Zealand an in-depth study of the New Zealand Department for Courts. Thereafter the committee should report its findings and recommendations to the President.

8. THE COMMISSION'S RECOMMENDATIONS FOR IMPROVING ACCESS TO JUSTICE BY MEANS OF AN INFORMATIONSERVICE TO THE PUBLIC (see PART FOUR in BOOK 3):

8.1 A systematic legal information service should be devised and implemented nation-wide by the Department of Justice with due regard to the multi-lingual composition of our population.

8.2 the aim of the programme must be to explain to public how the courts function and from what agencies in the community a citizen may obtain basic legal advice.

8.3 Such information should be disseminated by means of the Internet and by means of attractive brochures couched in simple and clear language. The brochures should be freely available to the public at every magistrate's court in the country; and bulk deliveries of them should be made to all secondary schools throughout the land.

9. THE COMMISSION'S RECOMMENDATION TO SPEED UP THE MOVEMENT OF CRIMINAL TRIALS THROUGH OUR COURTS BY MEANS OF FAST-TRACK CRIMINAL COURTS (see PART FOUR in BOOK 3):

Although its Terms of Reference relate to civil litigation in the High Court the Commission has decided nevertheless strongly to recommend the introduction, in both our superior and lower trial courts, of a FAST-TRACK CRIMINAL COURT such as has been established in the District Court of Western Australia, and whose essential features are described in paragraph 2.3 in PART FOUR (see BOOK 3 of VOLUME I) of this Report.

10. THE COMMISSION'S RECOMMENDATIONS IN REGARD TO PARAGRAPH (1)(d) OF ITS TERMS OF REFERENCE (see PART FIVE in BOOK 3):

10.1 The original civil jurisdiction of each provincial and local division of the High Court should NOT be extended by empowering it to entertain all causes, wherever arising, in those matters in which the defendant is an INCOLA of South Africa as a whole.

10.2 In the light of the new constitutional dispensation and the establishment of nine provinces the whole question of the civil jurisdiction of the courts should be included as an urgent project in the South African Law Commission's programme of work.

Issued by: Department of Justice

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