Apartheid court borders to shift
The boundaries and jurisdictions of high courts in Transkei Bophuthatswana, Venda and Ciskei have never been changed
South Africa’s 1996 Constitution included an interim provision that all courts, including those in the former bantustans, would continue to function as before, pending rationalisation of the judicial system “as soon as is practical”.
But “as soon as is practical” has turned into a 26-year wait for some people — and possibly even longer — for apartheid-era high court boundaries to be removed, and for residents to be able to access the high court closest to them.
Justice Minister Ronald Lamola has now said this “spatial injustice” will be addressed by retired deputy chief justice Dikgang Moseneke, who chairs the government’s committee on rationalisation of the high courts. A final report is expected to be released in April next year.
The high courts in the former bantustans of Transkei, Bophuthatswana, Venda and Ciskei became local seats of the provincial divisions in democratic South Africa. But the geographic boundaries and jurisdictions respectively of both the former apartheid high courts and those in the TBVC have never been addressed.
The government introduced the Superior Courts Act in 2012, which broke with major pieces of apartheid legislation regulating the courts. But the 2012 law did not address the jurisdictional boundaries; it merely stipulated that the government must pass regulations on court boundaries.
Responding to a question in the national council of provinces this week, Lamola acknowledged the problems some people experience in accessing justice through the courts but offered no explanation for the decades-long delay in addressing the issue.
“The legacy of spatial injustices impedes access to courts for communities who reside in the areas that formed part of the defunct homelands and self-governing territories, as well as remote rural villages,” he said.
“These communities are still forced to travel long distances, at a huge cost, to obtain legal redress as a result of high courts which still exercise jurisdictions over defunct homeland systems.”
Among those affected by apartheidera court jurisdictions, Lamola highlighted the Moretele local municipality, formerly part of Bophuthatswana and now in the North West.
People must travel almost 350km to the high court in Mahikeng if they wish to litigate, despite living within 110km of the high court in Pretoria.
In the Eastern Cape, residents of the “white corridor” towns, running from East London to Aliwal North, and which remained part of apartheid South Africa when Ciskei was granted independence, have faced similar difficulties.
The worst example is Qonce (King William’s Town), which sits cheekby-jowl with Bhisho, the former Ciskei capital a few kilometres away. After 1994, Bhisho became the capital of the Eastern Cape and its high court was incorporated as a provincial local division.
Instead of having their matters enrolled in Bhisho, litigants from Qonce, Stutterheim, Cathcart, Komga, Komani (Queenstown) and Kei Road must travel to the high court in Makhanda.
East Londoners must also litigate in Makhanda (Grahamstown), although criminal and civil circuit courts of the Makhanda high court sit in East London.
Further north, people in Barkly East, Elliot, Indwe, Maclear and Ugie must also seek justice in Makhanda, although their nearest high court is in Mthatha, originally constituted as part of Transkei.
Lamola said Moseneke’s committee, which was appointed in June last year, was consulting judges president of the high court divisions and “other key stakeholders”. Among issues he expected advice on was what factors to consider in establishing additional local high court seats.
At least two attorneys, who spoke on condition of anonymity, said they were concerned that the high court in East London may disappear in the rationalisation process.
Eastern Cape judge president Selby Mbenenge confirmed that he had made representations to the committee on behalf of his division, but said it was not the right time to share his representations.
At face value, it seems unrealistic that after rationalisation the high courts in East London and Bhisho — 55km apart — can exist as jurisdictionally separate, fully staffed courts.
East London’s attorneys’ association has yet to discuss the matter, while the Bhisho Society of Advocates did not respond to a request for comment.
The former chairperson of the Bhisho Society of Advocates, Mzwai Ntsaluba, has previously said that the crisscrossing of jurisdictional boundaries was a huge distortion that meant additional costs for litigants, including appointing correspondent attorneys.
But there has been little public communication and no public participation in the processes thus far, with Lamola accepting national council of provinces member Enoch Mthethwa’s suggestion on Tuesday that parliamentary constituency offices be used to share information about the rationalisation.
The spokesperson for the justice department, Chrispin Phiri, said that although the rationalisation committee would consider “the user experience” from the point of view of judges and legal practitioners, it had a constitutional obligation to consult and hear of the experiences of people living in these areas.
He said it was possible that once the committee’s first report was produced, the public would be invited to make submissions, so that the process could be finalised by 2023.
The justice department has already dealt with rationalisation and provisioning of the magistrates’ courts.