REPUBLIC OF SOUTH AFRICA

SUPERIOR COURTS BILL

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(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B - 2003]

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GENERAL EXPLANATORY NOTE:

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B I L L

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:—

1. In this Act, unless the context otherwise indicates—

"civil case" includes any labour matter;

"Constitution" means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);

"Department" means the Department responsible for the administration of justice;

"Division" means any Division of the High Court of South Africa;

"full court", in relation to any Division, means a Court consisting of two or more judges;

"High Court" means the High Court of South Africa;

"Judicial Service Commission" means the Judicial Service Commission referred to in section 178 of the Constitution;

"labour matter" means any justiciable matter arising out of the application (or the interpretation) of—

(c) the Unemployment Insurance Act, 1966 (Act 30 of 1966);

(d) the Skills Development Act, 1998 (Act 97 of 1998);

(e) the Employment Equity Act, 1998 (Act 55 of 1998);

(f) the Occupational Health and Safety Act, 1993 (Act 85 of 1993);

"lower court" means any court which is lower in status than the High Court and which is required to keep a record of its proceedings, and includes any judicial officer, other than a judge of a Superior Court, holding a preparatory examination into an alleged offence;

"Minister" means the Cabinet member responsible for the administration of justice;

"plaintiff" includes any applicant or other party who seeks relief in civil proceedings;

"President" means the President of the Republic of South Africa;

"registrar" means the registrar of the Constitutional Court, the Supreme Court of Appeal or any Division of the High Court, as the case may be, and includes an assistant registrar;

"Superior Court" means the Constitutional Court, the Supreme Court of Appeal and any Division of the High Court.

2. The objects of this Act are—

This Act must be read in conjunction with Chapter 8 of the Constitution, which contains the founding provisions for the structure of the Superior Courts, the jurisdiction of those courts and for the appointment of judicial officers of those Courts.

3. (1) (a) The Constitutional Court consists of the Chief Justice of South Africa, a Deputy Chief Justice and nine other judges.

(b) The seat of the Constitutional Court is in Johannesburg, but whenever it appears to the Chief Justice that it is expedient to hold its sitting for the hearing of any matter at a place elsewhere than at the seat of the Court, it may hold such sitting at that place.

(2) The Deputy Chief Justice must—

(3) (a) The Supreme Court of Appeal consists of the President of the Supreme Court of Appeal, two Deputy Presidents of the Supreme Court of Appeal and so many other judges as the President may determine.

(b) The seat of the Supreme Court of Appeal is in Bloemfontein, but the Court may hold sittings for the hearing of any matter at any place elsewhere than at the seat of the Court, according to practice established from time to time by the President of the Supreme Court of Appeal.

(4) (a) (i) A Deputy President of the Supreme Court of Appeal must perform such functions of the President of the Supreme Court of Appeal in terms of this or any other law as he or she may assign to him or her.

(ii) The President, on the advice of the Judicial Service Commission, must designate one of the Deputy Presidents as being mainly responsible for assisting the President of the Supreme Court of Appeal with managing appeals in regard to labour matters.

(iii) The Judicial Service Commission must, for the purpose of advising the President as contemplated in subparagraph (ii), consult with the National Economic Development and Labour Council established by section 2 of the National Economic, Development and Labour Council Act, 1994 (Act No. 35 of 1994).

(b) The President must from time to time designate a Deputy President of the Supreme Court of Appeal to perform the functions of the President of the Supreme Court of Appeal whenever the President of the Supreme Court of Appeal is absent, or if that office is vacant.

4. (1) The High Court consists of the following Divisions:

(f) Northern Cape Division.

(h) North West Division.

(2) Each Division of the High Court—

(3) (a) A Deputy Judge President of a Division must—

(b) If more than one Deputy Judge President is appointed in respect of a Division, the President must designate the Deputy Judge President who must perform the functions of the Judge President in the circumstances contemplated in paragraph (a)(i).

(4) (a) The Minister must, after consultation with the Judicial Service Commission, by notice in the Gazette, determine—

and may in the same manner amend or withdraw any such notice.

(b) The area under the jurisdiction of a Division may comprise more than one or any part of more than one province.

(c) Any notice referred to in paragraph (a) must be approved by Parliament before publication thereof in the Gazette.

(d) The publication of a notice referred to in paragraph (a) does not affect any proceedings which are pending at the time of such publication.

(5) (a) If more than one seat is determined for a Division in terms of subsection (4)(a)(ii), the Judge President of that Division may by notice in the Gazette divide the area under the jurisdiction of that Division into seat areas, and may from time to time by like notice alter the boundaries of any seat area.

(b) Subject to such directions as may from time to time be issued by the Judge President and to section 25(1), any matter in respect of which a Division has jurisdiction may be dealt with at any seat of that Division.

5. (1) The Judge President of a Division may by notice in the Gazette within the area under the jurisdiction of that Division establish circuit districts for the adjudication of civil or criminal matters, and may from time to time by like notice alter the boundaries of any such district.

(2) In each circuit district there must be held at least twice in every year and at such times and places as may be determined by the Judge President concerned, a court which must be presided over by a judge of that Division.

(3) A court referred to in subsection (2) is called a Circuit Court of the Division in question.

6. (1) Judges and acting judges of the Superior Courts are appointed in accordance with the provisions of the Constitution, and receive such remuneration as determined under the Judges' Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of 2001).

(2) A Deputy Judge President of a Division may be appointed by the President indefinitely or for such period as he or she determines on the recommendation of the Judicial Service Commission.

(3) Any person who has been appointed as an acting judge of a Superior Court, shall be deemed to have been so appointed also in respect of any period during which he or she is necessarily engaged in connection with the disposal of any proceedings—

(4) A judge of a Division may, upon the request of the Chief Justice, also serve as a judge of any other Division in the place of any judge of that Court or in addition to the judges of that Court.

(5) The President may, on the request of the Judicial Service Commission and with the consent of the judge concerned, transfer a judge of a Division to any other Division.

Appointment of officers and staff of Superior Courts

7. (1) (a) The Minister must, on the request of and in consultation with the head of the Court concerned, appoint for the Constitutional Court, the Supreme Court of Appeal and each Division—

(b) Any person appointed in terms of paragraph (a) is in the employ of the Department and is subject to the laws governing the public service.

(c) A court manager exercises administrative control over the persons referred to in paragraph (a)(ii) to (iv) and, under the control and direction of the head of the Court concerned, perform such other functions as agreed to from time to time by the Minister and the Chief Justice.

(2) (a) The Chief Justice and the President of the Supreme Court of Appeal may, in consultation with the Minister, from time to time appoint for the Constitutional Court or the Supreme Court of Appeal, as the case may be, one or more persons to undertake such research or perform such other duties as the Chief Justice or the President of the Supreme Court of Appeal may determine.

(b) The remuneration and other terms and conditions of employment of a person appointed in terms of paragraph (a) shall be as determined, either generally or in any specific case, by the Chief Justice or the President of the Supreme Court of Appeal in consultation with the accounting officer referred to in section 8(3).

(3) Whenever by reason of absence or incapacity any court manager, registrar or assistant registrar is unable to carry out the functions of his or her office, or if his or her office becomes vacant, the Minister may after consultation with the head of the Court concerned, authorise any other competent officer of the public service to act in the place of the absent or incapacitated officer during such absence or incapacity or to act in the vacant office until the vacancy is filled.

(4) Any person appointed under subsection (1) may simultaneously hold more than one of the offices mentioned in that subsection.

(5) The Minister may delegate to an officer in the Department any of the powers vested in him or her by this section.

8. (1) Expenditure in connection with the administration and functioning of the Superior Courts shall be defrayed from moneys appropriated by Parliament.

(2) The Minister must address requests for the funds needed for the administration and functioning of the Superior Courts, as determined by the Chief Justice after consultation with the President of the Supreme Court of Appeal and the Judges President of Divisions, in the manner prescribed for the budgetary processes of departments of state.

(3) Subject to the Public Finance Management Act, 1999 (Act No. 1 of 1999), the Director-General of the Department—

9. (1) In accordance with section 167(2) of the Constitution, any matter before the Constitutional Court must be heard by at least eight judges.

(2) If, at any stage after a hearing has commenced, any judge of the Constitutional Court is absent or unable to perform his or her functions, or if a vacancy among the members of the Court arises, and—

(a) the remaining members of the Court are not less than eight in number—

10. (1) The quorum of the Supreme Court of Appeal is five judges in all proceedings, but the President of the Supreme Court of Appeal may—

(2) The judgment of the majority of the judges presiding at proceedings before the Supreme Court of Appeal shall be the judgment of the court and where there is no judgment to which a majority of such judges agree, the hearing must be adjourned and commenced de novo before a new court constituted in such manner as the President of the Supreme Court of Appeal may determine.

(3) If at any stage after the hearing of an appeal has commenced a judge of the Supreme Court of Appeal is absent or unable to perform his or her functions, or if a vacancy among the members of the Court arises—

(4) No judge shall sit at the hearing of an appeal against a judgment or order given in a case which was heard before him or her.

(5) Two or more judges of the Supreme Court of Appeal, designated by the President of the Supreme Court of Appeal, shall have jurisdiction to hear and determine applications for interlocutory relief, including applications for condonation and for leave to proceed in forma pauperis in chambers.

11. (1) (a) Save as provided in this Act or any other law, a Division must be constituted before a single judge when sitting as a court of first instance for the hearing of any civil matter, but the Judge President or, in the absence of both the Judge President and the Deputy Judge President, the senior available judge, may at any time direct that any matter be heard by a full court consisting of not more than three judges, as he or she may determine.

(b) A single judge of a Division may at any time discontinue the hearing of any civil matter which is being heard before him or her and refer it for hearing to the full court of that Division as contemplated in paragraph (a).

(2) (a) Except where it is in terms of any law required or permitted to be otherwise constituted, a Division must be constituted—

(b) No judge shall sit at the hearing of an appeal against a judgment or order given in a case which was heard before him or her.

(3) For the hearing of any criminal case as a court of first instance, a Division must be constituted in the manner prescribed in the applicable law relating to procedure in criminal matters.

(4) During any period which may by rule of court be fixed as vacation of a Division, one judge thereof designated by the Judge President shall, notwithstanding anything contained in this Act or any other law, but subject to the provisions of subsection (2)(a), be competent to exercise all the powers, jurisdiction and authority of a Division.

(5) Save as otherwise provided in this Act or any other law, the decision of the majority of the judges of the full court of a Division shall be the decision of the Court, and where the decision of a majority of the judges of any such court are not in agreement, the hearing must be adjourned and commenced de novo before a court consisting of three other judges.

(6) If at any stage during the hearing of any matter by a full court, any judge of such court is absent or unable to perform his or her functions, or if a vacancy among the members of the Court arises, that hearing must—

(7) The provisions of subsection (5) apply, with the changes required by the context, whenever in the circumstances set out in subsection (6) a hearing proceeds before two or more judges.

12. (1) Subject to subsection (2), the majority of judges hearing any labour matter in the Supreme Court of Appeal or a Division must, for the purpose of that hearing, be judges whose names appear on the panel of judges referred to in subsection (3).

(2) If, during the course of the hearing of any matter by a Court referred to in subsection (1), it becomes apparent that the matter concerned is or may be a labour matter and the names of the majority of judges hearing that matter do not appear on the panel referred to in subsection (3), the validity of the hearing or any ensuing judgment shall not be affected.

(3) (a) A Committee comprising—

must from time to time designate judges of the Superior Courts to a panel of judges for the purpose of concentrating and developing judicial knowledge in labour matters.

(b) The Committee must meet at the times and the places determined by the Chairperson, and any meeting must be attended by a majority of its members (which majority must at all times include the members referred to in paragraph (a)(iii)).

(c) The Committee may determine its own procedure, but decisions of the Committee must be supported by a majority of its members, which majority must at all times include a majority of the members referred to in paragraph (a)(iii)

(d) The Committee must advise the Judicial Service Commission regarding the development and the content of training courses with the view to building a pool of suitably qualified judges for purposes of dealing with labour matters.

(e) The Minister must cause a list of the names of the judges appointed to the panel, as well as any changes thereto, to be published in the Gazette.

Referral of order of constitutional invalidity to Constitutional Court

13. (1) (a) Whenever the Supreme Court of Appeal, a Division of the High Court or any competent court declares an Act of Parliament, a provincial Act or conduct of the President invalid as contemplated in section 172(2)(a) of the Constitution, that Court must, in accordance with the applicable rules of court, refer the order of constitutional invalidity to the Constitutional Court for confirmation.

(b) Whenever any person or organ of state with a sufficient interest appeals or applies directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court, as contemplated in section 172(2)(d) of the Constitution, the Court must deal with the matter in accordance with the rules.

(2) If requested by the Chief Justice to do so, the Minister must appoint counsel to present argument to the Constitutional Court in respect of any matter referred to the Court as contemplated in subsection (1)(a).

14. (1) Subject to the Constitution and any other law—

(2) (a) (i) When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.

(ii) Save under exceptional circumstances, the question whether the decision would have no practical effect or result, is to be determined without reference to any consideration of costs.

(b) If at any time prior to the hearing of an appeal the President of the Supreme Court of Appeal or the Judge President, as the case may be, is prima facie of the view that it would be appropriate to dismiss the appeal on the ground set out in paragraph (a), he or she must call for written representations from the respective parties as to why the appeal should not be so dismissed.

(c) Upon receipt of the representations or, failing which, at the expiry of the time determined for their lodging, the President of the Supreme Court of Appeal or the Judge President, as the case may be, must refer the matter to three judges for their consideration.

(d) The judges considering the matter may order that the question whether the appeal should be dismissed on the ground set out in paragraph (a) be argued before them at a place and time appointed, and may, whether or not they have so ordered—

15. (1) Leave to appeal may only be given where the judge or judges concerned consider that—

(a) (i) the appeal would have a real prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard;

(2) (a) Leave to appeal as contemplated in section 14(1)(a) or (b) may be granted by the judge or judges against whose decision an appeal is to be made or, if not readily available, by any other judge or judges of the same Division.

(b) If leave to appeal in terms of paragraph (a) is refused, it may be granted by the Supreme Court of Appeal on application filed with the registrar of that court within one month after such refusal, or such longer period as may on good cause be allowed, and the Supreme Court of Appeal may vary any order as to costs made by the judge or judges concerned in refusing leave.

(c) An application referred to in paragraph (b) must be considered by two judges of the Supreme Court of Appeal designated by the President of the court and, in the case of a difference of opinion, also by the President or any other judge of the Supreme Court of Appeal likewise designated.

(d) The judges considering the application may order that it be argued before them at a time and place appointed, and may, whether or not they have so ordered, grant or refuse the application or refer it to the court for consideration and, where an application has been so referred to the court, the court may thereupon grant or refuse it.

(e) The decision of the majority of the judges considering the application, or the decision of the court, as the case may be, to grant or refuse the application shall be final: Provided that the President of the Supreme Court of Appeal may in exceptional circumstances, whether of his or her own accord or on application filed within one month of the decision, refer the decision to the court for reconsideration and, if necessary, variation.

(f) An application for special leave to appeal under section 14(1)(c) may be granted by the Supreme Court of Appeal on application filed with the registrar of that court within one month after the decision of the full Court, or such longer period as may on good cause be allowed, and the provisions of subsection (2)(b) to (e) shall apply with the necessary changes.

(3) The power to grant leave to appeal—

(4) Any leave to appeal may be granted subject to such conditions as the court concerned may determine, including a condition—

(5) (a) If leave is granted under subsection (2) (a) or (b) to appeal against a decision of a Division as a court of first instance consisting of a single judge, the judge or judges granting leave must direct that the appeal be heard by a full Court of that Division, unlessthey consider—

in which case they must direct that the appeal be heard by the Supreme Court of Appeal.

(b) Any direction by the court of a Division in terms of paragraph (a), may be set aside by the Supreme Court of Appeal of its own accord, or on application by any interested party filed with the registrar within one month after the direction was given, or such longer period as may on good cause be allowed, and may be replaced by another direction in terms of paragraph (a).

(6) Subsection (1)(c), (d) and (e) apply with the necessary changes to any application to the Supreme Court of Appeal relating to an issue connected with an appeal.

16. (1) Subject to subsection (2) and unless the court otherwise orders, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal is suspended pending the decision of the application or appeal.

(2) Unless the court under special circumstances otherwise orders, the operation and execution of a decision—

(ii) for contribution towards the costs of a pending matrimonial action;

(b) that is an interlocutory order not having the effect of a final judgment,

which is the subject of an application for leave to appeal or of an appeal is not suspended pending the decision of the application or appeal.

17. The Supreme Court of Appeal or a full Court exercising appeal jurisdiction may—

(b) receive further evidence;

18. Whenever a decision on a question of law is given by a Division which is in conflict with a decision on the same question of law given by any other Division, the Minister may submit such conflicting decisions to the Supreme Court of Appeal and cause the matter to be argued before that Court, in order that it may determine the said question of law for guidance.

19. (1) A Division has jurisdiction over all persons residing or being in, and in relation to all causes arising and all offences triable within, its area of jurisdiction and all other matters of which it may according to law take cognizance, and has the power, subject to the direction of the Judge President concerned—

(2) A Division also has jurisdiction over any person residing or being outside its area of jurisdiction who is joined as a party to any cause in relation to which such Court has jurisdiction or who in terms of a third party notice becomes a party to such a cause, if the said person resides or is within the area of jurisdiction of any other Division.

(3) Subject to section 26 and the powers granted under section 4 of the Admiralty Jurisdiction Regulation Act, 1983 (Act No. 105 of 1983), any Division may—

Grounds of review of proceedings of lower courts

20. (1) The grounds upon which the proceedings of any lower court may be brought under review before a Division are—

(2) This section does not affect the provisions of any other law relating to the review of proceedings in lower courts.

21. A judgment by default may be granted and entered by the registrar of a Division in the manner and in the circumstances prescribed in the Rules made in terms of the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985), and a judgment so entered shall be deemed to be a judgment of the Court.

22. The time allowed for entering an appearance to a civil summons served outside the area of jurisdiction of the Division in which it was issued shall be not less than—

(b) two weeks in any other case.

23. If a plaintiff in civil proceedings in a Division resides within the Republic, but outside the area of jurisdiction of that Division, he or she shall not by reason only of that fact be required to give security for costs in those proceedings.

24. (1) Within one month after the termination of the sittings of any circuit Local Division, the registrar thereof must, subject to any directions of the presiding judge, transmit all records in connection with the proceedings in that Division to the registrar of the Division concerned to be filed as records of that Division.

(2) Any judgment, order or sentence of a circuit Local Division may, subject to any applicable rules for the time being in force, be carried into execution by means of process of that Division or of the Division concerned.

25. (1) If any proceedings have been instituted in a Division, and it appears to the Court concerned that such proceedings—

that Court may, upon application by any party thereto and after hearing all other parties thereto, order such proceedings to be removed to that other Division or seat, as the case may be.

(2) An order for removal under subsection (1) must be transmitted to the registrar of the Court to which the removal is ordered, and upon the receipt of such order that Court may hear and determine the proceedings in question.

26. (1) No attachment of person or property to found jurisdiction shall be ordered by a Division against a person who is resident in the Republic.

(2) No writ shall be issued out of any such Division in or in connection with civil proceedings instituted or to be instituted for the arrest of a person residing within the Republic to secure his or her appearance as a defendant in those proceedings, by reason only of the fact that such person has departed or is about to depart to a place outside the jurisdiction of that Division but within the Republic.

27. (1) Every Superior Court is a court of record.

(2) Every Superior Court must have for use as occasion may require, a seal of such design as may be prescribed by the President by proclamation in the Gazette.

(3) The seal of a Superior Court must be kept in the custody of the Registrar.

28. Save as is otherwise provided in this Act or any other law, all proceedings in any Superior Court must, except in so far as any such Court may in special cases otherwise direct, be carried on in open court.

29. The Supreme Court of Appeal and any Division may at any time sit in so many courts constituted in the manner provided in this Act as the available judges may allow.

30. (1) (a) The Chief Justice may by notice in the Gazette make rules relating to the manner in which the Constitutional Court may be engaged in any matter in respect of which it has jurisdiction, including the matters referred to in section 172 of the Constitution, and all matters relating to the proceedings of and before the Court.

(b) The President of the Supreme Court of Appeal may by notice in the Gazette make rules relating to the manner in which the Supreme Court of Appeal may be engaged in any matter in respect of which it has jurisdiction, and all matters relating to the proceedings of and before the Court.

(c) Every rule made under paragraph (a) and every amendment or repeal thereof must be submitted to Parliament before the promulgation thereof and tabled as soon as possible.

(2) The rules of the Constitutional Court must, when it is in the interests of justice and with leave of the Court, allow a person—

(3) Subject to the provisions of section 173 of the Constitution, rules for the High Court must be made in accordance with the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985).

Certified copies of court records admissible as evidence

31. Whenever a judgment, order or other record of any Superior Court is required to be proved or inspected or referred to in any manner, a copy of such judgment, decree, order or other record duly certified as such by the registrar of that Court under its seal shall be prima facie evidence thereof without proof of the authenticity of such registrar's signature.

32. (1) A party to proceedings before any Superior Court in which the attendance of witnesses or the production of any document or thing is required, may procure the attendance of any witness or the production of any document or thing in the manner provided for in the rules of that Court.

(2) Whenever any person subpoenaed to attend any proceedings as a witness or to produce any document or thing, fails without reasonable excuse to obey the subpoena and it appears from the return of the person who served such subpoena, or from evidence given under oath, that—

or if any person who has attended in obedience to a subpoena fails to remain in attendance, the Court concerned may issue a warrant directing that he or she be arrested and brought before the Court at a time and place stated in the warrant or as soon thereafter as possible.

(3) A person arrested under any such warrant may be detained thereunder in any prison or other place of detention or in the custody of the person who is in charge of him or her, with a view to securing his or her presence as a witness or to produce any document or thing at the proceedings concerned: Provided that any judge of the Court concerned may release him or her on a recognisance with or without sureties for his or her appearance to give or to produce any document or thing as required.

(4) Any person subpoenaed in terms of subsection (1) to attend any proceedings as a witness or to produce any document or thing, who fails without reasonable excuse to obey such subpoena, shall be guilty of an offence and liable upon conviction to a fine or to imprisonment for a period not exceeding three months.

(5) If a person who has entered into any recognisance in terms of subsection (3) for his or her appearance to give evidence at such proceedings or to produce any document or thing, fails without reasonable excuse so to appear or to produce such document or thing, he or she shall, apart from the forfeiture of his or her recognisance, be guilty of an offence and liable upon conviction to a fine or to imprisonment for a period not exceeding three months.

33. (1) Whenever any person who appears either in obedience to a subpoena or by virtue of a warrant issued under section 32 or who is present and is verbally required by the Superior Court concerned to give evidence in any proceedings—

without any just excuse for such refusal or failure, the Court may adjourn the proceedings for any period not exceeding eight days and may, in the meantime, by warrant commit the person so refusing or failing to prison unless he or she sooner consents to do what is required of him or her.

(2) If any person referred to in subsection (1) again refuses at the resumed hearing of the proceedings to do what is so required of him or her, the Court may again adjourn the proceedings and commit him or her for a like period and so again from time to time until such person consents to do what is required of him or her.

(3) Nothing in this section contained shall prevent the Court from giving judgment in any matter or otherwise disposing of the proceedings according to any other sufficient evidence taken.

(4) No person shall be bound to produce any document or thing not specified or otherwise sufficiently described in the subpoena unless he or she actually has it in Court.

(5) When a subpoena is issued to procure the attendance of any person to give evidence or to produce any book, paper or document in any proceedings, and it appears—

any judge of the Court concerned may, notwithstanding anything in this section contained, after reasonable notice by the Registrar to the party who sued out of the subpoena and after hearing that party in chambers if he or she appears, make an order cancelling such subpoena.

34. (1) The Minister may in consultation with the Minister of Finance from time to time by notice in the Gazette prescribe a tariff of allowances which must be paid to a witness in civil proceedings or to any person who is to accompany any such witness on account of the youth or infirmity due to old age or any other infirmity of such witness.

(2) Such notice may differentiate between persons according to the distances which they have to travel to attend the court to which they are summoned or subpoenaed, or according to their professions, callings or occupations and may empower such officers in the service of the State as may be specified therein, to order payment of allowances in accordance with a higher tariff than the tariff so prescribed, in cases where payment of allowances in accordance with the last-mentioned tariff may cause undue hardship.

(3) Notwithstanding any other law, a Superior Court may order that no allowances or only a portion of the allowances prescribed shall be paid to any witness.

35. (1) The Constitutional Court and, in any civil proceedings, any Division may, with the consent of the parties, refer—

for enquiry and report to a referee appointed by the parties, and the Court may adopt the report of any such referee, either wholly or in part, and either with or without modifications, or may remit such report for further enquiry or report or consideration by such referee, or make such other order in regard thereto as may be necessary or desirable.

(2) Any such report or any part thereof which is adopted by the Court, whether with or without modifications, shall have effect as if it were a finding by the Court in the proceedings in question.

(3) Any such referee shall for the purpose of such enquiry have such powers and must conduct the enquiry in such manner as may be prescribed by a special order of the Court or by the rules of the Court.

(4) For the purpose of procuring the attendance of any witness (including any witness detained in custody under any law) and the production of any document or thing before a referee, an enquiry under this section shall be deemed to be civil proceedings.

(5) (a) Any person summoned to appear and give evidence or produce any document or thing before a referee, and who, without sufficient cause, fails to attend at the time and place specified or to remain in attendance until the conclusion of the enquiry or until he or she is excused by the referee from further attendance, or refuses to be sworn or to make affirmation as a witness, or having been sworn or having made affirmation, fails to answer fully and satisfactorily any question put to him or her, or fails to produce any document or thing in his or her possession or custody or under his or her control which he or she was summoned to produce, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding three months.

(b) Any person who after having been sworn or having made affirmation, gives false evidence before a referee at an enquiry, knowing such evidence to be false or not knowing or believing it to be true, shall be guilty of an offence and liable on conviction to the penalties prescribed by law for perjury.

(6) Any referee shall be entitled to such remuneration as may be prescribed by the rules of court or, if no such remuneration has been so prescribed, as the court may determine, and to any reasonable expenditure incurred by him or her for the purposes of the enquiry, and any such remuneration and expenditure must be taxed by the taxing master of the court and shall be costs in the cause.

36. (1) The Constitutional Court and, in connection with any civil proceedings pending before it, any Division, may order that the evidence of a person be taken by means of interrogatories if—

(2) Whenever an order is made under subsection (1), the registrar of the Court must certify that fact and transmit a copy of his or her certificate to a commissioner of the court, together with any interrogatories duly and lawfully framed which it is desired to put to the said person and the fees and the amount of the expenses payable to the said person for his or her appearance as hereinafter provided.

(3) Upon receipt of the certificate aforesaid and of the interrogatories and amounts aforesaid, the commissioner must summon the said person to appear before him or her, and upon his or her appearance must take his or her evidence as if he or she was a witness in a civil case in the said Court, and must put to him or her the interrogatories aforesaid with any other questions calculated to obtain full and true answers to the said interrogatories, and must take down or cause to be taken down the evidence so obtained, and must transmit the same, certified as correct, to the registrar of the Court wherein the proceedings in question are pending.

(4) The commissioner must further transmit to the said registrar a certificate showing the amount paid to the person concerned in respect of the expenses of his or her appearance, and the cost of the issue and service of the process for summoning such person before him or her.

(5) Any person summoned to appear in terms of subsection (3) who without reasonable excuse fails to appear at the time and place mentioned in the summons, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding three months.

(6) Any interrogatories taken and certified under the provisions of this section, shall, subject to all lawful exceptions, be received as evidence in the proceedings concerned.

37. (1) Whenever a commission rogatoire or letter of request in connection with any civil proceedings received from any State or territory or court outside the Republic, is transmitted to the registrar of a Division by the Director-General of the Department, together with a translation in English if the original is in any other language, and an intimation that the Minister considers it desirable that effect should be given thereto without requiring an application to be made to such Court by the agents, if any, of the parties to the action or matter, the registrar must submit the same to a judge in chambers in order to give effect to such commission rogatoire or letter of request.

(2) Whenever a request for the service on a person in the Republic of any civil process or citation received from a state, territory or court outside the Republic, is transmitted to the registrar of a Division by the Director-General of the Department, together with a translation in English if the original is in any other language, and in intimation that the Minister considers it desirable that effect should be given thereto, the registrar must cause service of the said process or citation to be effected in accordance with the rules of court by the sheriff or a Deputy-sheriff or any person specially appointed thereto by a judge of the Court concerned.

(3) The registrar concerned must, after effect has been given to any such commission rogatoire, letter of request, process or citation, return all relevant documents, duly verified in accordance with the rules of court, to the Director-General of the Department for transmission.

(4) Except where the Minister otherwise directs, no fees other than disbursements shall be recovered from any state, territory or court on whose behalf any service referred to in this section has been performed.

38. (1) Any person who, during the sitting of any Superior Court—

may, by order of the Court, be removed and detained in custody until the rising of the Court.

(2) Removal and detention in terms of subsection (1) shall not preclude the prosecution in a court of law of the person concerned on a charge of contempt of court.

39. (1) The process of the Constitutional Court and the Supreme Court of Appeal shall run throughout the Republic, and their judgments and orders must, subject to the rules, be executed in any area in like manner as if they were judgments or orders of the Division or the magistrate's court having jurisdiction in such area.

(2) The civil process of a Division shall run throughout the Republic and may be served or executed within the jurisdiction of any Division.

(3) Any warrant or other process for the execution of a judgment given or order issued against any juristic person, partnership or firm may be executed by attachment of the property or assets of such juristic person, partnership or firm.

40. (1) The sheriff must, subject to the rules referred to in section 29, execute all sentences, decrees, judgments, writs, summonses, rules, orders, warrants, commands and processes of any Superior Court directed to the sheriff and must make return of the manner of execution thereof to the Court and to the party at whose instance they were issued.

(2) The return of the sheriff or a deputy-sheriff of what has been done upon any process of a Court, shall be prima facie evidence of the matters therein stated.

(3) The sheriff must receive and cause to be detained all persons arrested by order of the Court or committed to his or her custody by competent authority.

(4) A refusal by the sheriff or any deputy-sheriff to do any act which he or she is by law empowered to do, shall be subject to review by the Court concerned on application ex parte or on notice as the circumstances may require.

41. (1) In any civil proceedings before a Superior Court, a copy of any summons, writ, warrant, rule, order, notice, document or other process of a Superior Court, or any other communication—

(2) (a) A notice sent by telegram, fax, or any other electronic media as may be authorised by the rules of the Court—

shall be sufficient authority to any officer authorised by law to execute any such warrant or writ for the arrest and detention of such person.

(b) A person arrested as contemplated in paragraph (a) may be detained until a sufficient time, but not exceeding 14 days, has elapsed to allow for the original warrant or writ to be delivered at the place where such person was arrested or detained, unless the discharge of such person is ordered by a judge of a Superior Court.

(c) A judge of a Superior Court may upon good cause shown order the further detention of a person referred to in paragraph (b) for a period to be stated in such order, but not exceeding 28 days from the date of the arrest of such person.

42. The sheriff or a deputy-sheriff shall not seize in execution of any process—

Provided that the Court concerned may in exceptional circumstances and on such conditions as it may determine, in its discretion increase the amount specified in paragraph (b), (c), (e) or (f).

43. Any person who—

shall be guilty of an offence and liable on conviction to a fine or in default of payment to imprisonment for a period not exceeding six months or to such imprisonment without the option of a fine.

44. (1) Notwithstanding any other law, no civil proceedings by way of summons or notice of motion may be instituted against any judge of a Superior Court, and no subpoena in respect of civil proceedings may be served on any judge of a Superior Court, except with the consent of—

(i) the Chief Justice;

(ii) any judge of the Supreme Court of Appeal; or

(2) Where the issuing of a summons or subpoena against a judge to appear in a civil action has been consented to, the date upon which such judge must attend court must be determined in consultation with the judge from whom such consent has been obtained.

45. (1) On the date of the commencement of this Act, but subject to the subsequent issuing of any notice referred to in section 4(4)(a), the High Court seated in—

of the High Court of South Africa, and the area of jurisdiction of each of those courts becomes the area of jurisdiction or part of the area of jurisdiction, as the case may be, of the Division in question.

(2) Notwithstanding section 4(1), the Northern Gauteng Division shall also function as the Limpopo and Mpumalanga Divisions respectively until a notice published in terms of section 4(4) in respect of those Divisions comes into operation.

(3) Any circuit Local Division established under any law repealed by this Act and in existence immediately before the commencement of this Act, shall be deemed to have been duly established in terms of this Act as a Circuit Court of the Division concerned.

(4) Anyone holding office as the Judge President, a Deputy Judge President or a judge of a Court referred to in subsection (1) when this Act takes effect, becomes the Judge President, a Deputy Judge President or a judge of such a court under this Act.

46. (1) Any judge of a Superior Court who, immediately before the commencement of section 56, holds concurrent tenure of office as—

shall cease to hold the latter office and shall be deemed to have been designated to the panel of judges determined by the Judicial Service Commission in terms of section 11A.

(2) The remuneration of a judge referred to in subsection (1) shall not be affected on account of the discontinuation of his or her holding of an office referred to in paragraphs (a), (b) or (c) of that subsection.

(3) Any person who, immediately before the commencement of section 56, holds of office as a judge of the Labour Court but who is not a judge of a Superior Court shall cease to hold such office on the date of the commencement of section 56.

(4) A person referred to in subsection (3) is entitled to such benefits as determined by the President, after consultation with the Judicial Service Commission: Provided that such benefits may not be less than the benefits accruing to judges of the Land Claims Court at the expiry of their term of office, as contemplated in section 26 of the Restitution of Land Rights Act, 1994 (Act No. 22 of 1994).

(5) If a person who is or was a judge of the Labour Court is appointed as a judge of a Superior Court, whether before or after the commencement of this Act, the period of service of that person as a judge of the Labour Court shall, for the purposes of the Judges' Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of 2001), be deemed to be

active service as defined in that Act.

(6) Any person who, immediately before the date of the commencement of section 56, is an officer of the Labour Court or the Labour Appeal Court shall, subject to the laws governing the public service, be transferred to an equivalent post as an officer of a Superior Court designated by the Minister after consultation with the Chief Justice.

(7) Proceedings that are pending before the Labour Court or the Labour Appeal Court, in respect of which—

47. The rules applicable to the Superior Courts, the Labour Court and the Labour Appeal Court immediately before the commencement of this Act remain in force to the extent that it is not inconsistent with this Act, until repealed or amended by a competent authority.

48. (1) Subject to section 24, proceedings pending at the commencement of this Act, other than proceedings in labour matters, must be continued and concluded as if this Act had not been passed.

(2) Proceedings must, for the purposes of this section, be deemed to be pending if, at the commencement of this Act a summons had been issued but judgment had not been passed.

(3) Subsections (1) and (2) shall also be applicable, with the changes required by the context, in respect of proceedings pending on a date contemplated in section 45(2).

49. Any reference in any law—

50. The following section is hereby inserted in the Rules Board for Courts of Law Act, 1985, after section 5A:

(2) The Committee referred to in subsection (1) shall consist of—

(iii) a person who represents the interests of employees;

(iv) a person who represents the interests of employers; and

(v) a person who represents the interests of the State.

51. Section 6 of the Rules Board for Courts of Law Act, 1985, is amended—

52. Section 157 of the Labour Relations Act, 1995, is amended by the deletion of subsections (1) and (2).

53. Section 213 of the Labour Relations Act, 1995, is hereby amended by the insertion after the definition of "issue in dispute" of the following definitions:

54. Section 1 of the Basic Conditions of Employment Act, 1997, is amended—

55. (1) The laws mentioned in Schedule 1 are hereby repealed to the extent set out in the fourth column of that Schedule.

(2) Anything done under any provision of a law repealed by subsection (1), shall be deemed to have been done under the corresponding provision of this Act.

56. This Act is called the Superior Courts Act, 2003, and comes into operation on a date fixed by the President by proclamation in the Gazette.