Bophuthatswana magistrates courts structure and functions

Abstract

The origin and the development of the Bophuthatswana magistrates' office has been discussed. It has been shown how these courts were expected to carry out both judicial and administrative functions. In the Cape Colony the Board of Landdrost and Heemraden were assisted by field courts and some other officials in the administration of both judicial and administrative functions. As the result of the recommendations of the Bigge and Colebrook Commission in 1823 which were contained in the first and second charters of justice the Board of Landdrost and Heemraden was abolished. The resident magistrate replaced this Board. This official was to perform both judicial and administrative functions. After the annexation of the Native territories by the Britons the administration of justice according to native law and custom that was executed by the chiefs and headmen, was to be executed by the resident magistrate. The Bantu Administration Act 38 of 1927 established the Bantu Commissioners' courts who henceforth were charged ·with the responsibility to administer justice to native people according to native law and custom and these commissioners were to perform the quasi-judicial and the administrative functions as discussed above. Thus the resident magistrate was to administer justice according to common law only. Bophuthatswana inherited from the Republic of South Africa the magistracy office.

However, the Commissioners' courts were disestablished. This was to structurize the magistrates' court differently from their South African counterparts. The magistrate in Bophuthatswana in addition to the execution of functions of its South African counterparts had also to perform the functions that were performed by the defunct office of the commissioners' court. It should be remembered that as far back as 1941 the Landsdown Commission had recommended the separation of the judicial function from the administrative duties which were performed by a magistrate. This shows the concern that was expressed about the dichotomy of the function of a magistrate. Now with the need to relieve the load of a magistrate, a magistrate in Bophuthatswana was further burdened with another dimension of work, namely to perform the functions of the disestablished Commissioners' court. In 1983 as we have seen the Hoexter Commission recommended the separation of duties for the South African magistrates' court even where the commissioners' courts were still in existence. If this was recommended- for South Africa what more about Bophuthatswana where a magistrate performs the functions of the defunct commissioners' court in addition to the duties similar to those of his South African counterpart? Having invoked the evidence by means of statistics in the discussion an attempt was made to clearly show how it may be said that magistrates'

are overburdened with work in Bophuthatswana. So if the Hoexter Commission recommendations should be relevant for South African Magistrates' Courts what more about Bophuthatswana Magistrates' court? To respond to this question in negative will surely be to lack the sense of appreciation of the dilemma in which a magistrate finds himself in Bophuthatswana. The lack of the independence of the judiciary by the magistrates' court has caused some concern. As far back as 1823 the Supreme Court was clothed with this concept and the magistrates' court was excluded. The implications of the absence of this concept at the magistrages' court has been discussed. As shown by the Hoexter Commission this concept forms the cornerstone of the proper administration of justice. In Bophuthatswana where a rule of law is upheld and espoused · the need for the independence of the judiciary as far as the magistrates' courts are concerned cannot be over emphasised. Some concern has been expressed that to implement the Hoexter Commission recommendations in Bophuthatswana along the lines indicated above will be costly. But how does one weigh this concern against the need of our magistrates' in dispensing justice? A primary concern of every state should be the administration of justice of unchallengable quality. Economic concern in carrying out the recommendations of the Hoexter Commission, placing magistrates' courts in Bophuthatswana on the same par with its Southern African counterpart, should take second place to the overriding principle of proper justice.