IN THE HIGH COURT OF SOUTH AFRICADURBAN & COAST LOCAL DIVISION

Case No.:4794/2006

In the matter between:

GERRIT JAN MADERN Applicant

and

THE HONOURABLE MINISTER OF JUSTICE& CONSTITUTIONAL DEVELOPMENT First Respondent

THE MAGISTRATE'S COMMISSION Second Respondent________________________________________________________________

J U D G M E N T________________________________________________________________

VAN DER REYDEN J :

THE ISSUE

The issue for decision was limited, at a supplementary Rule 37 Conference, to its

amended form namely whether the applicant was with effect from 1st of

November 1997 alternatively the 6th of April 1998 to 31st of March 2005 the

Presiding Officer in the North Eastern Divorce Court as defined in section 3(b) of

the Administration Amendment Act 9 of 1929, such appointment having been in a

permanent capacity, and that his permanent appointment continues to subsist.

The following admissions were recorded at the same conference:

1. That as at 1 November 1997 alternative 6 April the applicant served at the Divorce Court under appointment by the Minister expressed and intended to be an acting appointment.

2. All his appointments to the North Eastern Divorce Court from time to time and during the material time were both expressed and intended by the Minister to be acting appointments.

BACKGROUND, HISTORY AND LEGISLATION

For the purpose of this judgment reliance will be placed on documents filed in a

bundle prepared by the parties in respect of which agreement had been reached

that they could be handed in without proof and that they are what they purport to

be and on the Legislation Bundle prepared by the parties.

As a point of departure the contents of a letter from the Director General of the

Department of Justice, dated 19 August 1996 addressed to the Secretary of the

Magistrate's Commission, Annexure A to this judgment sketch the factual

background of the dispute.

"ASPIRANT-LANDDROS: MENEER G J MADERN, WAARNEMENDE

VOORSITTER VAN DIE NOORD-OOSTELIKE EGSKEIDINGSHOF

Die gesprek met die Voorsitter op 5 Augustus 1996 asook u skrywe 5/3/2 van 19 Desember 1995 rondom die posisie van meneer Madern het betrekking.

Meneer Madern was vanaf 1 November 1988 tot 31 Maart 1992 die Griffier van die Noord-Oostelike Egskeidingshof. Nadat hy sy regskwalifikasie verwerf het, is hy met ingang van 1 April 1992 as Staatsaanklaer na die Landdros, Durban verplaas. Na die uitdienstrede van die Voorsitter van die Egskeidingshof gedurende 1995, is Meneer Madern met ingang van 1 Augustus 1995 op versoek van die Departement as waarnemende Voorsitter vir daardie hof aangestel. Die keuse het op hom geval vanweë sy vorige verbintenis met die Hof en ook omdat dit sy belangstellingsveld is. Aangesien die posisie van die Egskeidingshowe tans onseker is, kan die poste nie permanent gevul word nie.

Meneer Madern het reeds die voorgeskrewe kursus ingevolge die bepalings van regulasie 3(1)(f)(i) met goeie gevolg deurloop. Hy moet nou nog ingevolge die bepalings van regulasie 3(1)(f)(ii) vir 'n substantiewe tydperk van ses maande in 'n waarnemende hoedanigheid die amp van regterlike beampte ten opsigte waarvan hy 'n kandidaat is, beklee.

Dit dien ook vermeld te word om ingevolge die bepalings van artikel 10(3)(b) van die Swart Administrasiewet 1927, Wysingswet No 9 van 1929 as Voorsitter of permanente lid van die hof aangestel te kan word is die bepalings van Hoofstuk II van die Wet op Landdroshowe, 1944 (Wet No

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32 van 1944) vir sover laasgenoemde bepalings betrekking het op die aanstelling van 'n Landdros van 'n Streekafdeling, mutatis mutandis van toepassing met betrekking tot die aanstelling van 'n Voorsitter van 'n Egskeidingshof. 'n Geskikte plaasvervanger vir meneer Madern is nie tans geredelik beskikbaar nie sou daar vereis word dat hy die voorgeskrewe ses maande substantief as Landdros moet waarneem. Meneer Madern sal ook na alle waarskynlikheid in die toekoms aspirer vir aanstelling as Gesinslanddros wanneer die Wysingswet op Landdroshowe, 1993 in werking tree."

It is common cause that the Act governing the Divorce Court was the Black

Administration Act 1927, Amendment Act 9 of 1929 and more particularly Section

10 of that Act as amended from time to time. Relying on the parties Legislation

Bundle the following seems to be common cause.

Prior to amendment by Act No 65 of 1997 Section 10(1) read:

(1) Notwithstanding anything in any other law contained, the Governor-

General may by proclamation in the Gazette establish Divorce Courts which shall

be empowered to have jurisdiction to hear and determine suits of nullity, divorce

and separation between Blacks domiciled within their respective areas of

jurisdiction in respect of marriage and to decide any question arising therefrom:

Provided that the Matrimonial Causes Jurisdiction Act, 1939 (Act No. 22 of 1939)

shall mutatis mutandis apply with reference to the powers and jurisdiction of such

courts. and

Section 10(3)(b)

(b) A division of the court shall consist of a president who shall be

appointed by the Minister of Justice, at which appointment the provisions of

Chapter II of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944), are mutatis

mutandis applicable in so far as those provisions relate to a magistrate of a

regional division, and sittings of two or more divisions may be held

simultaneously.

Prior to amendment by Act No 42 of 2001 Section 10(1)(a) read:

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Notwithstanding anything to the contrary in any other law contained, the

President may by proclamation in the Gazette establish divorce Courts which

shall have jurisdiction to hear and determine suits relating to the nullity of a

marriage and relating to divorce between persons and to decide upon any

question arising therefrom, if the parties are or if either of the parties is-

(i) domiciled in the area of jurisdiction of the court on the date on which the

action is instituted; or

(ii) ordinarily resident in the area of jurisdiction of the court on the said date and

has or have been ordinarily resident in the Republic for a period of not less than

one year immediately prior to that date.

Prior to an amendment by Act No 55 of 2003 Section 10(3)(b) read:

A division of the court shall consist of one or more presiding officers, one of

whom shall be the president of the division, who shall be fit and proper persons

appointed by the Minister of Justice after consultation with the Magistrates

Commission, and such persons shall for the purposes of the Magistrates Act,

1993 (Act No. 90 of 1993), be deemed to be magistrates of a regional division as

contemplated in the Magistrates Courts Act, 1944 (Act No. 32 of 1944).

It is common cause that the applicant was appointed the acting President of the

North Eastern Divorce Court from 1 August 1995 and that his acting appointment

was for a unlimited period.

Subsequently, his initial acting appointment was extended from time to time

albeit in the capacity of a presiding officer in the North Eastern Divorce Court.

The applicant, after serving a substantial period in an acting capacity queried the

Department of Justice (the Department) on his status which eventually

culminated in the advertising of the post of Presiding Officer of the North Eastern

Divorce Court, Durban in 2000.

4

The Appointment Committee of the Magistrates Commission met on 21

July 2000 and 10 August 2000 and conducted interviews, including an interview

with the applicant.

It is common cause that no appointment was made following the interviews

because the applicant maintained that the selection process was defective in that

the post had been wrongly advertised as he had occupied that post since 1995

and has remained in that post up to the date of the interview.

It is clear from the correspondence placed before me that the applicant had over

an extensive period received either no response and at times an unsatisfactory

response to his query concerning his status. In this regard the applicant's

frustration is evident in the following paragraphs of his founding affidavit.

"16.

I am to say the least perturbed by the First and Second Respondents attitudes in

not providing me with the answers I desire and in fact creating more uncertainty

than anything else. I submit that I am entitled to security of tenure and that I

have the right to proper administrative action which includes the right to have the

Respondents provide me with adequate responses to my letters. What

exacerbates my present predicament is that the post which was initially allocated

to me when I was appointed as a Magistrate has long since been given to

someone else in consequence of my acting in the North Eastern Divorce Court.

I am advised that the position of acting presiding officer is tenuous in that once

the posts are advertised (even though I may be interviewed for that post) the

acting appointment comes to an end once a permanent appointment has been

made. There is no guarantee that I will be the successful candidate.

17.

If I am in fact unsuccessful then there is every indication that I will be required to

again take up my post as a District Court Magistrate and my salary being lowered

to that of a Magistrate. I have since 1998 become accustomed to the salary of a

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Regional Magistrate and have catered for my day to day living on the basis

that I would be paid a Regional Court Magistrate's salary. In short I have been

living the life of one who is paid a Regional Court Magistrate's salary.

18.

As I pointed out earlier if I am not successful in the application for the post of the

permanent presiding officer I will have to take up my post again as a District

Court magistrate. I reiterate that this post has long since been taken and this

means that I will be left in limbo in the sense that I will be a presiding officer but

without a post so to speak. It is for the aforegoing reasons that I sought clarity

from the First and Second Respondents on my status but have not been given

any or any adequate response thereto.

19.

It is of utmost importance that I now aged 58 be informed of the position that

obtains and that will obtain in the event of me being unsuccessful as I want to

make plans for my future and in particular my retirement. I submit that the

Respondents have by their conduct indicated that they do not care about me in

this regard.

20.

I submit that I have a legitimate expectation to be informed by the Respondent of

my current status and their failure to do so are acts which materially and

adversely affect my rights, in particular my right to security of tenure."

The applicant's letter dated 25 January 1998, in which his appointment as

President of the divorce Court is raised and the State Attorney's letter dated 12

June 2006 in which the Department's view of the applicant's status is set out

concisely are incorporated in this judgment as annexures A and B. His

protracted engagement with the Department to get clarity and certainty on his

status as Judicial Officer in the Divorce Court is evident from Annexure A.

6

APPLICANT'S ARGUMENT

Mr Shepstone argued that the wording of section 10(3)(b) as at 1 November

1997 which provides that the Court shall consist of a president does not provide

for any other appointee. He submits that the reference to Chapter II of the

Magistrate's Court Act No 32 of 1944 which in section 9 deals with the

requirements for appointment as a regional magistrate relates to the appointment

of the president of a Division of the Divorce Court. He argues that although

section 9(3) refers to acting appointments, that reference must surely relate to

magistrates only and cannot be interpreted to refer to the President of a Division

of the Divorce Court. He points out that shortly after the applicant's appointment

as a magistrate the Divorce Courts Amendment Act No 65 of 1997 was enacted

with its commencement date effective from 6 April 1998. He argued that

whatever may have been the situation before the amendment brought about by

Act 65 of 1997, the Administration Amendment Act No 9 of 1929, as it then

became known, certainly did not provide for the appointment of acting presiding

officers. That much appears to have dawned on the Department: as appears

from a letter written by the Department dated 20 August 2003 and addressed,

inter alia, to the Applicant. That letter stated that the Department was aware of a

legal opinion drafted by the law Advisors to the effect that the current legislation

(in place after the 1997 amendment), apparently did not provide for the acting

appointment of presiding officers. In order to address this lacuna, urgent draft

legislation was being formulated to create legal certainty in this regard and to

regulate the previous activities of persons appointed as acting presiding officers.

The legislation contemplated was clearly the Judicial Matters Second

Amendment Act No 55 of 2003. The date of commencement of that Act was 31

March 2004.

Mr Shepstone drew attention to the first line of the preamble which provided for

the amendment of the Administration Act 1929, to eliminate any uncertainty

relating to the appointment of presiding officers of Divorce Courts in an acting,

temporary or permanent capacity.

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To achieve this, a new sub-section to Section 10 of the Act, labelled (3A) was

inserted. Section 10 (3A) reads as follows:

"Section 9 of the Magistrate's Court Act, 1944 (Act 32 of 1944), relating to

the appointment of magistrates in an acting or temporary capacity is

applicable with the changes required by the context in respect of the

appointment of acting or temporary presiding officers of courts established

under this section."

The Act, as from 31 March 2005, forward, clearly and unequivocally provides for

acting appointments. He argued that it is interesting to compare the wording of

sub-section (3A) with the wording of Section 10(3)(b) of the Act as it was prior to

the 1997 amendment. That wording, stated that the provisions of Chapter II of

the Magistrates' Court Act are applicable. The 2003 amendment refers

specifically to Section 9 of the Magistrates' Court Act which appears in Chapter II and specifically states that the appointment of magistrates in an acting or

temporary capacity in terms of that Act is applicable to the appointment of acting

or temporary presiding officers of Courts established under "this section",

referring obviously to Section 10 of the Act. This unequivocal coupling or linking

of the appointments of acting magistrates in terms of Section 9 to the

appointment of acting or temporary presiding officers of divorce courts clearly

demonstrates that the earlier wording referring only to Chapter II, did not achieve

this.

He argued that while there may be a practical need for the appointment of acting

presidents of the Divorce Court, such practical need cannot be elevated to the

presumption that the legislature must have intended such acting appointments if

the enactment is silent on the subject. After all, the Constitution provides

specifically for the appointment of acting judges and Section 9 of the Magistrate's

Court Act provides specifically for acting magistrates. It was only from 31 March

2005 when the 2003 enactment commenced that the legislature provided for the

8

provision of acting presidents of the Divorce Court. Looked at as a whole,

it is clear that the legislature whether by omission or otherwise, failed to make

provision for the appointment of acting presiding officers in the Administration

Amendment Act, at the very least during the period after the 1997 amendment

until the 2003 amendment came into effect. This covers the period from 6 April

1998 to 31 March 2005.

The applicant's case, on a factual argument is simply this. The Minister, in

making the applicant's appointment, albeit expressed and intended to be an

acting appointment, must have intended that the Applicant would have the

powers necessary to carry out the provisions and act in terms of Section 10(1) of

the Act namely, to hear and determine suits relating to the nullity of a marriage

and relating to a divorce between persons and to decide upon any question

arising therefrom. Further, he cannot be construed as having intended that the

applicant's appointment was a nullity and consequently that the functions carried

out by him were also nullities and of no force or effect. In the circumstances the

Minister's appointment of the Applicant must be construed as being an

appointment as a presiding officer in the North Eastern Divorce Court in a

permanent capacity.

The alternative date of 6 April 1998 being the effective date from which the

Applicant's appointment as a presiding officer should run, is, obviously because

that is the date the 1997 amendment took effect. In terms of the admission

recorded in paragraph 2 of the supplementary Rule 37 minute it is recorded that

the Applicant served from 1 November 1997, alternatively 6 April 1998 at the

divorce Court under appointment by the Minister.

In conclusion Mr Shepstone submitted that the application should succeed and

that the declarator should issue in terms of the amended relief sought. He also

sought costs, including those costs incurred consequent upon the employment of

two counsel.

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THE RESPONDENT'S ARGUMENT

Mr Olsen, on behalf of the Respondents, in his argument, presented a meticulous

analysis of the history of section 10 of Act No 9 of 1929, known as the Native

Administration Act 1929, Amendment Act 1929, from its inception through its

various amendments to the present proceedings. I do not propose to traverse

the earlier days of the history of section 10. I do however incorporate the text of

relevant legislation from Mr Olsen's heads of argument and the Legislation

Bundle. However to do justice to Mr Olsen's research and presentation of the

history and amendments of section 10, it is convenient to pick up the threads of

his research at the time of the 1949 and 1952 amendments to section 10 of the

1929 Act.

The legislation applicable to the public service was the Public Service and

Pensions Act No 27 of 1923. Mr Olsen argued that section 94 of that Act was

substantially to the same effect as Act No 29 of 1912, again, allowing for acting

appointments. When the 1949 and 1952 amendments were passed, it was

intended that all judicial posts in the divorce courts could be filled by acting

judicial officers. 1986 saw the abolition of the Black Appeal Court, which

necessitated a rewording of section 10(3) of the 1929 Act. The legislation

relating to the public service was replaced on two occasions after the 1952

amendment, and prior to the 1986 amendment of the 1929 Act. The format of

the legislation changed somewhat from the earlier versions of it. (a) The

Public Service Act, No. 54 of 1957 was the first of these Acts. It introduced the

notion of persons who are employed temporarily or under special contract

against posts on the fixed establishment. (b) The Public Service Act, No. 111

of 1984 replaced the 1957 Act, but followed the 1957 format. Section 7(1)(c)

dealt with temporary deployments and section 14(3) dealt with secondments. (c)

Accordingly, whilst the earlier legislation governing the public service spoke of

the concept of "acting" posts, the 1957 and 1984 Acts rather drew a distinction

between temporary occupation of posts and the permanent or substantive

occupation of posts. The effect, however, was the same. Officers of the public

10

service could be appointed to the divorce court in an acting or temporary

capacity.

The Special Courts for Blacks Abolition Act, No. 34 of 1986 saw the demise of

the Commissioners' Courts and what had come to be known as the Appeal

Courts for Commissioners' Courts, the latter established under section 13 of Act

38 of 1927. The schedule to that Act amended section 10 of the 1929 Act to

cope with this. The text of section 10(3)(b) of the 1929 Act was amended to

read as follows.

"A division of the Court shall consist of a presidentwho shall be appointed by the Minister of Justice, at which appointment the provisions of Chapter II of the Magistrate's Court Act, 1944 (Act 32 of 1944), are mutatis

mutandis applicable insofar as those provisions relate to a magistrate of a regional division, and sittings of two or more divisions may be held simultaneously."

.Mr Olsen argued that the use of the word "at" in the phrase "at which

appointment" in the 1986 amendment is unusual. The Afrikaans text is more

helpful, and reads as follows:

"'n Afdeling van die hof bestaan uit 'n voorsitter wat deur die Minister van Justisie aangestel word, by welke aanstelling die bepalings van Hoofstuk II van die Wet op Landdroshower, 1944 (Wet 32 van 1944), vir sover daardie bepaalings betrekking het op 'n landdros van 'n streekafdeling, mutatis

mutandis van toepassing is, en sittings van twee of meer afdelings, kan gelyktydig gehou word."

He submitted that reading the two texts together it is plain that what was intended

was that the provisions of Chapter II of the Act would apply with regard to the

appointments contemplated by the section.

11

Chapter II of the Magistrate's Court Act deals with Judicial Officers, and covers

the matter of their appointment. Prior to the amendment of the section in 1996,

section 9(3) of the Act provided as follows:

"Whenever by reason of absence or incapacity a magistrate, additional magistrate or assistant magistrate is unable to carry out the functions of his office, or whenever such office becomes vacant, the Minister, or an officer in the Department of Justice authorised thereto in writing by the Minister, may appoint any other competent officer of the public service or any competent retired officer of the public service to act in the place of the absent or incapacitated magistrate, additional magistrate or assistant magistrate, as the case may be, during such absence or incapacity or to act in the vacant office until the vacancy is filled; Provided that no person shall be appointed as an acting magistrate of a regional division unless he has satisfied all the requirements for the degree referred to in subsection (1)(b) or has passed an examination referred to in that subsection; provided further that when any such vacancy has remained unfilled for a continuous period exceeding six months the fact shall be reported to the Public Service Commission."

Mr Olsen argued that both by reason of the provisions of the Public Service Act,

1984, and by reason of the Magistrate's Court Act, 1944, the 1986 amendment to

the 1929 Act had the effect of permitting acting appointments. However In 1993

magistrates were taken out of the realm of the Public Service Commission, and

placed under the control and auspices of the Magistrates Commission in terms of

the Magistrates Act No. 90 of 1993. Section 10 of the Act provided for the

appointment by the Minister of magistrates subject to the Magistrates Courts Act.

That Act, in section 9(3), has always permitted acting appointments. And

section 12(5)(a) of Act 90 of 1993 contemplated that a magistrate could be

appointed in an acting or temporary capacity to any other judicial office.

12

The 1929 Act remained unamended until 1997, and acting appointments

were accordingly still permitted. In 1997 section 10(3)(b) of the 1929 Act was

amended until the current version was put into operation in 2005 under Act 55 of

2003. Schedule II :

"A division of the court shall consist of one or more presiding officers, one of whom shall be the president of the division, who shall be fit and proper persons appointed by the Minister of Justice after consultation with the Magistrates' Commission, and such persons shall for the purposes of the Magistrates' Act, 1993 (Act No. 90 of 1993), be deemed to be magistrates of a regional division as contemplated in the Magistrates' Court Act, 1944 (Act No. 32 of 1944)."

Mr Olsen argued that whereas the 1986 version of section 10(3)(b) spoke of

Chapter II of the Magistrates' Court Act applying to the appointment of

magistrates, the 1997 version does not; it provides instead that persons

appointed shall for the purposes of the Magistrates' Act, 1993 be deemed to be

regional magistrates as contemplated in the Magistrates' court Act.

He argued that the case for the applicant appears to be that for no discernable

reasons, and without any logic dictating that course, the legislature decided in

1997 not to allow the appointment of acting judicial officers in the divorce court.

He submitted that the principal purpose of the 1997 Amendment Act was to

furnish a right of access to that Court for all persons in the country, instead of just

persons belonging "to one particular population group". The amendment of

section 10(3)(b) was merely incidental; it was presumably thought appropriate to

make provision for consultation with the Magistrates' Commission, bearing in

mind that the Magistrates' Commission had been established under Act 90 of

1993 since the 1929 Act had last been amended in 1986. A simple answer to

13

the applicant's argument would be that if the judicial post was deemed to be

that of a magistrate of a regional division, then it was deemed to be a post which

could be filled by an acting appointment. The text of the section is neutral. It

speaks to neither permanent nor acting or temporary appointments. It provides

that "for the purposes" of Act 90 of 1993 the appointees shall be deemed to be

magistrates of a regional division. This presumably has to do with their

remuneration. Section 12 of the Magistrates' Act, No. 90 of 1993 deals with

remuneration. And subsection 12(5) provides explicitly for the remuneration of

magistrates in the position of the applicant. In its relevant part it reads as follows:

"5(a) If any magistrate is appointed in an acting or temporary capacity to any other judicial office.(i) for an continuous period exceeding one day; and(ii) the remuneration attached to that office exceed the

remuneration attached to the office ordinarily held by the magistrate,

He or she shall, for the duration of such appointment, be entitled to such additional remuneration as determined from time to time by the Minister."

Bearing in mind, he argued, the fact that by 1997 the court had functioned under

regimes which explicitly permitted acting appointments for a period of 68 years;

and the fact that there would be no logical reason at all for any deviation from the

practice of allowing acting appointments the section must be construed as

allowing for acting or temporary appoints. He referred to Jaga v Dönges, N.O. and Another 1950 (4) SA 653 (A) at 662G-H where it was established that an

interpretation of a statute in the light of its context was not restricted to the

language in the rest of the statute. He argued that the same point was made in

a manner most pertinent to the present enquiry in Santam Insurance Limited v Taylor 1985 (1) SA 514 (a) at 527, where Botha JA, after expressing agreement

with a submission from counsel, that it was permissible to have regard to the

historical background of legislation as part of the context within which its

provisions fall to be interpreted.

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He argued that in this case, also, the historical background leaves no doubt as to

the fact that the legislature must have intended that acting appointments would

continue to be permissible. Courts simply cannot function without provision for

acting appointments. There has never been a practice in South Africa of having

so many permanent posts filled that the absence of a judicial officer from duty for

any particular period cannot hamper the functioning of a court. Such a system

would be wasteful. Acting appointments have always been employed. He

referred to Van Rooyen and Others v The State and Others 2002 (5) SA 246

(CC) in which the Constitutional Court considered various challenges to the

Magistrates' Courts Act, and dealt with acting appointments in paragraphs

242-251 of the judgment. The court found that the Constitution recognised that

it may appoint acting Judges and that there can be no constitutional objection, to

the appointment of acting or temporary magistrates.

He submitted that it may be safely concluded that the facility to make acting

appointments is a practical necessity if the courts are to function properly. In

support of his argument Mr Olsen referred to Matatiele Municipality and Others v President 2006 (5) SA 47 (CC) at para 50; GNH Office Automation CC v Provincial Tender board, Eastern Cape 1998 (3) SA 45 (SCA) at 51 H

The Minister of Justice is required under the 1929 Act to take responsibility for

the appointment of judicial officers necessary in order for that Court to function.

In the light of the authorities cited, and the history and backgrounds of Courts in

South Africa generally, it is indisputable that the power to make acting

appointments is reasonable necessary to achieve the main purpose of staffing

the Courts so that they may function as anticipated by the legislation. The

proper conclusion is accordingly that the Minister has had the power at all times

material to the present proceedings to appoint the applicant temporarily to the

position of presiding officer in the Divorce Court, this conclusion being reached

upon a proper construction of section 10 in the form it took with effect from 1997,

against the background of the history of the legislation pertaining to the Court;

15

and/or because the power is incidental to the main power given to the Minister

to staff the Court.

He argued that it is not disputed that the applicant's appointments were all

expressed to be acting appointments, and that there was never an intention on

any occasion that they should be anything but acting appointments. As the

applicant's case is understood it is that acting appointments were not lawful

during the period 1997-2005 with the result that his acting appointment should be

taken to have been permanent or substantive. If, as is contended, acting

appointments were valid at all material times, then the only relief of substance

sought by the applicant must be refused.

On the issue that the minister was not empowered to make acting appointments,

Mr Olsen presented the following argument. Given the facts of the case, it

would not assist the applicant if this Court were to conclude that there was no

power, at the material times, to make acting appointments. Appointments under

the 1929 Act are the prerogative of the Minister. They were the prerogative of

the Minister throughout the period in question. The Minister did not make any

appointment of presiding officer otherwise than on a temporary basis. There

was no intention to do anything else. The applicant seems to ask this Court to

deem the Minister's intention to have been something different, and his

expression of intention to have been something different, to that which was

contemplated and expressed. However the facts of the matter cannot be

changed. A permanent or substantive appointment was either made or was not

made. In this case it was not made.

In conclusion Mr Olsen submitted that as the applicant's argument is understood,

this Court is enjoined to declare a fiction true in the public interest: it being

contended in his replying affidavit that if the acting appointments were invalid, all

of the divorces granted through those years must be taken to be nullities. First

of all, the question of the consequences of a finding that the acting appointments

were invalid is not before this Court. Secondly, as is illustrated in the judgment

16

of Van Rooyen and Others v The State and Others (supra) and De Kock and Others v Van Rooyen (supra) even the constitutional invalidity of the

empowering section does not invalidate what was done. The principle is not a

new one. This is illustrated by the quotation from the opinion of Chief Justice

Abbott expressed in 1819 in the case of Margate Pier Company v Hannan (3B.&Ald.266) quoted by Wessels, J. in Schoeman v Jooste 1916 (TPD) 312 at

316 – 317.

"By the particular Act upon which this question has arisen, Mr Dyson having been named in the commission, is declared to be a justice, and invested with power and authority as such. The proper effect therefore, as it seems to us, of the section is only to make it unlawful in him to act as such, but not to make his acts invalid. Many persons acting as justices in virtue of offices incorporations, have been ousted of their offices from defects in their election or appointment; and although all acts properly corporate and official done by such persons are void, the acts done by them as justices or in a judicial character have in no instance been thought invalid. The distinction is well known. The interest of the public at large requires that the acts done should be sustained; sufficient effect is given to the statute by considering them as penal upon the party acting."

Mr. Olsen submitted that the application falls to be dismissed with costs,

including those incurred consequent upon the employment of two counsel.

CONSIDERATION OF THE ARGUMENTS

At first blush Mr Shepstone's argument has some merit, more so in view of the

decision of the Department to rectify the perceived lacuna pertaining to acting

appointments with the introduction of the Judicial Matters Second Amendment

Act No 55 of 2003. The first line of the preamble to the Act reads:

17

"To amend the Administration Act 1929, so as to eliminate any

uncertainty relating to the appointment of presiding officers of Divorce

Courts in an acting, temporary or permanent capacity."

Mr Olsen argued that the purpose of the amendment to the 1929 Act is the

elimination of uncertainty. However the principle of eliminating uncertainty is

wrongly understood by the applicant Its purpose is to make certain that which

always was there, according to the party to whose exposition one is having

regard (i.e., the legislature sitting in 2003). If the purpose of the amendment

was to create a situation which Parliament thought was previously absent, then

the preamble would have read along the following lines:

"To amend the Administration Act, 1929, so as to provide for the appointment of acting presiding officers of Divorce Courts".

The mode of statutory interpretation known as parliamentary exposition supports

the respondents and not the applicant. He however argued that he deliberately

omitted this argument in his Main Heads because the theoretical basis for it is

somewhat controversial. (Greeff NO v Registrar of Deeds, Cape Town and Another 1986(1) SA 175 (A) at 187 A-C.)

Mr Olsen placed reliance on Patel v Minister of the Interior and Another 1955

(2) SA 485 (AD) at 493 for the submission that parliamentary exposition, or the

expression by parliament of what was to be taken to be the meaning of an earlier

enactment supports the Respondent's case. He referred to the following dictum

of Van der Heever JA :

"If this view is correct it seems to follow that in 1932 Parliament impliedly gave a meaning to the 1924 Act, or clarified the meaning, which might otherwise perhaps have been uncertain. There is authority for the view that Acts of Parliament, without having been passed for the express purpose of explaining previous Acts, may nevertheless be used as "legislative declarations" or "Parliamentary expositions" of the meaning of such Acts (cf. Craies on Statute Law, 5th ed., pp. 137 et seq.). It is not surprising that Court's are

18

cautious in the use of this aid to interpretation, since it is usual for later legislation to amend rather than to declare the meaning of earlier statutes on the same topic. It is, of course, the function of the courts to expound the true interpretation of the law, including statute law, but where Parliament has clearly shown in a later Act what it meant by an earlier one it seems to me to be not only helpful but even proper to have regard to the later Act in interpreting the earlier. Where a suitable occasion arises for the use of the principle of Parliamentary exposition a court should not hesitate to use it because of any apparent awkwardness arsing out of the notion of an Act's bearing one meaning or behind of doubtful meaning before the passing of a later Act, and having a different or an unquestionable meaning after the later Act has come into force."

He argued that in order to employ the mode of interpretation, the pre-eminent

requirement must be that there is ambiguity in the earlier version of the

enactment. Woodley v Guardian Assurance Company of SA Limited 1976

(1) SA 758 (W) at 764A-C; and General Mining Union Corporation Bpk v Stadsraad van Sandton 1985 (3) SA 352 (T) at 361 C-F.)

He submitted that it cannot be argued that the contrast between the very specific

wording in the 2003 amendment and that employed in the 1986 amendment

serves to illustrate that the so-called reference to Chapter II of the Magistrates

Courts Act did not achieve what the respondents say it did. The 2003

amendment was simply passed to achieve certainty. It is not surprising that the

clearest language was employed on that occasion.

I am satisfied that there is merit in Mr Olsen's argument. I am persuaded that

the Judicial Second Amendment Act No 55 of 2003 sought to rectify a perceived

lacuna in the relevant legislation more so if one has regard to the history of

section 10 and the various amendments over the years. Furthermore the

established practice of appointing acting judicial officers in the various courts of

19

this country militates against the notion that this practice was in conflict with

the legislation dealing with the Divorce Court.

I am satisfied that the applicant's appointment as acting presiding officer in the

Divorce Court was in accordance with the relevant legislation and that there is no

merit in his application for a declarator that he had been appointed in a

permanent capacity.

The application therefore falls to be dismissed.

THE COSTS ISSUE

The basic principle of an award of costs is that costs should follow the event.

Had this case been a commercial dispute I would have had no hesitation in

granting a costs order against the applicant.

However the costs issue has to be weighed against the history and background

of this case.

The Department's conduct towards the applicant is a clear example of

bureaucratic red tape and prevarication. Since 1995 the applicant has on the

face of it, made a positive contribution to the administration and running of the

Divorce Court, in his capacity initially as acting President and thereafter as

presiding officer.

If regard is had to Department's letter dated 19 August 1996 (supra) it is clear

that the Department held the applicant in high regard and envisaged that he

would in all probability "in die toekoms aspireer vir aanstelling as Gesins

Landdros wanneer die Wysingswet op Landdroshowe 1993 in werking tree".

At the launching of his application in 2006 the applicant was 58 years of age. At

present he must be 60 years of age with 5 years left before he has to retire.

20

Against this background the Department's attitude that the applicant, in order to

maintain his present salary which equals that of a Regional Magistrate, had the

option from the outset to apply for a Regional Magistrate's post which would

obviously have the pension benefits a Regional Magistrate is entitled to, a benefit

the applicant has forfeited over the years acting in the Divorce Court, shows a

complete lack of insight and compassion. Had the applicant been informed from

the outset that he should not aspire to a permanent appointment because of

affirmative action or whatever other reasons, he could have, a decade ago,

sought an appointment to the Regional Court Bench. Ten years of his career

was for all practical purposes put on hold pending the result of this application.

He now finds himself in a position where he may lose his status and salary as a

presiding officer in the Divorce Court with the prospect of reverting to his rank of

magistrate with a much reduced salary.

I am satisfied that expectation were created by the Department that the applicant

could be given a permanent appointment on the Divorce Court Bench. I am

furthermore satisfied that notwithstanding the fact that his application was

unsuccessful he was left with no choice but to bring this application to get

certainty as to his future career prospects. The dictates of fairness require that

consideration should be given that no order should be made as to the costs of

this application.

However the parties did not address me on the proposed costs order and ought

to be given the opportunity to do so if so advised. The parties are given leave to

present argument by way of written heads on or before 20 February 2009 on the

proposed costs order. If no argument is addressed on this issue the proposed

costs order will take effect on 23 February 2009.

THE ORDER

1. The application is dismissed.

21

2. No order as to the costs of this application is made subject to paragraph 3.

3. This costs order will take effect on 23 February 2009 if no further

argument is presented by the parties on or before 20 February 2009 on

the question of costs.

________________________________

22

DATE OF HEARING: 23 April 2008.

DATE OF JUDGMENT: 31 December 2008.

APPLICANT'S COUNSEL: ADV. S.M SHEPSTONE with F ABRAHAM

APPLICANT'S ATTORNEYS: FEISAL ABRAHAM ATTORNEYS

Ref: MRS ABRAHAM/TM/2005/04/M246

RESPONDENT'S COUNSEL: ADV. P.J. OLSEN SC with Ms JI

HENRIQUES

RESPONDENT'S ATTORNEYS: THE STATE ATTORNEY

23

REPUBLIEK VAN SUID-AFRiKA REPUBLIC OF SOUTH AFRICA

ANNEXURE A

Verw..Nr,/Ref,No. 2/1/5NAVRAE/INQUIRIES; G. J. MADERN

Tel. No. 031 - 3071631 Fax No. 031 - 3047625

KANTOOR VAN DIE—OFFICE OF

THE

THE SECRETARY NORTH EASTERN DIVORCE

COURT

MAGISTRATES COMMISSION PRIVATE BAG X54304

P.O. BOX 9096 DURBAN

PRETORIA 0001 4000

25 February 1998

SELECTION : PRESIDENT. OF THE NORTH EASTERN DIVORCE COURT

1. I hereby apply to be appointed as President of the North Eastern Divorce Court Division. I

submit that I comply with the requirements for such a position as set out in The Divorce

Courts Amendment Act, Act 65 of 1997, Section (1)(b) and that I am a fit and proper person

to be appointed by the Minister of Justice and well for the following reasons;

(a) My qualifications are as follows: B.A. (Hons); B.luris; Dip.Lecum; LLB. (which will

be acknowledged by UNISA as LLB.Hons),

(b) Since 1 November 1988 this office employed me as a Senior Administrative Clerk,

acting as Assistant Registrar till 31 March 1992.

(c) Since April 1992 I was appointed as a Public Prosecutor at the Magistrate's Court,

Durban where I prosecuted in various Courts in the District and Regional Courts including

Maintenance Prosecutor and assisting in the Children's Court.

(d) I have been the de facto President of this Court since 1 August 1995 when Head

Office seconded me to this Court as Presiding Officer and Head of the Office. Clearly, I

24

possess over a good knowledge of the workings of the North Eastern Divorce Court in

a clerical and judicial capacity.

(e) I have complied with ali requirements for an appointment as a Magistrate, As l had

to comply with Section 3(1)(f)(ii) of The Regulations for Judicial Officers in the Lower

Courts 1993, I tested at the Durban Magistrate's Court from 1 January 1997 till 31 July

1997. This delay was due to technical problems as the Magistrates Commission had no

jurisdiction over the Divorce Courts and I could not be tested here,

(f) The Honourable Minister of Justice, Mr. A.M. Omar, appointed me as a Magistrate,

in terms of Section 10 of the Magistrate's Act 1993, Act 90 of 1993, with effect from 1

November 1997.

(g) I was then transferred back to this office as from 4 August 1997 as Acting President and Head of

the Office.

(h) Since August 1995 to date I have presided in thousands of contested and

uncontested Divorce actions in Durban, Pietermaritzburg, Vryheid, Eshowe, Pretoria

and Pietersburg. ] am proud to say that not one case has been sent on appeal.

(i) I have been, and still am, involved in assisting the steering committee for pilot project

Family Courts (divisions) since the beginning of 1997 and attend and initiate several

meetings to accomplish the smooth and hopefully successful introduction of such pilot

actions in this Court's jurisdiction.

2. Above condensed form of experience speaks for itself why I consider myself as the

person who is fit and proper to be considered as the President of this Court.

3. The above application is not my first effort to try to resolve the issue surrounding my

position in terms of the above. Numerous correspondence, telephone enquiries and personal

visits to Head Office, Department of Justice, The Ministry of Justice, Magistrates Commission

and other relevant personalities in the Family Courts Pilot Project Committee since the end

of 1995 till to date has resulted in very little progress. Many letters are not even acknowledged

or replied to, with some exceptions (according to annexure "A" - "E" attached).

4. It is now my submission that, not withstanding Circular 34 of 1997 and General Circular

dated 16 January 1998 (annexure "I" & V), that i am subjected to unfair labour practises,

25

which resulted in substantial financial prejudice and being prejudiced in possible

Departmental promotion posts for the following reasons:

(a) On 1 August 1995 i was seconded to the President post for reasons made dear in

paragraph 2 of annexure "C", on a temporary basis, although Indefinite according to

annexure "D" and "E", A prosecutor, Leg 1. acting in a Regional Court Presiding

Officer's post (salary R40 920,00 per annum).

(b) At the end of 1995, when it became clear to me that my position in an acting post

was of a more permanent nature than anticipated, and after I was informed that although I

was recommended for a merit award, I would not qualify as I was not in a prosecutor's

post anymore, did I start to enquire as to my status and position in the Department,

reverting eventually to write to the Minister of Justice directly on 19 September 1996

(annexure (,A") with response according to annexure "B" and presumable ,[C". My

salary had now increased to Public Prosecutor Leg 2, at R44 940,00 beginning 1996, to

R58 716,00 in April 1996, to R74 601,00 from July 1996, to R3Q 199,00 as from July 1997

and again in November 1997 to a Magistrate Leg 3, at R136 200,00 per annum,

(c) Being the Head of this Office, and nobody avaiiabie to evaluate me, I also lost out

to possible

merit awards in 1996 and 1997, finding it difficult to recommend and evaluate

myself. Although i am positive that I would have succeeded, taking into

consideration that I am acting in a much higher post, the excellent results obtained

at this Court, standards raised and countless hours of voluntary, unpaid,

overtime worked,

(d) Eventually the Magistrates Commission decided that, due to technical reasons, the

Divorce Court not failing under their jurisdiction, which I still have difficulty in

understanding, to enable me to qualify for a Magistrate's post, I would have to comply with

Regulation 3{1)(f)(l) and (ii) of the Regulations for Judicial Officers in the Lower

Courts 1993, Both requirements complied with successfully, although with great difficulty

to this Court's function and administration. For the period I was required to be away

from this office, problems did arise in obtaining a relief officer resulting in cutting short

my aspirant Magistrates course and still doing Divorce Court circuit sittings during my

testing period in terms of Regulation 3(1)(f)(l).

(e) I was transferred back to this Court with effect from 4 August 1997 into the post of

the previous presiding officer, alas still as Acting President. I also refer you to annexure

"L" from which I was clearly identified and required to attend an aspirant Magistrates

26

course as from 6 September 1995 to 6 October 1995, which was cancelled without

my knowledge, due to my transfer to the Divorce Court, resulting in the loss of a

Magistrate's posting in Durban and the obvious loss of an increase in salary, being

appointed as Magistrate after many delays, only in November 1997-

5. To my surprise and utter, dismay, posts for Additional Presiding Officers in this Court, were

advertised in December 1997 at a yearly remuneration of R171 000,00. Yet, I who have

carried this office in the post of Acting President and who have suffered financial prejudice

as set out above, am still receiving R136 200,00 per annum, with no indication of an

adjustment.

6. it is with sincere regret that I have to resort to this type of reporting my distress at seemingly

being ignored. Even my letter addressed to the Director-General, dated 10 December 1997,

and faxed to Head Office and received according to Mr. H. Du Preez, has till to date not

been acknowledged as being received or attended to. A copy of this letter will also be

forwarded to the Director-General and to the Public Service Association, the latter with the

view of action in terms of A. Zandberg v Departement van Korrektiewe Dienste, as due to

the lengthy period of acting successfully in this higher post certain expectations have been

created.

7. I sincerely hope that this raised issue will receive your urgent attention, not only for my

benefit, but for the Divorce Court in particular and the Department of Justice in general,

especially in view of the fact that i am serving on various steering committees and task

groups for the implementation of the envisioned Family Courts Pilot Project (two within the

area of jurisdiction of this Court). People acting in a post are never considered seriously, not

withstanding their vast experience and efforts to succeed, due to the fact that their position is

perceived as only of a temporary nature, which is not conducive to sometimes stern and firm

decision making.

G.J. MARDENN. E. DIVORCE COURT

27

State Attorney (KwaZulu-Natal) Ummeli Kahulumeni (KwaZulu-Natal)

Staatsprokureur(KwaZulu-Nata)

ANNEXURE B

3RD FLOOR. SANGRO HOUSEDx 153, DURBAN417 SMITH STREET, DURBAN

PRIVATE BAG X54301 Switchboard; (031) -

3652500

DURBAN, 4000 Direct Tel No: (031) –

3652530

Fax No: (031) 3062448

E-mail:

HRoberts@justiee.gov.za

My Ref; 116/000721/06/M/P18

Your Ref: MR

ABRAHAM/TM/2005/04/M246

2006-06-12

Feisal Abraham Attorneys PO Box 63786

28

BISHOPSGATE 4008

Dear Sirs

GERRIT JAN MADERN / THE MINISTER OF JUSTICE AND TWO OTHERS CASE NO.: 4794/2006

All previous correspondence herein refers.

Kindly note that my clients herein have instructed me to inform your client that he was appointed as a Magistrate in terms of the Magistrate's Court Act, Act No. 32 of 1944 and his status has never chafed as he was previously advised by the Magistrate's Commission. Whilst your client was a Magistrate he was appointed to act as a presiding officer of the Divorce Court in terms of the Black Administration Act, 1927 as Amended by the Divorce Courts Amendment Act, 1997 and the Judicial Matters Second Amendment Act, 2003. As your client was acting as the presiding officer of the Divdrce Court he was paid a higher salary. My client further points out that should the position change your client will revert back to being a magistrate as duly appointed. Furthermore, my client points out that nothing has prevented your client from applying for posts at Regional Court level which were advertised in the past "or continue to be advertised. My client further points out that until the rationalisation process of the lower courts if finalised, which, is currently under way, no person is been; appointed in a permanent capacity as Presiding Officer of the Divorce Court. In the event of these posts being advertised your client is free to apply inline with the appointment process.

My clients have also requested me to point out that the position with regard to your client was set out in the letter dated 14th December 2004 from the Magistrate's Commission.

It is accordingly our opinion that in light of earlier correspondence herein that the position with regard to your client was at all times clear and there was no necessity to launch the current application. It is thus suggested that the current application be withdrawn by your client.

Your urgent response hereto will be appreciated.

Yours faithfully

H.H.M. Roberts (Snr Assistant State Attorney)

For STATE ATTORNEY (KZN)

29

State Attorney; JCGavendef Deputy State Attorneyi: G W Mackenzie, Mrs S NaidM, MM Jonas, Sinior Assistant State Attorneys: CWEtorkin, F J Gray, P J Kevan. M K Mohamad, H H M Rsberts. BM Kunene, Assistant Slntc Attorneys: CWBailey, Ms M T Hlophe, Mrs P L Elxttiinw, Mi M E Lejigpio, Ms R Niideo, E A Nicotic, Ms K.F Mkepu, Ms. M Piliai, MsF Seedat

30