municipal courts
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municipal court’s two main functions are to allow the Department of Justice to use its c o u r t i n f r a s t r u c t u re and administration for their core business and to allow municipalities to administer their by-laws more effectively and enhance their revenue base. The partnership relies on the Director of Public Prosecution’s power to delegate the prosecution authority to municipalities within cer tain parameters, in this case limited to by-law and traffic offences. Thus municipal courts are able to function as specialised magistrate’s courts. Although in some cases municipal courts may be a response to larger inefficiencies in the justice system, they provide benefits that go far beyond an ad hoc fix to a problem. In many cases they end up shifting the spotlight from the justice department to the shortfalls in the enforcement systems of municipalities themselves.
No municipality in South Africa is currently able to provide the quantity and quality of municipal enforcement needed to maintain a completely functional, purely municipal court. In almost all examples, South African municipal courts operate as traffic and by-law courts, and traffic cases typically make up more than 90% of their cases. This means that what we really have is glorified traffic courts, with municipal matters being seen every now and again in between. ‘We really started these courts to give full attention to the municipal matters and by-laws. And at the end of the day I think we’re missing the point 40 | delivery
Traffic cases outnumber by-law cases in South Africa’s municipal courts. This needs to change. By-law enforcement is an issue that cuts across almost all departments in a municipality, with regular inspections and monitoring needed in every area. Because municipal courts come with dedicated prosecutors, they can also provide useful input into this. In Cape Town, prosecutors meet with enforcement officers and give lectures or guidance on how to approach cases. ‘Part of what we do is to function in a certain advisory capacity,’ says Basson. ‘For example, a health matter where they take samples of bulk milk, the health inspectors will come to us and say, “Listen, what are the procedures for this? How do we take these samples?” And we guide them through the process.’ Photo: Rodger Bosch
Enforcement: everyone’s responsibility
Photo: Rodger Bosch
BY LUKE REID
South Africa’s first municipal cour t was launched in Cape Town in 2000, followed by others, but they remain an area that has yet to be clearly defined. There is no policy for rolling them out extensively, but several municipalities around the countr y have pushed to introduce the courts, with widely divergent styles of implementation and varying degrees of success.
Different municipalities have different priorities. In Durban and Johannesburg curbing street trading is the major concern, but in Cape Town it’s often noisy dogs. somewhat by allowing so many traffic cases,’ says Marius Basson, Cape Town’s chief prosecutor. ‘But then you must bear in mind that they have to be prosecuted and the income generated there does go to the municipality.’ Effective by-law enforcement is the key to changing this situation, and in most cases starting a municipal court has become just the first step in this process.
‘It’s amazing how many rules and regulations we have governing just ordinar y conduct of people,’ says Ke n n y S c h o e m a n , C a p e To w n’ s head of processing and municipal prosecutions. ‘But you can have as much legislation as you want to, and you can have very good prosecution, and if you can’t police it, it makes no difference.’
Policing the small stuff The general shortfall in municipal enforcement is a clear indication that for most municipalities it is not a priority. But while much of what the courts deal with is ‘cosmetic’, for example hawkers, noise pollution, signage, building regulations, inspections of food outlets and the like. Put together these are ultimately the things which signal that a society has reached an advanced state of development, where every corner of a town is beautifully maintained and all of its citizens live together in peace and harmony. If a South African municipality is doing enough enforcement to keep a
municipal court busy, it is on its way to achieving this ideal. ‘At the end of the day for us it’s not how much money we generate in court,’ says Basson. ‘The whole point is to have people comply with the law. You take a barking dog case: you’re not necessarily going to win the case, but somehow the penny drops and people will realise that they’ve got to tow the line or they might end up in court again. So there’s a deterrent, and people start to change their behaviour.’
Bridging the divides In a country characterised by massive social divisions, municipal courts face the challenge of policing complicated, uneven terrain. ‘ The fact is, something which constitutes a nuisance in Bishops Court will not constitute a nuisance in Khayelitsha,’ says Basson. ‘And those are the types of difficult value judgments that the magistrate has to make. It’s really not an exact science. We treat all complaints seriously wherever they come from, but you take the more affluent areas, whenever you have a dog complaint you would swear it was a federal offence. We’ve had nuisance cases where some of these extremely rich people would send attorneys just to observe what happened in court just in case the prosecutor did something silly.’ Nonhlanhla Dladla, manager of the
Photo: Luke Reid
The journey towards local justice
Only a tiny proportion of cases are contested in court, with most people using the court to get their traffic fines reduced. Durban Municipal court, explains the challenges: ‘Our township people don’t complain about noise, they don’t complain about dogs barking. It’s just the people in the white suburbs who complain about everything, and our township people are more tolerant. They shouldn’t need to be, but it’s going to take a long time to eradicate that, it is in their upbringing.’ The goal of municipal courts should be to create a society in which every citizen, regardless of their background, feels entitled to demand that their environment conforms to the highest standards. In creating this, a journey is just beginning. S
Why municipal courts are great • They ease the burden on the regular courts • Services are faster • There’s better revenue collection • Specialist knowledge allows for more successful prosecution • They allow for better co-ordination between by-law prosecutors and enforcers • They support by-law enforcement • They’re user friendly • They keep ordinary people separate from hardened criminals
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Photos: Luke Reid
municipal courts
The attractively-finished court complex, which includes a well-used, leafy courtyard, is part of why a visit to the Durban Municipal Court is such a user-friendly experience.
Ethekwini
A pragmatic approach to traffic offenders In the first municipal court in KwaZulu-Natal, justice is meted out in an efficient and practical way, relieving pressure on the regular court system and ensuring the municipality gets its money.
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he Municipal Cour t in Durban, which began operating in February last year, is in many ways a model for how the state should interface with its citizens. Housed in a stylishly redone building in a convenient location on the periphery of the city centre near the Durban Magistrate’s Court and train station, it has been able to take a flexible and innovative approach to getting things done, while remaining strictly dedicated to its procedural duties. As a result it is able to effectively service the entire eThekwini metro area. The court has two full-time magistrates and two prosecutors for a single courtroom, which is an unusual but very effective way of handling its huge volumes of traffic cases. One pair of officials sit in court, while the other two work behind the scenes, the 42 | delivery
prosecutor dealing with out-of-court fine-reduction settlements and the magistrate issuing summonses and attending to other administrative work. This means that court can be held throughout the day without needing to stop for the other activities, which may form the bulk of the work. The building was originally intended to run two courtrooms, one for routine admissions and a smaller one for trials. However, trials actually form such a
During a morning of observation, most cases were in court for about a minute and a half, with very few taking longer than three minutes.
small part of the court proceedings that, instead, the second courtroom is used as a waiting room for one of the prosecutors. However, it can also provide additional capacity during busy periods, such as after large metro police ‘sting’ operations where people with large fines are arrested, or during holiday time. ‘During those times we get visitors from other provinces, and so we want to fast-track their cases so they don’t have to keep coming back,’ explains court manager Nonhlanhla Dladla. Of course, things are quite fast to begin with. During a morning of observation, most cases were in court for about a minute and a half, with very few taking longer than three minutes. In most instances, those appearing before the magistrate were there because they were unable to pay their fines, and the case would be adjourned
until they could. A typical exchange was as follows: The magistrate: ‘You owe the City R5 900. Can you pay?’ ‘No,’ mumbles the accused. ‘How much do you have with you?’ asks the magistrate. ‘R1 000.’ ‘R3 000?’ asks the magistrate, looking hopeful. ‘No. R1 000.’ The magistrate thinks for a moment, then frowns. ‘No, that’s not enough. Please tr y and raise more funds. Come back in September when you’ve raised more money. This will give you enough time.’ Most people are coming back for the second or third time. In another example, a man whose case has been repeatedly postponed says he still hasn’t been able to raise money. ‘Do you have any funds at all today?’ asks the long-suffering magistrate. Negative. ‘Then you will need to come back in September. Please bring some funds along and we’ll take it from there.’ Dladla is wary of endless postponement, but says that being accommodating is very important. ‘I do not think it is fine for people to come back eight or nine times. People will be given a chance to gather funds twice or three times, and then after that the magistrate deals with the matter as he sees fit. But most people pay eventually. It’s not like people are very, very poor. People who are here are either driving for someone else, in which case it means that they do
She was about to pay her husband’s traffic fine when the cashier told her she was missing an opportunity to have it reduced. have an income. Or they are transport owners themselves, and they just have to redirect prosecution to their drivers.’ A major part of a municipal court’s function is to allow people to make representations for their fines to be reduced. As Dladla puts it: ‘We do everything we can to assist people to pay off their fines.’ Last year the court was part of a traffic fine payment campaign where fines in Durban were reduced by 50% for three months, resulting in a dramatic increase in revenue. But it doesn’t help if the public doesn’t know about these sorts of provisions. The most striking thing about the Durban Municipal Court is the surfeit of staff available to help people with ever ything from interpreting forms to how to get a better deal from the magistrate. A woman waiting to see the prosecutor describes how she was about to pay her husband’s traffic fine when the cashier told her she was missing an opportunity to have it reduced. So here she was doing just that. Another man was told by a policeman that he could get a very good deal if he pleaded
guilty and then told the magistrate he had a third of the money required in his pocket. However it is not a par ticularly onerous task, as not many formal trials take place at the court. A relatively tiny number of traffic fines are contested, and the court has not completed a single by-law trial in its lifespan. Dladla says that on a daily basis the court will usually see up to 20 by-law cases, with the people involved coming in to make payment or apply for fine reductions. However, since by-laws cases have almost always involved offenders being caught in the act, it is extremely unlikely that they will ever be contested. Only one by-law case has gone to court, but it did not proceed on the trial date. Prior to the dedicated court being set up, people would often have to wait for months for a hearing at the Durban Magistrate’s Court, where traffic and by-law matters were seen every Tuesday. In addition to vastly increasing the municipality’s capacity to process traffic cases, the new court has also eased pressure at the main Magistrate’s Court. But there is always room for doing more. ‘We need to roll this out,’ explains Dladla. ‘Durban is still a pilot project and the intention is that we will be able to bring services closer to the people. We need to establish some metro courts in the township areas. It’s definitely going to happen, but we’re not sure when.’ S
Helpful staff from the metro police and the municipality’s administration are always on hand to explain court procedure or how to fill in documents. delivery | 43
municipal courts
A humane face in a grim place
‘Put something down, anything,’ the cheerful prosecutor, Colin McGilewie tells them. ‘Are you studying? Do you have a family? Was your wife pregnant at the time? Just put it all down!’ After that he gives every person a theatrical examination based on their submission, with extensive moralising about the value of paying fines and the importance of particular road laws. There are also lots of anecdotes about his previous life experiences and the state of the world in general. ‘You know what they do in the Middle East if you steal? And if you speed, do they chop off your foot? You’re lucky to be here in Cape Town.’ Reductions in speeding fines are almost inevitable, but a recent policy decision in Cape Town has increased the fine for driving on an exclusive bus and minibus taxi lane on the N2 in the morning peak hour and made it impossible to reduce these fine. This has forced the prosecutor to adopt a new line. ‘Your city spent R40 million on bus lanes to get people to work on time. It’s for buses, not Toyotas! Everybody thinks they’re driving buses! So now you need to pay your fine to the
There may be many reasons for having a municipal court, but a morning in a Cape Town court shows one of the most important could be their role in limiting the impact of heavy fines on the most economically vulnerable drivers.
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he Magistrate’s Court building that is also home to the municipal co u r t in Wynbe rg is large, dark and grim, as befits a place that regularly appears below gruesome headlines. But the passage leading to the municipal court is different to any of the criminal courts in the building. To begin with, it is lined with friendly printouts with the words, ‘Traffic Court this way ’ above a large, red
that their fine is unfairly large, or trying to persuade the magistrate that they shouldn’t be fined at all. Fortunately for them, they stand an extremely good chance of being rewarded for their effor ts. When they walk into the courtroom before court is in session, they are given a representation form they need to fill out. Whether they ask for it or not, they are told to give a reason why their fine should be reduced or cleared out of court.
arrow. Inside, the posters are of large smiley 3D cartoon faces asking you, very politely, to turn your cellphone off. And the man whose job it is to prosecute you greets you with a big, genuine smile. More than anything else, this is a place where people go because they don’t have enough money to pay their traffic fines. If they arrive out of their own free will, it is because they think its worth spending a morning of their life either trying to persuade the prosecutor
beautiful City of Cape Town. And you can be happy because you are not throwing your money away. It’s going to help make your lovely city even better! And please remember everyone, you can’t drive on the bus lanes between 05:30 and 09:00.’ ‘This man should have been a priest,’ whispers a woman to her friend. Although the Municipal Court really is more than just a traffic court, on most days this is barely true. One man is in court for travelling on the train without a ticket, but otherwise it’s cars all the way. This is why the slightly misleading ‘Traffic Court’ signs are worth keeping. However the court does deal with building by-law cases on Mondays and Fridays, when a building inspector is present for whatever comes up. McGilewie estimates that the magistrate sees only about 10% of the cases on the court roll, with the rest being settled out of court. This means that the court is in session for only just over half an hour that morning, while the magistrate spends the rest of her time signing warrants for the 550 cases that are on the court roll and doing administration. The number of cases appearing in cour t is quite erratic however, particularly if, for example, metro police conduct sting operations to arrest people with large outstanding fines. Although even then the cases are spread among all 10 of Cape Town’s municipal courts, so the burden is not too heavy. Today the court proceedings are
relatively informal. At one stage the magistrate realises that a defendant is in the metro police canine unit and switches to interrogating him about whether the dogs are being treated well, before giving the bemused courtroom a sermon on exactly how dogs should be treated. It quickly becomes clear that previous experience is definitely a bonus when trying to negotiate the subject matter quickly and decisively. Elaborate, often translated, descriptions of lane changes across complicated intersections with hills and multiple actors doing strange things are completely impenetrable to the uninitiated. It’s also clear that the court performs an important unofficial regulating function for the local minibus taxi industr y, since most of the cases before the magistrate are related to the industry in some way. Maybe it’s because blaming your misdemeanours on taxi hooliganism proves to be a surefire way of getting off the hook. But it’s easy to see why the magistrate has little patience for the industry. In one example, a woman comes in to represent her son, a taxi driver, who has multiple charges against him of driving without a licence. He, of course, can’t be there because he is at work, driving without a licence. S See the special municipal courts section at www.sadelivery.co.za for more about Cape Town’s latest innovations.
Wise words from a prosecutor
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Wynberg Municipal Court deals with most of the city’s bus-lane fines, which can be removed but not reduced.
‘I’ve learnt that it’s very important to establish a good relationship with people. Then you can also persuade people that paying their fine is a good thing. Photo: Luke Reid
The leadership of Cape Town’s municipal court system do an inspection of a new prosecutor in one of the city’s ten municipal courts.
‘The most important thing is that the courts must be open and user-friendly. It’s not nice to pay a fine, and people need access to the system. This is supposed to be a service to the community.
Photo: Sharivan Moodley
Photo: Luke Reid
Colin McGilewie from the Wynberg Magistrate Court lays claim to the honour of being the first municipal prosecutor in South Africa, and has practised in his role for decades. Here are some of his thoughts on the value of municipal courts (and municipal prosecutors):
Cape Town prosecutor, Colin McGilewie.
‘A municipal court is a part of criminal justice, but if you’ve got a traffic fine, you don’t want to stand in the lift with murderers and robbers. We shouldn’t subject people to that. ‘One nice thing is that we’re so comfortable with all the regulations that we know when one action is covered by three or four by-laws, so you can always hit the target. We’ve got the skills, we know council, we know the land-use planning ordnance’ delivery | 45
municipal courts
Sorting out the by-law problem
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he Mbombela Municipal court opened in February 2005 because the municipality felt it was not being attended to properly by the Department of Justice’s existing court system. A lot of people were avoiding prosecution and fines were not being paid. When the cour t opened, then Minister of Justice Brigitte Mabandla described its importance in allowing the municipality ‘to clamp down more effectively on those who show scant respect for local regulations and bylaws. The disdain shown by many for local regulations speaks to the daily erosion of social values and thus to the quality of our lives as individuals and as a community.’ Now there is a full-time prosecutor available with three rotating magistrates and the court has taken a load off the Justice Department, but it is able to make little impression on the ‘daily erosion of social values’. The court deals with almost no by-law cases, other than the occasional ‘building without a permit’ contravention. The problem is simple, says municipal prosecutor Mr Nduduzi Ngomane. ‘Our by-laws are in bad shape. Everything is difficult to enforce, because our jurisdiction is Mbombela, but we have different fines and different rules in all the different areas submitting cases. And some things like 46 | delivery
Photos: John Robinson
Smaller municipalities battle not just with enforcement, but also with an extremely messy legal framework. Enforcement of by-laws around issues like food handling is critical if residents are to be safeguarded. illegal connections can’t be prosecuted because of a lack of by-laws.’ Professor Jaap de Visser, from the University of the Western Cape’s Community Law Centre, describes bylaw legislation in South Africa outside of big metros as ‘a mess’. ‘You have a lot of conflicting legislation, both vertically between local, provincial and national legislation, and horizontally between the different areas within a court’s jurisdiction. For municipal prosecutors, there are lots of options in terms of which legislation to draw on, but there is also a lot of confusion.’
‘There is a historic mess around who does what in terms of making laws, and it’s really just getting worse’ For example, in Mbombela, Ngomane describes how this conflict may extend to the level of enforcement, with provincial and municipal traffic officers policing different sections of the same road. Depending on where a motorist is caught, they will have a very different experience of the justice system. Since 2000, when local government’s
responsibilities were massively expanded, municipalities have been preoccupied with administrative amalgamation, and a wide range of other issues and new responsibilities. Rationalising by-laws has been a very low priority. ‘It is probably only the big metros who have updated and consolidated their by-laws,’ says De Visser. The complexities associated with large masses of people living very close together mean that metros have a greater need to update their by-laws. They also have the capacity to undertake the legal work that is involved and capacity to enforce their new laws. But for smaller municipalities, things might be getting even more complicated as provinces increasingly move into the legislative vacuum created by local government’s inaction. ‘There is a historic mess around who does what in terms of making laws, and it’s really just getting worse,’ says De Visser. ‘The provinces don’t know how far they’re allowed to go in terms of their jurisdiction. The Constitution says that nuisance laws are a municipal issue, but there doesn’t seem to be much regard for this.’ While many sector department issues are dealt with on the basis of ancient provincial legislation, in some cases this provincial legislation is being
updated and enhanced. An example of this are Western Cape noise regulations promulgated in 2007 that give extremely detailed, exacting descriptions of exactly how many decibels are allowed under any particular circumstance and exactly what a municipality is required to do about it. While smaller municipalities may welcome these sorts of initiatives on their behalf, metros see these provincial laws dealing with municipal matters as an incursion on their territory. And if this trend is to be reversed, De Visser says it will require, among other things, strong support from provinces, particularly in the form of things like model by-laws that municipalities can use. S
Well-run cities and towns need to enforce illegal dumping bylaws to offer quality of life and attract investment.
Johannesburg
Lack of enforcement slows prosecutions
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aving cour t time set aside for the prosecution of by-law infringements is a good idea in theory, but as Johannesburg has discovered, the level of enforcement needs to be stepped up if the court is to be productive. While its traffic cour ts have been in existence for many years, Johannesburg’s municipal court, which deals only with by-laws, was launched in October 2004. But since then it has had its hours of operation progressively reduced – from five days a week it now operates for two days a month, and even that is sometimes not fully used. ‘Nothing happens. It’s empty. Nobody comes to court,’ complains Superintendent van der Westhuizen, who is in charge of the city’s municipal prosecutors. ‘Our officers and the bylaw management unit write tickets, so the people who are summonsed must be put through the process, but the magistrate issues a warrant which is never going to be executed. I doubt whether we’ve ever done any by-law prosecutions at all.’ The downscaling has been easy, given that the municipal cour t
i s h o u s e d i n t h e J o h a n n e s b u rg Magistrate’s Court. At one stage the municipal court was able to share a venue with a tax court, but between them they were still not able to justify an entire courtroom. An important part of the problem i s t h a t J o h a n n e s b u rg ’ s b y- l a w enforcement has focused to a large e x t e n t o n s t re e t h a w k e r s , w h o are par ticularly visible. However, prosecution is difficult because most hawkers exist on the margins of society and are difficult to trace. ‘In our city hawkers are the major problem,’ explains van Der Westhuizen. ‘The thing is that you only need a trading licence if you sell foodstuffs. If you sell clothes and shoes and things, there’s no licence required, which means it’s very difficult to charge people if they’re selling counterfeit goods or whatever. People don’t come to court because they know they’ve given the wrong name and address and they’ll never get picked up.’ Instead, municipal police confiscate goods whenever they can, which local by-laws allow them to do. The city’s five traffic courts each have three prosecutors, one in court
Photo: Brett Eloff
Nelspruit
Of the 1210 by-law cases written in the first quarter of 2009, only 23 have been paid. 428 were for street trading. and the other two taking fine-reduction representations. The Department of Justice does not supply prosecutors and so traffic officers or metro police officers with some qualifications and experience have delegated authority from the Director of Public Prosecutions to act as prosecutors in Road Traffic Act cases. S delivery | 47
municipal courts
Are you sure you’re ready for this? While municipal courts might be an attractive way of encouraging compliance, very few municipalities have what it takes to set one up.
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n the years following the set up of the first municipal court in Cape Town in 2000, Adv Hishaam Mohamed, head of the Department of Justice in the Western Cape, received numerous requests for advice from municipalities around the country wanting to follow their example. Within the Western Cape, Mohamed also had to decide which municipalities would be given permission to set up a municipal court. ‘They all want to have grand plans and be seen to be looking funky or progressive, particularly if they ’ve got a new budget coming out. I think the whole idea of being seen to be specialising gives people the perception that there’s focused attention to something, and if there’s focused attention to something then
it will it will naturally have a more effective outcome.’ Mohamed says municipal courts are seen as prestigious, but that it is important municipalities do not to get too far ahead of themselves. ‘If you scratch a bit beneath the service you may find the intentions are not necessarily prevalent in reality. Often it becomes about specialising for the sake of specialising. You can’t have specialisation while your normal operations are operating at half-mast. That’s not advancing the utilisation of resources.’ A municipal court creates a demand for more municipal enforcement, but a municipality cannot expect this to simply happen. Increasing the flow of cases through effective enforcement is a completely separate process, and
Watch this space
Enforcement is key. needs to be done before a municipal court is introduced. In the Western Cape a task team was initially set up under the leadership of the local government MEC, which attempted to introduce municipal courts on a broad basis. An audit was done to identify municipalities capable of having a municipal court and where there was a need for it. However, the case volumes were found wanting and the Justice Department has decided to now look at individual municipalities on a case-by-case basis to see whether it is worth going into partnership with them. This interim policy requires municipalities, in co-operation with their local court, to prove that the local court is not coping with case volumes and the municipality is being given secondary attention. S
Establishing a municipal court A municipal court is essentially a partnership between the Justice Department and a local municipality, where the municipality offers to assist to deal with a backlog of cases. The first thing a municipality must do is have a proper engagement with their local cour t authorities, the local senior prosecutor and local chief magistrate. They should examine all the cases on the court roll over a particular period to look at the progress of municipal matters. The local court then needs to agree that the problem is with their own capacity, and agree that the municipality’s offer of infrastructural and administrative assistance is worthwhile. Either the local cour t authorities or the municipality can contact their provincial department of justice. Their submission needs 48 | delivery
to be based on conclusive documentary proof from the court roll and court statistics. Mohamed explains exactly what he’d like to see from municipalities: ‘They must write to the Justice Department and say, “We’ve met with our chief magistrate and we’ve done a study, and these are all our matters from January to June in this district. And here’s 1 000 matters where you can see the dates of postponement are more than three months, and there’s 200 of them on average.” Show that and we’ll go into partnership and open a special court for you.’ If a municipality is doing their enforcement properly, it should not be hard to find a backlog in their local court. However in most cases this is not happening. ‘If a municipality contacts me, usually when I call the local role-players to find out what the
Municipalities around the country have been introducing municipal cour ts, and they are making slow but steady progress improving their enforcement, which will have a fundamental effect on the way the courts function.
think that can also be attributed to things like councillors who are much more active in their areas. I think being a councillor these days is a full-time profession compared to ten years ago, and they make the communities aware of the services.’
we can expect to see municipal cour ts dedicated to by-laws and completely separate from traffic matters. The Justice Department has indicated that it would be more than happy to allow this if the court roll justifies it, although it is clearly a long way off.
Kenny Schoeman, Cape Town’s head of processing and municipal prosecutions, has been watching his city’s system unfold over the last 10 years, and says the number of bylaw matters in court is growing all the time.
In the short term, the courts will have to deal with changes like the new point system for traffic offences. It might make people contest traffic fines even more vigorously because of the ramifications of a demerit.
‘The more people become aware of the purpose of the municipal cour t, the more complaints you get through the court. About five years ago we didn’t have 10% of what we have now, and it’s getting more and more. I
In the longer term, larger municipalities which have some experience in municipal courts can expect to be given more responsibility, for example drunken driving prosecutions.
Marius Basson, Cape Town’s Chief Prosecutor describes how this would allow prosecutors to give more attention to municipal cases: ‘I had a case where I prosecuted a person for noisy parrots. And on that case I think I spent six days in court. Now that gives you a total of about twelve hours which is a hell of a lot of time spent on a case like that. The point I want to make is that there is the scope for giving a lot more attention to these sorts of cases, if you have the time.’
But if municipalities can do better enforcement,
PLETTENBERG BAY
Learning a hard lesson
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he only municipality in the Western Cape outside Cape Town to have been given a municipal court is the Bitou Municipality in Plettenberg Bay. It was felt that a municipal court would help improve the municipality’s ability to prosecute building contraventions on its seafronts by ultra-rich property developers.
The municipality set up the court in their old council chambers, with a magistrate coming twice a week from neighbouring Knysna to hold court. However the court was able to do little more than deal with traffic matters. ‘It was held under the guise of municipal matters and those matters were just not forthcoming in court,’ explains Adv Hishaam Mohamed,
story is, I never see the municipality again. They all get very hyped up when they first engage with the idea, but when you send them back to drawing board they never come back,’ says Mohamed. A useful municipal court is about more than just the quantity of cases coming through, because for prosecutions to be successful, enforcement needs to be of a particular quality. A municipality need to know that they are able to get a good return on their service; that people make it to court, that municipal officials attend court to give testimony and that matters are not being withdrawn by prosecutors for unnecessary reasons like the quality of case documents. In short, says Mohamed, municipal enforcers need to be doing their work properly.
Bitou Municipality set up a municipal court to deal with troublesome developers, but it had to be closed down after eight months.
head of the Department of Justice in the Western Cape. ‘The municipality never had evidential material to try people who simply ignored building regulations. Someone would build this massive thing next to the sea despite objections, but their investigative ability to show the contravention of by-laws is non-existent. No wonder those guys are just ignoring the summonses. The politicians felt that something must be done about these buildings, but the municipality never came up with effective tools to deal with it.’ The new court was operated for eight months, because the Justice Department felt that the municipality was not prepared to commit to the project and invest in it properly. But ramping up the quality of enforcement is a difficult task. The first municipal court, piloted in Cape Town’s City Hall, was not ready to provide municipal cases for prosecution when it was set up. A series of engagements with the Justice Department over the years resulted in significant improvements, but the court still only uses one of its two courtrooms. S delivery | 49
