JAFTA J
[168] The question whether the Minister has the power to designate is a matter of
interpretation. There must be a provision in RICA or another statute which may be
construed as giving the power to designate to the Minister. The first judgment employs
PAJA as a guide and draws attention to the fact that section 1 of PAJA defines “court”
to include a “Magistrates’ Court . . . designated by the Minister by notice in the Gazette”
and points out that PAJA does not in its body confer power on the Minister to designate
a Magistrate’s Court.
[169] It is true that PAJA does not confer power on the Minister to designate a
Magistrates’ Court by notice in the Gazette. But it does not follow as a matter of course
that the Minister lacks the power to designate. The definition of a Magistrates’ Court
itself tells us that the Minister establishes or designates Magistrates’ Courts in terms of
section 2 of the Magistrates’ Courts Act188. It is clear from section 2 of the latter Act
that the Minister’s powers include the power to create and abolish Magistrates’ Courts.
[170] Although section 2 of the Magistrates’ Courts Act does not expressly confer
upon the Minister the power to designate courts for specific classes of administrative
actions, it may reasonably be argued that this power is implied in section 2 of the
Magistrates’ Courts Act. It must be noted that the distinction between that situation and
the present is that the implied power does not flow from the definition of “court” in
PAJA
but
stems
from
the
Minister’s
power
under
section
2
of
the
Magistrates’ Courts Act. Here we do not have a provision equating to section 2.
[171] Moreover, PAJA draws a distinction between a designation of “courts” as
institutions and a designation of “presiding judicial officers”. Because the power to
establish and abolish Magistrates’ Courts vests in the Minster, the definition assumes
that the Minister may designate a court for purposes of determining administrative
actions. And section 9A of PAJA empowers senior magistrates to designate magistrates
as presiding officers over courts designated by the Minister in terms of section 1 of
188
32 of 1944.
85
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