Superior Courts, 17th and 18th Constitution Amendment Bills: briefings; New Bill to provide for extension of Chief Justice's term of office

Meeting report

The Chairperson opened the meeting by addressing the issue of the extension of the tenure of the Chief Justice.  The Minister of Justice and Constitutional Development out of concern from his office has initiated the idea that a Bill should be tabled sometime this week that would provide for the extension of the term of office of the CJ. Once it was tabled there would be public hearings for a day towards the end of July 2011 bearing in mind that the cut off date was 15 August 2011.

Mr J Jeffery (ANC) said that the House passed a Resolution that supported the extension of the term of office of the CJ. A Committee Bill would have been good, however the difficulty was that it would require the approval of the House to even have public hearings. There was a proposal for such a Committee Bill before from Ms Smuts, which was rejected. The issue was not the merits or demerits of the court case, it was the fact this situation would put the CJ in an invidious position whereby his court was going to decide on his future.  The Bill would not be passed before the court case was heard but it would be useful in that the court would be aware of Parliament’s intentions.

Ms D Smuts (DA) said that it went without saying that the opposition regretted the rejection of its proposal on 14 June 2011 to have an ad hominem Bill for the extension of the CJ’s term of office. It would have been desirable to have a Committee Bill however it was accepted that the Rules made it impossible for the Committee to proceed in the absence of the House. The opposition was pleased that a political was message was being sent that Parliament would step in and put to an end the CJ’s unenviable position. The situation was intolerable, as the CJ’s sisters and brethren would sit in adjudication on the extension of the CJ’s term of office.

Mr S Swart (ACDP) agreed that the rejection of the original idea for a Committee Bill was regrettable. That the Constitutional Court (CC) had to sit on a case involving its own CJ was an intolerable situation. Ms Smuts’ point that a good political message would be sent by Parliament by stepping in to protect the CJ was agreeable.

Professor G Ndabandaba (ANC) said that he was in support of the sentiments expressed by Mr Jeffery.

Concise Briefing on Objects of Superior Courts Bill and 17th Constitution Amendment Bill
Mr Johan De Lange, State Law Advisor from the Department of Justice and Constitutional Development (DoJ&CD) said that the contents of the document spoke for themselves and there was not much to elaborate on.  The Constitution Seventeenth Amendment Bill was first formally introduced on August 18 2003 as well as the Superior Courts Amendment Bill. It was then re-submitted in December 2005 as a revised version. More consensus was needed between the role-players and the process was put on hold. Part of the information that would make its way to the Committee would be comments as there were a lot of them on both the Seventeenth Constitution Amendment and Superior Courts Bills. Clause 1 of the Seventeenth Constitution Amendment Bill was a proposal of the amendment of Section 165 of the Constitution in order to provide for the CJ to be the head of the judiciary and to exercise responsibility over the norms and standards of the establishment and monitoring of norms and standards of the exercise of the judicial functions of all courts.  Clauses 2, 5, 7 and 8 amended Sections 166, 169, 172 and 173 of the Constitution so as to convert the various High Courts into a single "High Court of South Africa". The reference to "Magistrates' Courts" would be also substituted by a reference to "Lower Courts". The removal of magistrates from the civil service to the Magistrates Act left a void in the sense that before 1994 the Department could give particular magistrates instructions. This authority did not fit in with South Africa’s constitutional scheme and concept of judicial independence.

There was a need for a single line of judicial authority starting at the top with the CJ and ending with whoever was presiding at the lowest court. It was not envisaged that the CJ would be an authoritarian person; a framework was created in the Superior Courts Bill where the CJ would act in consultation with all presiding officers. The CJ would not act unilaterally and there would be norms and standards would be developed and could be enforced.  There was always going to be a need to re-look the structure of the lower courts and inquire as to whether there was a need for the Family Court, Divorce Court etc. There were also the Regional and District Courts to consider.  Only the Magistrate’s Courts were being dealt with at this stage, lower courts and the appropriate legislation would follow later to ensure that everything was in line with the Constitution. Clause 3 amended Section 167 of the Constitution so as to confirm the status of the CC as the apex court, with jurisdiction in all constitutional matters and any other matter in which it may grant leave to appeal.  The CC would therefore be the highest court for all matters, constitutional and non-constitutional, with the Supreme Court of Appeal (SCA) as an intermediate court of appeal.

Clause 4 amended section 168 of the Constitution in order to provide that the Supreme Court of Appeal may decide appeals in any matter arising from the High Court of South Africa or a court of a status similar to the High Court of South Africa, except where an Act of Parliament provided otherwise. It was proposed by some commentators that there should be a name change given that the (CC) would be an apex court. The Department felt that this was not necessary, as the CC has already gained historic significance and become internationally renowned for work done. The effect of this clause was that the Labour Appeal Court would no longer be a court of final instance in labour relations matters as per the Labour Relations Court, this has been recently confirmed in a judgment from the SCA where it was said by the court that the Constitution provided that the SCA was the final court in all matters unless the matter went to the CC. Clause 9 amended Section 167 of the Constitution, the Superior Courts Bill provided for the Deputy Chief  Justice (DCJ) to perform the functions of the CJ whenever a CJ was absent or during a vacancy in this office. A further amendment to Section 175 of the Constitution provided that the President could appoint an acting CJ from the ranks of the judges of the CC if there was a vacancy.

Clause 10 amended Section 178 of the Constitution in order to allow for national legislation to make provision for the Judicial Service Commission (JSC) to be involved in the appointment, promotion and transfer of judicial officers of the Lower Courts, and for the establishment of a committee and subcommittees comprising members designated by the Commission and other co-opted members in order to facilitate that involvement.  For this purpose, the chairperson and deputy chairperson of the committee in question will also be members of the JSC. This was to pave the way for the likely restructuring of the lower courts. The current introduced version of the Superior Courts Bill gas retained much of the structure found in the 2003 version. The Bill was the engine of the functioning of High Courts in South Africa. The objects of the Bill was to consolidate and rationalise the laws pertaining to the high courts as contemplated in Item 16(6) of Schedule 6 of the Constitution. The impact of the Bill was in Schedule 1 where various Acts were being repealed e.g. The Supreme Court Act of 1959, The Supreme Court Act of Venda, The Republic of Transkei Constitution Act, these Acts currently governed the courts in those parts of the country. A new concept that would be introduced in the Superior Courts Bill was that a Judge President of a division would also be responsible for the judicial functions of all lower courts falling within that division. This was in line with the concept of a single judiciary and single line of authority. Another important provision was clause 9 which dealt with access to courts and recess periods. The new concept here was that the Minister would also be involved.

Discussion
Mr Jeffery said that it would be useful to have a document that highlighted the changes. What provisions were there in the Superior Courts Bill that addressed judges that did other work like the Registration of Interception of Communications Act (RICA), the Inspectorate judge for prisons and judges appointed by the president to head commissions of inquiry? The Bill as introduced only had provisions for one of the two High Courts in Gauteng, why was this? Effectively there was no Mpumalanga or Limpopo High Court, when the Bill was passed how long would it take to get them up and running?

Mr Swart said that the Committee welcomed the tabling of the Bills and there was vast improved. The extension of the jurisdiction of the CC into the work done by the SCA would be a concern in terms of how much experience CC judges would have in doing that other work. Would one have an appeal to the SCA and then again leave to appeal to the CC and how much impact would this have on the workload of the CC? Would the Committee receive a document highlighting the views of the SCA on this proposal? Was it envisaged that the Magistrates Commission (MC) would be a sub-committee of the Judicial Services Commission (JSC)? What would be the role of MP’s in this regard? The administration of the lower courts by Judge Presidents would seem quite onerous on them, was there a buy in from them as well?

Ms Smuts said that the DA would like to hear all arguments on the issue of making the CC the apex court before taking a position on the matter. Why was the section in the Constitution left untouched that said that only four of the CC judges appointed need to have been judges before appointment? I propose further amendments to Section 178 of the Constitution on the composition of the JSC. This was to reduce the political component and to reconsider the participation of the National Council of Provinces (NCOP). At present the office of the CJ was a government department and this was undesirable, where was it mentioned in the Bill. In reference to clauses 2(h), 9 and 10 of the Superior Courts Bill; was it desirable that the Director-General (DG) of the department was the accounting officer of the office of the CJ. One would not find a DG being the accounting officer of Chapter 9 institutions or was this a temporary measure? Why was the Minister involved in the determination and administration of the recesses of Superior Courts under clause 9?

Mr De Lange replied that the document requested would be made available. Judges doing other work were dealt with in the Judge’s Remuneration and Conditions of Employment Act. The Superior Courts Bill did not address the working conditions of judges. At this point in time there was only one division in Gauteng and it was seated in Pretoria, it was it was in the 2010 version of the Superior Courts Bill that provision was made for North and South Gauteng High Court. The Bill introduced now only has one seat that is in Pretoria because there was not enough motivation to give each province a high court with a main seat and then make an exception with Gauteng. There was a transitional arrangement in the Bill that specified that until such time as the courts in Mpumalanga and Limpopo had been built, the Gauteng division would continue to function as the High Court of these two provinces.  In practice all the judges of the CC were judges before joining the CC. What the Department was anticipating was that there would be little change and the CC would most likely not open a floodgate of appeals.

The judges in the CC would apply the rules in deciding if it was in the interests of justice for appeals to go to the CC. There was no anticipated major concern in terms of workload and litigation costs for appeals to the CC. It was difficult to say if there was buy in from Judge Presidents and departmental officials should not speak on behalf of judges. There has not been resistance to the proposal that Judge Presidents oversee lower courts, there has been concerns on the side of administrative capacity however. On the issue of further amendments to the composition of the JSC, Members should not that this was an informal opinion; one could not foresee any problems in principle regarding the clause that provided for the amendment. The one snag was that as the Bill was tagged at the moment, it may not require the vote of the NCOP. It has been referred to the NCOP for public debate as per the requirements of the Constitution.

 It was the Minister’s view that the provisions dealing with the office of the CJ must be seen as a transitional arrangement. The Department was looking at the long-term future of court administration in this country. On the issue of clause 10 which provided for the DG to be the accounting officer for the office of the CJ; the Department did not want to diminish Parliament’s oversight role when it came to accountability. Budgetary issues fall within the domain of Parliamentary accountability. There might be a nee for some refinement on clause 9 where the recess periods of Superior Courts were concerned. The intention was that there would be consultation and consensus.

Mr Simon Jiyane, Deputy Director-General (DDG) of Court Services from the DoJ&CD said that the Mpumalanga High Court was above 30% in terms of its completion and it was also intended for completion in 2012. Currently a building was being refurbished for purposes of using it as a High Country in Mpumalanga, this was an interim measure. There was already coordination between the Judge Presidents and the lower courts in Mpumalanga. The current arrangement on the office of the CJ was temporary. There was no legislative framework for the creation of the office of the CJ and the public service framework had to be relied on. For now the Department would have to wait for the Court Administration Bill that would define this office. The Minister of Public Service and Administration advised that the office of the CJ would not function independently within the current framework as the executing authority as defined in the Public Service Act could not be a CJ and would remain the Minister of Justice. The Secretary General within the office of the CJ who was the accounting officer would only operate within the functions delegated by the Minister as the executive authority. In order to not create a vacuum, the accounting officer who was the DG of the Department of Justice would remain responsible for the finances and administration of the superior courts.

Mr Deon Rudman., DDG of Legislative Development from the DoJ&CD said that the Court Administration Bill was on the programme and it would be introduced early next year.

Ms Smuts expressed disapproval of the current arrangement where the office of the CJ was a government department. This was desirable and it was possible that this situation would continue for a year or two. Was it not possible to have a way in which to have that office continue but not actually set it up. The Department should consider this.

Mr De Lange said that there was no reason why the Department could not think about this bit it would also depend on how big the office of the CJ would be, at the moment it was 20 or so people.

Ms Smuts said that it would be 250.

Mr De Lange continued and said that the intention was that eventually it would be 250. If the component was small than the solution proposed would not be improbable.

Briefing Note: Constitution Eighteenth Amendment Bill [B8 – 2011]
Ms Theresa Ross, State Law Advisor from the DoJ&CD said that after the 2009 general elections the Department of Education and Training was abolished and the Departments of Basic Education and Higher Education and Training were created. The Adult Basic Education and Training Act, 2000 (Act 52 of 2000), and the Further Education and Training Colleges Act, 2006 (Act 16 of 2006), which were, at the time, administered by the Department of Basic Education, were transferred to the Department of Higher Education and Training. The Further Education and Training Colleges Act, 2006, defined "further education and training" as all learning and training programmes leading to qualifications at levels 2 to 4 of the National Qualifications Framework or such further education and training levels determined by the South African Qualifications Authority, (SAQA) and contemplated in the South African Qualifications Authority Act, 1995 (Act 58 of 1995), which levels are above general education but below higher education. Similarly, adult basic education is not regarded as part of tertiary education. The transfer of the functions relating to further education and training and adult education and training to the national level of government was regarded as necessary in order to ensure that post-school education and training were dealt with in a holistic and integrated manner and that there would be improved planning and articulation with the universities and the skills development sector.

The transfer of these Acts meant that not only tertiary education was administered at the national level of government, but that further education and training as well as adult education and training were also administered at the national government level, by the Department of Higher Education and Training. Schedule 4 of the Constitution contained functional areas of concurrent national and provincial legislative competence. In terms of Part A of this Schedule education at all levels, except tertiary education, was a functional area of concurrent national and provincial legislative competence. The transfer of the administration of the statutes regulating further education and training and adult education and training meant that, while the Constitution assigned these functional areas to both the national and provincial levels of government, it was the national level of government that has the actual powers and functions over these functional areas. It has therefore become necessary to amend the Constitution in order to make it clear that the functions relating to further education and training and adult basic education were functional areas of the national level of government.

The purpose of this short Bill was to remove the legislative competence in respect of further education and training and adult education and training from the functional area of concurrent national and provincial legislative competence in Schedule 4, so that only education at school level was a functional area of concurrent national and provincial legislative competence. This meant that further education and training, which included colleges and adult education and training, would become a functional area of exclusive national legislative competence, together with tertiary education.

Discussion
Prof Ndabandaba asked if the relationship between the Further Education and Training (FET) and tertiary institutions extend to credits as well?

Mr Jeffery asked who would deal with pre-schools as by definition they were not schools, would they become a national function? What was the definition of a school, for example would a law school fall under the provinces? Was the terminology used correct and clear?

Mr Swart said that his understanding of what was being done by the Committee was removing legislative competence in terms of the Schedules (from the concurrent Schedule 4 to the exclusive Schedule 5) in the Constitution in respect of tertiary and adult education. Was it correct to state in the memorandum that the Bill would transfer powers and functions relating to those areas, surely Parliament’s legislative competence was being transferred and the issue relating to powers and functions would flow at a later as a consequent executive decision.

Ms Smuts said that the Western Cape Provincial Government also shared the point raised by Mr Jeffery on the definition of school. They were concerned about the possible loss of support services amongst other things.

Ms Ross replied that the Bill removed the competency of school education and left the exclusive domain of tertiary education to the newly created Department of Higher Education and Training (DHET). The legislative competence was being transferred, but the powers and functions were already transferred when the two Acts regulating higher education were transferred from the Department of Basic Education (DBE).

Mr Swart said that the wording was not correct as it specified this current Bill as transferring the powers and functions.

Ms Ross said that the Department would look at that. Tertiary education and FET education would remain as exclusive national competencies. The rest of the schooling system would remain a provincial and national competence.

Mr Jeffery said that this did not make sense at all. Everything was a national competence except what was in Schedule 4. So Schedule 4 would be changed to say education in schools was a provincial competence this meant that pre-school has been made a national competence. This may not be the intention but how else would the Department argue that pre-school was a provincial concurrent competence. The way it was worded begged one to ask if somebody wanted to call themselves a law school, how else would the Department argue that this was not covered by provincial competence. There was a major problem with pre-school as it was being made into a national competence.

Mr Firoz Patel DDG for Planning and Monitoring in the DHET said that Mr Jeffery was correct and it was a matter involving definitions. The problem in the Constitution was definitions for education. The South African Schools Act defined schools as Reception to Grade 12 but it did not take away the Constitution’s supremacy from which one should take the lead. A way to obviate this would be to have a strict definition that would be in line with that of the South African Schools Act.

Mr Jeffery interrupted and said that you don’t mean school was just Grade R to Grade 12 because you want pre-school which was before Grade R to remain a provincial concurrent competence. If one said it was education at schools with a definition clause that said school wad Grade R to Grade 12, then pre-school was still kept out. The intention was clear but the wording was a non-starter.

Mr Patel agreed. Currently education was defined as being from Grade R. pre-schooling fell under childcare and this was a competency under local authorities.

Mr Jeffery said pre-schooling did not fall under local as children started reading from 4 years and surely this was legislated for.

Mr Patel said that there was no legislation save for the South African Schools Act, which defined schools as Reception to Grade 12. Pre-school was a local government competency.
The Chairperson said that the Committee would need to think about whether to put the issue in the Bill or in the Committee report.

Mr Jeffery said that the Committee would listen at the public hearings. If school was defined as being from Grade R to Grade 12, then what of learners who left for FET after Grade 10 but before they finished Grade 12, would this not confuse everybody. Would it not be better to tinker with defining tertiary?

Prof Ndabandaba said that special schools must not be forgotten s the Committee tinkered with the definitions.

Mr Patel said that post-school meant outside of school. Learners who were out of the schooling system post compulsory stage were regarded as being part of the post-school system. It was the intention that there should be an integrated, highly articulated post school education system. 60% of learners who were going to college were currently re-doing their Grade 12 level education in another curriculum. Many of them were not being accepted at universities.

The Chairperson thanked the Department and it was decided that there would be advertisements for public hearings.

Meeting Adjourned.