Constitution 17th Amendment Bill & Superior Courts Bill: public hearings

Meeting report

Constitution Seventeenth Amendment Bill [B6-2011] and Superior Courts Bill [B7-2011]: Public hearings
Al Jama-ah Submission
Mr Ganief Pietersen, Leader, Al Jama-ah, noted that his organisation was a registered political party. His submission advocated for a separate court that would adjudicate on Muslim marriage matters, and provide a basis for legal consequences in Muslim marriages. The idea for a separate court emanated from the South African Law Reform Commission (SALRC).

The Chairperson interrupted to ask Mr Hendricks if he had read the Constitutional 17th Amendment Bill (the CA Bill) and the Superior Courts Bill (the SC Bill).

Mr Hendricks replied in the affirmative to both.

The Chairperson pointed out that neither of the two Bills dealt with Muslim marriages, nor a separate forum for adjudication on those types of marriages.  

Mr Hendricks said that the previous version of the Superior Courts Bill had made provision for specialist courts, although the specialist courts provisions had been excluded from the current version of that Bill.  In the current version the specialist court provisions have been done away with.

The Chairperson said that the Department of Justice and Constitutional Development (DoJ&CD) had given an indication on its programme of intention to table a Muslim Marriages Bill, and he asked whether this was not the appropriate forum for the questions that were to be raised.

Mr Hendricks said that the Constitution Seventeenth Amendment Bill proposed to convert the Constitutional Court (CC) into an apex court of final instance in all matters. He submitted that this jurisdiction afforded to such apex court was too wide. The apex court should not adjudicate on religious matters that pertained to religious doctrine. He noted that this proposal, if carried, would impact on any other legislation, including the proposed new Muslim Marriages Bill. Instead, he suggested that the Superior Courts Bill must make provision for specialist courts, so that if the Muslim Marriages Bill was passed, a facilitative environment would already be in place. He believed that his submission was very relevant to this public hearing too. It had support from the Muslim Judicial Council (MJC).  Muslims had more than a 300 year history in South Africa and Islamic family law has been practiced for centuries, despite its non-recognition by the State. More than a decade ago, the SALRC had proposed that a separate court would be ideal for giving legal consequence to Muslim marriages and practices. The Constitution had to guarantee religious freedom to all religious communities without State interference. Where religious doctrines were in conflict with the Constitution, they should override it. He felt that a separate court was long overdue and asked that the Committee should include it in the Superior Courts and CA Bills. It was unacceptable that the dignity of Muslim communities continued to be harmed. If resources were an issue, then these specialist courts could be positioned in the regional courts. The Muslim community had provided a Chief Justice (CJ), two Ministers and several judges, and could undoubtedly ensure that there would be other specialist judges available.

Discussion
Mr J Jeffery (ANC) said that the CA Bill and SC Bill were not dealing with the issue of Muslim marriages. He agreed with the Chairperson that the Muslim Marriages Bill would be the appropriate forum for these issues to be tabled. Al Jama-ah had mentioned that the MJC had supported the submission, but there was nothing formally noted to that effect. The question of having a specialist court would have to be canvassed with the public.

Ms D Smuts (DA) asked how formal was the support that Al Jama-ah claimed it had received from the MJC. Al Jama-ah had also requested substantive amendments to the Constitution. The Committee looked forward to hearing from Al Jama-ah when the Muslim Marriages Bill was tabled before Parliament.

Dr M Oriani-Ambrosini (IFP) said that he agreed with Mr Jeffery. There was a great challenge in revising marriage relations and identifying the rights and obligations within marriages, not only for the Muslim community, but for other marriages as well.

Mr Hendricks responded that he had made representations to the MJC on the Superior Courts Bill, and the MJC then gave Al Jama-ah a letter of support, and had also informed the Department of Justice and Constitutional Development (DoJ&CD) that it supported the concept of a specialist court. The Muslim Marriages Bill would propose that the jurisdiction for Muslim marriage would reside in the High Court. However, if this Committee were to entertain the idea of a specialist court being established through the Superior Courts Bill, then the Muslim Marriages Bill could be amended to state that jurisdiction for Muslim marriages would reside in a newly created specialist court. He did not think it fair for Members to suggest that Al Jama-ah was “jumping the gun”. He also noted that it was unfortunate that the Muslim Marriages Bill had been mentioned, because senior leaders of the Muslim community were not in agreement with that Bill, so it would be highly contentious. He said it was not clear why the Committee was denying Al Jama-ah the first steps towards restoring the dignity of the Muslim community. The MJC supported the need for a separate court. The Committee had to seriously consider the creation of a separate court now, to establish an appropriate court by the time the Muslim Marriages Bill was tabled. He reiterated his view that family law and religious freedom should be stating as overriding competing provisions of the Constitution, such as gender equality provisions. The Committee should also consider the request for a separate court because that was in the initial Bill as proposed by the SALRC.

The Chairperson said that some issues, such as that religious matters should override gender equality provisions of the Constitution, should be raised with the Constitutional Court. 

Democratic Rights Governance Unit (DGRU) submission
Professor Richard Calland, Director of the Democratic Rights Governance Unit, and Professor of Public Law at the University of Cape Town, said that the DGRU objected to the idea of converting the CC into an apex court. Given that the CC was the highest court in the land, entrusted with guardianship of the Constitution, and that the Chief Justice was the highest judicial officer, he questioned whether it would not make more sense to provide for a rule in the Constitution itself around the tenure of the Chief Justice, and not through legislation. The DGRU submitted that the Chief Justice (CJ) was very different from the other Justices of the CC, and thus should be treated differently. Any CJ should be given at least five to seven years’ appointment, to be able to do his or her job properly. It was not in the interests of South Africa or the CC to bring about change in the CC at present, although this may be appropriate in future. The Constitution was a living document that set out a vision for the future, but it was still also a work in progress. The roots of the Constitution remained shallow, and for this reason it would be advantageous at present to retain the current scheme. He submitted that the CC played a crucial jurisprudential role, which would be diminished were it to be converted into an apex court that dealt with appellate matters.  The current Justices of the CC had been appointed on the basis of their experience and aptitude on constitutional matters. It would be a great mistake to think that it would be an easy transition for these justices should they be expected to adjudicate on broader matters.

Prof Calland summarised that in the period 2009-2010 the Supreme Court of Appeal (SCA) finalised 42 criminal appeals, 196 criminal petitions, 180 civil appeals and 295 civil petitions. In the same period the CC handed down judgments in just 35 cases. This reflected the difference in the workflow and the nature of the courts. If the CC became an apex court, it would have a hugely increased workflow similar to that of the SCA. If  the CC became the court of last instance, then the issue of leave to appeal became very critical. The Constitution Seventeenth Amendment Bill advanced the test of the CC being able to be approached where this was ‘in the interests of justice’. The question then was what was meant by ‘in the interests of justice’. If the CC became the court of last instance, where leave to appeal was granted if the matter was in the ‘interests of justice’, then this would create a high volume of work, as indicated by foreign jurisdictions who had this system. This would then mean that the CC would have to be re-designed. The SCA had grappled with these issues and had adapted to them very effectively. It had developed a practice of sitting in smaller committees to settle matters, and it had grown in size as well as social and intellectual capacity.  The SCA had become a credible court of appeal.  The CC had had great intellectual diversity, with its justices coming from different legal backgrounds, with not all of the judges having had experience as judges in the past. If the CC were to be converted into an apex court, then certainly all of the judges would have to have had prior judicial experience, and there would no longer be the possibility of appointing non-judges to that court.

Professor Hugh Corder, Faculty of Law, University of Cape Town, had come up with the idea that it might be possible to put a transitional arrangement or process in place, given the concerns that the time was not ripe for creation of an apex court. It could be possible to determine that at some future period the CC could be converted into an apex court, as this would then give sufficient time for preparation, although he stressed that this would also have to be linked to a time when the CC had gathered deeper roots. The preparation for an apex court would have to entail appointing the right sort of judges, preparing the appropriate procedural grounds and other matters. Failing this, if the CC were simply to become a court of general appellate jurisdiction, there would be a danger of losing the opportunities for a progressive constitutional jurisdiction that gave effect to the socio-economic rights in the Constitution, and that embodied the bold vision of an equal and just society.

Discussion
Mr Jeffery asked if the DRGU could come up with proposals for a Constitutional amendment providing for the tenure of the CJ. He also asked if provision would also have to be made for the President of the SCA, and for the Deputy Chief Justice (DCJ) of the CC. He posed the question whether the CA Bill should not have made provision for the Deputy Chief Justice. He also thought that the Committee may have to solicit further public comments if it were to insert another Constitutional amendment into the CA Bill. He asked the DGRU if it could conduct some research and present the committee with comparisons in other countries who had a CC, particularly on the relationships between this court and other courts of appeal. He suggested that it would be most useful for the DGRU to assist the Committee with its research.

Mr S Swart (ACDP) said that he shared the concerns of the DRGU on the role of the SCA being undermined. He wondered if the test of ‘in the interests of justice’ could not be more narrowly defined, in legislation.

Ms Smuts made the point that Professor Carol Lewis had once said that there was no difference between constitutional matters and others. However, it should be remembered that during the negotiations leading to democracy, the political parties expressly chose a socio-political court based on the Western European model. The Constitutional Court was also established to satisfy considerations of legitimacy, racial and gender representation. This model may have to be reviewed at a certain point in South Africa’s development. She suggested that the apex court had to be phased in, for precisely the reasons given by the DGRU. It was striking that the recent interviews for the appointment of judges were not based on the prospective establishment of an apex court. A full range of legal skills had to be acquired for the CC, before it could become an apex court. She agreed that it might be appropriate now to introduce a transitional phase. The apex court should perhaps take on matters of public importance, as had been said by those judges who supported the concept, such as Justice Kate O’Regan. The DA was in favour of the distinctive and separate treatment of the CJ, especially given that South Africa would soon be embarking on a new judicial regime.

Ms D Schäfer (DA) asked what the views of the DGRU were on having smaller sittings to accommodate the workload that an apex court would have. She wondered how many judges would have to be appointed, in order to deal sufficiently with the probable workload. She also asked if Prof Calland had any suggestions for how the concept of ‘in the interests of justice’ should be defined, and wondered if this extra layer for obtaining a final judgment would act as further hurdles for litigants. She also asked for comment on whether Prof Calland thought it would be justified for a CJ to have a longer period of tenure.

Prof Calland replied that the DGRU could look at crafting an appropriate amendment to encompass the new range of authority of the CJ, including something on the term. The CJ was currently playing a very different role. It did not seem likely that the Deputy Chief Justice and President of the SCA had the same level of leadership and responsibilities. Prof Corder would be asked to give more thought on the transitional arrangements proposal he had put forward, as this was his idea. The United Kingdom (UK) had specialist legislation that governed the issue of leave to appeal very tightly. In regard to questions around expertise, he said that whilst it was absolutely true that when, for example, a constitutional issue relating to maritime insurance arose, the CC justices would have to immerse themselves in maritime insurance law, this did not mean that they would become maritime insurance law experts. They would remain constitutional law experts, and would look at the issue from a constitutional law perspective. For this reason, he did not agree with Prof Carol Lewis. He also commented that it was a misperception to suppose that when judges dealt with a non-constitutional matter, they did so “generally”, and reminded the Committee that they had been chosen precisely because of their attitude to constitutionalism. This was a difficult task, as the Constitution did not address all issues. If maritime insurance lawyers were asked to tackle constitutional issues, they would produce a different outcome. If the intention was to have different issues dealt with by the CC, then constitutionalism would be almost certainly diluted. It would be an illusion to think that non-constitutional lawyers could do justice to the Constitution, and it was likely to be diluted in a very conservative manner. Prof Calland agreed that he would give more thought to defining the concept of ‘in the interests of justice’, which he agreed would need to be defined.

Mr Chris Oxtoby, Researcher, DGRU, said that the focus of the DRGU’s submission was based on other countries, such as United Kingdom (UK) Supreme Court, Canadian Supreme Court and the United State of America’s (USA) Supreme Court. Adjudication was more fragmented in continental Europe, and Constitutional issues were kept more separate than in the American and UK approach. South Africa was a hybrid of the two approaches, as there was general Constitutional jurisdiction for the High Courts and specialist Constitutional jurisdiction for the CC. This hybrid approach was innovative and interesting, and should not be too hastily discarded. The Committee might want to look at the new UK law that governed petitions, which was very strict and specific.

Mr Jeffery said that the UK and USA did not have a CC, so they were not analogous at all. It would be useful to look at research data on where a CC was being converted into an apex court, particularly in developing nations.

Business Unity South Africa (BUSA) submission
Ms Lee Padayachee, Parliamentary Liaison Officer, Business Unity South Africa, said that BUSA was the largest business confederation in South Africa, as well as the sole business representative at the National Economic Development and Labour Council (NEDLAC). BUSA’s comments would be made only in relation to the position of the Labour Court and Labour Appeals Court, and  BUSA’s comments on the Superior Courts Bill related to the proposed amendments to the Labour Relations Act (LRA) that were contained in Schedule 2, item 2 of that Bill.

BUSA supported the majority of the amendments that related to the Labour Courts. It supported the amendment to Section 152(2) of the LRA, which would result in the Labour Court being a superior court that has authority, inherent powers and standing, in relation to matters under its jurisdiction, equal to that which a High Court would have in relation to matters under its jurisdiction. This amendment was the subject of negotiation at Nedlac. Labour had wanted the Labour Appeal Court to be the court of final appeal for all labour matters, and that the SCA should have no jurisdiction to hear appeals from the Labour Court. BUSA, however, was of the opinion that this issue should remain at Nedlac, for resolution by social partners. Ms Padayachee noted that it may be inappropriate for Parliament to be seized with this matter at present, as this matter would come again before Parliament as part of a package of proposed labour law amendments.

BUSA supported the proposed CA Bill, especially the amendment to section 168.

Discussion
Mr Swart said that the process that Parliament was dealing with would take some time to resolve, and there were already concerns that the SC Bill had been long awaited. He asked how long the Nedlac processes were likely to take. The SC Bill contained a proposal that the CC would be the apex court to deal with all issues, including labour-related issues, and he asked if BUSA had specifically considered this. 

Mr Chris Todd, Attorney for BUSA, said that the issue that BUSA wished still to be discussed at Nedlac related to the extent to which there should be any greater exclusivity in the jurisdiction of the Labour Court. Section 152(2) of the LRA might be subject to two amendments in quick succession, as the Nedlac process might come up with further amendments to this Act in addition to those proposed in the SC Bill. This was not desirable. In addition, this Committee should not be seized with the question of whether or not to extend the jurisdiction of the labour courts at present, as the social dialogue on this point had not been concluded. The CC would always be the gatekeeper in labour matters, as labor legislation was established to give effect to Constitutional rights. Nedlac partners were currently grappling with the issue of whether the CA Bill correlated with the Labour Relations Act, which had established the Labour Appeals Court as the final non-Constitutional Court, to stop appeals on labour issues to the SCA.

Mr Swart said that the CC, if established as an apex court, would be the appeal court of final instance in non-constitutional matters He asked if this had any impact on the Nedlac deliberations. He also asked how the Nedlac process could be aligned with the Committee’s process on the SC Bill, to avoid possible amendments to the LRA in quick succession.

Mr Jeffery said that the jurisdiction question was fundamental. He questioned whether issues that related to other High Courts should be in other legislation, and whether issues relating to the Labour Appeals Court should not be in the Superior Courts Bill, if that Court was considered a superior court. He too asked about the current Nedlac process, pointing out that the issues may not be resolved in that process. Even if they were, that process did not bind the Committee.

Mr Todd said that it was not clear, from the side of some of the parties, how long the Nedlac process would take.  Other issues were more pertinent at the moment, such as the issue of labour brokering. The social partners’ dialogue at Nedlac would be easier if the question of whether to convert the CC into an apex court was resolved, because currently a number of different variables were being juggled round.

Section 27 submission
Mr Jonathan Berger, Senior Researcher and Head of Policy and Research, Section 27, said that his written submission focused only on the CA Bill. Section 27 believed that it would be more appropriate for the Committee to deliberate on the CA Bill first, and not to have a parallel process of considering the SC Bill at the same time.

Mr Berger pointed out that his submission focused on clauses 3 and 10 of the CA Bill. Section 27 suggested that it would not be appropriate for the Committee to deal, in the current process, with the issue of tenure under Section 176 of the Constitution. This may be procedurally incorrect, and he suggested that a separate round of public submissions would have to be made. Section 27 supported the move towards an apex court, but suggested that if this was done, then any reference to “constitutional” or “non-constitutional matters” should be done away with. The distinction between the two was difficult to sustain, as both the CC and Prof Carol Lewis had stated. If, however, the distinction was not removed, then Section 27 suggested that at least the phrase ‘issues connected with decisions on constitutional matters’ should be removed.

Section 27 submitted that in respect of clause 10 of the CA Bill, it would be premature at this point to expand the mandate of the Judicial Service Commission (JSC), as there was too much that had to be done to strengthen it. One key question was whether the JSC was sufficiently resourced to carry out its Constitutional undertakings. Another related to the JSC’s relationship with the newly proposed committee under Section 184(4)(b). It was important for the Constitution itself to have some say on this new body. Plenary powers of appointment in respect of appointment of judicial officers in the lower courts should not reside with the JSC, but should be left to the committee itself. Section 178 of the Constitution must expressly provide for self-selection of the two new members by the leadership of the lower courts. Section 27 proposed that a provision akin to that currently applicable to Judges President should be used, to identify senior judicial officers of the lower courts who would be designated to serve as Chairperson and Deputy Chairperson of the new committee. It was not clear what role the new committee would play, and whether it would replace the Magistrates Commission (MC) or take over part of its functions. Section 178 of the Constitution should provide some detail on the scope and mandate of the new committee.

Discussion
Mr Jeffery asked for comments from Section 27 on the costs of litigation, given that its clients were drawn from those who could not afford legal fees. He questioned whether Section 27 was proposing a CJ for Magistrates, given that they fell under the provincial division dispensation.

Mr Berger said that access to justice was key to the work of Section 27. A proliferation of courts could potentially harm poor litigants. Section 27 was not proposing any sort of CJ for Magistrates, but was instead proposing that senior magistrates should decide, amongst themselves, as to who should sit on the JSC.

Mr Jeffery said that there was merit in taking lessons from previous experience in dealing with legislation and a Constitutional Amendment Bill at the same time. Hopefully Section 27 would also make proposals on the Superior Courts Bill, should the Committee decide to deal with both Bills simultaneously.

Ms Schäfer said that she agreed that the scope of the new proposed committee should be provided for in the Constitution. The concerns on the resources of the JSC and MC were correct, but this should not derogate from the call to expand the mandates of both bodies.

Mr Berger said that Section 27 would be willing to make submissions on the Superior Courts Bill. The capacity of the JSC was also a focal point in the submission of Section 27. The role of the new committee had not been properly defined and this should be addressed by the Constitution, and not in legislation. 

Mr Jeffery asked if Section 27 could point out cases which should have gone to the CC, had the Bills been in operation earlier.

Ms Smuts referred to paragraph 40 of the submission, expressing her agreement with it. She asked if the balance of representation should not be reviewed, where the political and judicial components were concerned.

Mr Berger said that he could not readily identify any cases where there had been a problem, and could not draw attention to any particular case that Section 27 had handled that should have gone directly to the CC. He pointed out that Constitutional law was not a distinct body of law, as Constitutional principles permeated entire legal system, which meant there would be great value in having an apex court. There was no submission or comment on the JSC composition.

Judicial Officers Association of South Africa (JOASA) submission
Mr Vincent Ratshibvumo, President, JOASA, said that the organisation consisted of about 1 300 members drawn from the magistracy. His submission had touched upon the nomenclature of “the lower courts”. Mr Ratshibvumo noted that the SC Bill, as originally drafted, said that magistrates would be called “lower court judges” but the current Bill referred to them as “lower court judicial officers”. Ever since magistrates were removed from the civil service, they had been disillusioned, as they felt that they were worse off than before. There were no statutory provisions for magistrates as public office bearers. There were no regulations in place that dealt with issues such as leave for magistrates. An old civil code was used to govern tenure and conditions of employment for magistrates. This was insulting, particularly as there were no provisions for appropriate leave, especially for female magistrates, who had a little over 84 maternity leave days. Benefits granted to judges were ideal and JOASA believed that they should also apply to magistrates. Furthermore, the Government Employees Medical Scheme (GEMS) medical aid did not apply to magistrates, as public office bearers, although it granted good benefits to civil servants. The title “magistrates” should be amended and a single “judiciary” established, as this had been in the pipeline since 1994. “Magistrate” was a title deriving from the Colonial masters, who had not retained this term under their current dispensation. He submitted that some of the SC Bill’s wording from the original draft should be re-inserted into the current draft. Some of these provisions were on page 5 at paragraph 7, and page 6 paragraph 3.

Mr Ratshibvumo expressed the view that the CC was already operating as an apex court, as there were always Constitutional considerations in any case. 

Mr Wayne Muller, Magistrate, expanded that a term or title implied more than the benefits and it was even more important to have certainty on receiving similar treatment to judges. The issue of pensions was also important. Although magistrates were not allowed to contribute to the GEMS, they were part of the Government Employees Pension Fund (GEPF). There were still misperceptions in the legal fraternity that magistrates were still civil servants. The appropriate rank and title of magistrates had been removed from the original wording of the Bill, but not replaced with anything similar in the current version of the Bill.  He stressed that JOASA was not just interested in benefits. Magistrates would also subscribe to the same code of discipline as judges. 

Discussion
Mr G Ndabandaba (ANC) asked if there was any other country in the world that did not refer to judicial officers in the lower court as magistrates.

Ms Schäfer said that one of the problems around medical aid were that magistrates did not want to be part of Par Med as it was too expensive.

Ms Schäfer asked the DoJ&CD to respond to the question of why the original reference to “lower court judges” was removed from the current version of the SC Bill.

Mr Swart said that the Committee was sympathetic to JOASA’s submission. However, he pointed out that there were cost implications when legislation was passed, and it was necessary to enquire what the costs would be if magistrates were entitled to the same benefits as judges. He asked if, for instance, magistrates would be happy with a name change, and satisfied to remain on the same salary structures. He expressed his concern about the content of page 13 of the written submission, which noted that ‘One had to be circumspect when evaluating the issue of misconduct…reports made to Parliament are in many instances based on ill informed or inaccurate information aimed at selling papers, this was concerning. 

Mr Jeffery said that the issues raised did not relate to the SC Bill, unless it was to be a Bill that dealt with Courts. The original reference to the magistrates was probably removed to allow Parliament to deal with the issues. He asked whether the concerns that JOASA raised at these public hearings had also been raised with the Commission for the Remuneration of Public Office Bearers (CRPOB). He thought that the Committee should be focusing on the Superior Courts, and not on the lower courts at this time.

Adv Jacob Skosana, Chief Director: Policy Development, DoJ&CD, agreed that as the SC Bill was originally worded, the title “judges of the lower courts” was used. The Minister had always been sympathetic to having a unified judiciary. However, after internal discussions, it became clear that a whole range of processes had to be unpacked in the lower courts before any changes could be made to the Constitution. The Constitution already acknowledged that judges and magistrates were judicial officers. The conditions of service of magistrates should be dealt with appropriate legislation that related to conditions of service. Parliament may have to settle this by having a piece of legislation that dealt division of the higher and lower courts. The Magistrate’s Courts Act of 1944 was outdated and did not provide for current conditions of tenure, and this was why he suggested that the Judicial Service Act would be the appropriate piece of legislation to deal with everything that related to judges and courts.

Mr Ratshibvumo said that these issues were raised now, because it could well take another ten years before any legislation was introduced that dealt with the lower courts. He suggested that the CA Bill should reflect magistrates being referred to as “lower court judges”. He was not suggesting, in raising these issues today, that magistrates should have exactly the same benefits as judges, for issues of tenure and conditions of service would be separately considered for each appropriate body. However, the issue of creating a single judiciary should not be drawn out any longer. All magistrates were in favour of a name change. The UK and Canada no longer referred to “magistrates” in this sense, as in the UK “magistrates” were lay community leaders. The comments regarding the handling of disciplinary cases against magistrates were unfortunate, and were not a true reflection of what was intended.

Mr Samuel Makamu, Magistrate, agreed that JOASA would have to wait a long time before any Bill dealing with lower courts was introduced. JOASA had decided to seize upon this opportunity to present its case. He noted that the current handling of misconduct cases tended to result in newspaper headlines emanating from discussions in Parliament, while the individuals concerned were, in many cases, not even aware of the matters being discussed.

The Chairperson stopped Mr Makamu at this point, and said that the problem lay with the Magistrates Commission, not with Parliament.

Mr Makamu said that could be true.

The Chairperson vehemently stated that this was in fact the truth. If Mr Makamu wanted to continue to raise serious issues about the process in Parliament, which in fact derived from the Magistrates Commission, then he would insist that they should be put in writing and dealt with formally, as a separate issue. Very serious criticisms had been voiced.

Mr Makamu said he would withdraw the comment.

The Chairperson insisted that Mr Makamu should put a formal complaint. The Committee could not simply hear the complaint, and not follow up on it. He reiterated that all the complaints against magistrates came from the Magistrates Commission, and the Committee would deal with those complaints, and recommendations, as required by the law. It was not fair that the Committee should be accused of failing to deal properly with these disciplinary matters.

Mr Ratshibvumo said that his comment was not meant to put any blame on Parliament, and Mr Makamu had withdrawn his statement. In fact, JOASA was satisfied with the processes in Parliament.

Mr Makamu stressed that the issue of the name change should be attended to urgently, as some members of the magistracy were demoralised.

Ms Schäfer said that she was not happy with the response from Mr Skosana.

The Chairperson said that the Department would respond to all the written submissions during the Committee’s deliberations on the Bill.

Law Society of South Africa Submission
Mr Adam Pitman, Chairman: High Court Committee, Law Society of South Africa, presented the submission on the two Bills on behalf of the Law Society (LSSA). He pointed out that, most importantly, the LSSA did not support the establishment of the Constitutional Court as an Apex Court, because there was adequate provision for the current system. LSSA was similarly not in favour of the amendment to bring the Magistrate’s Courts and High Courts under a single judiciary, as various legislative provisions set out that the Magistrate’s Court should be a separate, lower-ranking court.

There were two main aspects of the Superior Courts Bill (SC Bill) with which the LSSA was also not in agreement. Clause 18 of the SC Bill related to the suspension of a judgment where an appeal was noted. The LSSA suggested that this should be amended, so that judgment would also be suspended in a case where there was an application for a rescission, or a review of a judgment. However, it recognised that the question of rescission or review of a judgment could not just be introduced, without certain other conditions also being dealt with. The second aspect of the SC Bill that LSSA raised was in relation to the consent to rescission of judgment. LSSA pointed out that rescissions of judgment were dealt with differently in the law relating to such rescissions in the Magistrate’s Court and the High Court. This was unconstitutional, as two different courts were dealing with the same problem in two different fashions. LSSA believed that if the Bill was going to allow for rescission by consent, then there was a need to look again at having proper provisions for this, and suggested hat far more thought had to be given to the proposals that were before the Committee.

Discussion
Mr Swart asked about the practical and cost implications, from both litigants’ and practitioners’ perspectives, should the Constitutional Court be a court dealing not only with constitutional matters. In particular, he raised queries about the possible delays in finalising matters.

Mr Pitman thought this was a most important question, as it related to access to justice and the costs and time it would take to finalise matters. He indicated that at present, divorce proceedings, or eviction proceedings, could take up to three years in the Cape courts. During that time, both the frustrations and the costs would continue to escalate. Under the present situation, a litigant receiving an unfavourable ruling would then need to approach the Supreme Court of Appeal (SCA), possibly then to the Constitutional Court, perhaps with a full bench decision somewhere in between. This added extra time to the process. He pointed out that during the morning session, Business South Africa had stressed that the Labour Court, in particular, needed to have speedy processes to resolve matters, since there was an ongoing relationship between the parties. However, this applied to a number of other matters too. A prime example was a divorce issue. There was no real reason for these delays. He noted that the LSSA was working to try to speed matters up in the Cape, especially since Road Accident Fund matters were being largely dealt with by new legislation, and had implemented “home-grown procedures” in the Cape to try to speed up access to justice. He reiterated that in the view of LSSA, adding an “extra rung” into finalising a court matter would add further costs and would impact adversely on the delay. It was far quicker to get to the Constitutional Court, whose processes were more streamlined, and whose cases were finalised far quicker. He summarised again that the proposed amendments would increase the costs dramatically.

Mr Swart said that the test for access to the Constitutional Court was whether it would be “in the interests of justice” for a party to approach the Constitutional Court directly. He wondered if one solution may not be to define this narrowly, to avoid the situation where there could be a flood of appeals to the CC if the Constitution 17th Amendment Bill (CA Bill) were to be accepted. He asked if the LSSA could look at that amendment and suggest how this could be done.

Mr Pitman said that this question related to the issue of moving slowly, and that it would be important that a body of jurisprudence was built up around the Constitutional Court’s new role.

Mr Swart asked if the LSSA would consider it advisable to introduce the amendment over a period of time, to see where the links lay between the SCA and its workload, the increased workload of the Constitutional Court, and practical resources, such as judges and staff.

Mr Pitman agreed that it would be desirable to allow for an extended period for introduction of any amendments. If the jurisdiction of the Constitutional Court was to be broadened, then there was a need to move slowly on this, to ensure that it could keep up to date. He pointed out that many members of the Regional Law Societies were not aware of this Bill and its implications, as it had not been widely publicised.

Mr Jeffery noted that LSSA was not in favour of the Constitutional Court being regarded as the apex court. He asked if LSSA thought that the current situation was problematic and if there was anything that needed to be fixed. He also asked if there were cases that attorneys felt should have gone to the Constitutional Court, but could not, because of the “constitutional requirement” bar.

Mr Pitman responded that he could check up on this with other members of the profession. However, LSSA had primarily voiced its opposition on this issue because it did not feel that there was anything in the current situation that needed to be “fixed”. If an attorney or a legal team could find an angle for a constitutional point, then they would find it, in which case they would approach the Constitutional Court where they could. Mr Pitman did not believe that there had been any matters that became “stuck” at the SCA that should have gone on to the Constitutional Court, but would need to get further information on this.

Mr Jeffery referred to the comments of the LSSA on Magistrate’s courts, and asked if the LSSA was arguing that the Chief Justice should head the superior courts only, and that the magistrates should be dealt with differently.

Mr Pitman replied that LSSA believed that the Chief Justice should not be responsible for the magistrates at all, and that judges and magistrates should be kept separate.

Mr Jeffery asked who should then be responsible for the magistrates. The magistrate’s courts were currently structured on a provincial level, and there was no centralised, national magistrates’ structure, apart from the Magistrates’ Commission, which performed limited functions. He made the point that it would surely be preferable to have one administration for all courts, under the Chief Justice, and extending to the magistracy as well.

Mr Pitman replied that he had sat in on many Heads of Courts meetings, and indeed someone was needed to “wear the hat of the Magistrate”. However, he was not sure whether other members of the LSSA had firm views on the matter.

Mr Jeffery replied that it was obvious that LSSA preferred to separate the administration of the superior courts from the lower courts, but it made sense, as the Bill proposed, to have the Chief Justice as overall head of the judiciary. He suggested that perhaps the LSSA could look further into this issue. It was a serious matter that had the potential to cause harm, given that there was no national magistracy and instead they fell under the nine provinces.

Mr Pitman replied that the agendas of the High Court, the SCA and the Constitutional Court did link, at present, but he did not believe that they should have to extend the links to deal with magistrates and their issues. The higher courts were quite separate from the Magistrate’s Courts, had been separate for some time, and the system seemed to work well. He conceded that perhaps more thought should be given as to whether the Chief Justice would also be in charge of magistrates. He pointed out that Heads of Courts had, for the last year, met without including magistrates in those meetings, since Heads of Courts’ issues and discussions did not really relate to issues in Magistrate’s Courts.

Mr Jeffery said that the LSSA’s specific submissions on the SC Bill obviously needed a response from the Department of Justice and Constitutional Development (DoJ&CD). Presumably the LSSA would monitor what was happening in the Committee, and if it did not agree with the Committee’s response then LSSA could come back to the Committee. LSSA used to have a good Parliamentary Liaison Officer but did seem to any longer. It would be useful to have such a person, particularly when dealing with the current Bill.

Mr Pitman replied that he would be monitoring the Committee’s response. He would also take up the issue of the Parliamentary Liaison Officer with the LSSA.

Dr M Oriani-Ambrosini (IFP) wanted to interrogate Mr Pitman’s statement on the apex court, and engage him on the nature of “Constitutional justice”. This was not an expression of different types of adjudication processes. The Court did not merely relate the law to the facts and conclude with a judgment. There was a need to take into account the changing circumstances of society and the broad constitutional policy. Constitutional justice was a different type of work, requiring different types of people, who were selected not only on account of their legal and constitutional knowledge but also on account of their wisdom, their capacity to develop constitutional politics and also their political awareness and sensitivity of issues that mattered to South Africa. He wondered if, given this special situation, it made sense to expand the work of the Constitutional Court and thereby potentially make it into a court of general jurisdiction. He asked if this would result in the loss of specialised skills, by making a court of special jurisdiction into a court of general jurisdiction. He knew of no other case where there was a “hybrid” between Constitutional adjudication and an Apex court, and asked if creating this would result in the benefits of both systems, which functioned well when separated, then being lost.

Mr Pitman agreed with Dr Oriani-Ambrosini that it would not be a good idea to move away from a specialist court to a general court. A good body of law had been built up by the Constitutional Court since its inception, and this should not be changed.

Dr Oriani-Ambrosini noted that other Members of the Committee would object to his next question, but said that he had given notice to them of his intention to ask the question. He was concerned whether the Portfolio Committee on Justice had the jurisdiction to process the CA Bill and hold public hearings, because he believed that Section 45(1)(c) of the Constitution, which established a Constitutional Review Committee, also then meant that any Constitutional amendments must be processed by that Constitutional Review Committee, within the parameters of an annual review of the Constitution, and not in the piecemeal fashion that had applied over the past sixteen years. He urged that matters should rather be dealt with in a holistic manner, once a year, driven by the Constitutional Review Committee, and then referred to the National Assembly and National Council of Provinces. He asked if the LSSA had applied its mind to this issue. The Constitutional Court had never pronounced on the matter, so there was no guidance on it.

Mr Pitman responded that LSSA had not had a chance to apply its mind to the matter but that he would take it back to his members and would liaise with the Committee.

Mr Jeffery contended that this matter was not before the Committee and that it was not appropriate for Dr Oriani-Ambrosini to raise it at these public hearings.

The Chairperson agreed.

Dr Oriani-Ambrosini objected and said that the Chairperson was obliged to allow him to reply to this point. He had raised this matter at this Committee, since every Portfolio Committee had a responsibility to ensure that there was, first and foremost, compliance with the Constitution, and then the rules of government. If the Chairperson wanted to rule on this matter, then he wanted the full Committee to apply its mind to this point.

The Chairperson pointed out that this seemed to be a change of heart on the part of Dr Oriani-Ambrosini, who was now asking that the Committee should apply its mind to the matter, whereas initially he had informed the Committee that he had e-mailed all the people who would be making submissions, giving them notice that he would be raising this question. Dr Oriani-Ambrosini seemed to be disingenuous. He said that some Members of this Committee were not aware of the discussions that had been held, off the record, between himself and Dr Oriani-Ambrosini, and he wished to apprise them of the fact that Dr Oriani-Ambrosini had approached him, saying that he would be raising this question. Dr Oriani-Ambrosini believed that the Constitutional Review Committee should be the only committee of Parliament that dealt with, deliberated on, and considered Constitutional amendments. He had made that point to the Speaker, asking that it be placed for discussion before the Joint Rules Committee, which would be appropriate place to debate the issue. However, to date, the Portfolio Committee on Justice and Constitutional Development had dealt with Constitutional amendments. He further noted that some other Committee Members were uncomfortable with the approach that a Member of this Committee would approach civil society who had made written submissions, by e-mail. This could be construed as lobbying, and the question arose whether Parliamentarians would be entitled to lobby. However, the key issue was that this point was extraneous to the current work of the Committee, because it had nothing to do with the two Bills before the Committee. For this reason, the Committee felt that the approaches by Dr Oriani-Ambrosini had been inappropriate. The matter raised should be referred to the Presiding Officers of Parliament and the Joint Rules Committee for a decision whether Constitutional amendments should come to this Committee. He apologised to Mr Pitman that he had been drawn into this internal Parliamentary matter.

Ms Schäfer asked if the LSSA had given any thought to whether there was any merit in extending the term of the Chief Justice. She asked if there was any view that this Committee should look at a Constitutional amendment to provide for a longer, or a specified term of office, for all Chief Justices from now on. She asked that, if Mr Pitman could not answer the question right away, then he should refer it for discussion at the LSSA, and perhaps send a written view to the Committee at some time in the future.

Mr Pitman said he would rather take the matter to other LSSA members than answer the question right away.

The Chairperson noted that if LSSA wanted to bring other matters relating to these two Bills to the Committee’s attention, then it should feel free to do so.

Competition Commission submission
Mr Tembinkosi Bonakele, Deputy Commissioner, Competition Commission, noted that in general, the Competition Commission’s (the Commission) welcomed both the Constitution Seventeenth Amendment Bill and the Superior Courts Bill. Its submission was directed particularly to the Competition Appeal Court (CAC) and the SCA.

Mr Bonakele gave an overview of the Competition Commission’s mandate, which was essentially to promote and maintain competition in the Republic of South Africa. The Competition Commission was an investigating and prosecuting body, and was responsible for approving mergers. The Competition Tribunal was the court of first instance for competition matters. An appeal would then lie from the Tribunal to the CAC, and then to the SCA, as well as the Constitutional Court. The Competition Commission’s concern with the current structure was that competition matters, by nature, required a speedy resolution. Sometimes, by the time the courts had reached their decision, the commercial environment had developed so fast that the courts’ decisions were no longer relevant. A prime example involved a case of the airline company “Nationwide”, who complained that this company was no longer in existence by the time a decision had been made. There were therefore huge implications of delay for companies and often also for individuals affected by issues such as price-fixing, and there was a need to deal with all issues speedily.

The Competition Act had created a number of unintended consequences. For example, upon special leave being granted by the CAC or SCA, a party could lodge an appeal with the SCA in respect of competition matters. The effect of this had been to side-step the original legislative intention to make the CAC the court of final instance for aspects of competition law. It also prevented speedy resolution of competition cases. However, the proposal by the Committee to some extent could remedy this.

Mr Bonakele added that in competition litigation, many highly technical and procedural points were raised, which prevented concentration on the merits of the issues. To the extent that the Bill would allow for speedy resolution of cases, without taking away the right of appeal, it was welcomed, as it would eliminate the SCA step of the system. Finally, he noted that the Commission believed that there were good policy reasons for allowing the specialist courts to finalise matters.

Discussion
Ms Smuts stated that the Competition Commission had suffered reversals of decisions by the CAC, at the SCA, and asked whether the cases that the Commission ended up losing on appeal related to actual competition issues, rather than questions of jurisdiction. She asked whether the Commission was suggesting that the Bills, as presently framed, would resolve some of the problems, and whether the Commission was suggesting that it wanted the SCA to retain jurisdiction only of competition authority cases, or whether it wanted to skip this stage of the process altogether. The written submission and the presentation by Mr Bonakele seemed to differ on this point, since the written submission said that SCA should have jurisdiction in matters pertaining to jurisdiction of competition authorities, whereas Mr Bonakele seemed to suggest that the SCA should not have jurisdiction. She questioned whether Mr Bonakele thought that the Bill already had reached this point, or that the wording would need to be amended to exclude the SCA.

Mr Jeffery said the Competition Commission’s submission was useful, and even though it did not give any answers at this stage, it did put the spotlight on the specialist courts. He said, in response to Ms Smuts, that he did not think that the Bills had made any change to the current position. He pointed to the clause stating that the SCA may decide an appeal from any matter arising from the High Court of South Africa, or a court of similar status”, and said that “of similar status” presumably would include the CAC. He did not think that the current Bills would exclude the SCA – if that was what the Competition Commission wanted – and it would therefore need to approach the Constitutional Court.

Mr Jeffery said that it may be neater to have all the specialist courts dealt with together in one piece of legislation, so that, for example, provisions relating to the Labour Court should be dealt with in the Superior Courts Bill, rather than in the Labour Relations Act. He asked the Competition Commission to comment as to whether it believed that the issues relating, in particular, to the selection of and the administration of the CAC should remain in the Competition Commission Act, or should be taken across into the Superior Courts Bill.

Dr Oriani-Ambrosini said that the CAC was supposed to be the court of final decision in competition matters, but in relation to inherent jurisdiction and Constitutional matters, two additional alternatives had been made available – namely the SCA and the Constitutional Court. He asked how the Superior Courts Bill would impact on what was being done.

Dr Oriani-Ambrosini stated that the Chief Justice, as the head of the judiciary, had the function of ensuring uniform application of laws, and the establishment and monitoring of norms and standards for the exercise of judicial function in South African courts. If this function was located in the person of the Justice, who was located in the Constitutional Court, and if the Constitutional Court had the power, a fortiori, to deal with anything, then he questioned whether this would mean that, even if the SCA were to be excluded, any issues that would henceforth have been dealt with by the SCA, although they may be technical, would now go to the Constitutional Court.

Mr Bonakele replied that his understanding was that the CA Bill would provide for appeals to the SCA, save where otherwise provided for by an Act of Parliament. The relevant Act in this instance was the Competition Act, as its section 62(3)(a) said that the CAC would be the court of final instance in relation to competition matters. When disputes did not relate to Constitutional matters, this Bill would therefore have the effect of allowing disputes of fact to be resolved finally in the CAC, as provided in the Competition Act. However, Committee Members had rightly pointed out that the Bills would not resolve all the problems, because the existing legislation also said that Constitutional and jurisdictional disputes, rather than being finalised at the CAC, should go to the SCA or the Constitutional Court. He suggested that a possible way to speed up such disputes might be to provide that any appeals from the CAC could be made directly to the Constitutional Court, not the SCA. He believed that the effect of the Committee’s amendment was to eliminate the SCA from the process in these matters.

Mr Jeffrey said the Competition Commission Act would have to be specifically amended to exclude the SCA from the process. The Constitutional Court was always the court of final instance for Constitutional matters, so presumably Parliament had a reason for providing for appeals to the SCA first, but the real issue was whether this process was working. He asked whether the Competition Commission would want the Constitutional Court also to deal with jurisdictional matters, in the event that the SCA was excluded from the process. He did not think that jurisdictional and other issues could be neatly divided, and the Constitutional Court could hear issues if it wanted to

Dr Oriani-Ambrosini said that the Constitutional Court was given the function of ensuring uniform application of norms within the legal system, any experienced lawyer could turn an issue into an equality, and therefore a Constitutional issue, which would mean that the Constitutional Court would become involved in something that, under a different guise, forced it to deal with complex economic and competition issues.

Mr Bonakele replied that there was complexity around eliminating the SCA from the process. The SCA was intended as a layer that could filter out what were purely Constitutional matters to be referred to the Constitutional Court, and other matters. The problem with eliminating the SCA level was that there were numerous disputes around jurisdiction that were not necessarily constitutional. The Competition Commission would be raising this problem with the Portfolio Committee on Economic Development.

Mr Bonakele added it was important for the Committee to understand the impact of its amendments on the hierarchy of courts, and especially on specialist courts. It could well be that the proposal to make the Constitutional Court an Apex court for all matters would address some current concerns. However, the Competition Commission believed that the right to appeal to the Constitutional Court should be limited.

Mr Jeffery made the point that the CA Bill was attempting to increase the jurisdiction of the Constitutional Court. If the SCA was cut out of the process, as suggested by the Competition Commission, the Constitutional Court would also have a higher workload, which would make it more difficult for it to deal with matters speedily. It would be useful to engage further with the Commission on both bills.

The Chairman stated that the Bills were weighty matters, and that further submissions from parties would be welcomed.

The meeting was adjourned.