Superior Courts Bill & Constitution 17th Amendment Bill: Departmental responses; Constitution 18th Amendment Bill: Process

Meeting report

Constitution 18^th Amendment Bill: process
Mr J Jeffery (ANC) briefed the Members of the Committee on the Constitution 18th Amendment Bill [B8 - 2011]. The Committee had had a briefing from the Department of Justice and Constitutional Development (DoJ&CD or the Department) on this Bill. In general, there was agreement that its aims were not objectionable, but some queries had been raised on the way it was worded, which seemed to give rise to some unintended consequences in relation to pre-schooling being regarded possibly as a purely national competence. He pointed out that a Further Education and Training (FET) Colleges Amendment Bill was before Parliament at the moment. The Minister of Higher Education and Training had requested that this be processed before the start of the 2012 academic year. This Bill was linked to the Constitution 18^th Amendment Bill. He reminded Members that the Constitution 18^th Amendment Bill sought to move FETs from being a concurrent national and provincial competence to an exclusively national competence, so that in effect the responsibilities of the current Members of the Executive Committee (MECs) for Education would be moved to the Minister of Higher Education and Training. It seemed, however, that in the drafting, these two Bills were not aligned. The Committee had advertised for public comment on the Bill. If the Constitution 18^th Amendment Bill was to be passed so that it coincided with the Further Education and Training Colleges Bill, then this had to be done in this term of Parliament. He pointed out that there was a special session set aside on a Tuesday for legislation to be passed. The Committee had to try to work towards achieving its work by this time. The public would be given until 13 September 2011 to respond, public hearings would be held on 14 September 2011 and the Committee would try and finalise the Constitution 18^th Amendment Bill as soon as possible after that date.

Constitution 17^th Amendment Bill
Adv Johan De Lange, Principal State Law Advisor, DoJ&CD, presented the Department’s responses to the public submissions on the Constitution 17^th Amendment Bill.

Mr Paul Hjul had raised a point that the process before introducing the Constitution 17th Amendment Bill was flawed, as it was not a mere continuation of the Constitution 19^th  Amendment Bill. The Bill should have been re-gazetted for public comment. The Department was of the view that Section 74(5) of the Constitution, requiring that “particulars” of the proposed amendments must be published in the Gazette for public comment, had been complied with, as indicated on the cover page of the Bill. The Committee might want to re-visit this issue, as it was an important technical point. He reminded Members that this Bill would make it easier for the Department to comprehensively re-organise the lower courts without any reference to the Constitution.

Mr Jeffery commented that the lower courts were surely Magistrate’s courts, and questioned why this Bill would in fact contribute to the restructuring of the lower courts. The Bill would be addressing the Superior Courts Bill, which encompassed the Supreme Court of Appeal (SCA); Constitutional Court (CC) and the High Courts as well other courts of status similar to the High Court.

Adv De Lange replied that if new legislation failed to refer at all to “magistrate’s courts”, then it would be necessary to re-visit the Constitution. The route that the Department was currently pursuing was one that did not require any reference to be made to the Constitution. He pointed out that the other “lower court” would be the Small Claims Court.

Ms D Schäfer (DA) asked if referring to “lower courts” could not be a problem at a later stage, so that the Committee would have to come back to this issue.

Adv De Lange said that it would not be a problem to refer to “lower courts” in the Bill. If any other name were to be assigned to the “magistrate’s courts” then this would have to be specifically reflected also in the Constitution, which would mean that a Constitutional amendment would be necessary.  If the Committee started to refer to magistrates as, for instance, judges, then the Constitution would also have to be re-visited, to ensure that there was clarity on this point also in the Constitution.

Ms Schäfer agreed to the proposed wording from the Department as it sought to avoid all manner of problems in the future.

Mr Jeffery asked if there was a need for a reference to the small claims courts, and asked whether they were covered by the Constitution.

Adv De Lange said that small claims courts would be covered, as Section 166(1)(e) of the Constitution referred to “any other court established or recognised in terms of an Act of Parliament, including any court similar in status to the magistrate’s courts or high court”. Depending on the nature of the legislation, a traditional Court may also well fall under this judicial system. 

Mr Jeffery referred to the last part of Mr De Lange’s point, and wondered whether the Committee would want that to happen. He would not be comfortable with equating traditional courts with magistrate’s courts. If the Committee went along with the amendment that made reference to superior courts and lower courts, then the category mentioned in section 166(1)(e) of the Constitution would be removed and everything would have to be either a superior court or lower court.

Adv De Lange corrected him, saying that the Section 166(1)(e) category would not be removed.

Mr Jeffery questioned what would be the point of it, unless it meant that magistrate’s courts were going to become lower courts

Ms Schäfer said that, in view of the fact that magistrates were averse to being referred to as “magistrates”, the Committee might have to change their title. In that case it would not make sense to keep the term of “magistrate’s courts”.

Adv De Lange moved on to the next submission, which was raised by the Judicial Officers Association of South Africa (JOASA), and related to a call for a single judiciary. JOASA was calling for magistrates to be called ”judges of the lower courts”. The Department was of the view that there were several issues that remained to be addressed before such a change could be effected. Since the main objective of the Bill related to the rationalisation of the superior courts, the issues to do with the offices of ‘magistrate’ and ‘regional magistrate’ would be re-visited once a comprehensive review of the lower courts, as opposed to the superior courts, took place.

Adv de Lange noted that a submission from the Competition Commission referred to Section 62 of the Competition Act, which created a dual appeal mechanism. The Competition Commission submitted that the Competition Appeal Court (CAC) should have final jurisdiction in competition matters. The bottom line was that the agreement, after consultation, in relation to this issue, was that an appeal should lie directly from the CAC to the Constitutional Court (CC), and not to the Supreme Court of Appeal (SCA).

Mr S Swart (ACDP) asked if there was an agreement between the SCA and CAC that the SCA would be bypassed.

Adv De Lange said that the SCA would be bypassed, although he conceded that he may have used the wrong word when he referred to “an agreement”. This issue had been discussed with the head of the CAC.

Mr Swart followed up by stating that the Competition Commission had also concluded, in its submission that the Constitutional Court (CC) should not hear non Constitution-related matters. This had to be looked at again. There were matters of principle involved with specialist courts. It would be interesting to know how many times the SCA had overruled decisions of the CAC.

Adv De Lange said that he knew of only one instance where the SCA had overruled the CAC, but more information would be provided to the Committee in this regard.

Adv S Holomisa (ANC) asked if the Bill was in fact eliminating the involvement of the SCA, so that whatever was handled by the CAC would go, on appeal, directly to the CC.

Adv De Lange replied in the affirmative, but said that at the moment the Competition Act did not provide for this. There were some areas that provided for the SCA’s involvement at the moment.

Adv Holomisa asked what the view of the SCA was on this matter.

Adv De Lange said that he had not solicited a formal view from the SCA, but the Committee may want to ask for input from it.

Adv Johannes Skosana, Chief Director: Policy Development, DoJ&CD, said that during a meeting held in October 2010 meeting, between the heads of courts and the Minister of Justice, the SCA was supportive of the amendment. The SCA had contacted the Department in the previous week to make further submissions, so it was not clear, at this stage, if the SCA still held the same view.

Mr Swart requested something in writing around the decisions taken at that October meeting. It would also be useful to hear what the opinion of the SCA was at present.

Ms Schäfer agreed.

The Chairperson said that the Committee could invite the CC and SCA to make comments on this particular issue.

Ad De Lange continued that the next submission related to Section 176 of the Constitution. Adv Frans Reyneke proposed that Section 176(1) of the Constitution should be revisited, to address the term of office of Constitutional Court judges. The Department was of the view that the Bill was not amending section 176 of the Constitution, and in any event, the matter had effectively already fallen away with the judgment from the CC on the matter of judges’ appointments.

Dr Oriani-Ambrosini said that the judgment of the CC had declared the Judges Remuneration and Conditions of Employment Bill to be unconstitutional, so the Committee would have to receive a new Bill and publish it for comment anew.

Adv De Lange said that the judgment of the CC had stated that only Section 8 of the Judges Remuneration and Conditions of Employment Bill was unconstitutional, and all that was needed to address that would be to introduce the Bill largely in its current form, but without Section 8.

Dr Oriani-Ambrosini said that a Bill with new content would have to be re-advertised. This was necessary because it was deemed to be unconstitutional.

Adv De Lange explained that the procedure would be that the clause declared unconstitutional would be removed, and the new version of the Bill would state that clause 8 was to be repealed. That would be a simpler way of dealing with the matter.

Adv De Lange continued to go through the submissions, stating that the Law Society of South Africa (LSSA) did not support the establishment of the CC as the apex court. It recommended that section 167 of the Constitution should not be amended, as proposed.

The Centre for Constitutional Rights (CCR) was concerned about the implications of making the CC into an apex court, and these implications included increased workload, time consuming perpetuation of distinction between constitutional/non-constitutional matters, especially for direct access and direct appeals, and the fact that the current composition and modus operandi of the CC was not conducive to an apex court. The CCR recommended that if the CC was going to be an apex court, then there needed to be a review of its composition, appointment criteria and the way it sits. This may require further amendments to the Constitution.

The Democratic Governance and Rights Unit (DGRU) was also opposed to the CC being converted into an apex court. It suggested that turning the CC into an apex court was likely to be harmful to Constitutional jurisprudence. Constitutional amendments should not to be made lightly, and without sound, pressing reasons to justify them. In addition to creating uncertain jurisdictional boundaries, and the likelihood of a dramatic increase in workload for the CC, the Bill also cast doubt on the future of the SCA.

Mr De Lange said that the Department had a very limited role to play in what was essentially a policy matter. The provisions of clause 3 sought to give effect to what was de facto the current legal position. The Constitution was the supreme law of the Republic and the CC had the ultimate jurisdiction to adjudicate on the constitutionality of all laws, including the common law, which is derived from the Constitution. However, the leave of the CC would have to be sought to appeal to the Court on any matter falling outside its present jurisdiction. This was to ensure that the apex court would only consider matters if this was required, in the interests of justice.

Dr Oriani-Ambrosini said that he was disquieted by the statement from the Department that the Bill would merely legalise the status quo, as this was not true. Usually the CC stretched its jurisdiction so as to hear matters that were not of a Constitutional nature.

Mr Swart added to what Dr Oriani-Ambrosini had said, there was a difference between the situation envisaged, and the current position where the CC heard constitutional matters only, and not other matters, on merit, which were not related to constitutional law. The Committee would have to deliberate on the envisaged roles of the SCA and CC, as against their current roles. This would include looking at issues such as the meaning of “in the interest of justice”, as well as issues around the expansion of the CC.

Ms Schäfer asked for the Department’s views on what the role of the SCA would be. 

Adv Skosana said that the Department had heard some views on this matter from the SCA, which had maintained the position that it should remain as an appeal court, and that only exceptional matters should go to the CC on appeal. When the SCA and CC judges met, they had suggested that the CC should be regarded as the “Supreme Court” and the SCA should be an “Appeal Court”. A mechanism for deciding which matters would go to the CC would then be developed.

Adv Holomisa said that his understanding was that all laws and judicial decisions had to comply with the Constitution. This was why even the head of the judiciary was the Chief Justice (CJ) of the CC. He asked why there was the discomfort resulting from the proposed clauses in the Bill.

Ms D Smuts (DA) agreed that everything must comply with the Constitution, so in fact there could not be differentiation in the laws. The discomfort then arose from the fact that there was artificiality created by the fact of having a separate CC. The CC was supposed to have Constitutional jurisdiction, but because of this requirement, it often strained to fit the cases within this requirement. Everything was in fact of a Constitutional nature. There was a view that having a separate apex-courts model hampered the development of the law. The one problem with turning the CC into a single apex court was that the current Bench did not have the requisite range of judicial skills, and it was in fact at SCA level that this full range of skills was found. It was not clear why the Judicial Service Commission (JSC), being fully aware of the current Bill, did not interview the last four appointees against the background of an apex court model, considering the full range of skills that would be necessary, as opposed to concentrating on specialist Constitutional skills.

The Chairperson agreed with the point that the range of skills was indeed apparent between the SCA judges. However, he pointed out that it would never be possible for the CC to have the full range of skills, because when one judge left, it was next to near impossible to replace that judge with another who offered exactly the same skills.

Dr Oriani-Ambrosini said that the statement that ‘everything was Constitutional’ was an incorrect statement. The correct postulation was that every aspect of law could have Constitutional relevance. It was important that the Committee receive expert advice on this technical issue, and he suggested that the views of the heads of court had to be solicited.

Ms Schäfer said that she was concerned that another layer was being created, and that the already high legal costs would be further compounded.

Adv De Lange said that the Department was of the view that the SCA would pretty much continue as it was at present, so it was not envisaged that there would be any major impact on the SCA.

Adv Skosana added that the Department had always been of the view that not every matter would end up with the CC. Only worthy matters would go to the CC, and leave to appeal would be granted by the SCA. The CC would also have to decide whether an appeal to it from the SCA should be granted.

Dr Oriani-Ambrosini said that he was concerned about how things were envisaged on paper and how they would be in practice. The model envisaged in the Bill drew on that of the United States Supreme Court, which often picked and chose when and which cases to hear. The Committee should solicit clarity from experts on the German model and the American model. The debate should centre on why there was a need for a CC, and why there was a need for judges with special skills or a range of skills.

Mr Swart said that the test for the jurisdiction, and meaning of what was “in the interests of justice” would be key to a resolution on the debate. There was a difference between an apex court and direct access. There were a lot of complex issues.

Adv De Lange said that there was a difference in opinion about the test for deciding which matters should be heard by the CC. The SCA judges were initially of the opinion that “national interest” or “public interest” should be the test, but eventually the heads of court settled on the qualifier as “in the interests of justice”, as there was a lot of jurisprudence on this point.

Adv De Lange then continued with the responses to submissions. The submission from the Congress of South African Trade Unions (COSATU) supported the proposal for a specialised labour court dispensation.

Adv Frans Reyneke submitted that the word ‘senior judge’ should be changed to “Head of Court” who would then be defined in the Superior Courts Bill as the Judge President of the Division. Section 175 should specifically provide for the appointment of Acting Judges in the Supreme Court of Appeal. He also submitted that there should be regulations around the appointment of Acting Judges, so that preference should be given to judges who had to render a service until the age of 75. These persons had a wealth of judicial and legal experience, had knowledge of the bench’s workings, and the costs of their services were already covered. The Department was of the view that it was desirable, in the Constitution, to avoid using words or expressions that had certain special defined meanings under other national legislation. It was not desirable to have to refer to national legislation in order to interpret terminology used in the Constitution. The Department believed that the appointment of Acting Judges should be regulated by the policy prevailing at the time. Acting appointments were, at present, the preferred mechanism employed in order to determine candidates' suitability for judicial appointment in a permanent capacity. 

Adv de Lange noted that the LSSA did not support the amendment to the composition of the JSC or the idea that the JSC should play a role with regard to the magistracy. The Department was of the view that the amendments in question did not relate to the status, functioning or jurisdiction of the Magistrate’s Courts. It was aimed at establishing a framework within which greater uniformity could be achieved in respect of matters governing the judiciary.

JOASA recommended that the powers and functions of the Magistrates’ Commission be clarified. The Department’s response was that this was not a matter that should be dealt with in the Constitution.

The CCR was concerned about the JSC’s increased workload. The relationship between the proposed new Committee and JSC, and the Magistrates’ Commission and the JSC, required to be clarified. It recommended that the clause should provide for the structure of the new Committee, as well as clarify relationships. The Department was of the view that it was not advisable to insert too many details in the Constitution, as this was an enabling provision.

The Legal Resources Centre (LRC) and the entity ”Section 27” were of the view that Section 178 should expressly provide for self-selection by leadership of the Lower Courts. A provision similar to that of Judges President could be used to identify the two senior judicial officers to serve as Chair and Deputy Chair of the newly established Committee. The Department agreed that this matter should be developed further, probably by way of an amendment.

The Committee decided that it would meet on the following day to continue with the responses.

The meeting was adjourned.