Superior Courts Bill; Constitution Seventeenth Amendment Bill: Department response to submissions

Meeting report

Adv Johan De Lange, Principal State Law Advisor from the Department of Justice and Constitutional Development (DoJ&CD) read through the document “Department Response to Submissions” on the Superior Courts Bill up to Clause 15 which is as far as the Department had reached with its responses. Only submission proposals or Department responses that triggered comments from the Committee are captured:

Al Jama-ah had proposed that the Superior Courts Bill should provide for a separate court to deal with Muslim marriages. The Department was of the view that appropriate legislation dealing with the issue of Muslim marriages was being developed.

Paul Hjul had made several proposals for an alternate appellate structure. The Department was of the view that it was not feasible to amend the Bill (and the Constitution) in order to accommodate the proposals. Mr Hjul raised an objection to the extension of the Chief Justice’s powers. The Chief Justice would be given similar powers to that of the Minister of Justice in earlier versions of the Superior Courts Bill; this indicated that the underlying principle remained command and control. He asked to what extent the government would allow a non-executive minded Chief Justice to be appointed. The Department noted these objections and said it would respond later to them.

Ms D Schäfer (DA) asked why Paul Hjul objected to the powers of the Chief Justice.

Adv De Lange said that Paul Hjul was worried that the Bill was vesting too much power on the Chief Justice. In the Definitions Paul Hjul suggested that ‘Registrar’ should also take into account that Regional Courts have registrars as well. The Department’s response was that the Superior Courts Bill did not relate to registrars of Regional Courts.

Mr J Jeffery (ANC) agreed with the Department’s response, however what of the other courts such as the Labour Court?

Adv De Lange replied that they did have Registrars but they were dealt with in each court’s respective Act. Clause 2(3) provided that the Superior Courts Bill would prevail should it be in conflict with Acts that related to courts with a similar status as the High Courts, such as the Labour Court.

Mr Jeffery asked if the Department was also of the view that the administration of courts such as the Labour Court and Competition Court was dealt with in other legislation since the Superior Courts Bill also included the administration of courts. Should the other courts of similar status as the High Court not be in the Bill as far as administration was concerned?

Adv De Lange said that if there were gaps in the legislation pertaining to the other courts then the Superior Courts Bill would address this. As the Superior Courts Bill maintained, whenever there were already provisions in the legislation that governed the specialist courts, those provisions would prevail. The Department had to do a legislative audit and cross reference the provisions of the Bill with those of legislation governing the specialist courts.

Mr Jeffery said that it would be useful to know what the other specialist courts were and what their structure was like. The issue was what would happen where there was a separate administration of these specialist courts but one had judges who were accountable to the Minister of Justice.

Adv De Lange said that Paul Hjul objected to Clause 3(b) and (c) as it restricted the right to have disputes adjudicated by a tribunal, which was provided for under Section 34 of the Constitution. The Department disagreed that the Bill was restrictive of this right. The Minister of Justice was after all, the “Cabinet member responsible for the administration of justice”.

Mr Jeffery said that he found the clause to be rather strange. Legislation from the executive did not come from individual Ministers but Cabinet. This also meant that if one wanted to have a Private Member’s Bill or Committee Bill then the Minister of Justice had to be consulted.

The Chairperson agreed this would impact on the right of ordinary Members of Parliament to come up with a Bill if before doing so they had to consult with the Minister of Justice.

Adv De Lange replied that the provision was drafted on the instruction of the previous Committee. It had been watered down a bit but it was up to the Committee to decide on its merits. Under Clauses 6(2)(a) and (b), Paul Hjul objected to the use of the term ‘specified headquarters’ without saying how the specification would be made. He also objected to the reference to ‘prescribed criteria’ to determine the number of judges in a division of a High Court. Hjul recommended that the Judicial Service Commission (JSC) should have a role in determining how many judges there were within a Division. Hjul also noted that in Clause 6(3) the Minister after consulting the JSC, but without Parliament’s endorsement or without consulting with the Premiers of Provinces, was able to modify judicial boundaries.

Mr S Swart (ACDP) said that he was trying to understand the role of the Chief Justice in Clause 6(3), there was provision for a consultation with the JSC but not the Chief Justice. There should be consultation with the Chief Justice when boundaries were being determined. The appropriate persons to advise the Minister would be the Chief Justice and the heads of court as opposed to the JSC which sat once a quarter or seldom.

Ms Schäfer said that the JSC might still be appropriate for determining the number of judges as they were best placed to know their workload etc.

Adv De Lange said that he could not give a yes or no answer but this was something that could be considered. This was a relevant issue.

Mr Jeffery said that he preferred 6(1) as it was. However, he was not that comfortable with the JSC determining the number of judges. Could there be comment on the abolition of Gauteng South and North in the Superior Courts Bill.

Adv De Lange said that prior to the present Constitution there had never been a separate division in Johannesburg. The current Constitution abolished the concept of a local and provincial division. The Bill was trying to provide for a single High Court of South Africa with various divisions. It was envisaged in the Bill that the seat in Pretoria would be the main seat and the court in Johannesburg would be a local division. There was not sufficient motivation for having two divisions of a High Court in Gauteng.

Mr Jeffery said that this was something that the Committee would have to look at.

Ms Schäfer asked for statistics on the number of cases that Gauteng South and North dealt with.

Mr Jeffery said that he did not see Clause 6(3) as a problem, it was not something that could be rushed and thus it did not matter that the JSC would be consulted despite its not sitting often enough. The Chief Justice chaired the JSC in any case.

Mr Jeffery asked why the Superior Courts Bill tampered with the divisions, given the provisions of Clause 6(3)(a), which gave the Minister the power to decide on the jurisdictions of the court.

Adv De Lange said that the Bill deliberately alluded to divisions and not provincial divisions. The problem was one of access to justice. The current framing of the Bill was to leave scope to prevent situations where vast numbers of people had to travel hundreds of kilometres to the seat of the court.

The Chairperson commented that the Committee’s primary consideration should be access to justice.

Adv De Lange continued to say that Paul Hjul under Clause 6(7) questioned why the Minister had to be consulted if a court was to sit at a place other than its seat. Also, there was no provision to inform the public by requiring that the Minister should allow notice to be given in appropriate newspapers and Gazette. The Department was of the view that the Ministerial consultation was aimed at ensuring that the budgetary implications of such "remote" sittings were taken into account. Further deliberations may, however, be needed on the merits of this provision. It was not anticipated that it would serve any useful purpose to give formal (Gazetted) notice of any such sittings.

Mr Jeffery said that the consultation with the Minister was ‘after consultation’. The clause was neither a bad requirement nor something that blocked the flow of cases.

Ms Schäfer disagreed, saying any ministerial interference in the running of courts was not desirable given the move to separate the administration of courts from the hands of the Department and into the hands of the Chief Justice. This function should reside with the Chief Justice.

Mr Jeffery asked if it would be right that a Judge President would have a sitting at a particular court only and exclude other places.

The Chairperson said that the Committee would debate this further.

Adv De Lange continued and said that Hjul objected to Clause 7 and commented that it did not appreciate the role and function of the Supreme Court of Appeal. The Department noted the concern and would comment later.

Mr Swart asked why there was such a stringent requirement as ‘must’ under Clause 7(2).

Mr Jeffery asked what the point of 7(2) was.

Adv De Lange replied that there appeared to be some type of technical problem. A possible solution could be to use the word ‘may’ instead of ‘must’ or to remove the whole of sub-clause 2. The Committee could still engage with the SCA on this. The Committee should keep access to justice in mind.

The Chairperson agreed that access to justice was something that the Committee had to keep in mind during its deliberations.

Adv De Lange noted that the Centre for Constitutional Rights (CRC) was concerned that Clause 8 gave the Chief Justice unfettered power. In terms of that clause the Chief Justice was compelled to obtain the support for any directive or protocol of the majority of members of a forum of judicial officers, the composition of which was left entirely to his or her discretion in terms of Clause 8(1). It was proposed that 8(5)(a) should be amended to provide that: “Any protocol or directive in terms of subsection (3)(a) may only be issued by the Chief Justice if it enjoys the majority support of all the heads of Superior Courts; and (b) must be published in the Gazette”. The Department’s response was that in terms of 8(5)(a), any protocol or directive must be supported by the majority of a forum so convened. When considering protocols or directives, such a forum must include all the heads of the Superior Courts. Although the magistracy must also be represented, there may be room regulating their representation in more concrete terms. This was deliberately left open in order to leave room for the judiciary to develop this concept.

Mr Jeffery said that the Bill dealt with Superior Courts; the administration of the Lower Courts would come later. There should not be too many provisions for Magistrates’ Courts in a Bill that dealt with Superior Courts.

Ms Schäfer agreed.

Adv De Lange referred to Clause 8(2), which held that the Bill sought to make provision for the judicial functions of all courts including governance issues; this was an exception in the Bill. It may be that Clause 8 should be deleted from the main body of the Bill and inserted in the Schedule so as to make it neater. Paul Hjul expressed concern under Clause 8 that there was no reference to the number of persons (no limit) to form the forum. Thus the Chief Justice may pack the forum, especially with lower court judicial officers

Ms Schäfer said that she was also concerned. Could the Committee have an identification of any provisions that related to the binding orders that the forum may issue on the entire judiciary. There should be equal representation from both the Lower and Higher Courts.

Adv De Lange said that this was one of the areas where there was a need for more refinement; this may have to be raised with the judiciary again. Under Clause 11 Paul Hjul argued that the clause contained no provisions about the qualifications that officers, particularly a registrar (and taxing master) must have, despite their extensive responsibilities. He further queried from whom the court manager took instructions. On face of it, he or she may be required to take instructions from both the Director General of the DoJ&CD and Chief Justice. There would be a danger of interference. There was also a greater danger for court officers to account to a DG or Chief Justice or to the Office of the Chief Justice than to the Minister of Justice, who was at least accountable to Parliament. Hjul commented that in the case of delegation by the Minister to an officer in Department or to the Office of the Chief Justice, the officer in the Office of the Chief Justice would answer to the Minister for certain things while answering to the Chief Justice in others. The Department’s response was that conditions of service for public servants (which the officers of the Courts presently were) could not be dealt with in this Bill. It would arguably not be appropriate to involve the JSC in non-judicial appointments.

Mr Swart asked the Committee to look at the appointments of Chapter 9 institutions, as this was similar, how were persons appointed to these bodies?

Adv De Lange said that this could be done however it would be difficult to look at this in a Bill of this nature, it would best be dealt with in administration of courts legislation.

Adv De Lange said Adv Frans Reyneke pointed out in his submission that clause 12(1) states that at least eight Constitutional Court judges must hear a matter. He recommended that this number should be decreased to five, which was similar to a full bench of the SCA. This should allow more cases to be heard and to operate two courts at the same time.

Mr Jeffery asked why an odd number of justices sitting together on a case could not be provided for in legislation.

The Chairperson pointed out that the number 8 was provided for in the Constitution.

Mr Jeffery said that in that case it was best not to tamper with the Constitution.

Ms Schäfer said that it could still be inserted that it would be preferable if nine justices could sit on a case; this would not be lower than the eight that was provided for in the Constitution.

Adv De Lange informed Members that this was how far he could get with the responses.

In closing, the Chairperson said that the following week’s meetings would be designated to dealing with the Trafficking Bill.