Constitution Seventeenth Amendment Bill [6 – 2011] and Superior Courts Bill [B7 – 2011]: deliberations

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Justice and Correctional Services

31 January 2012
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Portfolio Committee on Justice and Constitutional Development deliberated on the Constitution Seventeenth Amendment Bill [6 – 2011] and Superior Courts Bill [B7 – 2011].  The Committee raised several issues before going through the Bills clause by clause. The first issue raised was on the divide between what was constitutional or not and how this was untidy and the popular solution was that there should be one apex court. The Committee noted that there were different opinions amongst judges themselves on this matter. A Member proposed that the Committee should consider going beyond the prescriptions of the two pieces of legislation and that amendments of other sections of the Constitution should be considered. It was expressed at the meeting that the top level of governance from the magistrates had to be consulted by the Committee. There was disagreement amongst Committee Members on Section 167(6) of the Constitution with some stating that it should be deleted as it was not used and others stating that it provided for direct access to the Constitutional Court and it should remain.

The Committee considered clauses 1, 2, 3 and 5 of the Seventeenth Amendment Bill. Under clause 1, the Committee also considered clause 8 of the Superior Courts Bill as it had relevant provisions in it. Clause 8 of the Superior Courts Bill related to the management of judicial functions. It was felt that the wording of clause 8 of the Superior Courts Bill was too broad and made it possible for the Chief Justice to have a forum that could include up to 100 judges. In addition to the provisions of clause 8, it was suggested that clause 8(5)(a) should be amended to include that any decision taken at the forum should have the support of the majority of the heads of court. There was gap in the Constitution that was highlighted by the Committee, this related to the fact that there was no provision for an acting Chief Justice. It was suggested that the Committee could provide for the Deputy Chief Justice acting as a Chief Justice in the absence of a sitting incumbent and this could be provided for via a constitutional amendment that would be added to clause 8(1). The Committee acknowledged that there was a need for an acting Chief Justice in the form of the Deputy Chief Justice as the work of the Chief Justice has escalated and evolved beyond that of a jurist.

A Member of the Committee felt that the Superior Courts Bill should have been referred to the National House of Traditional Leaders because traditional courts were part of the court system in South Africa. Some Committee Members highlighted the point that the Superior Courts Bill had been published for comment and this had meant that the National House of Traditional Leaders could have made submissions. There were two approaches to resolving this matter put forward by the Committee: the Superior Courts Bill could be referred to the National Hose of Traditional Leaders for comment or the tagging of the Bill could be left to Parliament as this was beyond the Committee’s powers. Under clause 2 of the Seventeenth Amendment Bill the Committee discussed the views expressed by magistrates that the term ‘magistrate’ should be done away with as it was an inheritance from South Africa’s former colonial masters. On this matter the Committee felt that magistrates wanted to be called judges they should not; the issue was flagged for further consideration. For clause the following wording was suggested by a Member: proposed the following wording: The Constitutional Court was the highest court in the land and may decide (a) arguable points of law of significant public importance on appeal; (b) matters referred to it in terms of legislation contemplated in Section 172(2) of the Constitution. The Committee was divided on the issue as some felt that the Constitutional Court has established jurisprudence on what constituted a constitutional matter and it was free to move the boundaries. The consequences of the amendment would be that a whole new system would be created and new jurisprudence would have to be developed all over again in order to accommodate new principles such as ‘what was in the interests of justice’.

Meeting report

The Chairperson said that the purpose of the meeting was for the Committee to recap on the work it had done so far on the two Bills.

Ms M Smuts (DA) said that the interim Constitution sought to draw a strict line between the Constitutional Court (CC) and the Supreme Court of Appeal (SCA). The problem was that there was a very fine divide between what constituted constitutional matters and other matters that the CC and SCA dealt with respectively. The divide between what was constitutional or not was untidy and there were many opinions that held that there should be one apex court. The challenge for the Committee was to re-write the CC’s jurisdiction. What could be drawn from the Committee’s international study tour to the German Constitutional Court (GCC) was that the bulk of their work was derived from direct access cases. 96% of the GCC’s cases were complaints and direct access cases. A researcher who conducted a study on the work of the CC said that it did not register complaints and there were only eight complaints that it had dealt with over a ten year period. The Committee should obtain all statistics on the work of the CC in order to get a concise picture on cases and complaints that came before it.

Mr S Swart (ACDP) said that it was interesting that when the Committee conducted its oversight visit at the Bloemfontein High Court last year that there were differing views between the Judge President and the other judges of that court on this matter. It would be nice to hear the views of the other courts.

Dr M Oriani-Ambrosini (IFP) said that he agreed with Ms Smuts that the issue was one of jurisdiction as opposed to hierarchy. The Committee should consider going beyond the prescriptions of the Bill. Amendments of other sections of the Constitution should be considered.

Adv S Holomisa (ANC) referred to the memorandum of the Bill which stated that there was no need for the Bill to be referred to the House of Traditional Leaders. The understanding was that Constitutional Court had jurisdiction on all laws including customary law. Currently there was the Traditional Courts Bill from which one could infer that customary law was part of the administration of justice. The preamble of the Bill mentioned that it was meant for all courts yet there was no mention of traditional courts, was this correct?

Ms S Sithole (ANC) suggested that the Committee should take the Bill for comment to other provinces and also that it should focus on the work and nature of the South African (SA) court system.

The Chairperson asked the Department of Justice and Constitutional Development (DoJ&CD) officials to address the Committee.

Adv Johan De Lange, Principal State Law Adviser, DoJ&CD, said that the Committee was yet to go through the Bill clause by clause. The other technical issue that should be dealt with was the one that has already been raised today, the jurisdiction of the two courts. The Bill referred to the establishment of a High Court of SA and this also was yet to be discussed by the Committee. Clause 8 of the Superior Courts Bill [B7-2011] (SCB) dealt with the judicial management of judicial functions and its importance was yet to be discussed by the Committee as well. In the public hearings the issue of finance and accountability of clause 10 emerged very strongly. The point here was that judges may not always account before parliament on what they had done with their budget. Clause 11 related to the appointment of staff to the Office of the Chief Justice (OCJ) and this had to be discussed. The OCJ currently functioned as a parastate department and there would be a need for legislation to establish it properly as a separate and independent entity that fell under the judiciary.

Mr Jacob Skosana, Chief Director for Policy Development, DoJ&CD, added that the issue that had emerged from the magistrates was a need for the Magistrate’s Courts (MCs) to be revamped entirely. The magistrates were of the view that MCs should be done away with and a new lower court system should be established. The submission from the magistrates was also that the name reference to magistrates should be replaced. The magistrates were of the opinion that there should be a unified judiciary with hierarchies. If the Committee was going to seek the views of the judiciary then it could also solicit those of the magistrates and their structures. Currently there was no link between the Chief Justice (CJ) and the Magistrates Commission (MC). There was also no legal link between the leadership of the MC and Judicial Service Commission (JSC). There was also the long standing issue of the North and South Gauteng High Courts that considered themselves separate and independent despite the fact that there was only one high court per province. The judiciary had never presented a unified view on the two Bills; it has rather been personal preferences that have been put forward. The rules of the two highest courts were another pressing issue.

Adv De Lange said that the view of the DoJ&CD was that Section 171 of the Constitution provided for the rules of court and because of this, rules of court were a form of legislation. Section 173 however did not relate to the rules of court. Therefore the provision of Section 171 of the Constitution meant that rules of court could be challenged as they were legislative in nature.

Ms Smuts agreed that the magistrates had to be consulted at least at the top layer. The Bills were going to affect them. The Committee should not take too long on the Bills even though step by step judicial independence was being established. Section 167(6) of the Constitution should be deleted as the CC did not use it at all.

Mr J Sibanyoni (ANC) said that his view on the point that Section 167(6) of the Constitution should be deleted was that the Committee should remember that the SA Constitution was modelled on the German Constitution to a large extent. The purpose of this provision was to make it easier for people to access the court especially where socio-economic rights were concerned. The CC should be reminded of this provision and the reasons behind it.

Dr Oriani-Ambrosini said that the judicial process in the country was unfair; it was set up so that justice was a privilege for the rich. The rules of the court had to be reformed so that the judicial process was refined, this could be done via legislation.  There was a model for judicial process that had been tabled in the past that would immediately reduce the cost of litigation and increase the amount of court hours without adding extra costs to the state.

Mr Jeffery said that he was worried about the direction the Committee was taking. The Committee already had six pieces of legislation on its plate; the Committee had to debate issues as they arose whilst it was going through the Bill. The Committee should also consult other courts as the need arose.

Prof G Ndabandaba (ANC) asked if the MC would be part of the JSC.

Ms Sithole asked how it could be that judges could not account before Parliament as oversight was part of its core function. Members of Parliament (MP) appeared before judges to answer questions and therefore there was nothing wrong if judges accounted for their budget before Parliament.

Ms D Schäfer said that the MC should be consulted by the Committee.

The Chairperson said that the Committee should now go through the Bills clause by clause.

Ms Smuts said that the Committee should proceed first with the Seventeenth Constitution Amendment Bill [B6-2011] and then if there was an issue there that was dealt with in the SCB then the Committee would look at it in that Bill.

Seventeenth Constitution Amendment Bill
Clause 1
Ms Smuts said that it would be useful under this clause to go directly to clause 8 of the SCB.

Adv De Lange informed the Committee that clause 8 related to the management of judicial functions.

Mr Skosana said that clause 8 of the SCB dealt with judicial governance and that which pertained to judicial administration. The Committee should know that there was a Bill currently being drafted that was concerned with the entire process of court administration and the management of judicial structures. The SCB should not be overloaded with what was meant for another Bill. The management of court processes being in another piece of legislation was also done in other countries. The SCB was only concerned with the judiciary as a functionary.

Mr Swart referred to clause 8 of the SCB and said that the CJ had the power to convene any forum of judicial officers; the only limitation was that the lower courts had to be represented. This meant that the CJ could have a forum of up to 100 judges. Should there not be some sort of limitation on the composition of this forum. The current wording of the clause was too broad.

Ms Smuts asked how the lower courts were to be represented at the forum.

Mr Jeffery agreed that clause 8(1) was broad as it made provision for not just one forum but lots of fora. The Committee had to be careful to not have a bolts and braces approach by specifying the forums and their purpose. The Committee could look at changing clause 8(5)(a) to include that any decision taken at the forum should have the support of the majority of the heads of court. The changes should be in 8(5)(a) as opposed to 8(1). There was nowhere in the Constitution that it was specified what the work of the Deputy Chief Justice (DCJ) was. There was also no provision for an acting CJ. The Committee could provide for the DCJ acting as a CJ in the absence of a sitting incumbent and this would require a constitutional amendment that would be added to clause 8(1). Has the DoJCD looked at this and what were the reasons for there not being an acting CJ in the 1996 Constitution.

Ms Schäfer asked why the heads of court should have a say in matters that affected magistrates or the lower courts, there was no need for a majority of the heads of court to agree before a matter that pertained to the lower courts was agreed to. There should be a broader definition under clause 8(1) (a).

Dr Oriani-Ambrosini said that the issue raised by Adv Holomisa on the inclusion of all courts as envisaged in the Bill and which then should include traditional courts had not been addressed. The Committee had to ask whether the Bill could have the power of setting a deadline for the rendering of judgments, whether it could tell a judge how to apportion his or her time towards cases or whether the minimum period after an adjournment should be two months etc. Another consideration for the Committee could be that the heads of court could select the CJ and it need not be a Justice of the CC.

Ms Smuts agreed with Mr Jeffery on the provision of acting powers for the DCJ. The Committee should be aware that the work of the CJ was enormous, diverse and beyond normal judicial functions. There was a need for an acting DCJ. To Dr Oriani-Ambrosini the Bill was the opposite of the 14th Constitutional Amendment which sought to take over administrative control of the judiciary; it almost created as constitutional crisis in 2005 and 2006. The current Bill enforced separation of powers and sought to achieve full institutional independence. Norms and functions applied to judicial functions and this was what the 14th Constitutional Amendment sought to control, the current Bill even had provision for a case flow management system. The case flow management system would mean that the judges would have control, lawyers would not have the opportunity to delay cases and costs would come down.

Dr Oriani-Ambrosini said that his point on the need for the reform of the court system had nothing to do with case flow management. It was concerned with the structure of the trial, rules of evidence and speeding up proceedings. Did the Bill specify time lines for the delivery of judgments; if it did then this had to be expressed clearly in the Bill.

Adv De Lange said that he had taken note of the issues raised regarding the forums. The Committee should allow the Department to draft some options. There was indeed a need to make provision for an acting DCJ and whether this would be done in the Bill or the Constitution was a matter to be discussed further by the Committee and then a decision could be taken. Whether or not a judge could be told on when to deliver a judgment would depend on whether or not this could be construed as encroaching on judicial independence. The test for judicial independence resided with judicial officers themselves. It was going to be difficult for the drafters to go beyond what was contained in the Bill. To address the comments by Ms Smuts on the 14th Constitution Amendment it should be remembered that at end of the day the judges were always going to decide whether or not the Bill was constitutional. The Committee may want to flag the issue of recesses which was discussed in the Bill for later discussion.

Ms Smuts said that she was not part of the Committee at that time and would therefore half withdraw her comments and apologise.

The Chairperson asked why the issue of recess had to be flagged.

Adv De Lange said that the reason was that some people felt that there were too many recess periods, this was debatable and at the time of the 14th Constitutional Amendment there was a perception that judges were confusing recess periods as being part of conditions of service. In other words judges would say that they were entitled to a certain period of leave including recess.  There was also a need for some synchronisation between the provisions in the Bill and the Regulations which also provided for recess periods. There was a need for some re-thinking on the issue of recess and the period of recess because at the end of the day the real issue was on access to justice.

Mr Jeffery said that the Committee should be careful to not engage in issues that arose from previous drafts of the SCB that had been resolved. Adv De Lange should not tempt the Committee as some Members would like to spend a lot of time debating issues whilst forgetting that the Bill had to be passed. Cases differed, some were complex and took time to resolve whilst others were easy and could be resolved sooner. One could not have Regulations that specified the time that it should take to deliver a judgment. If a judge took unreasonably long to deliver a judgment then that could be dealt with under disciplinary matters and again this would depend on each individual case.

Ms Smuts said that the former CJ Justice Ngcobo had made late judgments an impeachable offence and this was also dealt with under disciplinary matters by the JSC. Was there a need to set recess periods in subordinate legislation?

Adv De Lange said that recess periods were announced in the Gazette by the heads of court at the moment. The Department notes the suggestion by Dr Oriani-Ambrosini that the heads of court should elect a CJ.

Dr Oriani-Ambrosini said that the issue on traditional courts was still outstanding.

Adv De Lange said that the Department’s approach was always that if a Bill did not amend or deal with any customary law or customs of tradition than it need not be referred to the National House of Traditional Leaders (NHTL).

Adv Herman Smuts, State Law Adviser from the Office of the Chief State Law Adviser, said that it was the view of the State Law Advisers that since the Bill did not contain any provision that dealt with customary law or customs of traditional communities nor any amending provisions, it needed not go to the NHTL

Dr Oriani-Ambrosini said that clause 18 of the SCB mentioned ‘pertaining to’ and not amend; therefore the NHTL should be included.

Mr Jeffery said that the matter could be argued both ways. The SCB has been around for a year. The former CJ Justice Ngcobo had held a justice conference where traditional leaders raised the issue of the Traditional Courts Bill but not of the SCB.

The Chairperson said that another question would be whether or not the NHTL was excluded when the SCB was published for comment.

Adv Holomisa said that the SCB public hearings were open to the public and this included the NHTL. The issue was one of law, the Bill referred to ‘all courts’, would this not include traditional courts? Unless traditional courts were going to be altered, they should be included in the Bill because they were courts as well.

Mr Jeffery said that there was a similar provision where it was mentioned that legislation pertaining to labour issues should be referred to Nedlac. There would be requests that a particular Bill should go to Nedlac, such requests were usually made by Nedlac themselves. The statutory period for the NHTL may take some time or they may ask for extensions and this was a potential worry. The decision was also not the Committee’s because it involved tagging. This matter should be flagged for later discussion.

Ms Schäfer said that the Bill referred to a high court or court of similar status, if a traditional court had the same status as a high court than they were covered in the Bill.

Dr Oriani-Ambrosini said that the Bill could be sent for comment to the NHTL; this was not a lengthy process as suggested by Mr Jeffery. 

Mr Jeffery asked what the position was of the Committee on the issue of an acting DCJ.

Adv De Lange said that the Department agreed that there was a need for this but the SCB adequately covered the situation where the need might arise for an acting CJ.

Mr Jeffery said that this issue should be flagged and more input could be made on this matter.

Clause 2
Adv De Lange said that the intention of the amendment was to later pave the way for when magistrate’s courts were revised in total and the Magistrates Court Act of 1944 was repealed. This would mean that one would not be bound to use magistrate’s courts and could settle on any other name.

Mr Jeffery said that the magistrates that presented to the Committee at the public hearings said that the term magistrate was being done away with internationally, was this the case?

Adv De Lange said that some countries were doing away with it while others still used the term. SA was the only country that found the term to be offensive due to its colonial origins. Lower courts was a better term and perhaps less offensive than ‘inferior courts’

Mr Jeffery said that the Committee was presently dealing with the Superior Courts Bill, where did this leave the other courts; they would automatically be views as inferior.  The main issue was that magistrates wanted to be called judges; the judges did not want this and they should not.

Ms Sithole agreed with Mr Jeffery and said that the term inferior should be avoided as this would have negative perceptions.

Ms Schäfer said that the courts were not equal and that fact that there were appeals confirmed this, there was nothing wrong with magistrate.

Mr Swart asked if magistrates’ court was such a major problem, the bottom line was that this was about benefits and salaries and as soon as magistrates were referred to as judges then they would request similar status.

Adv Holomisa suggested the American model where magistrates would be called judges of the lower courts and there would be judges of the High Court, judges of the SCA and judges of the CC.

Mr Jeffery said that the Committee would have to return to this issue. The comment by Ms Sithole on perceptions was a serious one.

Mr Skosana said that the term magistrates was derived from the Magistrates Courts Act of 1944 that was derived from the colonial English system where magistrates then were not required to have a legal qualification. In 1993 Parliament enacted the Magistrates Act which made it mandatory for magistares to have a legal qualification t also created the MC. Judges on the other hand always came from the legal profession, particularly Senior Counsel. The debate amongst magistrates was that SA had moved beyond the colonial system and there were non-commonwealth states that referred to magistrates as judges. Traditional courts were recognised not in the Constitution itself but in Schedule 16 as a negotiation. Lower courts referred to an umbrella system that included small claims courts, the same applied to the term superior courts. The term superior courts were used by the Department because it referred to jurisdiction more than anything else.

Mr Jeffery said that Mr Skosana was advising the Committee to use lower courts as a catch all. The difficulty with this was that Section 166 of the Constitution listed the courts and the catch all was under 166(e) which was also problematic because it provided the similar status principle and snot
Mall claims courts were not of a similar status as magistrates’ courts. The issue was defining the status of magistrates as a body and not providing for an umbrella catch all system.

The Chairperson said that the Committee had to apply its mind very carefully.

Clause 3
Ms Smuts proposed the following wording for clause 3(a) of the Constitution Seventeenth Amendment Bill: The Constitutional Court was the highest court in the land and may decide (a) arguable points of law of significant public importance on appeal; (b) matters referred to it in terms of legislation contemplated in Section 172(2) of the Constitution. This provided a solution for where it had to be decided whether a matter was constitutional or not as well as some of the problematic matters raised by Section 172(2). 

Mr Swart said that the issue of the role of the CC as a gatekeeper had to be looked at closely, the test of ‘in the interests of justice’ was too low. The Committee also had to consider what it was told in Germany namely ‘if it’s not broken why fix it’, once the Committee made a decision on this then it could consider proposals etc.

Mr Jeffery said the key question was ‘what’s broken’, in which case was there a problem that required this amendment to resolve. This issue was raised ten years ago and what problems had there been since then? The practical implications of this amendment were a concern.

Ms Smuts said that it had been often stated that the decision behind what was a constitutional matter and what was not became an artificial exercise.  It was only right to clean up the artificiality that existed. It was well known that matters were always elevated to the CC on appeal which decided what it wanted to hear anyway. The views of the CC on this matter would be of interest when the Committee met them.

Mr Jeffery said that the CC had to apply its mind whether a matter was constitutional or not, in addition the CC has established jurisprudence on what constituted a constitutional matter and it was free to move the boundaries. The consequences of the amendment would be that a whole new system would be created and the matter would be opened up more. The question of ‘what was broken’ was still key in this regard. Why should there be a SCA and CC in a country that was cash strapped.

Mr Swart said he agreed with Mr Jeffery and there was established jurisprudence on constitutional matters. Adding ’in the interest of justice’ would result in the re-development of the constitutional jurisprudence again as this would be a new term in our law.

Clause 5
Adv De Lange said that there was a gap as to how many judges could be appointed at a particular time. The provision for a system where the number of judges could be determined based on the number of cases and other factors were being set up here.

Mr Skosana informed the Committee that often the Department went over budget when judges were appointed simply because there was no link between the need for judges and the national budget process. The Bill would provide for proper planning to address the needs of the various courts.

The Chairperson thanked the Department and informed Members of  the programme for the following week.

Meeting Adjourned.




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