Constitution Seventeenth Amendment Bill [6-2011] & Superior Courts Bill [B7-2011]: deliberations

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Justice and Correctional Services

07 February 2012
Chairperson: Mr L Landers (ANC)
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Meeting Summary

In its continued deliberations on the Constitution Seventeenth Amendment Bill and the Superior Courts Bill, the Committee had a lengthy general debate on the distinction between ‘constitutional  matters’ and ‘other matters’, the resolution of which would determine whether to have a singular court comprising the Supreme Court of Appeal and Constitutional Court. A Member pointed out that that the problem in South Africa was that it had inherited two apex courts for political and not legal reasons. The distinction between ‘other law’ and ‘constitutional law’ was false and that doing away with the Supreme Court of Appeal was not an option. It was suggested that should an apex court be created, judges should sit in chambers to deal with ‘other law’ and ‘constitutional law’and this apex court would take cases that were of significant public importance, in the interests of developing the law. Another Member was of the view that not all legal matters were constitutional and the correct approach would be that every legal matter had the potential to be considered from a constitutional viewpoint but it did not mean that it was constitutional in nature. Another proposal supported by the majority of the Committee was that the present system should be left as it was, this was working and there was nothing wrong that had to be fixed. The Committee felt that it also had to look at the relationship between the Labour Appeals Court, Competition Appeal Court and the relationship they had with the Supreme Court of Appeal especially in light of the need for reducing costs. One should be looking at having two levels of appeal instead of the current three.

 A Member proposed that the direct access clause, Section 167(6), in the Constitution should be developed or removed in total. Other Members were of the view that the deletion was a fundamental amendment even if it was not used. In addition, this proposed amendment was not in the introduced legislation. The comment was made that doing away with the direct access clause was concerning and the Constitutional Court had to clarify why its rules were the way they were and why it was extremely difficult for the court to be accessed directly, especially by poor people. The Chairperson said his personal view was in line with the majority view of the Committee that there was nothing wrong with the present constitutional regime. The Committee took the decision to wait for the consultations with the judges and the leaders of the magistracy before proceeding with the Superior Courts Bill.

The Committee continued with deliberations on the Constitution Seventeenth Amendment Bill. Under clause 9 the issue of providing for an acting Chief Justice was discussed. A Member said the wording of Section 175 provided for acting judges and an acting Deputy Chief Justice, and this did not fit well together. The drafters were asked if there was any thought in separating the other judges of the Constitutional Court and the acting Deputy Chief Justice. It was pointed out in Clause 10 that magistrates were not judicial officers in terms of the Constitution; the section that dealt with the appointment of judicial officers did not mention magistrates. It was proposed that the whole issue of magistrates and the merger of the Judicial Service Commission and the Magistrates’ Commission belonged to the Nineteenth Constitution Amendment.

Meeting report


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