Superior Courts Bill [B7-2011]: deliberations

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Justice and Correctional Services

26 July 2012
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Portfolio Committee on Justice and Constitutional Development deliberated on the Superior Courts Bill [B7-2011]. The Committee expressed that clause 3 was ideal as it would act as a safety mechanism where other ministers sought to create courts tribunals or courts without the Minister of Justice being consulted. It was suggested that that the Superior Courts Bill should be the main Bill that governed superior courts and not other legislation. A Member pointed out that said that clause 3 was off the mark somewhat as individual ministers did not introduce legislation in Parliament as individuals; legislation came to Parliament as a collective. There were concerns that the clause may restrict the introduction of legislation by Parliamentary Committees or Private Members, to address this, the Committee suggested that there should be an exclusionary clause in this regard. More clarity was sought on the meaning of the “prescribed criteria” in clause 5(1)(a)(iii). The Committee discussed the various town/cities that had been designated as main seats of court divisions under clause 6. The Committee questioned why Grahamstown and not Bisho was the designated main seat of the Eastern Cape division.  The Committee sought assurance on the legal status of the towns/cities listed under clause 6 as there had been re-zoning of cities and towns under certain municipalities which were then named under a single collective e.g. Buffalo City.

There was a proposal from the Committee that 6(3)(c) should also include “any part or more” rather than “more than one province”. In clause 6(4(c) “deploy” was changed to “assign”. In clause 6(b) it was suggested that it should be inserted upfront in the Bill that seniority would prevail where appointments for acting deputies were concerned and there should also be a definition of what senior means. In clause 5(1)(b) it was agreed that the following wording should be added: ‘expedient or in the interest of justice’. The Committee expressed concern under clause 8 about the delegation of the Chief Justices duties and functions to just anybody, administrative functions could be delegated but not the leadership functions.

(In the afternoon session, the Committee continued to debate the Superior Courts Bill.) Under clause 8, Members discussed the anomaly that there was a reference to the magistrate’s courts, although they noted the drafters’ point that this was necessary to ensure that a link was created between the magistrate’s courts and Chief Justice. Members debated whether a definition of “head of the magistrate’s court” was needed, clarified the term “Chief Magistrate”, noted that the regional courts should be included, and asked the drafters to come up with something comprehensive. Members then noted that the wording f subclauses (2) and (6) did not correlate, and the suggestion was made that the reference to (2) should be deleted from (6), whilst subclause (8(6)(e) should refer to "determination and implementation of standards", whilst the words “any matter” should be changed to "matters before judicial officers".

In respect of clause 9, the drafters clarified that the intention was not to deal at all, in this Bill, with any matters relating to judges’ conditions of service, including leave, and the Bill merely clarified that recess periods should be determined by the Chief Justice, that courts should be open on business days (which was distinguished from the courts’ ability to close sessions in court, in the interests of justice), and that   the wording of subclauses (2) and (3) should be combined, to indicate what types of matters would be dealt with during recess. Grammatical errors in subclauses (4) and (5) would be corrected. Members felt that the wording of clauses 10 and 11 essentially related to transitional provisions, and suggested that the clauses may be better placed at the end of the Bill. Some Members were concerned that responsibilities would attach to the Director General of Justice, in the interim, although that person may not have direct control over the finances for which s/he was to bear responsibility. Other Members accepted that this was a genuine concern, that there were practical difficulties because of the Public Service and Administration Act, noted that the points were still under debate, and that the position would be regularised in new legislation. Members noted that at the moment the Office of the Chief Justice was responsible for administration of that office, the Constitutional Court, Judicial Service Commission and Judicial Institute.  Members noted the intention that whatever was created for the Constitutional Court should be mirrored for other courts. , and she agreed that the SCA judges were correct in their view.

Members suggested changes to clause 11(1)(b), to reflect that appointments by the Minister should be “in consultation with” (not “at the request of”) the head of the court, and it should be clarified by delegations by the Minister could be made to the “head of” the Office of the Chief Justice. Members sought clarity as to why it was stated that a person may hold more than one office.

Meeting report

Superior Courts Bill: Preliminary deliberations
Clause 1
Ms D Schäfer (DA) asked what “status similar to a High Court” meant under the definition of superior court.

Adv Johan De Lange, Principal State Law Adviser from the Department of Justice &Constitutional Development, replied that the drafters had followed the wording of the Constitution.

Clause 2
Mr S Swart (ACDP) said that it was interesting that in the conflict of laws provision it was provided that any other legislation would trump the Superior Courts Bill.

Adv De Lange said that the clause was in relation to any other court not the courts referred to in the Bill e.g. Constitutional Court, Supreme Court of Appeal and the High Court of South Africa.

Clause 3
The Chairperson said that clause 3 was ideal as there was a real danger of other Ministers creating courts or tribunals.

Ms Schäfer said that the Bill should be the main Bill that governed superior courts and not other legislation.

Mr Johannes Skosana, Chief Director (CD) for Court Services in the DoJ&CD, said that the suggestion from Ms Schäfer would have been cumbersome as there were other Acts that created other courts such as the Land Claims Court, Labour Courts and Competitions Court, bringing all these Courts together under one piece of legislation would have been difficult.

Ms Schäfer said that this was not the point she was making, the point was that there should not be other legislation that prevailed over this one if there was a conflict.

Adv De Lange said that the clause still served as a check where another Minister sought to create a court or tribunal as the Minister of Justice would have to be involved.

Mr J Jeffery (ANC) said that the clause was slightly nonsensical in that individual Ministers did not introduce legislation in Parliament as individuals; the legislation came from Cabinet which the Minister of Justice was a Member. The provision should provide for consultation with the Minister of Justice before introduction to Parliament.

Adv De Lange said that a Bill could be introduced via the Private Members Committee in Parliament or in the National Council of Provinces (NCOP), it was not always Ministers. Having “in consultation with” would prevent Members of Parliament introducing legislation without first consulting a Minister.

Ms Schäfer agreed.

Adv P Holomisa (ANC) said that he did not see any problems with the provision. He agreed with the formulation that there should be consultation prior to introduction in Parliament.

Mr Jeffery said that his problem with the wording was that the Minister would be consulted via the Cabinet process. It was not necessary to restrict Bills other than those coming from Cabinet. There was an extensive process where Parliament was concerned whether the Bill came from a Member or a Committee. The intention should be to have the Minister of Justice involved in the consultation process, it was not clear if the clause went far enough in this regard. The wording in the provision did not seem to go far enough.

The Chairperson said that there should be a closer scrutiny of the meaning of the words “the introduction in Parliament”; did this mean a tabling of a Private Member’s Bill?

Ms Schäfer said that the clause should not restrict Members of Parliament from tabling a Bill by requiring that the Minister should be consulted before doing so.

Mr Jeffery said that Private Members and Committee Bills should be excluded because there was an extensive process that already existed in Parliament. In addition this was not the harm that was intended to be corrected, the intention was to alert and get the Minister of Justice involved should another Minister want to create a new court. The Department of Justice also footed the Bill as it paid the salaries of presiding officers.

Mr Skosana said that there would be practical challenges should the scenario outlined by Mr Jeffery actually happen as the administrative support services of the Justice Department would be under severe pressure.

Adv Holomisa suggested that the consultation process should be at the stage before a Bill was published in the government gazette.

Ms Schäfer asked for clarity on the tribunals that were mentioned in the clause.

Adv De Lange said that these tribunals were those established in terms of other laws of Parliament and insofar as Section 34 of the Constitution was mentioned, private tribunals were excluded. Did the Committee want a provision like this or would it prefer that this matter be something that would be dealt with administratively?

Ms Smuts said that she would prefer that this be dealt with administratively.

Mr Jeffery said that it would be preferable if the Minister was consulted before the Bill was released into the public domain.

Ms Schäfer asked whether the Chief Justice would not have to be consulted given that he was in the process of being in charge of the judiciary including its administrative aspect as well.

Mr Skosana said that this already existed because if the Minister had to be consulted then this would automatically mean that the CJ would have to be consulted as a second functionary in the administration of Justice. A clause should be included that the consultation with the Minister should have due regard to the views of the CJ.

The Chairperson said that clause 3 would be flagged.

Clause 4
Adv Holomisa asked why the term “High Court of South Africa” had been used.

Adv De Lange said that this was derived from the Constitution.

Ms Smuts said that the CC judges pointed out that this clause was contradictory with clause 7 which introduced the concept of circuit courts; it was not clear why the SCA had to go on circuit.

Mr Jeffery asked that this should be dealt with when the Committee was dealing with clause 7.

Clause 5
Adv Holomisa referred to what Ms Smuts had said, there was a difference between a circuit court and having a court elsewhere because of an emergency, the clause seemed to be referring to the latter scenario.

Ms Schäfer referred to clause 5(1)(a)(iii) and asked what the “prescribed criteria” referred to.

Adv De Lange said that this was a new provision. There had been great difficulty in the past over the appointment of judges to different seats. The provision would allow for the Minister and the CJ to sit down and determine the criteria.

Mr Jeffery referred Ms Schäfer to the definition of “prescribed” in the Bill.

Clause 6
Adv Holomisa asked why Bisho was not the designated main seat for the Eastern Cape (EC).

Mr Jeffery said that there had been extensive lobbying from the people of Grahamstown for mainly economic reasons.

Mr Skosana added that in other provinces there was already an established practice where the area with the main infrastructure was normally where a division had its main seat. Moving would result in some logistical and infrastructural problems. Originally Bisho was selected in the Bill for purposes of furthering access to justice for citizens. The solution was for the seat to replicate the situation in Gauteng where the main seat was in Pretoria but there were ‘separate’ divisions in Gauteng. So people in Bisho would not have to go to Grahamstown to have their matters heard there. Grahamstown as a seat was just for the Judge President (JP).

Adv Holomisa said that he was worried that there were some who lobbied so that they could get their way just because they had access to decision makers, what of the others?

Mr Jeffery asked if the towns and cities listed were legally recognised entities because he thought that Bisho was now called Buffalo City.

Mr Skosana said that the names took into account the names of the towns/cities as they were legally realised and that applied now. High courts exercised jurisdiction over magisterial districts. The Minister of Justice created the demarcations for each magisterial district which then indicated where a particular matter had to be heard depending on where it occurred. The people who were in Buffalo City were served by two High Courts in terms of the current dispensation.

Mr Jeffery asked in terms of what law were the names legally recognised.

Mr Skosana said that there was a separate process that allowed for the naming of the towns, the Minister of Justice was responsible for the naming of the districts.

Adv De Lange said that the Renaming of High Courts Act was relative insofar as clause 50 of the Bill was concerned, this was where the existing courts were changed to the new courts. If clause 50 was correct then it did not matter what the names of the towns/cities were.

Mr Skosana said that the Bill provided for magisterial, regional and High Court divisions in order to allow for access to justice for ordinary citizens. Clause 6(3)(c) allowed for the Minister of Justice to annex or apportion a particular area to another jurisdiction if it was in the interest of justice.

Ms Schäfer asked why there would be more than one province in one jurisdiction according to clause 6(3)(b).

Mr Jeffery asked how far the construction in Mpumalanga was.

Mr Skosana said that a site as well as temporary accommodation had been procured.

Mr Jeffery said that in the interests of justice the jurisdiction of this court should not blindly follow provincial boundaries. Clause 6(3)(c) should also include “any part or more” rather than “more than one province”. Adv De Lange should consult and draft an option.

The Committee agreed to the proposal.

Adv De Lange pointed out that a commentator had objected to the use of the word “deploy” under clause 6(4(c) as it had political connotations.

The Chairperson said that it was more militaristic than anything else.

Ms Smuts agreed.

Mr Jeffery suggested the word assign.

The Committee agreed.

Mr Jeffery referred to clause 6(b) and suggested that there should be wording that captured correctly which Deputy Judge President (DJP) would act where there was more than one division such as in the Eastern Cape (EC).

Mr Skosana said that there might be a problem with the proposal because if for example in Pretoria there would be an appointment of a DJP that was in the position for three months whereas there might be a DJP in Johannesburg who had been in his position for longer. It would sit well for the judiciary if the appointment was in terms of seniority.

Mr Jeffery asked if there was legal certainty on appointments based on seniority.

Mr Skosana said yes, seniority was based on appointments made from the day that one was a judge and not on the basis of one being a senior counsel.

Mr Jeffery asked what of a scenario where one had X who had been a judge for 10 years and another judge who has been adjudicating for 5 years yet they were appointed as a DJP for two years. Surely there were different levels of seniority? Surely the person who had been appointed the DJP the longest would be more senior.

Mr Skosana said that this was a different angle; appointments had been made on the basis of years served on the bench and not necessarily the years served in terms of elevation. Seniority in the rank would be accepted by the judiciary where there were two DJPs.

Ms Schäfer said that it should be inserted upfront in the Bill that seniority would prevail and there should also be a definition of what senior means.

Clause 7
Mr Jeffery asked that if the requirement under this clause was there for the SCA then why not for the CC.

Ms Smuts said that the public did not want to listen to abstruse points of law.

Adv Holomisa said that there was no need for the SCA to have circuit courts.

Mr Skosana asked the Committee to rather have a discretionary provision because all the judges of the SCA were from Gauteng; one could find that there may be a matter that needed urgent finalisation, all the lawyers were from Gauteng and the client was based in Pretoria, would it not be best to allow the judge to decide to hear the matter in Johannesburg and not Bloemfontein.

Ms Smuts said that the issue raised by Mr Skosana was already covered elsewhere in the Bill in clause 5(1)(b).

Ms Skosana suggested that under clause 5(1) ‘expedient’ and ‘in the interest of justice’ should be added.

Mr Jeffery said that ‘expedient’ was wider and in the ‘interest of justice’ was too open.

Mr Skosana said that ‘expedient’ would be perceived as being at the discretion of the judges.

The Committee agreed and said that the wording should be ‘expedient or in the interest of justice’. 

Clause 8
The Chairperson referred to comments by the judges of the CC regarding clause 8(4)(c).

Ms Smuts said that the comments were sensible and the Committee should insert a seniority requirement.

Mr Jeffery disagreed and said that the current CJ was delegated the responsibility to organise the Access to Justice Conference by the previous CJ whereas the Deputy Chief Justice (DCJ) did not seem interested.  If the CJ overstepped in an y way then he would not get any cooperation.

Ms Smuts referred to clause (4)(a) and asked if it did not require any seniority on the functions and powers in terms of clause 8.

Ms Schäfer said that she was worried about the delegation of the CJ’s duties and functions to just anybody. Administrative functions could be delegated but not the leadership functions.

Ms Smuts agreed.

Ms C Philane-Majaake (ANC) also agreed. 

Mr Jeffery said that he was worried about the delegation; this was a formal instruction that was written. Did the current CJ not deal with a case flow management problem under the previous CJ?

The Chairperson said yes.

Mr Jeffery said that it would be key to find out what the arrangement was, did it fall under clause 8(7) or was it a delegation. The problem was that the word delegation had a specific legal meaning, was it necessary to have this?

Adv Holomisa agreed that clause 8(7) should apply; in any event every head of court had a deputy.

Mr Skosana said that the arguments were persuasive, the original intention behind clause 8(7) was that the CJ could get any other judge to assist with any functions, the CJ would not abdicate those functions he would be merely receiving extra help. The problem with delegation to a judge was that there was already a DCJ.

Mr Jeffery requested the Department to check with the CJ and President of the SCA whether there were any functions which they would need to delegate.

Mr Skosana said that there was already a process underway in the Justice Ministry which anticipated the new judicial model, this would outline court administration, functions, powers and decision making within the Office of the Chief Justice (OCJ).

The Chairperson said that he would adjourn the meeting and continue after lunch.

The Committee paused for the lunch break.

Clause 8
Mr Holomisa pointed out that clause 8(4)(b) seemed to contain an anomaly, since although responsibilities were to remain with the “head of the courts” (the Chief Justice), there was also a reference to the Head of the Magistrate's Court.

Mr Jeffery said that although the Superior Courts Bill was assumed to relate to superior courts only, there was some difficulty with the wording and the magistrate’s courts needed to be referred to specifically. He asked for confirmation from the drafters that Chapter 3 was intended to be an interim measure.

Mr JB Skosana confirmed this, and explained that no legislation currently made a direct connection between the magistrate’s courts and Chief Justice, and so the wording “including” was intended to make it clear that they were to be brought in line.

Ms Schäfer said that the definition of "head of court" did not specify who was the head of the magistrate's court, and this needed to be included.

Mr de Lange drew Members’ attention to the footnote on the loose sheet of proposed amendments handed out earlier. Whilst a definition could be included under clause 1, it may be better to include this under clause 8, the only clause in which reference was made to the magistrate’s courts.

Mr Jeffery wondered if the current wording of clause 8 was sufficient to empower the Chief Justice to deal with the magistrate's courts. He asked that the drafters should think about this point, and the relationship between magistrates and Judges President. He had understood that the Judge President would be the head of the judicial administration and management in the province.

Mr Skosana pointed out that clause (8)(4)(c) addressed the issue of the Judge President. The drafters had taken a minimalist approach to try to avoid consequential amendments in other pieces of legislation.

Mr Jeffery agreed that the limitation under that subclause was adequate, but there was nothing requiring the Judge President to establish any forum in his province.

Mr Skosana said that there were already informal forums, but agreed that it would assist to include wording allowing the Judge President to convene a forum.

Mr Jeffery said that the Chief Justice's powers in respect of magistrates included the fact that s/he must convene a forum, and suggested that something similar be inserted in respect of the Judges President. He asked about the structure in the regions.

Mr Skosana explained briefly how the Regional Court was structured at the moment.

Mr Jeffery noted that there were nine Regional Court presidents. There were some challenges with the Regional Courts Forum, as it was not achieving what was intended. The Judge President should be the entry point for a forum. He thought that at the moment there was probably no need to legislate on the national body, which was covered under clause 8(1)(a).

The Chairperson asked how many Chief Magistrates there were in Western Cape.

Mr Skosana said there were three. He explained that the title of Chief Magistrate reflected a ranking, and therefore heads of courts were not necessarily Chief Magistrates. A Chief Magistrate would be appointed for every court with more than ten magistrates. There were 23 Chief Magistrates in the whole country. A cluster head would oversee a number of sub-districts. Heads of Courts could be either Senior or Chief Magistrates. When the Judge President convened a forum, this could involve Chief Magistrates and cluster heads. Western Cape had 23 districts, constituted under the local government demarcation. The leadership in the Western Cape would be the head of all the divisions.

Mr Jeffery said that even if this was an interim measure, it was not possible to say that the Chief Justice should convene a meeting, if the “Head of the Magistrate’s Court” was not defined.

Mr Skosana pointed out that the Magistrate's Court Act defined who headed the Magistrate's Court. He reiterated that it would be incorrect to define heads of courts as Chief Magistrates.

Mr Jeffery suggested that Mr de Lange’s proposed amendment may also need to take account of the Regional Courts.

Mr de Lange said that the head of the Regional Division was the Regional Court President. The Magistrate's Court Act did not actually refer to “the Regional Court”, but to the “regional division”. One magistrate was appointed per district, and all others were additional magistrates. The Head of the court, at that level, should include the head of the district. However, that person may not be a Chief Magistrate. He would take this into account in the final drafting.

Mr Skosana added that all of this would be solved in the proposed legislation that was to realign the magistrate's courts. There was an attempt, at one stage, to have all magistrates responsible to the Regional Court Magistrates, but this had caused problems, since the magistrates had taken issue with the fact that Regional Court magistrates did not deal with a wide variety of issues, including child justice matters.

Ms Smuts noted that a question had been raised, in respect of clause 8(6), as to how the Chief Justice could decide who should sit on a specific case, and this question was raised again in a document from the judges of the Supreme Court of Appeal (SCA), who said that the Chief Justice would surely not wish to allocate judges to certain sittings. The intention of this Bill was that the judiciary should run its own functions without executive interference. The matters set out in subclause (6) had caused concern during a previous amendment in 2006, and she thought it was correct that they should be included here, and wondered why the SCA judges seemed now to have a differing interpretation. However, the Chief Justice would surely set the norms and standards, not actually decide who should sit on cases.

Mr Jeffery had some sympathy for the judges' views, because the wording of subclause (6) was not particularly clear. Clause 8(2) referred to norms and standards, but was to some extent at odds with what was stated in subclause (6). This was linked to the issue of delegation. The Chief Justice could neither assign judicial officers to sittings, nor delegate this, as this was a function that lay with the Judge President. He agreed that the sittings of particular courts would probably be monitored by the Chief Justice, so that if a court was not functioning properly, he would take steps to ensure that the situation was regularised, but on a day-to-day basis, this fell under the Judge President. Sub-clause (6) currently listed was a mixture of delegation powers and standards. The Judge President should not be allocating magistrates either.

Ms Smuts was not opposed to re-drafting for greater clarity, but said that the clause was probably drafted in this way to avoid the "spectre" of executive interference.

Mr de Lange did not agree that the wording of clause 8(4)(a) was problematic; as only the head of the court would be able to exercise the powers. It was possible to say that the management of the court should only be exercised by the Head of the Court.

Ms Schäfer pointed out that subclause (6)(e) also did not make sense and would have to be reworded.

Mr Skosana thought that clause 8(6)(e) would fall in the ambit of general norms and standards, not management.

Mr Jeffery cautioned that 8(6)(e)(ii) referred to "any matter", which would include outstanding judgments.

Mr de Lange said that he was not quite sure where the conflict was between clauses 8(2) and 8(6). Finalisation of long-outstanding matters also needed norms and standards.

Mr Skosana suggested that "determination" and "implementation" should be clarified.

Mr Jeffery reiterated that the Supreme Court of Appeal judges had read the spelling out of judicial functions in clause 8(6) as suggesting that the Chief Justice would determine who would sit on a case, including in a remote magisterial district. That was not the intention. However, "the finalisation of any matter" was very specific, and the Judge President should be able to direct the judicial officer to finalise a case. It should be clear that the Chief Justice could set the norms and standards as to how long judgments should take to be delivered.

Mr Holomisa suggested that clause 8(2) be retained in its present form, but the reference to "subsection (2) and.." should be deleted from subclause 8(6). Then the wording of 8(6)(e) could also be changed to refer to "determination and implementation of standards".

Ms Schäfer thought that the words “any matter" should be changed also to "matters before judicial officers". It would be necessary to provide for interventions by the Judge President.

The Chairperson confirmed that the determination of recesses should fall under the ambit of the Chief Justice, to avoid different time periods in different courts.

Mr de Lange said that there were likely to be further developments as the Committee looked at this again.

The Chairperson confirmed that clause 8(7) had been discussed earlier.

Clause 9
The Chairperson noted that there was comment from the judges of the Constitutional Court, listed in paragraph 16, in relation to recesses. The Supreme Court of Appeal judges had also commented on this point.

Mr Jeffery referred to sub-clause(1), and felt that all courts should be open to the public, except in cases where the interests of justice demanded that the sessions be closed. He asked how this would be specified, and said that there was probably similar wording to be found in the Supreme Court Act

Ms Smuts received confirmation from the drafters that "business day" was defined.

Mr de Lange clarified that there was a distinction between" open to the public" and "in open court". This clause was intended to specify that people should be able to “do business” at the court, such as lodging documents, on normal business days. However, a court must be able to close its sessions to the public, where appropriate, such as matters involving minors. He said that most of the provisions that were not controversial had been copied from other legislation, but he would check on this again.

The Chairperson confirmed that clause 9(1)(b) referred to urgent applications.

Ms Schäfer asked the drafters to check and report back whether there had been changes to bail applications after hours.

Mr Jeffery asked if there was anything set about vacation periods, and where it would be found.

Mr de Lange confirmed that this was in regulations under the Judges Remuneration Act. It was interesting that some of the comments were confusing “recess” and “vacation”. He pointed out that judges were entitled to four months long leave for every three and a half years served.

Mr Skosana added that judges could also request the Minister for extended leave. He added that often judges arranged their long leave to tack on to recess periods.

Mr de Lange said that nothing in this Bill dealt with judges' conditions of service. Recess had never fallen into the category of vacation time.

Mr Jeffery suggested that clause 9(5) seemed to make it clear that recess was not the same as vacation. Recess was intended for the finalisation of judgments.

Ms Smuts noted that some Constitutional Court judges had suggested that the word "main" should be inserted before "purpose". However, this was not supported by the majority.

The Chairperson suggested that perhaps the "sole purpose" should be inserted.

Members felt that “the purpose” was sufficient in clause 9(3).

Mr Holomisa asked if this clause should be construed to mean that research should be done only during recess. He wondered why it was necessary, in legislation, to state the purpose of the recess, and asked if this was consistent with other legislation.

The Chairperson said that there had always been a complaint about the amount of time that judges were not sitting, to which they had always responded that they were only able to do their research and give full consideration to matters in recess.

Mr de Lange added that when there was an urgent application around floor-crossing in Parliament, there was a problem in getting enough judges to deal with the case. The circumstances indicated that it was sound to put the principle around recess periods into legislation. However, if there were queries around judges' leave and conditions of service, this Bill was not the appropriate vehicle to address them.

Ms Smuts wondered if there should not be a definition of recess periods. She also raised the point about judges' training, and she wondered if recess should not be used also for training.

The Chairperson thought that it should be specified that recess did not include leave.

Mr de Lange wondered if subclauses (2) and (3) should not be linked, by using the words "in order to allow judges to.." and then indicate what might be included. It was not desirable to convey a harsh message, and this would probably then obviate the need for a definition.

Mr Holomisa pointed out a grammatical error in clause 9(4), and noted that the word "are" in line 36 be replaced with "is".

Mr Holomisa also asked that clause 9(5)(a) be reworded as "sufficient numbers of judges".  Members agreed with both these suggestions.

Clause 10
Ms Schäfer asked how the legislature could ensure that sufficient funds and resources were allocated to ensure that the Act was properly administered.

The Chairperson said that the Chief Justice would confer with the Minister in relation to the budget.

Ms Smuts accepted that this Bill was intended to be an interim arrangement, but remained concerned that not enough was put in place to ensure that the Act was implementable. This Bill specified an ordinary budgetary process, and that was not desirable for institutions that should function in a fully independent way. Whilst she was not in favour of what was in the Bill, it must be accepted, for the moment, that the Director General of Justice was the Accounting Officer, but the position should be regularised when the Judicial Board Act and Independent Administrative Agency Act were drafted. She reiterated that clause 10 should be seen as transitional only.

The Chairperson said that the Secretary General (SG) of the Office of the Chief Justice would act as Accounting Officer, only in so far as that office was concerned.

Ms Smuts pointed out that the Director General of the Department of Justice was charged with accounting for funds, under sub-clause (3).

Mr Skosana said that currently the Office of the Chief Justice was not responsible for all superior courts, and had responsibilities only for the Constitutional Court, court, the Judicial Service Commission, and the Judicial Institute. There was, however, already a process to remove accountability from the Director General of Justice, as at the moment all 13 high courts, SCA, and specialist courts infrastructure, budget and capacity fell under the Department of Justice and Constitutional Development (DOJ&CD), supported by the regional offices. The staffing currently of the Office of the Chief Justice was around 40 members of staff, but this would have to be tripled to take over other functions, and that would also involve changes in the regional offices of the DOJ&CD. The thinking was that all other superior courts, save for those mentioned, should be left out of the Superior Courts Bill.

Ms Smuts said that at the moment, the Office of the Chief Justice was created as a government department, and that was not correct, and should be corrected as soon as possible.

Ms Smuts asked if the SCA judges had indicated that it they were in favour of falling under the Office of the Chief Justice.

Mr Skosana said that at judicial level there was some uneasiness. The Supreme Court of Appeal felt that, being the highest court of appeal, it should not be reliant on another office for its budget, and wanted the power to determine its own budget.

Ms Smuts agreed that there was a clear intention that whatever was created for the Constitutional Court should be mirrored for other courts, and she agreed that the SCA judges were correct in their view.

Mr Jeffery asked if this clause, and clause 11, should not be moved to the end of the Bill, as they essentially dealt with transitional provisions. Members agreed.

Clause 11
Mr Jeffery raised concerns as to how the Director General of Justice could be held responsible for something over which that individual actually had no direct control.

The Chairperson was concerned about the list of functions and asked for further clarity from the drafters.

Mr Skosana explained that, in relation to appointments, the Minister must consult with the Chief Justice. In essence, the members of the Constitutional Court fell under the definitions of the Public Service and Administration Act, and therefore should be accountable to the Director General of Justice. The Chief Justice would not be able to actually appoint under this Act, and therefore it was considered preferable to provide for appointments by the Minister, which would, in practice, be delegated to the Director General, as set out in clause 11(4).

Mr Jeffery reiterated that this clause too would probably be better placed under transitional measures. He agreed that the Constitutional Court, and if possible also the Supreme Court of Appeal issues should remain under the Office of the Chief Justice. However, he felt that clause 11(1)(b) was controversial, because it was currently worded that any appointment by the Minister must be “at the request of and in consultation with”  the head of the court, so effectively the Minister was rubber-stamping decisions.

The Chairperson noted that in subclause (d) it was stated that the head of the court performs such functions as may be determined by the Director General and the Chief Justice.

Mr Holomisa asked where the lines of responsibility lay.

Mr Skosana agreed that this wording did create problems, because the head of court could say that something should be done, but then had to request a budget from the Director General, who did not have control over how that budget would be spent.

Mr Jeffery reiterated that he was not sure how this would work in practice. Although the Director General had been given additional responsibilities, that person would not be able to actually do anything in the case where a provincial division of a high court, under a court manager, may have caused problems with the public finances, yet remained responsible. Whilst he agreed that this was clearly a purely interim arrangement, it was not without potential problems, and he concurred with Ms Smuts that the final legislation to regularise the position must be expedited. He questioned if this provision could, for instance, be interpreted to mean that the Minister would appoint a magistrate in Kakamas.

Mr de Lange said that the Bill related to superior courts, so that would not happen.

Mr Jeffery questioned if this was clearly enough stated in this Bill. He reminded Members that other parts of Chapter 3 did make reference to the magistrate’s courts, and he had been concerned that, by extension, this clause may be interpreted in this way as well. However, after a short discussion, and on re-reading the clause, he thought that perhaps it was sufficient.

The Chairperson said that the Committee would have to be mindful of the problems around responsibility if it should happen that there was a problem and the Director General was called to account.

Mr Jeffery asked who was dealing with appointment of court managers.

Mr Skosana said that at the moment, this had been delegated by the Director General to the Regional Heads, in terms of the Public Service and Administration Act. Magistrates were allowed to sit in on that process.

Mr Jeffery thought that the wording of clause 11(4) may be problematic. The Minister was noted as being able to delegate to “an officer” raised and he thought that it should be specified that the delegation should be to the head of the Office of the Chief Justice.

Mr Skosana said that the drafters had been asked to avoid the use of the term “Secretary General”.

Mr Jeffery suggested that in that case the phrase “the head of the Office" should be specified. Other Members, and the drafters, agreed.

The Chairperson questioned why it was stated that a person may hold more than one office.

Mr Skosana gave examples to illustrate that a court manager could be appointed also as a registrar.

Mr Jeffery noted that the “offices” that could be held were essentially court manager, registrar and assistant registrar, “and other offices”, and he asked whether there was not a possibility of abuse, with the same person being appointed to every office.

Mr Skosana pointed out that the necessity for this, for instance, in relation to service of documents. He said that there was unlikely to be a problem.

Ms C Pilane-Majake (ANC) returned to the problem that the Director General may be held responsible, under the Public Finance Management Act, for something over which s/he had no actual control and said that the Committee should be assisting the Accounting Officers, not placing them in this situation.

Mr Holomisa noted that Chapter 9 institutions had staff appointed by the heads of the institutions, yet the Minister remained responsible for the budget and appropriation. The difficulty was that a judge, as Head of the Court, could not account, so eventually the Court Manager would have to account directly. He too was concerned that the need to account to two heads may cause unauthorised expenditure.

Mr Skosana said that currently the Director General appointed the court managers. In effect, the Judge President would ask for the appointment of a certain person to a certain position, but if there was a problem, the Director General would be held accountable.

The Chairperson said that this was exactly the point he had made earlier; that this peculiar situation would have to be borne in mind if there were problems and the Director General was asked for an explanation.

Mr Jeffery was not sure how, in the short term this problem could be overcome. He sympathized with concerns by the heads of court that they may be trying to work with a person who was not actually accountable to the heads. In future, the court heads would be accountable to the Judges President.

Ms Smuts reiterated that the purpose of the Independent Administrative Agency Act would be to provide a system around the administrative staff of the courts, but all these provisions were transitional.

Mr Jeffery reiterated that ultimately the appointments would be made by the Chief Justice, and he said that in the future, if things went wrong, that person would be accountable. He wondered if the provisions, even as an interim measure, were appropriate.

Mr Skosana said that the position was by no means finally agreed upon, and there were ongoing discussions. One suggestion was to look at the Agency model, where an independent Agency derived its powers from Parliament and accounted to Parliament.

Mr Jeffery returned to the wording of sub-clause (b), which stated that the appointment must be made “at the request of and in consultation with the head of court”. He wondered if the inclusion of the phrase "at the request of" was necessary, because that gave too much power to the Head of the Court, whereas the use of "in consultation with the head of the court" would imply a joint issue. There could be a problem if the Minister was not able to make an appointment because the Head of the Court had not made a specific request.

Ms Pilane-Majake noted that the Committee did not receive reports from staff as such; Chapter 9 institutions’ reports were given by those who represented the executive authority, and she asked if it was intended that the Judges President should report to Parliament.

Mr Skosana said this was not possible

Mr Jeffery commented that the Public Protector had come to report with the Chief Executive Officer.

Mr Holomisa raised the point that consequences came with responsibility.

The Chairperson did not agree with this line of arguing, and suggested that the Committee should not follow that route. The judiciary would become politicised if this were allowed to happen, and it would be all too easy for an MP to bring down the member of the judiciary for political reasons, which was thoroughly undesirable.

Ms Pilane-Majake said that she understood the sensitivities, but was concerned about the nebulous nature of the provisions as they currently stood.

Ms Smuts assured her that the Committee had not finished thinking through the matters. In the interim, she agreed that it seemed to be the best option to place responsibilities with the Director General, although she was sympathetic to the concerns raised. 

The meeting was adjourned.


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