The Portfolio Committee on Justice and Constitutional Development continued with deliberations on the Superior Courts Bill [B7-2011]. The Committee deleted the words “at the request of and” in clause 11(b)(i). The Committee debated at length the composition of sitting judges for the Constitutional Court in clause 12. The Committee was concerned that there might be an instance where there would be an unexpected withdrawal of a judge due to unforeseen circumstances which would then mean that there would be less than the originally designated eight judges. The Committee was also concerned about situations where the striking down of a provision rested on one judge in a split decision. There was a proposal that there should be a majority of two rather than one so in a bench of nine it would be six: three and not five: four, in an eight bench sitting it would be five: three when cases were being decided on a split. The Committee was divided on the proposal made with some Members supporting it and others not. In clause 13 the Committee raised concerns with the Latin terms used and said that it would be preferable to replace them with English equivalents; this was in light of the need for plain language drafting in legislation.
The Committee shared the concerns raised by Legal Aid South Africa in their public submission regarding the constitutionality of clause 16(2)(a). The Committee raised further concerns regarding clause 17(2)(a) and asked why there be should an argument for an application for leave to appeal before a court when the judge already knew what the merits were. The provisions for the High Court should be the same for the Supreme Court of Appeal and the Constitutional Court. The Committee deleted clause 21(4) and decided that clause 24 should remain as it was in the Bill. The Committee discussed clause 30 in light of the submission from the Supreme Court of Appeal judges who wanted to be excluded from the Rules Board in the same manner as the Constitutional Court. Some Members questioned the necessity of excluding the Supreme Court of Appeal from the Rules Board. Other Members were of the opinion that there was a need for uniformity and there should be a Rules Board chaired by the Chief Justice as head of the judiciary.
Adv Johan De Lange, Principle State Law Adviser from the Department of Justice and Constitutional Development (DoJ&CD), said that the words “at the request of and” would be deleted in clause 11(b)(i).
The Committee agreed to this.
Ms M Smuts (DA) said that she was worried about the comments from the Constitutional Court (CC) judges in their submission under paragraph 17 where they expressed concern about remuneration. It was the general view that the CC would hire its own staff and determine remuneration for them. It was also the view that this would be the direction for all courts. The Superior Courts Bill was repealing the entire Constitutional Court Complimentary Act at this stage, what would the effect of this be?
The Chairperson said that the Committee was taking things back.
Adv De Lange said that it was only the researchers for the CC whose salaries were administered by the court. In clause 11 of the Bill there was no specific mention of the researchers. The reference to the salaries in the Constitutional Court Complimentary Act was only for researchers.
Ms Smuts said that this addressed her concerns for the moment.
Adv De Lange referred to clause 11(4) and said that “office.er” must be removed and replaced with “Head”.
The Chairperson agreed.
Clauses 12 and 13
Adv De Lange said that clause 12 repeated what was in the Constitution. Clause 12(2) was new and was copied from the Supreme Court Act.
Mr Jeffery (ANC) said that one would hope that there would be more than eight judges sitting under clause 12(2)(b).
Mr S Swart (ACDP) said that the issue of eight judges was a concern as one could have a split judgment. Why was there not a similar provision as clause 13(2)(a) here.
Mr Jeffery said that whatever the figure may be, sometimes some of the judges might not be there and one would always have an even number. Moving the number down to an odd one would not assist and this would require a constitutional amendment. The only provision one could make was to provide for the Chief Justice to have a casting vote. The Committee may want to learn some lessons from the German Constitutional Court, was it ideal to strike a provision down on a razor thin majority?
Mr Swart referred to clause 13(2)(b) and said that it was easier for the Supreme Court of Appeal (SCA) as it could have another bench hear the matter all over again, the number of judges required was only five for a full bench as opposed to the CC.
Ms Smuts said that Mr Jeffery raised an important point; the Committee could consult the judges themselves or even the former CJ Arthur Chaskelson who has availed himself to the Committee.
Mr Jeffery said that he would like to withdraw the casting vote suggestion as it raised difficulties. He added that given the case concerning the former CJ Sandile Ngcobo it may not be a good idea.
Mr Swart said that from a practical perspective there had never been a sitting of eight judges, it may be that the CJ was usually aware of an absent judge and made provision for an acting appointment.
Mr Jeffery said that the point was that there would definitely be an odd number however one could have an ‘act of god’ where one of the sitting nine judges may have something bad happen to them and they would not be able to sit. This was unlikely but it had to be legislated for. One could specify a majority of two rather than one so in a bench of nine it would be six: three and not five: four, in an eight bench sitting it would be five: three.
Mr Swart said that this would be difficult to “sell” and was not convinced.
Ms Smuts said that the Committee should wait for the judge’s views and then take it from there.
Ms D Schäfer (DA) agreed.
Ms Smuts referred to clause 13 and said that when the Committee visited Bloemfontein Judge Harmse said that the idea of allowing three judges was still the consequence of the ‘De Lange Bills’ that attempted to abolish full bench sittings. Judge Harmse felt that the SCA always had to sit with five judges.
Adv De Lange said that the main difference between clause 13 in the Bill and Section 12 of the Supreme Court Act was that the Act still had provision for a SCA sitting for purposes of determining the validity of an Act of Parliament where it was specified that 11 judges would sit. Most of the provisions were drafted with a lot of assistance from the judges, Judge Harmse assisted with a lot of the appeal provisions.
Mr Jeffery said that in light of the move towards plain language de novo should be ‘from the start’ and what of in forma pauperis.
Adv De Lange said that he Department had no views on this; the provision was taken from the original Act. The terms were well known and had legal meaning.
Mr Jeffery said that it was only South Africa, Sri Lanka and Indonesia that still practised Roman-Dutch Law. What did the other English speaking countries use for these Latin terms?
Ms Smuts said that terms like prima facie for example were used and well understood in English speaking territories.
Mr Jeffery said that his compromise would be that the Latin would remain however in the Committee’s report it would be mentioned that there was an issue with Latin.
The Chairperson said that this debate has been ongoing and the Committee had taken a decision long ago that Latin would be dropped.
Mr Jeffery said that he would drop the matter.
Mr Swart said that he fully appreciated the move towards simple language.
Adv De Lange said that he would do his best to find appropriate English terms.
Adv De Lange said that it was a repeat of Section 12 of the Supreme Court Act.
Adv De Lange said that this clause was existing law derived from the Constitutional Court Complimentary Act.
Clause 16 and 17
Mr Jeffery refereed to the submission from Legal Aid South Africa (LASA) and said that they were of the opinion that clause 16(2)(a) was unconstitutional.
Adv De Lange said that the point being raised in the clause was that this would never happen in a criminal appeal.
Mr Jeffery asked what would happen if the accused was dead.
Adv De Lange said that it may be prudent to provide clarity on some of the laws governing appeals in criminal matters. Thorough steps would be taken to ascertain whether the clause needed to be amplified.
Mr Jeffery asked what if the accused or convicted person died but their family wanted to clear their name, there would be no practical effect. Where did this clause come from?
Adv De Lange said that the clause was deliberately inserted by Judge Harmse.
Adv De Lange said that this clause would be flagged and it might be necessary to make it clear that this was only insofar as civil matters were concerned.
Mr Jeffery said that even in civil matters, if a party was willing to pay, why should they be prevented from having their appeal heard. The other LASA point was on the same point in clause 17. This clause dealt with leave to appeal.
Mr Swart said that in terms of the SCA, why should there be an argument for an application for leave to appeal before the court when the judge already knew what the merits were? The provisions for the High Court should be the same for the SCA and the CC in this regard.
Adv De Lange asked where Mr Swart would like this to be addressed.
Mr Swart replied roundabout clause 17(2)(a).
Adv De Lange said that it was becoming clearer to him now, it was not contemplated that there would be oral argument, hence the empowering provision in clause 17(2)(d).
Mr Jeffery said that LASA had raised another constitutionality issue which also involved Section 36 of the Magistrates Court Act, the matter was currently before a court where the Department was a respondent.
Adv De Lange said that he would have to consult with the litigation unit and get back to the Committee.
Mr Jeffery said that there could be consent in a Magistrates Court but not in the Bill why?
Ms Schäfer said that there was no reason to not allow for a judgment being rescinded if the parties consented. This happened particularly in debt matters.
Ms Smuts referred to the comments from the CC judges where they stated that the CC was not dealt with at all under this clause; they recommended that the clause should make it clear that suspension occurred when there were appeals and applications regardless of the court from or to which the appeals were prosecuted.
Mr Jeffery said that clause 18 was under Chapter 5 which dealt with CC and SCA.
Adv De Lange said that this was from existing law.
Mr Jeffery said that Adv De Lange wanted the heading of the chapter to change yet clause 19 also related to divisions of the High Court.
Adv De Lange said that the clause only applied to the High Court and SCA and not the CC.
Mr Jeffery asked Adv De Lange to consider this further; it would not fit as neatly as changing the title of the chapter.
Adv De Lange said that what was new in clause 20 was that the CC would be added.
Mr Jeffery asked what happened with conflicting decisions in criminal cases.
Adv De Lange said that there was a provision in the Criminal Procedure Act (CPA) that dealt with this.
Mr Jeffery said that the rest of Chapter 5 of the Bill on appeals was relative to criminal cases, it was only clause 20 that was civil.
Ms Smuts referred to clause 21(4) and said that the SCA judges in their comments indicated that the origin and purpose of this clause was unknown. They went on further to say that the clause would have an adverse impact on arbitration, choice of forum and foreign jurisdiction clauses and international contracts.
Adv De Lange said that the clause was inserted by the former Chairperson of the Committee.
Ms Schäfer said that it should be removed. The Committee agreed.
The Chairperson said that the CC judges raised a concern that there was a conflict between clause 21(3) and 28.
Mr Jeffery said that this clause was subject to clause 28; this meant that clause 21(3) only applied to South African non-residents. The judges missed this.
The Committee agreed.
Ms Schäfer said that she wanted to clarify that the following should be inserted ‘the Registrar could get default judgments save where this was excluded’.
Mr Jeffery said that this would be in an uncontested civil matter.
The Chairperson said that this should not apply to evictions.
The Committee agreed.
Adv De Lange said that in the 2003 version of the Bill there was a strong argument that the provision should not be in the Bill and could be dealt with in the rules of court.
The Committee decided that it should be left in the Bill as it was.
Adv De Lange said that this clause was derived from the Supreme Court Act.
Adv De Lange said that this clause was derived from the Supreme Court Act it was just more elaborative.
Adv De Lange said that the earlier provision allowed for arrests of people in order to found jurisdiction, this had been omitted due to changes in the law via cases.
Adv De Lange said that there was a lot to discuss in this clause. There were a lot of divergent views on this rule making authority. The Department was of the view that making rules amounted to making legislation, this was a legislative function and the Department preferred this route.
Mr Swart said that he presumed that the current situation was that the Rules Board determined the rules for the SCA; it was not clear why the SCA was arguing that the Rules Board ought not to get involved. They seemed to want the same deal as the CC. If there was nothing wrong, why should anything change?
Mr Jeffery asked why the Rules Board did not apply where the CC was involved. Some of the rules required parliamentary approval particularly with the Promotion of Administrative Justice Act (PAJA) .
Ms Schäfer agreed.
Ms Smuts said that the CC had a special deal from the start.
Adv De Lange agreed with Ms Smuts, all the other structures already existed and the view was why should the old Rules Board set the rules for the new CC.
Mr Jeffery said that he understood the reasons but was this still appropriate 18 years on. There should be uniformity and the Rules Board was headed by a judge anyway. If the CJ was the head of the judiciary then he should be able to chair the Rules Board and also delegate the function. There was a requirement in PAJA and the Promotion of Access to Information Act (PAIA) that parliamentary approval was mandatory. In order to ensure that there were no delays then the rules could be deemed approval.
Ms Smuts agreed with Mr Jeffery and added that the Judicial Council, a new body was also being created and it would be responsible for setting norms and standards. It would be appropriate for the Rules Board to start moving in the direction of the CJ. The Committee should consider whether the judges should be consulted on this issue.
The Chairperson said that the Committee would meet again tomorrow to deal with the Bill.
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