Constitution Seventeenth Amendment Bill [B6-2011]: amendments & deliberations

Meeting report

Presentation: Draft Amendments to Constitution Seventeenth Amendment Bill on 27 July 2012
Advocate Johan De Lange, Principal State Law Adviser for the Department of Justice and Constitutional Development (DoJ&CD) said that he had copied the whole of Chapter 8 of the Constitution and then indicated all the amendments with options. The first potential change related to Section 166 of the Constitution. The Committee had taken the decision that the designation of magistrate’s courts should not be changed to lower courts. ‘Magistrate’s Courts’ would remain as it was in the Bill. The second potential amendment was in Section 169 of the Constitution on page 4 of the document. This related to clause 2(a) of the Bill as introduced where it now only had ‘the establishing of divisions with one or more seats in a division’. Section 170 of the Constitution would remain as it was apart from the consequential amendment of referring to the ‘High Court of South Africa’. Section 175 of the Constitution (page 7 of the document) had the option that only those judges who have already been selected by the Judicial Service Commission (JSC) and appointed as constitutional court judges to act in the specified position. Page 9 related to the amendments already anticipated for the composition of the JSC. The Bill as introduced altered the composition of the JSC by adding representatives that dealt with the magistracy. 

Discussion
Ms M Smuts (DA) said that the Committee was in agreement with the draft amendments therefore they should put them to bed. The only question was should the Committee also make provision for an Acting Deputy Judge President (ADJP) for the Supreme Court of Appeal (SCA) as it did for the Constitutional Court (CC).

Ms D Schäfer (DA) asked if it would not be worthwhile to have magistrates appointed on the JSC as well. 

Adv De Lange said that the original intention was that the JSC was going to deal with magistrates; the issue being raised was new and would have to be discussed.

Mr Johannes Skosana, Chief Director (CD): Court Services for the DoJ&CD said that the entire arrangement of the Magistrates Commission (MC) was going to be in line with the new scheme for lower courts. The Chief Justice (CJ) had also raised the point that the participation of magistrates in the JSC had not been discussed with the judiciary. Discourse between magistrates and judges was still a very sensitive issue.

Ms Smuts asked on what grounds the JSC would want to be consulted on this issue, did the legislature have a duty to consult with them as opposed to the bench.

The Chairperson said that the Committee should think about the points raised by Ms Smuts.

Mr J Jeffery (ANC) said that the purpose of the provision was for having a new single division whereby the JSC would be responsible for appointing magistrates as well. The Committee’s view had been that it would consider matters relating to magistrate’s or lower courts later when the procedures relating to these courts would be mapped out in another amendment bill. The composition of the JSC should not be tampered with at this point in time as it was not the purpose of the Bill.

Ms C Pilane-Makaje( ANC) agreed with Mr Jeffery.

Ms Schäfer said that this was not a new issue; the new composition was in the Bill as introduced. This could be left for later only if it would be discussed fully at a later stage.

Mr Jeffery said that it would be absurd to have magistrates appointed for the selection of judges just because judges were involved in the appointment of magistrates. The legislature was creating a judicial hierarchy where the Judge Presidents were going to be responsible for the magistrates in their provinces. It was right to have people at the top involved in the appointment of people at the bottom but not people at the bottom involved in the appointment of people at the top.

Ms Smuts said that the issue of the ADJP was raised by the CC judges in their submission. Possibly the Committee may end up not changing anything at all under Chapter 8 of the Constitution. On the issue of eight CC judges sitting en banc, have the state law advisers consulted with them?

Adv De Lange said that he was still waiting on setting up a meeting and the matter was part of the document he was preparing for the Superior Courts Bill.

The Chairperson said that the Committee should consider the Bill clause-by-clause on an informal basis.

Constitution Seventeenth Amendment Bill [B6-2011]: clause-by-clause Informal deliberations
Clause 1
Ms Smuts asked if there ought not to be a reference to consultation. There were two views on this matter.

Mr Jeffery said that two options should be drafted.

Mr S Swart (ACDP) said that the whole issue raised in the CC Judge’s document was on consultative leadership; the option of for the inclusion of ‘in consultation with’ should be inserted and then debated at a later stage.

Mr Jeffery said that he was not opposed to what was being raised, only that it was better placed in the Superior Courts Bill as opposed to the Constitution.

Clause 3
Mr Swart said that he would support the exclusion of the words ‘except where an Act of Parliament provides otherwise’.

Mr Jeffery recalled that the Committee had said that it would request that various people make inputs if it was going to go ahead with the amendment.

Ms Smuts said that if other people were going to be invited then the former CJ Arthur Chaskelson should also be consulted as he had availed himself.

Mr Jeffery said that he did not have a problem with the former CJ and noted that the original request was from the President of the Competition Appeal Court (CAP). In the same way that the Committee was consulting CC judges it should consult people who held positions in affected structures. Judge Dennis Davis had made a request and he should be seen.

Ms Smuts said that she was always happy to see Judge Davis however Judge Chaskelson was requested to avail himself by some judges of the CC.
The Chairperson said that the reasons for inviting Judge Davis were because of his particular position.

Mr Swart said that the Committee might want to hear the SCA on this matter.

Mr Jeffery said the Committee already knew what the position of the SCA was; they were not in favour of the amendment.

Mr Swart said that the Committee knew what both positions were then why was it hearing from Judge Davis.

Mr Jeffery replied that this was because the Committee had already heard from the SCA and did engage with it on this particular point. The Committee already heard from the Competitions Tribunal (CT) but not the CAP.

Mr Swart said that there was a memorandum from the CAP that was submitted to the Committee.

Mr Jeffery said that that the time of the hearings Judge Davis had asked to make input and he was happy with the clause, now that the Committee was considering changing it, it would be only fair to invite him.

Ms Smuts agreed.

Clause 4
Mr Jeffery said that the only option was that the clause was rejected.

Mr Swart said that at some stage there was the view of applying this clause to the Labour Appeal Court (LAC) and not the CAP.

Mr Jeffery said that the amendment did not apply to a specific court; it simply said the matter would be left to any Act of Parliament. Either the matter was left to an Act of Parliament or it was left as it was and the SCA would be the highest court.

Ms Schäfer said that in reality there were existing Acts that provided for such things. The Committee had to decide whether the existing position was what it preferred.

Ms Smuts said that the Committee should not change the Constitution in order to allow the jurisdiction of the SCA to be excluded.

Mr Swart said that he appreciated the point on not changing the Constitution; the Committee may then want to look at individual pieces of legislation. The starting point would be the discussion with Judge Davis.

The Chairperson asked if Mr Swart was suggesting that changes to other Acts should be made in the Bill.

Mr Swart said no.

Ms Smuts said that the laws were from trade and industry; this was why they ended up being wrong.

Mr Jeffery said that competition matters fell under Economic Development now. In the evolution of this Bill there was a position taken by the ANC that there should not be any specialist courts. Then this position was reversed. The current scheme was preferable.   This went to that whole debate that the Committee had, which was should the Minister of Justice not be responsible for all legislation dealing with courts because the CJ would be head of the judiciary including the LC and Labour Appeal Court (LAC). Cabinet has taken the decision that only the Minister responsible for Constitutional Development could introduce any amendments dealing with the Constitution. The Committee had to decide whether to effect this in the Superior Courts Bill or in the Constitution similar to how Money Bills were dealt with. This would have to go to Cabinet because it would affect other Minister’s powers.

Adv De Lange said that this was something new and thus a whole new Bill would have to be created, published in the Gazette and then public input would also be required.

Clause 9
Mr Jeffery said that the option was sensible

The Chairperson said that he could not see anyone disagreeing with it.

Clause 10
The Chairperson noted that the Committee agreed to the Clause.

Mr Jeffery said that the Committee had agreed to park clause 3 and 4.

The Chairperson agreed and said that the Committee was now informally finished with the Bill.

Meeting Adjourned.