The Committee deliberated on a draft of the Constitution 17th Amendment Bill, dated 24 August, and a new draft of the Superior Courts Bill, dated 23 October. The ANC Study Group had considered the submissions on the Constitution 17th Amendment Bill, and was of the view that the jurisdiction of the Constitutional Court (CC) should be extended to constitutional and related matters, although more debate was needed on the wording, since the current “in the interests of justice” in section 167(6) of the Constitution was too wide. In relation to whether the Supreme Court of Appeal (SCA) should decide all appeals from the High Court of a court of similar status (which related to Labour Appeal Court and Competition Appeal Court matters), the ANC accepted that the more layers of appeal, the more likelihood of correct decisions, but also noted the realities of challenges around time and costs, particularly in these kinds of matters. It would prefer that the SCA should not hear these matters, but a more defined test was needed. The DA and ACDP agreed, broadly, on the point about the wording of section 167(6). The CC judges themselves had suggested that it might not be necessary for all appeals to go to the SCA, and the DA put a suggestion that perhaps direct appeals might go from Competition Tribunal to SCA, whilst the ACDP questioned if there was a necessity to alter the current position, and whether it might not be possible to answer the argument about delays by expediting some SCA matters. The Competition Tribunal was presided over by economists, not judges and ACDP was concerned about legal points being heard for the first time at SCA or CC. It was suggested that the written views of the SCA judges be sought. The implications for other special courts would have to be taken into account. Members also discussed the suggestion that only the Minister of Justice should introduce legislation dealing with courts, and stressed that this would in no way affect Committee Bills or Private Members’ Bills.
A new draft of the Superior Courts Bill was presented by the Department of Justice and Constitutional Development drafters. Members debated, but did not make a final decision on use of “whereas” in the Preamble. Latin phrases had been removed from several places in the Bill. Throughout, the words “lower court” were now replaced with “magistrate’s court”, and although Members generally agreed that this would not affect any traditional courts, the Department was asked to look at provisions that the Schedules sought to delete, to check that these did not affect the position of the Traditional Courts. A new definition was inserted for “Secretary-General”, clarifying that this person was head of the Office of the Chief Justice (OCJ). Members would still consider whether clause 2 was necessary. Clause 3 had been strengthened by insertion of proposed legislation that assigned functions to judicial officers (which could not be inserted into the Constitution 17th Amendment Bill, but which might, if necessary, be expedited by a Committee Bill). Clauses 4 and 5 were amended to allow for sittings of the SCA other than in Bloemfontein, and although the IFP Member wanted to debate the current position, other Members pointed out that it was not something to be considered at the moment. The place names in clause 6 would be re-checked before the Bill was passed. Clause 7 no longer contained provisions around circuits. Under Clause 8, Members debated the consistency of subclasses (4) and (8), but noted that although an empowering provision would be set up in the Bill, it would not micro-manage courts processes. In clause 9 and elsewhere, “the functions of the court” would be substituted for “conduct business”. Subclause 9(2) now clarified recess periods. The content of clauses 10(2) and (3) were transferred to the new clause 54 as transitional provisions, and reference to the Public Finance Management Act was removed. The position of staff of the courts was debated under clause 11, and the drafters were asked to draft another option. A new clause 12(1)(b) regulated the quorum of the Constitutional Court. The IFP Member was not in agreement with this principle. Clause 18 was being discussed with the Rules Board and would have to stand over for later debate, as would clause 21, on the question of attachment to found jurisdiction. A problem was cited with the Rules of Court in relation to clause 23, but the drafters thought it unwise to try to legislate around this point. In terms of clause 29, Rules and their amendments must be tabled to Parliament. Clause 30 would be amplified to note that the Chief Justice could delegate the Chair of the Rules Board to another person, in his absence. Consequential changes appeared in clauses 31 to 44, and new alternatives were now drafted for clause 45. If these were accepted, the reference to regulations in clause 49 might need to be amplified. The “main seat” of the courts was now referred to in clause 50. The new clause 54 set out provisions moved from clause 10. The drafters would check carefully the legislation to be repealed by Schedule 1. The IFP Member wondered if the Bill would need to go to the National House of Traditional Leaders, as it might impact on the former TBVC states, but was assured that it would not.
Public Protector matters
The Chairperson said that he had received a letter from the Deputy Public Protector on the previous day, thanking the Speaker, Parliament and all concerned, and noting that she was not interested in being nominated as Deputy Public Protector again. A media statement would be issued on the point later in the day.
Constitution 17th Amendment Bill: Working Drafts 23 October
Mr J Jeffery (ANC) asked that the Committee should work first on the Constitution 17th Amendment Bill (CAB), which needed to be passed by the end of the session.
Mr Johan de Lange, Principal State Law Advisor, Department of Justice and Constitutional Development (DOJ&CD) said that there had not been further changes suggested to the last document, dated 22 August, but two areas had been flagged for further discussion by the Committee. [Note: the recording on the discussion is mid-way in the audio recording].
Mr Jeffery outlined the views of the ANC. Section 167(3) of the Constitution related to the Constitutional Court (CC) jurisdiction, and the question was raised whether there was in fact any necessity to amend it, since the CC could already make the final decision whether or not a matter was a constitutional matter or was connected with a decision on a constitutional matter. The ANC Study Group had discussed this and was of the view that the jurisdiction of the CC should be extended to constitutional and related matters. However, more debate was needed on the wording. The wording of section 167(6) that referred to “the interests of justice” was very wide. The SCA judges had suggested that perhaps “a point of law of general public importance” should be used. Something could always be argued as being in “the interests of justice” of an individual, and the SCA suggestions were more definable. The CC should not be over-burdened in hearing too many appeals.
The more contentious issue before the Committee related to whether the SCA should decide appeals from the High Court or a court of a status similar to the High Court, except where legislation provided otherwise. This related to the Labour Appeal Court, where certain appeal cases were precluded by the Labour Relations Act, and the Competition Appeal Court. There was a view that the more layers of appeal that existed, the more likely it was that better decisions would be made. However, in relation to competition and employment matters, it was not desirable to have delays. The Competition and Labour Court appeals may not go to the SCA, unless they involved broader aspects that the CC may hear. The ANC would prefer to keep this position, but again, thought it should be made clearer. The CC should not be required to take on too many matters, and a more defined test was needed.
Ms D Smuts (DA) was pleased that the ANC had reached this conclusion. There was difficulty both with the present wording and that in the Bill on jurisdiction, with no clear dividing line between Constitutional matters and other law. Although the concept of “in the interests of justice” had been developed over the years, it was still too wide and anyone could take his/her luck at the CC. Her own thinking was influenced by SCA Judge Carol Lewis, who had proposed the wording “The Constitutional Court is the highest court and may decide points of law of significant public importance in the interests of justice”. Only recently had Members been alerted to a 2009 Memorandum by the SCA on the issue, and when this had been found, it suggested wording of “a point of law of general public importance”. She stressed that a real filter was needed. The CC judges had themselves suggested that it was not necessary that all appeals must first go to the SCA, which would address the concerns about section 167(6), and the right to approach the CC directly on Constitutional matters. That was modeled on the German Constitutional Court, where about 96% of all matters were general complaints, which was comparable to the work that the South African Human Rights Commission (SAHRC) or Public Protector (PP) did in South Africa. That was one reason why modeling the South African CC on a civil-law country would not be desirable. The DA had originally considered the deletion of section 167(6), but the SCA judges had suggested that it would be appropriate, in a matter of general public importance, that leave to appeal to the Apex Court be granted. If this subsection were retained, individual cases could be heard. She therefore agreed with the sentiments and the need to look at the wording, and pointed out that the United Kingdom, in its new legislation, referred to “ points of law of general public importance”.
Ms Smuts would be reluctant, in relation to section 168(3), to amend the Constitution to render the Competition Act constitution, but there was the possibility of grounds on which more layers of appeal might still be able to be used. She referred to David Lewis’ book on enforcing the Competition Act. The chapter on the Competition Appeal Court (CAC) said that the intention was to create a court that was both expert and final. It was not in fact final; the American Natural Soda Ash (Ansac) case had been strung out for years, before the Ansac conceded that it had been guilty of cartel behaviour. It was also not expert as envisaged because the Judicial Service Commission had declined to appoint economists, rather than judges, to sit on the CAC. David Lewis had suggested that a specialist court developed special interests and that an optimum solution might be to allow for direct appeals from the Competition Tribunal to the SCA, discontinuing the CAC.
Mr S Swart (ACDP) also welcomed the ANC’s position on the necessity to amend the Bill, and said it was possible to look at what the SCA had suggested. He also noted that if there was not a problem needing to be fixed, then the position should not be altered. He had listened to Judge Dennis Davis of the CAC with an open mind. He recognised the need to have expeditious decisions on labour and competition matters. He would be in favour of taking cases directly from the Tribunal to the CAC, as a case could be made out for urgency, as had been done in the Prins case. The Competition Tribunal consisted of economists, not legal experts, so if the CAC were to be excluded, legal issues would be deliberated on, for the first time, at an appeal court. Another issue was whether the Labour Appeal Court and CAC should be seen in the same light. The CC had expressed concerns about exclusion of the SCA from competition matters. These were all weighty decisions with massive implications. He thought it might be useful to have a debate between Judge Davis and SCA judges on the possible exclusion of the SCA, and what implications that might have for other special courts, such as Income Tax Courts, should the Minister of Finance make out compelling arguments.
The Chairperson agreed that I would be useful to get the viewpoints of the SCA judges.
Mr J Sibonyoni (ANC) thought another important consideration was access to justice, particularly since big business and employers could afford to drag matters out, through several courts. If this Committee could limit several layers, it would enhance access to justice.
Mr Jeffery was a little disappointed at the responses. The question of the reason for the CAC was canvassed directly with Judge Davis, and there was a factor that the SCA would not, in general, manage to expedite matters. The Prins matter was an exception that hung on one point only. The proposal was made that the CAC and LAC not be the final decision-makers, but appeals to the CC should be allowed, without having to “fit” them into a narrowly defined constitutional scope. The point of “public importance” was crucial, because if a mistake was made on the law, of sufficient import, the matter should be able to go further to the CC. The point was also made that the SCA would increase the cost and time, in issues where these were crucial and the realities must be considered. In general, there were two or three layers of appeal, but the suggestions of Ms Smuts and Mr Swart would provide for four. The Competition Tribunal was not a court, but even without this, two layers of appeal would exist, which he though sufficient.
The Chairperson understood Mr Jeffery to be suggesting that a litigant would go to the CAC or LAC, and then apply to the CC for leave to appeal. If that application for leave to appeal was rejected, that would be the end of the case. It would not be possible to return to the SCA. That was essentially what Judge Davis had requested.
Ms Smuts said that Chief Justice Mogoeng had also stressed that the Tribunal was not a court. Judge Davis might say this was comparable to the regime in other countries. She needed some time to think on the point further, and canvass it within her party. She was sympathetic to the need to expedite competition matters. She had seen many start-up companies being killed off in the telecommunications industry, and there was also much time wasted in the Ansac case. The crucial point was the new definition of the CC jurisdiction and the natural avenue for appeal on competition.
Mr Jeffery said, in answer to the Chairperson, that at the moment the SCA could also turn down an application for leave to appeal. It was being suggested that the CC could consider a meritorious case. Everyone was human and no court could exclude the possibility of a wrong decision. The issues rather hinged on time and cost.
The Chairperson agreed that this was an important point, and some other issues had also been canvassed.
Mr de Lange noted that he had heard the comments around the wording for section 167.
Mr Jeffery thought that written input should be requested from the SCA judges. The points raised were canvassed in the introduced Bill. He needed to hear the SCA judges on the possible loss of jurisdiction.
The Chairperson said they would also be asked to comment on the Criminal Procedure Amendment Bill. This was a matter of importance, dating back to 2011, and the judiciary had made repeated enquiries as to how far it had proceeded.
Mr Jeffery noted the subsequently-made suggestions that only the Minister of Justice should introduce legislation dealing with courts. That could not be included into the Constitution 17th Amendment Bill, as it was a new point and would require re-advertising if done this way. However, there was an undertaking from the ANC to try to effect this, perhaps as a Committee Bill.
Dr Oriani-Ambrosini asked Mr Jeffery why only the Minister of Justice should be able to introduce legislation on the courts.
Mr Jeffery assured him that this would not impact on the Committee Bills or Private Members’ Bills. It had been the Labour Relations Act (under the Minister of Labour) that set up the Labour and Labour Appeal Courts, whilst the Competition Appeal Court fell under the Minister of Economic Development. The idea was that because the CJ should be the head of the judiciary, and an independent agency should run the courts, all courts should be brought in line, and therefore no specific amendments should, for instance, be brought in relation to the Labour Court without the blessing of the Minister of Justice. He reiterated that there was no intention to restrict Private Members or Committee bills.
The Chairperson reiterated concerns around the possible plethora of courts, such as the Water and Tax courts, whose resources and personnel would come from the budget of the Ministry of Justice.
Dr Oriani-Ambrosini had sympathy for this argument. The first concern could be addressed through a Cabinet ruling that any matters must be brought by Minister of Justice, which would not need a legislative amendment. Decisions on courts were, to his mind, similar to decisions on hospitals, where the need determined the structures. If there was not a water court, the case would still be brought, but in the High Court. There was an argument that specialised courts were faster, and more expertise was available.
The Chairperson said that the Committee had already debated these points. It was up to Members to decide it they wanted to debate the points again.
Superior Courts Bill: Deliberations on Working Draft 23/10/2012
Mr de Lange said that the purpose of this draft was to draw up a comprehensive document containing amendments proposed by the Committee, as the Committee intended to present it to the judiciary for comment. He noted that the clause relating to the quorum in the Constitutional Court had been raised through an approach to the Chief Justice (CJ), who would discuss it with other heads of courts.
Mr de Lange said that he would leave the “Whereas” wording of the Preamble.
Mr Jeffery said that “whereas” was thoroughly archaic and nobody used this word. Other legislation was worded “since” or “as”, or some other word in common usage.
Dr M Oriani-Ambrosini (IFP) thought that this was an issue of importance. “Whereas” was used in thousands of firms dealing with commercial matters, as well as other countries. It was South Africa who had proposed, in legislation, the replacement of “shall” with “must”, and he felt that this was a matter carrying consequences of diluting the English used in South Africa to a point where it was no longer in synch with English used elsewhere in the world. Future generations would not have appreciation of words such as “whereas”, and that would not educate the future generations into excellence.
Ms M Smuts (DA) agreed with Dr Ambrosini, but suggested that the word be removed.
Mr Jeffery said that at least South Africa had managed to move away from other thoroughly anachronistic legal customs, such as wearing of wigs. It was commonly known that the reason for using this kind of language in the past was, in part, linked to lawyers trying to maintain an elite through using language that would confuse non-lawyers. From a consistency point of view, he believed that this should be removed.
Prof L Ndabandaba (ANC) supported Mr Jeffery, and said that the science of language, etymology, accepted that outdated words could fall into disuse.
The Chairperson said that the drafting of the Constitution in 1994 was based on the premise that an ordinary citizen should be able to get an immediate understanding of legislation by reading it, and that was why the Constitution was written in plain language. That, to his way of thinking, was educating people into excellence.
Dr Oriani-Ambrosini added that the appreciation of the difference between “shall” and “must “had fallen away.
Mr de Lange agreed that it was desirable to achieve consistency. He would not make any changes to the Preamble for the moment.
Clause 1: Definitions
Mr de Lange noted changes to the definition of “appeal”. There was a footnote pointing out that the Criminal Procedure Act (CPA) provided extensively for appeals in criminal proceedings. The existing Supreme Court Act and the Bill did not deal with criminal appeals, which were comprehensively dealt with in the CPA. This should be borne in mind when looking at Chapter 5.
Mr de Lange also pointed out the replacement of “lower court” with “magistrate’s court”, and said that this was a verbatim repeat of the wording in other legislation. He pointed out that the lower courts in this context were clearly only the magistrate’s courts, since the Traditional Courts were not courts in terms of the Constitution, and even the Bill did not intend to regard them as courts. Small Claims Courts did not keep records. If any other lower court was instituted in future, this wording may need to be amended.
A new definition was inserted for “Secretary-General”, as head of the Office of the Chief Justice (OCJ). Specific responsibilities were assigned to this office, later in the Bill.
Mr de Lange noted that clause 2(3) was flagged as the Committee would consider whether it was necessary.
Mr de Lange reminded Members that there had previously been a comprehensive debate on how this clause could be strengthened, and an idea was mooted that a Constitutional Amendment might be considered. A new subclause (d) was inserted, to refer to proposed legislation that assigned functions to judicial officers.
Mr Jeffery noted that it was not possible to put this proposal into the Constitution 17Th Amendment Bill. This would relate to bills such as a private member or Committee Bill, or one introduced by another Minister. It was hoped to establish a similar principle to that where the Minister of Finance must introduce all money bills, so the Minister of Justice would lead the process in relation to the kinds of bills set out here. In the past, any Minister could introduce a Constitution Amendment Bill if it related to his/her functions, but at the moment bills came from Cabinet, and not individual Ministers. He thought the provision was acceptable as it stood in this draft.
Ms Smuts said that the Committee had noted the need for an amendment to section 73 of the Constitution.
Clauses 4 and 5
Mr de Lange noted the insertions, allowing for holding of Supreme Court of Appeal (SCA) sittings in places other than in Bloemfontein. He questioned also whether something similar was needed for clause 4(1)(b).
Mr S Swart (ACDP) suggested that it would be necessary, for consistency.
Dr Oriani-Ambrosini made the point that in South Africa there were effectively four capital cities; Johannesburg as the economic capital, Pretoria as the administrative capital, Durban as the parastatal centre and Cape Town as the legislative capital. This was not in the interests of the country, but was the result of history. He thought that this Committee should apply its mind to beginning a process of moving the SCA out of Bloemfontein and into Johannesburg, where the Constitutional Court was situated. The interests of the country were not served by the present situation which was the result of an obsolete peace agreement.
Mr Jeffery asked for withdrawal of a comment that Dr Oriani-Ambrosini had made on Mr Jeffery’s views about the Constitutional Court, which he thought were inappropriate.
The Chairperson thought that Dr Oriani-Ambrosini’s statement, even if made in jest, should be retracted.
Dr Oriani-Ambrosini withdrew the remark, but also appealed to the Chairperson for comparable rulings when other Members expressed facetious remarks about his own views. He pleaded that decorum be maintained in the Committee.
Mr Jeffery thought that at the moment there was no time to get into a debate on the seat of the court. A lot of money had been spent upgrading the SCA premises, and the fact that the Constitutional Court was in Johannesburg meant that the judicial capital was no longer Bloemfontein.
Ms Smuts said that the matter of the judicial capital had been discussed between the Committee and the SCA judges. She agreed that whilst this may be something for the future, it was not appropriate to propose a move now. Other matters of far more substance needed attention, and it did not make financial sense in view of the recent extension of the SCA building. The Committee was aware of the issues, but perhaps Dr Oriani-Ambrosini was not present when they had discussed matters.
Mr Swart agreed with these comments and said that it had been discussed, which was why clause 5(1)(b) agreed that a sitting could be moved to another court. Because of costs already incurred on the SCA building, he would not support Dr Oriani-Ambrosini’s proposal. The point had also been canvassed with the SCA judges.
Dr Oriani-Ambrosini took exception to Ms Smuts’ tone and suggestion that he had not been following the Bill consistently. He was aware that the matter was discussed, but had brought the matter up now as he felt it had to be decided upon, in view of the anomalies. He agreed that other countries had their courts based in different towns, but this was not a good enough reason to continue that situation in South Africa. He had premised his remarks with the comment that although the Committee needed to consider the matter, this did not necessarily mean it had to activate the changes now, as it would make sense to amortise the building costs to take current capital investments into account.
The Chairperson noted the points made.
Mr de Lange noted the change of spelling in clause 6(1).
Dr Oriani-Ambrosini thought that Pretoria had been re-named, and questioned if there was still a legal entity under that name.
Mr de Lange agreed that it fell under the Municipality of Tshwane, but the final name change had not happened.
The Chairperson asked about Pietermaritzburg.
Mr Jeffery explained that the Minister of Arts and Culture would have to change the names by proclamation. The municipality names were different from the place names, and this would need to be checked just before the Bill was passed.
Mr de Lange said clause 6(3) contained a simple amendment, that the area under jurisdiction may comprise any part of one or more provinces.
Clause 6(4) reflected changes of “lower court” to “magistrate’s court” and replacement of “deployed” with “assigned”.
Mr de Lange noted that this reflected the decision to remove the provisions around the SCA going on circuit.
Mr de Lange reminded Members that several interested parties had objected to the original provisions. Subclause (2) repeated the responsibilities of the Chief Justice (CJ) in respect of establishing and monitoring of norms and standards. The wording was similar to that in the Constitution 17th Amendment Bill (CAB). The wording had been clarified also by referring to “any court in question”.
Mr Jeffery was not happy with subclause 4(b), which referred to heads of each magistrate’s court. The concerns of the Constitutional Court (CC) judges around the higher courts were valid. He questioned what would happen if, for instance, a Judge President might wish to assign responsibility for a district court to the Head of the Magistrate’s court in another district. If this was possible, he wondered if clause 8(4)(a) should not be limited to superior courts.
Mr de Lange did not think that there was a problem. Clause 8(6) elaborated what the judicial functions were. The idea was never that a judicial officer who did not belong to a specific court could remotely interfere in the business of that court. The Judge President took responsibility for the judicial management of the courts, but this was limited to calling meetings, and even he could not instruct them who could do what in those courts.
Mr de Lange thought, however, that there might be another problem in relation to clause 8(4)(b). Subclause (8) said that the heads of the courts meant those at the head of regional divisions and those holding the office of Chief Magistrate. In the regional divisions, a Regional Court President was appointed as head of the Regional Court. However, when the Minister established a magisterial district, a magistrate was appointed as head of that district court, whilst every other magistrate would be regarded as an additional magistrate. Clearly, the Chief Justice could not invite a representative from every magistrate’s court to meetings, and that was why clause 8(8) was limited to regional heads. It may be necessary to change clause 8(4)(b) to specify this more precisely.
Mr Jeffery asked what the intention was. When the CJ consulted with head of courts, this would surely be Chief Magistrates and Regional Magistrates, and in the case of Magisterial Directives all chief magistrates would be involved. There were only two chief magistrates in KwaZulu Natal, and in Western Cape there were Chief Magistrates at Wynberg and Cape Town. The intention was clearly not to have to consult with every magistrate. He wondered if the CJ should set up a structure for consultation of magistrates, to be prescribed in regulations. If subclause (8) were included, he was worried about the implications of subclause (5), relating to protocols, because he would not be happy that this be decided by the Judge President and two chief magistrates.
Mr de Lange said that the Magistrate’s Court Act divided the courts into areas under the responsibility of a Chief Magistrate. For instance, Malmesbury might fall under the Chief Magistrate in Cape Town. At the moment, no protocols were in place around consultation.
Mr Jeffery said there was no problem with the Regional Courts as they had a hierarchy. This Bill essentially had to do with Superior Courts. He reiterated that it would be useful to have regulations around the method in which the consultations named in the Bill would happen.
Mr Jeffery also saw some difficulties with clause 8(6). The functions set out in (e) related to case flow management. The CJ was involved in driving that process. If, in Magistrate’s Court A, senior management was on leave, the CJ could, in terms of this clause, ask a magistrate from Magistrate’s Court B to assist. He thought that the Committee had to set up a system that would be practical, as the existing hierarchy would not work.
Mr de Lange said that the minimum requirement for this Bill was to set up an empowering provision, for the CJ, through the judiciary, but the Bill should not attempt to micro-manage the process.
Ms Smuts agreed and said this was a crucial point. An empowering provision would have to apply to the district and regional magistracy. She was in favour of what was included for the superior courts.
Mr de Lange thought that the phrase “conduct business” was not correct, and had thus suggested the phrase “engage in the administration of justice”
Mr Jeffery said that there was reference to “the business of the court” in clause 4, and possibly other clauses as well.
Mr de Lange agreed that whatever was used should be consistent. Perhaps “the work” or “the functions” (of the court) was better.
Mr Jeffery thought that “the functions of the court” was preferable than reference to “the administration of justice”.
Mr de Lange agreed to change this throughout the Bill.
Mr de Lange read out the changes made to subclause 9(2), which were intended to clarify recess periods. Other changes were merely consequential renumberings.
Mr de Lange pointed out that the content of the original subclauses (2) and (3), relating to finances, would be transferred to the transitional provisions, under clause 54. When the new legislation around the OCJ was processed, the transitional provisions would lapse.
Mr Jeffery asked whether it was necessary to include a provision that the Secretary-General was the Accounting Officer.
Mr de Lange pointed out that clause 54(2) did mention that the Secretary-General was the Accounting Officer.
Ms Smuts asked if the appropriation was done in terms of the Public Finance Management Act (PFMA).
Mr de Lange explained that the reference to the PFMA was concerned with procedural matters as the appropriation was not actually done under this Act. He suggested that, for greater clarity, the reference to the PFMA be deleted, and a full stop inserted after “Parliament”.
Mr de Lange reminded the Committee that there was some discussion around whether officers and staff should be dealt with under the transitional provisions. However, the decision was then that they were officers of the court. In clause 11(1)(b) the words “at the request of and” were removed, so that it was made clear that appointments were to be made by the Minister, in consultation with the head of the Court.
Mr de Lange said that Mr Jacob Skosana, State Law Advisor, DOJ&CD, had raised a point around specifying that certain officials would be based in the Office of the Chief Justice (OCJ). There were some difficulties around informing permanent employees that they would be transferred from one department to another, under subclause (c), and he suggested that if was not necessary to specify that they were employed in the DOJ&CD, but only, as already contained in subclause (b), that they were public service employees. If subclause (c) was removed, it would be easy for the Department of Public Service and Administration and other powers to agree upon a procedure for transfer.
Ms Smuts added that if, at a later stage, legislation was needed to effect transfers of staff, it could be included in the proposed bill around the administrative agency. She asked how far this process had gone.
Dr Oriani-Ambrosini asked if there was a possibility that people would be employed by the court rather than the DOJD&CD.
Mr de Lange responded that the phrase “subject to the laws governing the Public Service” was general enough to indicate that no other provisions would apply. The new legislation, which was still at very early stages, would specify that the personnel would be based in the OCJ. The present situation was not desirable, but the OCJ was created under the public service. The suggestion had been made that the Secretary General should be specifically named as the administrative head of the OCJ, because there was a perception that the CJ was the head of the office, which was impossible because he would be the head of a department of state.
Dr Oriani-Ambrosini appreciated the reasons that people who fell under the public service were employees in the DOJ&CD. However, he pointed out that the Constitution had created institutions, such as the Reserve Bank, that were not part of the civil service. He wondered if the wording of the bill was sufficient to give effect to the intention that anyone working at the court should be part of the civil service, and whether it was intended that people such as law clerks working for judges should be public servants. All courts should have a measure of autonomy to organise themselves and choose their own officials.
Mr Jeffery referred to section 14(1) of the Constitutional Court Complementary Act no 13 of 1995, which noted how all staff were currently appointed. This was a point that could be considered in more detail when the legislation to create the OCJ was tabled. He asked if staff of the Labour Appeal Court were employed by the department who administered the Court, and who would pay for the post that was the equivalent of the Registrar.
Mr de Lange said this was covered by the Labour Relations Act. He would confirm the point, but he thought the staff were employed by the DoJ&CD.
Mr Jeffery said that this was an interim measure. The CJ could not be responsible for the judiciary when s/he had no control over the Labour Court, so in the longer term these courts must fall under the CJ. He wondered if, in the shorter terms, amendments were needed to the labour legislation.
Mr de Lange said that the definition currently would cover all staff at courts.
Mr Jeffery questioned this, in view of the fact that clause 11 did not name all courts, but referred to certain courts only. If the OCJ would be paying those staff, then it made sense that this office be responsible for appointments. He thought that there were two possible options. One was to leave clause 11 as it was, and deal with the issue in the new legislation on the OCJ. The other option – if it would be possible to do this without amending the Labour Relations Act, which would involve a NEDLAC process, was to include these staff in clause 11.
Mr de Lange thought that it would be possible, by making clause 11 applicable to “all courts”.
The Chairperson asked Mr de Lange to draft an option for further consideration by the Committee.
Ms Smuts asked if the models prepared by Constitutional Court Judges Chaskalson and Langa had been presented. During the previous week, Mr Skosana had remarked on the position of National Treasury in relation to the OCJ, and the former’s suggestion that high courts be included in the OCJ function.
Mr de Lange said this question should be raised with Mr Skosana. There were various options being considered, and policy formulation was ongoing.
Mr de Lange noted that in subclause (d), the reference to the “Director General” would have to change to “Secretary-General”.
Mr Jeffery noted that subclause (4) made reference to the Head of the Office of the Chief Justice.
Mr de Lange confirmed that this should be replaced with “Secretary General”.
Mr de Lange noted the addition of a new clause 12(1)(b), to regulate the quorum of the Constitutional Court. He also drew attention to a lengthy footnote was included (see page 10 of attached draft document). It had been made clear that this was not a proposal emanating from the Committee.
Mr Jeffery said that effectively the impact of this was linked to the separation of powers. A single judge could not sway the position, and this was now closer to the German model, which required consensus of three judges for the Constitutional Court to find legislation or executive action to be unconstitutional. This would mean that 4:5 splits would not be possible.
Dr Oriani-Ambrosini thought it would be absurd to require consensus in this way, as it could create a bias in the judicial decision-making process. In any collegial body, an issue could be decided by one person, and creating a bias in favour of the ruling party did not mean that the judgments would be better.
Clauses 13 and 14
Mr de Lange noted the replacement of “de novo” to “afresh”.
In subclause (4) the phrase “in forma pauperis” was substituted with “as a poor person”. Strictly speaking, this was no longer consistent with the Rules of Court, but a judge would understand what was meant. He noted that one of the benefits of using the Latin phrases was that they did appear in legal systems across the world, as a universally accepted concept. He would look at whether “pendente lite” should be translated out in clause 16(3)(a).
The same applied to clause 14.
Mr de Lange pointed out the changes, most of which were grammatical. Clause 17(7) contained consequential amendments.
Mr de Lange drew attention to the footnote on clause 18. The Law Society of South Africa (LSSA) had asked that the Bill be brought in line with the Magistrate’s Court Act, which provided that a debtor, with the leave of a judgment creditor, could apply for rescission of a judgment where the debt had been settled. There was no similar provision in the High Court. The LSSA had also drawn attention to the Vilvanathan case, where a judge had raised objections to the principle. Mr de Lange had discussed the matter with the Rules Board, and feed-back may be needed from the judiciary. The issue should still stand over.
Mr de Lange again indicated that substitution of “lower court” with “Magistrate’s Court”.
The Constitutional Court judges had commented that if clause 21(3)(b) remained, it would lead to difficulties around property. However, Mr de Lange pointed out that clause 28 contained a prohibition on an attachment to found jurisdiction. He noted that input would be sought from the judges. He had discussed the matter with Ms Silkstone.
Ms Christine Silkstone, Content Advisor to the Committee, said that the history behind clause 28 pre-dated even the Union of South Africa. Jurisdiction of the superior courts did not run across the whole country, so that the principle had been set that a creditor wanting to pursue recovery of a debt in a certain court may need to attach property to establish his claim for jurisdiction. She had not reached a final conclusion on the possible connection between clauses 21 and 28.
Mr de Lange said this clause dealt with default judgments. The Committee had proposed that no judgment by default could be given that might result in eviction from property. The Constitutional Court had also commented on that point. The footnotes explained that the problem lay not with the Act, but the Rules of Court, as discussed in the Gundwana case. However, the Rules could not trump any primary legislation, and a specific reference to these circumstances could be added in. However, he did not think that it was a wise principle to try to cross-reference every time there was a possible problem around interpretation of secondary legislation, and this might also create a precedent. For this reason, he did not think it necessary to include the specific exclusion as suggested by the Committee.
Dr Oriani-Ambrosini said he had flagged this as an area of concern. Clause 23 purported to give Constitutional backing to the Rules, deciding when and where a default judgment may be entered. He believed that the legislation should set out basic Constitutional protections, as he would be reluctant to leave this only in Rules, which Parliament did not consider or draft For instance, rather than simply saying that documents must be served, he would like to see wording such as “adequately served”, which would leave room for discretion..
Mr Jeffery noted the order in the Gundwana case, and asked what would happen if service was effected properly, but the defendant never came to Court because he knew that the Court could not order a sale in execution, thereby defeating recovery of the debt.
Mr de Lange said that there were rules around evading service, and this was not a gap.
Mr Jeffery said that this was then an issue of what was wrong with the Rules. He thought the current wording of clause 23 was acceptable. If there was an additional reference to the sale of a home in execution, then further qualifiers would also need to be added.
Mr de Lange said that further qualifications could be added but he did not think it necessary.
Clauses 24 to 28
There were no issues, apart from the linking of the clause 28 on jurisdiction. Mr de Lange said that this was watered down from the original provision.
Mr de Lange noted that the Minister would be required to table every rule and every amendment or repeal to Parliament before its publication. If no decision was made within the period set out, the Rules would be deemed approved. This was specifically done to cover, for instance, recess periods, and it would probably be possible for Parliament to pass a motion to extend those time periods.
Mr de Lange noted that clause 29 would apply to both the Rules of the SCA and the High Courts. Schedule 2 dealt with the composition of the Rules Board, and the Committee had suggested that it would be appropriate for the Chief Justice to be ex officio the Chairperson of the Rules Board. At the moment the Chairperson could be a Constitutional Court, SCA or High Court judge. If the Committee wanted to make the CJ the Chairperson, a transitional period may be required.
In answer to a query from Ms Smuts, Mr de Lange also confirmed that he would insert a provision that the CJ may delegate to others in his absence.
There were no changes.
Mr de Lange pointed out that replacement of “infirmity” with “disability”, in clause 37(1).
Mr de Lange said that the Committee had asked if there were likely to be any unintended consequences arising from this clause. The wording was already in existing legislation and he was not aware of any potential problems.
Mr de Lange noted the deletion of the phrase “the administration of" (justice).
Mr Jeffery asked what a “commission rogatoire” was.
Mr de Lange said that the reference to “Director General” in clause 40(1) meant the Director General of the Department of Justice, as the requests would come from the Department of International Affairs.
Mr de Lange had clarified “the rising of the Court” by amending this to “court adjourns”.
The phrase “wearing apparel” was substituted with “clothes”.
A new alternative was suggested also in relation to tools of trade. Mr de Lange noted that where a debtor held a lot of equipment, but required it for the purposes of making a living, the court could order that this should not be attached. The option now suggested would retain the Court’s discretion but leave little room for abuse, and the former references and preferences for certain occupations had been updated.
Mr Jeffery referred to “goods under arrest” in clause (b). This had a specific legal meaning, but he was not sure whether this had been compared against other legislation that might have been updated.
Mr De Lange said that this term was still in use. Ships, for instance, were placed “under arrest”.
Mr de Lange said that if the Committee took the approach suggested under clause 45, it might be appropriate to add that the Minister may make recommendations on the goods that could not be seized by the Sheriff.
Mr de Lange indicated that clauses 50(1)(b), (e), (g), (i) and (k) referred to “the main seat of” the relevant courts.
Clause 50(5) contained a reference to consultation with the CJ, and the Minister, and “with the consent of the judge concerned”.
This was a new clause, repeating the content originally set out in clauses 10(2) and (3). The only change was the substitution of “Secretary-General” for “Director General”.
Mr de Lange said that Members had raised questions around the selective repeal of certain sections of the Constitutions of the formerly independent (TBVC states). The Judicial Matters Fourth Amendment Bill was in the pipeline that would repeal these constitutions in their entirety. Nothing remaining was of any consequence and he had questioned his colleagues in the DOJ&CD whether this Bill should not simply repeal the constitutions, but wanted to check them carefully before doing so. The constitutions had been “kept alive” by interim provisions in the 1996 Constitution, because the courts in those states had functioned in terms of their own constitutions. This Bill was being promulgated to put alternative arrangements in place.
Dr Oriani-Ambrosini asked if there was anything in the Constitutional Court Complementary Act that had to be retained, particularly since it allowed for appointment of Constitutional Court staff.
Mr Jeffery said that he had read out that wording simply to reinforce that this Bill was strengthening the position of the Constitutional Court Complementary Act.
Mr de Lange confirmed that everything applicable from the Supreme Court Act (as amended) and the Constitutional Court Complementary Act had been taken over into the Bill.
Mr de Lange pointed out that “lower courts” had a specific meaning, as used in the Rules Board for the Courts of Law Act”, which was the reason this one reference had not been changed to “Magistrate’s Court”.
Dr Oriani-Ambrosini said that he had requested whether this Bill would need to go to the House of Traditional Leaders, because it sought to impact on the former TBVC states and the Traditional Courts. He reminded the Committee that the Intellectual Property Laws Amendment Bill had not been signed because it was felt that this consultation was necessary.
Mr Jeffery said that this Bill did not mention Traditional Courts, and no provisions around those were in the TBVC constitutions. The House was to be asked later in the day for permission that the Committee table a Committee Bill to extend some remaining sections of the Black
Administration Act, to keep the Traditional Courts alive. The Bill related to superior courts, and had specified High Courts and Magistrate’s Courts.
Dr Oriani-Ambrosini understood that, but would still like to get a legal opinion. He pointed out that the Bill referred to “all courts”.
Mr Jeffery said that “all courts” meant “all courts defined in the Bill”. He suggested that perhaps Dr Oriani-Ambrosini should double check whether any sections in the constitutions to be repealed referred to traditional courts. He agreed that Chapter 3 had a reference to “all courts” in the heading, but there was no definition of “court”. He questioned whether there was any likelihood of confusion around the traditional court.
Mr de Lange said that this was not possible. All the superior courts had been defined, and the phrase “lower courts” had been replaced with “Magistrate’s Court”, which put the matter beyond doubt.
Dr Ambrosini said that inclusion of something such as “all courts contemplated herein” might put the matter on safer ground.
Mr Jeffery suggested again that the provisions in the TBVC constitutions must be carefully checked, as clearly any sections referring to traditional courts could not be repealed. However, he was adamant that there was no need to refer this to the House of Traditional Leaders.
The meeting was adjourned.
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