Superior Courts Bill [B7 – 2011] and Constitution Seventeenth Amendment Bill [B6-2011]: deliberations

Meeting report

Constitution Seventeenth Amendment Bill [B6-2011] – Working Draft (October 25 2012)
Mr J Jeffery (ANC) said that there were two outstanding issues; the first was on the amendment of Section 167 and 168 of the Constitution.

Ms M Smuts (DA) said that the DA caucus was happy with the draft as it was. She further enquired if the Chairperson heard from Judge President Lex Mpati.

The Chairperson replied that he had not heard from the Judge.

Mr Jeffery said that the amendments had been discussed with the judiciary and they were in the introduced Bill. In any case the Committee would not be able to finalise the Bill this week. The Committee may continue with deliberations however.

Ms Smuts said that in the Constitution Seventeenth Amendment Bill [B6-2011] – Working Draft (October 25 2012) the Committee had agreed that the filter to be used before the Constitutional Court (CC) took matters on appeal would be points of law of general public importance. What was not desirable in the Draft was that it perpetuated the bifurcation between constitutional and other matters of general public importance. This bifurcation had to come to an end. There were no two bodies of law in South Africa (SA) only one and that was constitutional law. Why was the jurisdiction in clause 167 being bifurcated into constitutional and other matters? The Committee should only retain the aspect that related to matters of general public importance.

Mr Jeffery said that the Constitution spoke regularly of constitutional matters, surely these were clear. The bifurcation was an extension to constitutional or related matters which made this so wide. There was an area of law called constitutional law, a constitutional matter was clear. The CC should be the final body that decided constitutional matters. The wording in the Bill was not problematic. In the Kenyan constitution there were these issues, they did not refer to constitutional matters but rather the interpretation and application of their constitution.

Ms Smuts said that there was no clear line between constitutional law and other stuff. The Kenyan model was attractive however one still needed the general public importance filter, why should this be excluded?

Mr Jeffery said that constitutional matters were clear. The extension was the related matters which created the grey area. The problem with Ms Smuts’ proposal was that instead of a CC there would be a supreme court and instead of the Supreme Court of Appeal (SCA) there would be an appeal court only.  The CC should be kept as the court that dealt with constitutional disputes. Mr De Lange’s option 2 was preferable in this regard.

Ms Smuts said that there were already two courts that dealt with everything, at the time of the transition period there had to be a new court. It had been agreed that SA was stuck with the twin peak system with the CC as the highest peak. There was no bright line between public and private law.

Mr Jeffery said that if a constitutional matter was every matter then why was it deemed fit and necessary to amend the constitution to extend the jurisdiction of the constitutional court to hear constitutional and related matters.

Ms D Schäfer (DA) said that she liked the Kenyan model.

Adv Johan De Lange, Principal State Law Adviser from the Department of Justice and Constitutional Development (DoJ&CD), said that he would be cautious since the CC has already defined what a constitutional matter was and this already had jurisprudence. If this was tampered with then it would be difficult to cater for other sections of the Constitution that were not covered in the Bill in the form of consequential amendments.

Mr Jeffery said that the difficulty was that the application issue was wider such as in the Bill of Rights (BoR).

Ms Smuts said that the Committee should also consider the direct approach to the CC. The filter of general public importance should be applied in all instances.

Adv De Lange said that the CC judges had been confident on dealing with direct appeals; the concern had always come from the legislature. It would be okay to remove constitutional matter in the Bill for as long as the filtering mechanism remained and applied to the direct applications as well as the appeals.

Mr Jeffery said that the Committee could not take this matter any further. Not much hung on this, the test that was used by the CC was ‘in the interests of justice’ as found in the Rules of the CC.

Ms Smuts said that the DA preferred Option 2.

Mr Jeffery said that these were the only issues left, option 1 would be removed and option 2 would be the proposed amendment.

Superior Courts Bill [B7 – 2011] – Working Draft (November 7 2012)
Page 5
Adv De Lange explained to Members that ‘in the interest of justice’ was added under clause 4

Page 8
Adv De Lange said that the mechanism that dealt with lower courts was taken out as per the Members’ request in clause 8.

Page 9
Adv De Lange said that the words ‘may perform the functions of the court’ as opposed to ‘perform the business of the court’ were inserted.

Page 10
Adv De Lange said that ‘officer of the department’ was substituted for ‘general secretary’.

Page 19
Adv De Lange said that must was added in clause 29(2).

Page 27
Adv De Lange said that clause 49(1)(e) was a new clause as per the Committee’s request during the last discussion. This was a Regulation competence given by to the Minister of Justice. These were the only changes made so far.

Mr Jacob Skosana, Chief Director: Court Services from the DoJ&CD said that he had spoken to the Chief Justice (CJ) on the issue of a quorum and he had said that CC judges should also be consulted before the matter was discussed with the heads of court.

Mr Jeffery said that there was a need to provide for a majority in the CC. The German model was attractive however it was different. The CJ could not be given a casting vote so what happened if there was a 4-4 split?

Ms Schäfer said that she agreed and asked what happened if there was no judgement.

Mr Jeffery said that then the appeal would fail and the previous judgment would stand.

Adv De Lange said that the matter would have to start from scratch.

Mr Jeffery said that if there was no agreement from the judges then there was no decision.

Adv De Lange referred to Section 167(4)(b) which specifically outlined that a decision had to be made.

Mr Jeffery said that there had to be something similar for the CC concerning a majority just like the one had for the SCA. Perhaps the judges would be able to convince each other since decisions were not like casting a secret ballot.

Adv De Lange said that the end solution would be to amend the Constitution so that the numbers were different.

Mr Jeffery said that this would not solve the problem if anything befell one judge and they were unable to sit then one would still have the same problem. The majority provision had to be included.

Adv De Lange said that it would be wiser to look at amending the Constitution.

Ms Smuts said that the Committee was not ready to take a position.

The Committee agreed.

Mr Skosana said that in the Constitution the word ‘may’ was used, therefore it did not have to make a decision.

Ms Schäfer said that for provincial constitutions it was must.

Mr Jeffery said that the judges would discuss the case amongst themselves and hopefully convince one another.

Adv De Lange said that this problem continued as the word ‘must’ was used for the CC having to pronounce on orders of legislative invalidity.

Mr Jeffery said that the issue was that a 4-4 split would mean that the CC was unable to make a decision even where orders of invalidity or provincial constitutions were the matters at hand if something happened to one of the nine judges.

Mr Herman Smuts, State Law Adviser from the DoJ&CD, said that surely the Constitution envisaged that there had to be a yay or a nay decision.

The Chairperson said that a 4-4 split would be a nay since one of the applicants would not have been able to persuade the court of their case.

Adv De Lange said that perhaps this was something that could be a addressed ex post facto. 

The Chairperson said that Adv De Lange may be correct.

Mr Jeffery said that he was unsure if this could be taken any further.

Adv De Lange said that there was one more outstanding issue which was on page 15 clause 18 which related to a pending court case.

Mr Jeffery said that as long as this was done by the end of the week as the Committee wanted to finalise the Bills by next week.

Ms Smuts asked for an update on the Office of the Chief Justice (OCJ).

Mr Skosana said that Treasury thought that it would have been undesirable for the OCJ to be a department with a Director General (DG), 15 staff members and a budget of R20 million whereas other departments had hundreds of staff members and budgets that ran into the billions. Therefore this was why the OCJ fell under the DoJ&CD for the meantime.

The Chairperson said that the Committee had to proceed with caution.

Ms Smuts added and speedily as it was undesirable to have the CJ’s office residing under a department in the interests of the independence of the judiciary.

The Chairperson asked if in future it would still remain the Ministries prerogative to determine where courts ought to be built or would this fall within the ambit of the CJ.

Mr Jeffery said that this was already covered in the Bill.

Adv De Lange said that the Minister decided jurisdiction

Mr Skosana agreed.

Ms Schäfer said that surely there would have to be some consultation with the CJ.

Mr Skosana said that it was the role of the executive to build courts. CJ’s managed courts once they were built. The Minister had to consult the Judicial Service Commission (JSC) which was chaired by the CJ as well as the newly proposed judges’ forum therefore there was a consultative process.

Ms Schäfer asked where the budget would come from for the OCJ to pay the judges and so forth.

Mr Skosana said that judges were paid from the National Revenue Fund (NRF) and the OCJ would manage the allocation. 

Mr Jeffery asked if there were any other flagged issues.

Adv De Lange replied that there were none.

The Chairperson adjourned the meeting.