Criminal Procedure Amendment Bill & Constitution 17th Amendment Bill: Judges' input, Deputy Public Protector interview arrangements

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Justice and Correctional Services

13 November 2012
Chairperson: Mr L Landers (ANC)
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Meeting Summary

Judges Nugent and Cachalia, from the Supreme Court of Appeal (SCA), commented on the Criminal Procedure Amendment Bill. This Bill was making changes, with certain conditions, to the requirement that the full record should be placed before judges considering petitions for leave to appeal, and seeking to make these changes retrospective to 2010. The judges outlined the current practice, stressing that the amendments requiring preparation of the full record resulted in matters being delayed by up to two years, as well as being costly for the State, and the full record was not in any event read by the judges. They already had the power to call for relevant portions of the record, would do so wherever necessary, and would not confine their consideration only to points outlined in the petition, particularly where it was poorly drafted. The full reasons of the High Court for its decision, and reasons why it had refused leave to appeal, would be attached to the petition. It was emphasised that applications for leave to appeal contemplated in the Bill would have been drafted or settled by a legal representative, and the prospect of material matters not being brought to the attention of the court of appeal was virtually nil. They did concede that in the Qhinga case, where the accused was represented, the SCA had erred in not calling for the record, but the same mistakes would have happened even if the record had been in front of the judges. They were concerned that a petitioner could wait years to have the outcome of his petition made known, and, whilst most were serving terms of imprisonment, it was possible that this time might impinge upon parole applications. The 2008 amendments were not in any way addressing a systemic problem and would not address the problems similar to Qhinga. The judges disagreed with several points raised in the Legal Aid South Africa memorandum. In regard to retrospectivity, the judges were at pains to point out that this Bill was not changing any rights of any accused, who did not have a right to a record, and the retrospectivity would take care of the backlog of 60 petitions that were awaiting preparation of the full record. If the record was needed in the SCA, then the same would have to apply to the Constitutional Court.

Members noted that the judges had said that evidence “will almost always” be summarised, but were concerned that this had not happened in the Qhinga matter. The judges reiterated that even if the record had been prepared in that matter, the judges would not have read it, as they were not alerted to the difficulties around the trial within a trial. Members commented that cost considerations were not sufficient to justify the record not being prepared. Revised wording was suggested that would require the judges, in cases where it was clear from a reading of the judgment that not all factors were disclosed, to call for the record. However, the judges took exception to this, saying that the legislature should not attempt to prescribe how judges should do their jobs, and any doubts about judges’ ability should be taken up with the Judicial Service Commission. Members wondered if there was a need to make provision in the Bill for a person who was represented at trial, but unrepresented when the petition was drawn. In answer to questions around poor representation, the judges responded that they were not required to monitor the quality of qualified legal practitioners, but would be particularly careful in these cases.

The Committee briefly discussed the Constitution 17th Amendment Bill. The majority of the judges were opposed to the Constitutional Court assuming general jurisdiction, although they suggested that if, as a matter of policy, the legislature wanted to set a new test, perhaps “compelling public interest” could be used. The main discussion revolved around whether it was desirable to exclude the SCA from hearing matters from the Competition Appeal Court and Labour Appeal Court. It was rare that these matters were heard, and the judges applied quite strict criteria. Although there were few cases, their impact was huge, and the Committee was concerned about the length of time should cases move through several forums. The judges responded that in fact the SCA was quite quick to hear appeals and give judgments. It was pointed out that in practice the Constitutional Court would choose which cases it wanted to hear. It did not make sense to state that some matters could be referred to the SCA and others not, and it was not correct to suggest that the Constitutional Court judges were any more experienced in economic matters than those in the SCA.

The Committee noted that five applications had been received for the post of Deputy Public Protector, and all eligible candidates would be interviewed in the following week.

Meeting report

Criminal Procedure Amendment Bill: SCA Judges of Supreme Court of Appeal (SCA) input
The Chairperson welcomed Judge Robert Nugent and Judge Azhar Cachalia, Judges of the Supreme Court of Appeal (SCA), who would give their comment on the Criminal Procedure Amendment Bill (the Bill).

Judge Nugent stressed that the amendment was very important to the SCA. He briefly outlined the current procedure and practice, which would apply to those who were represented by an attorney or advocate. If leave to appeal had been granted by the lower court, the matter would proceed on appeal. If that application for leave to appeal was refused, a petition could be made for leave to appeal. This application would contain an affidavit setting out the grounds for appeal. This applied to appeals from Magistrate’s Court to High Court (HC), and for High Court to Supreme Court of Appeal (SCA). The petition for leave to appeal would set out all the facts and must contain the full reasons of the High Court for its decision. Reasons why the lower court had refused the application for leave to appeal must also be attached.

He stressed that applications for leave to appeal contemplated in the Bill would have been drafted or settled by a legal representative, and the prospect of material matters not being brought to the attention of the court of appeal was virtually nil. The grounds on which the appeal was brought would generally be found in the judgment, which would indicate why the conviction occurred, comment on the evidence, and identify the reasons why the accused said he should not be convicted. In virtually every case, it would be apparent from the face of the leave to appeal whether there was a prospect of the appeal succeeding.

Petitions were brought before two judges at the SCA. Generally, each judge received two or three a week. In 90% of cases, the petitions for leave to appeal were refused. If the two judges did not agree, one might defer to the other, or a third judge could be called in.

The judges of the SCA, as far as he knew, were not asked to comment on the 2008 amendments. Prior to this amendment, section 316(10) provided that when a petition was received, in cases where the accused was legally represented at the trial, or if the appeal related to sentence only, it was sufficient to attach a copy of the judgment (not the full record of appeal). However, the 2008 amendments deleted that provision, making it compulsory that in each case, where there was an application for leave to appeal, the full record of the trial must be reproduced. The question was what the judge would do with the record. By the end of the trial much of the evidence appearing in the record would be uncontroversial, in the sense that the issues would be narrowed down. The Boeremag trial, for instance, had been running for nine years, but he would have thought only a tiny fraction of that record was relevant to the question of sentencing. The prospect of the accused succeeding on appeal was remote. However, the effect of the 2008 amendment was that the State would have to type the record, at R5 per page. 

Judge Nugent noted that the wording of the amendment was that the full record must be placed before the judges. However, whilst the judges could be forced to have the record in front of them, they invariably did not read it. The 2008 amendment was in any event irrelevant, since a judge was already entitled to call for any evidence that s/he needed, which would be the relevant parts of the record, and it therefore had served no purpose. This amendment had not addressed a systemic problem, since the problem in the Qhinga case was caused by the way in which the legal representatives dealt with the matter. The judges of the SCA believed that the situation should revert to what it had been, prior to the amendment.

Judge Nugent then dealt with the Qhinga case, where the Constitutional Court had found that the trial court did not describe the reasons behind the trial within a trial findings, in its judgment. It was, however, clear from the judgment that the conviction was based on a confession. Had the matter come before him, he would have called for that portion of the record that dealt with the admissibility of the confessions. However, the judges dealing with the matter did not, probably because the lawyers drafting the petition failed to mention the confession and did not suggest that the admissibility of the confessions was an issue, and it was not apparently raised as a ground for appeal (although he had not seen the petition himself). He stressed that the judge could in any event have called for the record. 

Judge Nugent reiterated that that costs of preparing the full record were the first problem. The second was the effect on the petitioner, who was presumably being incarcerated in a correctional centre. It could take the State up to a year to prepare even records of short proceedings. At the moment, there was a backlog of 60 petitions, which could not be finalised because the records had not yet been typed. He repeated that it was unlikely, in practice, that the judges considering the matter would read the record, once typed, but they must be in existence. In all of those cases, the leave to appeal was more than likely to be refused. The judges dealt swiftly with any petitions where leave to appeal should be granted. However, even if the application was eventually refused, the petitioner would have waited for two years even to hear the outcome of his application. In cases where the term of imprisonment was close to expiry, this could affect parole.

 Judge Nugent noted that a memorandum had been prepared by Legal Aid South Africa (LASA), but it was incorrect on various points. Firstly, it stated that it was compulsory for the court to consider the full record, whereas in fact, there was no reference to “consider”, but only to “have” the record. It was impossible to monitor whether a judge was doing his/her job. LASA noted that it would no longer be compulsory for the judge to have full insight into the record, but “full insight” was not required by the legislation. Page 2 of the LASA memorandum contained a comment on Shinga v State, which said that the provisions of the former Act were unconstitutional. However, this related to a magistrate’s court matter, and Judge Nugent said that in district and regional courts, many accused were unrepresented, and the petition would be written by someone in the correctional centre. In those cases referred from the High Court, in which an accused was unrepresented, the record would be produced.
Page 4 of the LASA submission suggested that the current Bill would create the situation where the SCA would be unable to appraise the matter. This was incorrect; as previously pointed out the judges could in any event call for the record, but he reiterated that they should not be obliged to have it in every case. Page 5 of the submission suggested that the fears about delay were unjustified, as the record would be required in any event to proceed with the appeal. Judge Nugent countered that, as he had already indicated, the judges did not wait for the full record where they believed there to be reasonable prospects of success on appeal, so the matters that they were still sitting with were those where the judgment did not show good cause for leave to appeal. Page 7 referred to the whole record being typed, but he said that this was not applicable to applications for leave to appeal. The Legal Aid submission also referred to systemic problems, but he denied that these existed.

Judge Nugent then moved to the point of retrospectivity, which had caused some concern. The current Bill was worded that it was deemed to come into operation on 10 September 2010. Whilst he agreed that retrospective legislation was not, in general, acceptable because it posed the risk of taking away existing rights, this was not applicable in this case. This Bill was not changing any rights of any accused. The retrospectivity was intended to sort out the practical problem of the 60 backlog cases where the record still had to be typed. If the record no longer had to be produced, this would save money to the State. He reiterated that even when the records were typed, the judges would not read it, save where it was necessary to do so, and they would, in any event, have called for those relevant parts of the record. 

Mr J Jeffery (ANC) addressed the point that the SCA judges had not been consulted, and pointed out that the Judicial Matters Amendment Bill of 2008 stated that the Bill had been made available to the Chief Justice, and other heads of courts. There was no cogent reason why the judges could not have commented on it at the time.

Judge Nugent said that he may have been incorrect in this assertion, but certainly he and other judges were not aware of it, at the time.

Mr Jeffery took Judge Nugent’s point on the retrospectivity, but stressed that retrospectivity could be problematic if it affected the rights of accused persons. Although the Shinga matter was a Magistrate’s Court matter, the reasoning of the Constitutional Court judges did not limit it to this, since Judge Yacoob had referred to the O’Connell judgment, and said that records may be required, since it was possible, in sentencing, that mitigating points may not otherwise be picked up. With respect, the Constitutional Court had ruled the original provisions unconstitutional in relation to appeals from Magistrate’s to High Court. The differences in the quality of the courts were known. In the Qhinga case, although there was no ruling on the constitutionality, the matter was referred back to the SCA.

Mr Jeffery noted that Judge Nugent had said that the evidence “will almost always” be summarised. There were times that it would not. The Committee was sensitive to issues of money and state records, including the costs of transcribing records, but this was not a good enough reason, on its own, for not requiring the records.

Judge Nugent agreed that in the Qhinga case, the lower court had convicted on a confession, and there was nothing in the judgment to elaborate upon this point, or to indicate that admissibility of the evidence at the trial within a trial was questionable. The judges considering the petition should clearly have called for the record, as they would have been alerted to the point of the confession. His comment of “almost always” covered this type of case. The lawyer drafting the petition had not suggested that the confession may be inadmissible. However, judges should not be expected to question, in every case, whether the lawyer representing the accused was doing his/her job properly. It was impossible, in his view, to come up one example of how any accused could be prejudiced if the Bill was made retrospective.

Mr Jeffery said that the difficulty was set out in paragraph 43 of Judge Jacoob’s judgment. There were some accused who were not competently represented, and having the prosecutor and defendant’s lawyer agreed on whether the judgment was required was not a good ground, as the accused may well not be properly represented.

Judge Nugent agreed that the comments he had made would not apply when the accused was not represented, and in these cases the full record was submitted. However, judges should not have to protect accused persons against their own lawyers, as they, and not the judges, had appointed their own legal representative.

Judge Cachalia added that the issue of poor representation was a real problem, but it was not apparent in relation to the petitions. Sometimes, the SCA would acquit an accused despite, and not because of, his lawyer’s performance. Judges often would not rely on the petition, but would look very carefully at the judgement, because they realised that many petitions were of a poor quality. They would frequently also give leave to appeal on questions not raised in the petition.

Judge Nugent added that the Steyn matter was dealt with in High Court and Judge Didcott said, at the time, that the problems were not the same with the Magistrate’s Court and High Court. He did not think that Judge Jacoob’s comments were necessarily applicable to SCA cases.

Mr Jeffery noted the comments on the workload of the judges, but said that this too was not a good argument for taking away any rights.

Mr Jeffery wondered if there was a mid-way solution. The SCA judges had suggested that the full record should not be required, in certain cases. The existing position was that judges could, and did, call for the record when necessary. The effect of the 2008 Judicial Matters Amendment Bill was that the record was required in all cases. He wondered if it might be a solution to insert something in the Criminal Procedure Act to the effect that the full record would not be required, save in circumstances where, from a reading of the judgment, it was clear that not all factors were disclosed, in which case the judges must call for the record. That would remedy a matter such as Qhinga.

Ms Smuts also took up Mr Jeffery’s point that the SCA judges had submitted that the evidence “will almost always” be properly summarised in the judgment. However, that had not happened in the case in question. Whilst she also heard that the judges could call for the record, they had not done so in this case. The result was injustice, which had caused the referral to the Constitutional Court. Even if it was only a single case, it demonstrated the possibility of injustice. She felt the solution was that judges should call for the record, and Mr Jeffery’s suggestion seemed to make sense.

Ms Smuts took the points on retrospectivity, and agreed that classic retrospectivity – such as a person being convicted for something that was not, at the time, a crime – was wrong, but there were nuances.

Mr S Swart (ACDP) agreed that the suggestion by Mr Jeffery could be considered. The question was what rights were being infringed. The Constitutional Court decision leaned towards finding that rights were being infringed. He was relatively persuaded that rights were not infringed by the proposed amendment. The issue of costs did come into play, as the financial constraints of the Department of Justice had to be considered. Whilst he did not have a problem with retrospectivity, he too thought there might be a better way to take account of the SCA concerns, and the Constitutional Court judgment.

Judge Nugent said he thought the amendment proposed by Mr Jeffery was offensive, as he took issue with the legislature telling the judges how to do their work. A good judge would read the record anyway, and it must be accepted that people in high office were doing their jobs properly. Judge Cachalia had pointed out that the judges were diligent, and he was correct that many cases had been “saved” by judges from incompetence on the part of lawyers. He would be opposed to inserting words that purported to give a right to the accused, but did not in fact do so. He reiterated that the Registrar could again be compelled to put the record in front of the judges, but the latter could not be compelled to read it.
Mr Jeffery said that the SCA had erred in Qhinga, and the Constitutional Court had ordered that the dismissal of the leave to appeal be set aside, and the petition remitted back for re-consideration. The Constitutional Court did not need to look at the constitutionality of the provision. If the wording that he had suggested had been in place, the judges would have had to call for sections of the record, at least. 

Judge Nugent understood the problem and agreed that this was a case that resulted in an injustice. However, the injustice had nothing to do with whether the record was in front of the judges, or not. The judges would not have read the whole record even if it had been available. They already had the power to call for the relevant sections, but had failed to do so. Neither the SCA nor the Constitutional Court judges had the record, and both were therefore in the same position when they read the petition. Page 34 of the Constitutional Court judgment referred to the judgment of the lower court, which would have been attached to the petition, which clearly said out that the state had relied on statements in which the accused implicated themselves, and that a trial within a trial had taken place. However, that court did not specify the evidence presented. The SCA judges should have called for that evidence, and had erred in not doing so. The Constitutional Court concluded, from the face of the petition, that there were doubts about the evidence supporting the confessions. The presence or absence of the record in this case would have made no difference to the error of the SCA judges. Errors did occur in courts, and it was possible that this could happen again.

Judge Cachalia understood that the Committee was concerned that a matter could come before judges, who would not call for the record when they ought to have done so. If, despite what Judge Nugent had said, the Committee still felt that a further amendment was needed, there was a need to be very careful about the language. For instance, it was important not to impose an obligation, but allow discretion to the judge, perhaps by use of something along the lines of “when justice requires that a copy of a record, or portion of it, may be necessary for the just determination of a petition, the judges involved shall call for a copy of the record, or the relevant portions”. Judges must always consider what would be the proper way to deal with a petition. He too pleaded that the Bill should not force an entire record on the judges, as they were simply not relevant. If judges were forced to read records, they would be left with no time to attend to appeals.

Judge Nugent agreed that a trial court must hear every part of the evidence, but there was a fundamental difference with appeals. All necessary safeguards already existed as the Act had been worded originally.

Ms M Smuts (DA) noted that Mr Jeffery was speaking for the ANC, not the Committee, but her own thinking was not far from his. She suggested that costs should not be proposed as an argument, as the costs were completely irrelevant if infringement of any rights were at issue.

Judge Nugent responded that his whole proposition was that no rights were being taken away. He stressed that having the record was not a right accruing to the accused, but was an administrative direction to the Registrar. He did not think that there was any conflict.

Judge Cachalia stressed that the Constitutional Court had felt that the judges considering the petition should have called for the record around the confession, and should not have dealt with the petition before reading those portions. However, it was clear from the judgments that the Constitutional Court recognised that it was dealing with very narrow facts, and not a systemic problem.

Judge Nugent added that the judges considering the petition would, at the most, only have to read the portion of the record that related to the trial within a trial to determine the admissibility of the confession.

Ms Smuts noted that the Constitutional Court, in the Qhinga case, did not need to consider the question of constitutionality of the Act, but wondered if it might have found the old provisions unconstitutional, and the answer to this might lie in the Steyn case, which she had not yet seen.

Ms D Schäfer (DA) noted the point that the petition drawn by a legal representative would elucidate the points. However, she wondered what would happen in the case where a person might have been represented at trial, but had no legal assistance in drafting the petition for leave to appeal.

Judge Nugent said that the judges could not re-try the cases. There were some cases where the person might be represented at trial, but not in the drafting of the petition.

Judge Cachalia reiterated that the judges would take into account the effect on a petitioner of poor representation. The judgment of the lower court would always be scrutinised very carefully, regardless of what appeared in the petition, and this was even more so, in the case where a petition might not have been drafted by a legal representative. Even if the petition was “hopeless”, the judges would pay careful attention to the judgment. In practice, there was no distinction in substance between an unrepresented petitioner, and one poorly represented. He pointed out that when a judge was appointed to the SCA it was assumed that s/he had a track record of work and scholarship. If there were concerns that judges in appellate courts were making mistakes, this was a point to be taken up with the Judicial Service Commission (JSC).

Ms Schäfer asked if there was a need to make provision in the bill for unrepresented accused.

Judge Cachalia said this was not necessary.

He again stressed that the judges were not dealing with rights in a cavalier way. The accused had no right to the record, although s/he had a right to a fair trial and appeal. The language of rights should not be used loosely; there was no right to a record. If there was a systemic problem around records, this could not be dealt with on a question of costs. He agreed with the comments around consideration of costs, but said it was not so much a question of money, but of delays. The petition would include the judgment, and he reiterated that in practice that was the document studied by the judges. If they felt that there was no apparent reason to grant the application for leave to appeal, the petition would be sent back to the Registrar, who would then request the record. This could take two or three years. When the record was received, the same two judges may not be available, and even if they were, they were unlikely to remember the case, so every matter was reconsidered. In these cases, it was almost inevitable that the application for leave to appeal would be refused, but the point was that the petitioner should have been told of this much earlier. He cautioned that systemic blockages could be created by amendments to legislation, and that unintended consequences could occur.

Ms Schäfer also wondered why there were 60 cases waiting for the record, if the judges had already admitted that they were presently not complying with the statutory requirements.

Judge Nugent responded that these were, on the face of them, petitions that would be refused. Two judges had already looked at them, but they were required to call for the records, despite the fact that there was nothing that indicated a need to call for the record. All petitions in which there was clear cause for appeal had already been granted.

Ms C Pilane Majake (ANC) agreed that the volume of records were a problem, and it might be necessary to consider how to improve systems to support the requirements. She agreed that no matter what trust was placed in the judiciary, there was always the possibility of error.

Judge Nugent wanted to make three points. Firstly, he had not wanted to imply in any way that the judges were unwilling to have extra work placed on them. It was simply the fact that the judges would not read anything that was irrelevant to making a decision, and indeed the judges could not be forced to read the entire record to deal with a sentencing issue. That was not a requirement of the job, and Parliament should not try to tell the judges how to do their jobs. Secondly, whatever this cost was not something that concerned the judges. Thirdly, the main point was that the requirement to produce the full record for these petitions did have a substantial effect on those who were incarcerated and who should be told, at a very early stage, of the outcome of the petition. At the end of the day, most petitioners would in any event have to serve out their sentence.

Mr Jeffery said that the same issues about dispensing with the record would apply to petitions to the High Court from the Magistrates Court. He wondered if there was a difference in volume.

Judge Nugent said that the 60 petitions had accumulated since 2010, when the amendment came into effect. He reiterated that in practice, it was more than likely that all of the backlogged petitions would be refused. He was not sure about the numbers of petitions in the High Court. The High Court often was faced with poor judgments from district courts, in particular, whereas the SCA generally saw a higher standard of judgments. When petitions were received from “sea lawyers” – one inmate drawing up petitions for another – the record would be sought. He was not sure that it was correct that draw a corollary between the Magistrate’s Court and High Court matters.
Judge Cachalia said that if Parliament came to the conclusion that the record was needed in the SCA, then it would have to reach that conclusion for the Constitutional Court as well. There, at least nine, but usually eleven judges, considered everything. There would be no rational basis on which the Constitutional Court could hold the procedure valid for the SCA but not for itself, unless it was admitting that the SCA judges were weak.

Constitution 17th Amendment Bill
Mr Jeffery told the SCA judges that the Committee had decided to opt for the said extended jurisdiction of the Constitutional Court, which would not be limited to “constitutional and related matters”. He noted the point made that the more times a matter was heard, the greater likelihood of a better final decision. However, in labour and competition matters, there was some urgency to finding a resolution, and he asked why it was considered necessary for the SCA to hear these matters before they were referred to the Constitutional Court. The memorandum submitted by the SCA had indicated that the SCA in fact heard very few such matters, because its own test was quite stringent. His main concern was the delay. Another point was that a number of SCA judgments in these matters had been overturned by the Constitutional Court, and if the requirements around jurisdiction of these court were to be relaxed, the question was whether there was a reason for the SCA to consider matters from the Competition Appeal Court (CAC) and Labour Appeal Court (CAC).

Judge Nugent agreed that it was rarely that such appeals would be heard by the SCA. His own personal view – not shared by his fellow judges – was that he agreed that the SCA could be cut out of the process. However, on the other hand, there were some issues that dealt more with technical issues such as interpretation than with constitutionality. In regard to the delays, he pointed out that in fact the SCA managed to have matters heard within three to four months and usually issued judgments within a month. With no disrespect to the Constitutional Court, matters going there were usually longer delayed. His fellow judges’ opinion, with which he had concurred, was that some technical cases should be able to be brought to the SCA. It was debatable whether the Constitutional Court would have taken them if they had not raised constitutional issues. The idea, originally, was that the final appeals should lie to the LAC and CAC.

Ms Smuts said that the representative in the American Soda Ash
case had suggested that a case well-managed by lawyers could last for ever. This case had been dragged out through every court for ten years, only for the company to concede, hours before the final trial, having sustained its benefits throughout, that it was in fact guilty of the conduct. The DA was very serious about making competition law work properly. She noted that although the cases might be few in number, their effect was huge. The Woodland Dairy decision had had a very restrictive effect on the competition authorities.

Ms Smuts thought that the distinction between “constitutional” and “other” matters was artificial. The Committee had debated added new wording to allow the Constitutional Court to heard “arguable points of law of general public importance”. She asked what the SCA had used as its test for deciding that it could hear the American Soda Ash case, and whether, since the memorandum from the SCA did not refer to it, whether this test would be applied now, and whether “public importance” was an element.

Judge Nugent said that, personally, he believed it would be academic to extend the jurisdiction, as the Constitutional Court would choose what cases it wanted. The original wording of the Constitution was based on the German model, which took a different view, although that court had taken more jurisdiction to itself.

Judge Cachalia said that as a body, the SCA judges had said that they were opposed to the Constitutional Court assuming general jurisdiction, whatever it did at present. It was envisaged, in the Constitution, that the Constitutional Court would be a specialist court. The idea that all matters must be constitutionally-based was not correct. The earlier judgments of the Constitutional Court, as in other jurisdictions, had drawn the distinction between constitutional and other issues, and the court had invoked constitutional avoidance. If Parliament felt that it did not need a SCA, because it was not in the best interests of the country, then it should do away with that court. He cautioned against tinkering with systems rather than making a bold move. However, if Parliament decided not to follow this route, and to set a test, he thought that this, in addition to specifying constitutional issues, should also specify that the matter should be of compelling public interest. The Constitutional Court should not deal with every question of law or legal interpretation. There was no reason to send a matter further if it was not a matter of compelling public interest, and had already been considered by two or three judges in the High Court and five in the SCA. It was not sufficient to say that the matter should be of importance to the litigants.

Judge Nugent agreed, and said that there was some question whether the Constitutional Court was entitled to take on the extra matters.

Judge Cachalia added that it made no sense for some matters, such as tax or intellectual property, to be referred one route, and others not. Whilst he had no personal interest, he noted that it made no sense to send some matters on appeal through one route, and others not. It was essentially a question of policy.

Ms Smuts said that a different kind of thinking applied to competition matters, because of the economic questions.

Judge Cachalia asked her to expand on this.

Ms Smuts said that the thinking was that economists were to be appointed to hear the cases.

Judge Cachalia asked why there was a suggestion that the Constitutional Court was any more experienced in the economic field. In fact, several SCA judges had sat in competition matters and were more experienced than the Constitutional Court judges. He reiterated that this was a policy decision, and was not necessarily rational. The arguments that Judge Davis had raised on expertise were not entirely correct, and in any event, it was up to the JSC to appoint judges who had training or experience in competition matters, if it wished, to reach a balance of skills in each court.

Judge Nugent added that Judge Davis often asked High Court judges to sit on the LAC.

Mr Jeffery added that tax and competition matters faced time pressures. At one stage, the Bill had been worded to collapse all specialist courts into one.

Mr Jeffery wondered if there was a difference between “significant” and “compelling” matters. Personally, he was not originally in favour of changing the jurisdiction but was persuaded by the fact that the Constitutional Court already chose what matters it wanted to hear.

Judge Nugent thought the wording was acceptable, and pointed out that the Constitutional Court was not supposed to be taking cases, but did, in practice. He realised, however, that the Bill was speaking to the public, not the judges.

Mr Swart said that the questions around the LAC and CAC were weighty, and Judge Davis had had a full morning to address the Committee. He was not sure whether sufficient time was allocated in this meeting to address the issues fully.

Mr Jeffery said that the introduced Bill contained wording removing appeals to the SCA in certain cases. The SCA had had the opportunity to comment, and he wondered why the judges had not made earlier representations, if they felt strongly about the matters. The Bill was distributed to the heads of courts, as least.

Judge Cachalia thought that the Bill had been referred to the Head of the Court, but Judge Mpati had not thought it particularly serious, and had gone on long leave. He later reported to a full meeting of the SCA, when the issues were discussed in full, and, once it became clear that they believed it was serious, Judge Mpati asked the SCA judges to prepare the memorandum that was sent to the Committee. It was up to Parliament to decide whether the concerns of the judges were valid, and make a policy decision, irrespective of when that memorandum had been received.

Mr Jeffery said that he had asked this question to ascertain whether the matters were important to the SCA.

Judge Cachalia said that the memorandum reflected the views of all SCA judges, once the matter had been carefully thought through.

Judge Nugent added that he had not objected to it. He made the point that the question was not what was considered important to the SCA, but what would be important to the litigants. The courts should have scope to deal with problems that arose, so a degree of flexibility was important.

Ms Smuts reiterated her question about the test applied by the SCA when considering whether it could hear labour and competition appeals.

Judge Nugent said that the test had not evolved in relation to labour matters further than what had initially been set out.

Judge Cachalia could not remember the test for competition offhand, but in labour matters, special circumstances must exist before the SCA would agree to hear the matters – a slightly different wording, but the same principal – to what was being proposed in respect of the Constitutional Court matters.

Ms Schäfer said that Judge Davis had suggested that the test had been watered down.

Judge Nugent responded that there was some ideology behind the economic issues, but it must be recognised that courts could not be perfect.

Mr Swart said that some very weighty issues had been raised. He noted that it was possible for national legislation dealing with water or tax to seek to exclude such matters from the jurisdiction of the SCA, and asked for comment.

Judge Cachalia responded that lawmakers must have a rational policy reason for doing something in one case, but not in another, and suggested that all matters should be examined systematically.

The Chairperson thanked the judges, and noted that it had not been possible to set aside more time.

After the judges had left, Mr Jeffery commented that the compromise that he had proposed did not seem to find favour. Legal Aid South Africa would give its input on the next day.

Deputy Public Protector nominations
The Chairperson noted that the Committee had called for nominations for the position of Deputy Public Protector, and five nominations and CVs had been received.

Ms Smuts said that the appointment procedure was government by section 193 of the Constitution, but there were other requirements for public participation, which were achieved through the advertising. She suggested that the interviews should be held in public. She questioned whether all those applying had complied with the eligibility requirements, failing which they should be excluded from interview.

Mr Jeffery suggested that the interviews be held on 16 or 19 November. There were only five people, and he thought all could be interviewed, provided they were eligible.

The Chairperson noted that the advertisement had been quite clear, as to who would be eligible. It was unlikely that anyone had been nominated, who fell outside of this. However, he asked the Committee Researchers to check the CVs to establish this.

The Committee agreed to hold interviews on the following Monday, at 10:00.

The meeting was adjourned.  


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