Black Administration Act extension adopted; Legal Aid comment on Criminal Procedure Amendment Bill; Constitution 17th Amendment Bill deliberations; Deputy Public Protector Interviews

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Justice and Correctional Services

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

The Committee adopted the Committee Bill to extend the operation of sections 12 and 20 of the Black Administration Act, to allow for the continued functioning of the Traditional Courts. The relevant sections were to be extended until national legislation was put in place to repeal them (with no stated date).

Legal Aid South Africa (Legal Aid) amplified on its written submissions, setting out concerns around the Criminal Procedure Amendment Bill. It made reference to the Shinga and
Qhinga Constitutional Court cases, the latter brought by Legal Aid. Essentially Legal Aid was of the view that because the full record gave content to a petition for leave to appeal, the accused might not get a fair trial if this was not available. There was always room for error. It was concerned about matters where an accused may have been represented at trial, but was not represented when the petition for leave to appeal was drawn. There was no foundation for a presumption that the accused had given an informed consent to not having the full record. Full reasons for sentencing, and the extent of the accused’s involvement, would not necessarily appear from the judgment. In relation to condonation, the merits of the case could only be ascertained from the record. For these reasons, Legal Aid was opposed to the current Bill. Members outlined, and called for a response to, comments made by Judges of the Supreme Court of Appeal on the previous day. These related to the approach taken by the judges, the fact that in the Qhinga case, the accused had been legally represented, the fact that judges could not be forced to read the record, and took exception to any legislative amendments that they should, the fact that judges were, despite the current legislation, allowing leave to appeal even before records were prepared, but that there were backlogs for those that were virtually certain to be refused. Legal Aid said that the petition stage was one time when all the facts should be carefully considered, and that consistency was needed. Legal Aid reiterated that there was a need to find a balance. Members debated if the views of the organised legal profession were necessary, and questioned up to what stage legal aid would be granted, and what would happen if a private lawyer’s instructions were withdrawn.

Members considered the Constitution 17th Amendment Bill. The DA set out a comment received from Adv Wim Trengove, who had agreed with the proposal to delete subparagraphs (aa) to (cc) of the amendment to section 167. The DA proposed that clause 167(3)(b)(i) not be deleted, and proposed a change to section 167(3), to include the words “makes the final decision on whether a matter is within its powers”. Members debated this at some length, agreed that (aa) to (cc) were unnecessary, and there would be no lacuna were they to be deleted. They also debated the different wording proposed by the SCA judges on the previous day, which proposed the word  “compelling”, and discussed whether that related to the matters themselves, or qualified the phrase “ought to be considered by the court”. Members discussed the distinction between “constitutional” and “other” matters, the likelihood that cases could be split, and CC must consider all constitutional matters, but had various options in relation to other matters. He agreed that whilst 167(3)(c) was not necessary, it could be useful to include it. The majority of Members agreed with the continued removal of subclause (b)(i). 

Members then discussed proposals for section 168 of the Constitution, the history and structure of the current appeal court system, and debated if section 168(3) should be amended, as it appeared destructive of the system, and whether a solution might lie in naming the Competition and Labour Appeal Courts in the Constitution. Members debated the matters exhaustively, and agreed that a rational basis must be found if systems were to be changed. In general they wanted to ensure that the jurisdiction of the Supreme Court of Appeal (SCA) would not be eroded by other legislation. They would pursue the option that any legislation changing the structure of the Courts could be introduced only by the Minister of Justice, rather than a Constitutional amendment. All Members understood the concerns around the delays in approaching multiple venues, and pointed out that although the SCA had considered only very few matters, there had been serious ramifications. Their concerns would be captured in a new draft, to be considered later in the week.

Members noted their concern that the Prevention and Combating of Torture Bill, once printed, contained a different preamble to the one agreed to by the Committee. Although not much hinged on it, the principle was serious, and the Table would be consulted on how to amend it.

Members noted that the interviews of five candidates for the post of Deputy Public Protector would take place on Monday 19 November.

Meeting report

Black Administration Act: extension of certain sections: Committee Bill
Mr Lawrence Bassett, Chief Director: Legislative Drafting, Department of Justice and Constitutional Development, noted that the Committee’s Bill to extend sections 12 and 20 of the Black Administration Act, past the current “sunset provisions” of 30 December 2012 basically had two options. He reminded Members that these sections still needed to remain in force as they catered for the traditional courts, since the Traditional Courts Bill had not been passed. The Memorandum on the Objects was similar to what had been included in the previous extension bills. There were basically two options: one was to name the date as extended to 31 December 2015, and the other was to note that the provisions would remain operative until national legislation was put in place that repealed them.

The Chairperson quipped that Mr Bassett had become an expert on this by now.

Ms D Schäfer (DA) thought it made more sense to link the extension proposed in the Bill to the date on which other legislation, stressing that these sections would have to remain in place until other national legislation was passed.

Mr J Jeffery (ANC) agreed that the second option was preferable. The problem with stating the date was that if the same difficulties were to persist into 2015, the Black Administration Act could be repealed without other legislation having been put in place to replace the relevant sections.

Mr Bassett asked for guidance on paragraph 4.

Mr Jeffery said that this was a memorandum essentially aimed at the executive, but this was not an executive bill. The Committee had advertised for comment and had received one submission, from the Office of the Premier, Western Cape, which made no new suggestions but essentially only summarised what was in the Bill. He was not sure that this paragraph was necessary.

Mr Bassett said that a similar paragraph did appear in the previous Bills, and read out the wording.

The Chairperson thought it should be repeated in this Bill. It should, however, be noted that one comment was received, from the Office of the Premier, Western Cape.

Members voted unanimously to adopt the Bill.

Criminal Procedure Amendment Bill: Legal Aid South Africa (Legal Aid) briefing
Judge Dunstan Mlambo, Chairperson, Legal Aid South Arica, noted that Legal Aid was trying to find a way in which unrepresented accused filing appeals in the SCA would not be prejudiced, and indicated that Legal Aid would be prepared to continue discussions with the Supreme Court of Appeal (SCA) judges, to ensure proper access to justice.

Mr Patrick Hundermark, Legal Executive, Legal Aid South Africa, said that four matters were being raised, in relation to the Criminal Procedure Amendment Bill (the Bill). The concerns raised by the Constitutional Court (CC) in the Shinga v State matter, although they had pertained in that case to the Magistrate’s Court, could equally arise in the High Court. A person may be tried, apply for leave to appeal, which was refused, and then petition a higher court for leave to appeal. The Shinga case set out what gave content to the constitutional right to appeal. Legal Aid was concerned that if the petition was considered without any recourse to the record, there might not be a proper review by the higher court of all the information. Legal Aid was worried about those cases, however few they might be, in which the salient points were missed. It was a pity that the Legal Aid had not had to argue constitutional points in that case since the 2008 Judicial Matters Amendment Act, which required the full record to be made available, was to be put into operation.

He noted that there could be cases in which the accused could have been represented at trial, but had no qualified representative to draft the petition for leave to appeal. Judge Didcott, in the Steyn matter, had said that many petitions were commentaries on the trial that scarcely enlightened the judges. The only impressions were those derived from reasons of the magistrates, and they would remain “impressions” only until the record was procured and read. In the Qhinga matter, the petition had only referred in passing to the fact that a trial within a trial was held. Mr Hundermark reiterated that the record gave content to the petition.

He said that if there had previously been an appeal in the High Court, the record would have been typed and be available, so this Bill referred to petitions. Legal Aid remained concerned that many petitions did not succinctly set out the relevant facts, and reiterated that the absence of a full and proper review meant that the accused had not received a fair trial. The judges of the Constitutional Court (CC) had said that a proper reappraisal was not possible, without the record. The same must apply to the Supreme Court of Appeal (SCA). Mr Hundermark noted that there was always room for error.

The CC had gone further, saying that there was no reason for exemption from obtaining the record in the case of those who were represented at trial, but not in the drafting of the petition. The amendment now proposed referred to cases where the prosecution and accused agreed that the full record was not necessary, which assumed that the accused would be in a position to give an informed consent. The CC had said that there was no foundation for this presumption. The petition could be the only time in which a full appraisal of all the facts occurred. If the petition related to sentencing, the CC had said that it was possible that the judgment of the lower court would have adequately cited matters that were relevant to the sentence, as the extent of the accused’s involvement was often highlighted in the record, and it might be that this participation did not justify imposition of the minimum sentence. This, however, could not be determined other than through a study of the record.

Mr Hundermark’s next submission related to condonation. As the law stood, the merits of the case were vital on appeal, and this was another point to be ascertained from the record. If the record was not needed in condonation matters, then he questioned what would be used, as this was the most critical factor.

In summary, Legal Aid was concerned about the limitation of the right of the accused to a fair trial. There had been mistakes in the part. Legal Aid had not had the chance to argue the constitutionality of the previous wording in relation to records, but had not done so on the basis that the 2008 Judicial Matters Amendment Act was about to be made operative. The absence of leave to appeal provisions had been considered in the Steyn matter, and that court had commented that the level of representation in the High Court was likely to be higher than in the Magistrate’s Court. However, the concern remained that most people were unrepresented when the petition was brought, which meant that the petition did not accurately set out all the issues and problems. Even if only one miscarriage of justice occurred, that was already an indicator of risk, and for this reason Legal Aid was opposed to the current Bill that sought to relax requirements around the record.

Ms D Schäfer (DA) commented that it was a pity that the Judges of the SCA and the Legal Aid could not hear each others’ submissions. However, the SCA judges had indicated that they would not read the record, unless they considered it necessary, and would in any event confine themselves to relevant portions. They had also pointed out that in the Qhinga case, which admittedly was incorrect, Mr Qhinga was legally presented. They had indicated that there was little difference between one who was unrepresented, and one poorly represented, and the lawyer represented Mr Qhinga failed to pick up on the admissibility of evidence in the trial within a trial. The SCA judges also pointed out that it was not the function of the SCA to question the representation.

She added that there was a backlog of 60 petitions, in which the record had to be obtained. The judges of the SCA were, however, trying to be creative and not prejudice petitioners, and if it was apparent, from the face of the judgment, that there was a possibility that the appeal could be allowed, they would grant the petition. They had stressed that it was impossible to expect them to read the full record, and the issues were by that stage narrowed down to one or two points, which they would be able to isolate from the judgment. She noted that the judges had essentially said that there was no point in requiring the full record. She had asked the judges if there was any need to make provision for those who were not legally represented, and the judges had responded that this was not necessary. Essentially, they had concluded that a good judge would call for the record and a bad judge would not read it.

Mr Hundermark reiterated that the petition for leave to appeal was the one time when all the facts may be considered properly, being reviewed by two senior judges. It was of concern to hear that the record would not be read. Legal Aid was essentially saying that it was wrong to deny the right to the fullest possible consideration, which could only be given after consulting the record. There were cases where people were wrongly convicted; one had been freed after serving ten years of the sentence. The question was how to control the matter and achieve consistency. Some judges would call for the record, but others would not, and the Constitutional Court had tried to ensure consistency of approach.

The Chairperson said that judges from the SCA had raised the question who would monitor them and check whether they read the judgment, and clearly it was impossible to ensure that they actually read what was available. They had been opposed to Parliament trying to prescribe what they should do. The other issue related to the quality of the judges, and that could not be legislated.

Mr Hundermark said that there had been severe criticisms of some matters where it appeared, from the record, that the judges had not been impartial and had descended into the arena. It was impossible to say that this would not happen. The balancing act lay in the fact that these matters were limiting the right to appeal; for most accused the SCA would be the end of the line, unless the accused could raise constitutional points.

Ms Schäfer said that the jurisdiction of the CC was to be extended, and if this provision was applied to the SCA, this would have to be applied to the CC as well. The reality remained that the judges would not read the record.

The Chairperson added that the judges had also said that there was simply not enough time to deal with the reading of the record, let alone considering and applying their minds to the issues.

Mr Hundermark said when a further appeal was being sought, the record would already be available. However, he reiterated that there was a need to find a balance where the petition represented the first opportunity for appeal. The number of 60 backlog matters was of concern, because those petitioners would have been refused leave to appeal in the High Court, so had never had the case – and the record – reviewed by a higher court.

Ms Schäfer suggested that the SCA should be asked to give some figures of the cases where there was no concern.

Adv L Adams (COPE) said that the point remained that it was physically impossible to ensure that judges would read the record, and requiring the record to be available was merely wasting time.

The Chairperson agreed that whilst it was possible to insist that the record be prepared, Judge Nugent had made the point strongly that it was entirely up to the judge whether, and to what extent, it would be read.

Mr Hundermark took the point, but said that if issues appeared in the record, but not in the petition, then the constitutional question arose whether the petitioner had had a fair trial. Legal Aid would also not advocate “policing” the judges, but the question would have to be decided, by the CC, whether a fair trial took place.

The Chairperson said that even if the judges had read the record, they might still miss something

Mr Hundermark said that this was why a two-judge system was appropriate.

Ms Schäfer said that the Constitutional Court was where the final opportunity and ultimate check lay. She questioned if Legal Aid might argue the constitutional points in a future case.

Mr Hundermark said that Legal Aid would have to decide this if a constitutional issue arose.

Mr S Holomisa (ANC) agreed that the nub of the issue was how the judges performed their work. They were decision makers, not representatives of the accused. He wondered if the views of the legal profession who represented the accused had been sought.

Mr Bassett said that the Department of Justice had not specifically consulted with the organised legal profession, as the Bill was drawn on an urgent basis, but there was an invitation published for comment.

The Chairperson added that no legal practitioners had taken advantage of the opportunity to comment, but the Committee could proactively seek comment from the General Council of the Bar and Law Society of South Africa.

Mr Jeffery said that there was precedent for the qualitative difference between magistrate’s and high court matters, in the Steyn
judgment. Legal Aid had been involved in the Qhinga matter, and this was a specific aberration that may have been missed, even if the judges had had the record.

The Chairperson commented that it was the responsibility of the State to produce the record.

Mr Swart pointed out that there was provision, in the Bill, for the legal representatives to consent to no record being produced. However, Legal Aid was concerned about unrepresented accused.

Mr Holomisa believed that the views of the appellants (through their legal practitioners) were needed. There had been a note on the delays occasioned by the records being required.

Mr Jeffery reiterated that the Bill was advertised, and cautioned that this Committee should not start a precedent of actively seeking comment from certain groups. Legal practitioners would have an interest in matters being expedited, and several had made comment on other matters.

Adv Holomisa said he understood the point, but felt that the Committee should not be swayed by the views of judges only. He understood the difference between represented and unrepresented petitioners. The Committee needed to be satisfied that there was no prejudice to dispensation of justice.

The Chairperson said that the judges had not said that it was inconvenient to obtain the record, but had made the point strongly that they should be trusted to obtain the relevant portions of the judgment, which they could do already.

Ms C Pilane-Majake (ANC) agreed with Mr Jeffery’s reluctance to solicit comment directly from the legal profession, but said that if this was contentious, more comment might be desirable. She agreed with Mr Holomisa that the Committee must ensure access to justice.

Ms Schäfer said that if the Committee was to approach the General Council of the Bar, it would also have to approach the Independent Bar Associations. She agreed with Mr Jeffery that it was not desirable. Lawyers would not know how the judges operated. She reiterated that even if the judges had the record, they still could miss something.

Mr Jeffery said that most accused were represented by Legal Aid, with the wealthier ones appointing their own practitioners. Legal practitioners would have no interest in the unrepresented accused, and could, in terms of the Bill, insist that the record be produced.

Mr S Swart (ACDP) said that the key provision in the Bill was that the legal representative must consent to the record not being made available. If that consent was not given, the record still had to be obtained. If there were concerns around unrepresented petitioners, then perhaps Legal Aid should take a relevant case to the Constitutional Court. The SCA had pointed out that the previous amendment had not addressed a systemic problem, but the result was a backlog of 60 petitions, which the judges already knew they would reject, but they had to follow the set procedures before officially doing so. Legal Aid may well succeed if it tested the issues again. There was some degree of urgency to finalise this Bill.

Mr Hundermark noted, in response to questions, that leave to appeal had been granted in the Qhinga matter, once it was returned to the SCA but he was not sure what the outcome was.

Mr Jeffery asked if Legal Aid had any other suggestions for the Bill.

Mr Hundermark reiterated that Legal Aid was concerned about those who were not represented at petition stage. He wondered how many of the 60 backlog cases related to such petitioners. He was not sure how technologically advanced the recordings of the proceedings were.

Mr Jeffery said that the amendment essentially related to accused who were legally represented.

The Chairperson pointed out that there still could be cases where the legal representative had handled only a portion of the matter.

Mr Jeffery asked when Legal Aid would assist people.

Mr Hundermark said that, subject to the means test, legal aid could be granted for appeals, and Legal Aid South Africa would assist with leave to appeal to the trial court, and then a petition to the Judge President or SCA, depending on where the trial had taken place. If this was successful, it would then assist with the appeal. Any further representation (a further appeal) would be supported only if there was good cause. He pointed out that most of the petitioners were imprisoned, so few would not qualify through the means test. Legal Aid South Africa would have to request the record, and he pointed out that any practitioner who had not argued the previous matter would of course need to check the record to draft the petition. The costs of this would still rest with the State. Legal Aid had been told to make use of Rule 66 of the High Court rules to request the record.

Ms Schäfer suggested that surely it would make more sense to require an attorney to read through the record and make proper representations, than to require the SCA judges to do so.

Mr Hundermark said that Legal Aid would regard a practitioner’s mandate as completed only after a leave to appeal had been requested, and a petition prepared where necessary. He reiterated that it would be useful to analyse the 60 cases before the SCA and see where the gaps lay.
Mr Swart asked what would happen if a lawyer’s instructions were withdrawn and whether Legal Aid could enter at that stage. Mr Hundermark confirmed that it could. Mr Swart then pointed out that the petitioner would then be represented. He noted that the accused had the right to get a speedy resolution, and the accused himself should be able to consent to the record not being produced, even if not legally represented, although there could be problems about whether this would be an informed consent.

Ms Schäfer said that the judges admitted that they did not comply with the present requirements; the backlog cases were those in which they were already virtually certain that leave for appeal would be refused, but the record was being obtained to ensure that there was no legal challenge. The current situation defeated the object.

Mr Hundermark was excused at this point.

Constitution 17th Amendment Bill: Committee deliberations
Ms D Smuts (DA) said that she had sought the views of Adv Wim Trengove on the Constitution 17th Amendment Bill (the Bill) and would like to share his remarks on jurisdiction and section 168(3) of the Constitution, where she thought there was a problem. It might be necessary to abandon the amendment to section 168 of the Constitution.

In relation to jurisdiction, the Committee had already broadly agreed that the CC should be entitled to deal with matters that were of a constitutional nature, or any other matters that raised arguable points of law of general public importance. Adv Trengove had said that “general public importance” suggested that these matters were not of a constitutional nature. The CC should preserve its role as guardian of the Constitution. It was rare that a case would hinge on only one issue. The CC should have the power not only to decide upon constitutional matters, but also others, and if it was not granted ancillary powers by the Bill, then it would have to refer back the other issues to another court for determination, which would be “messy. and expensive”. For this reason, she now wanted to propose that there should not be a deletion of the Bill’s clause 3(b)(i), which referred to issues connected with decisions on a constitutional matter.

Adv Trengove had agreed with the Committee that subparagraphs (aa), (bb) and (cc) could be deleted as unnecessary – what was of importance was the jurisdiction, and not the avenues by which this was reached. This was already stated elsewhere.

Adv Trengove had suggested that, in the event that the Committee did finally decide on an extension of the powers, then it should be made clear, in section 167(3)(c), that the CC had the final power to make its decision on whether a matter lay within the jurisdiction of the CC. This was necessary, to avoid arguments being raised in other courts. Ms Smuts wanted therefore to propose a small change to section 167(3), to read “the Constitutional Court…may decide issues on constitutional matters and makes the final decision whether a matter is within its powers”.

Mr Swart said that he respected Adv Trengove’s views. He asked for comment on paragraph 2 of the opinion.

Mr Jeffery said that every lawyer could proffer an opinion. He respected Adv Trengove, but said that, with respect, not all his opinions had been successful. It was unfortunate that this proposal was made at such a late stage, but it was useful to hear the views.

Mr Jeffery had some difficulty with the proposals for clause 3(b)(i). The original wording in the Constitution was “Constitutional matters”, which was later changed to “matters connected with Constitutional matters”- a widening of the provision that had given the CC the opportunity to consider any case that it wanted. Now, the intention was to widen it even further to any other matter, that was an arguable point of law of general public importance that ought to be considered by the court. Judges Nugent and Cachalia from the SCA had, on the previous day, suggested slightly different wording. If the words “and issues connected therewith” were not deleted, then the previous situation would pertain. Adv Trengove had commented that in a matter, there might be some constitutional issues, whilst others were not.

Mr Jeffery added that the qualifications that were originally set out in subparagraphs (aa) to (cc) could go into other legislation and did not need to be in the Constitution. He had no problem with the amendment proposed to section 167(c), that the CC should make the final decision on what that court heard. In practice, no other body would claim that the CC should not have heard a matter.

Ms Schäfer said that she had concerns that 167(b)(i) did not cover a matter that was not of public importance, but could be of huge private importance. She also had some questions around linking constitutionality to a case before the court.

Mr Jeffery thought it was of public importance that a case should not be split.

Mr Swart said that in practice, the CC would be bound to hear all aspects of a case that had some constitutional aspects. It was unlikely to split the issues.

Mr Jeffery noted that in Kenya, appeals lay of right to its Constitutional Court in any constitutional “case” (not matter), and any other case certified as a matter of general public importance”. The problem lay with the retention of the wording referring to “matters connected with decisions” as that came back to everything. The reason to have the distinction between constitutional matters and other matters, and then to include other options, was that the Constitutional Court must remain the final decision making body on constitutional issues. Even if the SCA finalised a constitutional matter, the CC would be the final arbiter on those points. The idea behind the amendment was to give wider jurisdiction to the CC on other matters that were of public importance.

Mr Johan de Lange, Principal State Law Advisor, Department of Justice and Constitutional Development, pointed out that he had not previously seen the proposals, and his comment must be seen in that context. In relation to the proposals around (aa) to (cc), he agreed that the Committee had previously decided that these subparagraphs did not take the law further, but merely provided an indication of the avenues to follow, and he had agreed that these were not necessary in the Bill. He was somewhat surprised that no other commentators had picked up on this point.

He agreed with Mr Jeffery that it was, in practice, unlikely that any other court would express an opinion on the Constitutional Court taking on any matter.

Personally, Mr de Lange said that if the jurisdiction of the Constitutional Court was extended, then there was no point in requiring it to decide if the matter was related to a constitutional issue, and it would raise more questions than answers to retain such wording.

Mr de Lange noted that clause 3(c) related to the substitution of subsection (6). He reiterated that whatever was put in the legislation, the CC was the only court that could decide what matters it would hear. He doubted the value of delineating that point any further.

Ms Schäfer said that there was no harm in specifying the CC could only take matters that were constitutional or were of public importance and she thought that its discretion should be noted.

Mr de Lange thought that section 167(3)(c) was unnecessary, questioning who would tell the CC that it did not have jurisdiction. He was not necessarily suggesting that it be deleted, and had no problem with the wording “whether a matter is within its jurisdiction”.

Ms Smuts agreed.

Mr Swart would agree to the amendment proposed for section 167(3)(c) being amended, and to the second test. He wondered if there would be any lacuna if (aa) to (cc) were removed.

Ms Smuts said these contained a repetition of what was already in (5).

Ms Adams agreed that the CC was the highest court and there would not be argument in relation to the cases it took on. She thought the differences were merely semantic.

Mr Jeffery pointed out that the purpose of the amendment was to define what the CC may consider, and agreed that (aa) to (cc), which related to how the Court reached its decision, were not properly placed in that section. In answer to Ms Adams, he pointed out that the main change was the deletion of the reference to “related matters”, to create a system in which the CC must consider all constitutional matters, but had various options in relation to other matters. He agreed that whilst 167(3)(c) was not necessary, it could be useful to include it.

Mr de Lange summarised that the Committee had agreed upon the wording “whether a matter is within its jurisdiction” It had agreed that, as set out in the latest draft, subclause (b)(i) would be removed, so that the clause read “.. and may decide: (i) constitutional matters (ii) any other matter..” (c) had been changed.

Ms Smuts indicated that she quite liked the suggestion of Judge Cachalia, made on the previous day, to refer to “compelling”, rather than “general” public importance.

Mr Jeffery asked what she saw as the difference between general and compelling.

Ms Smuts said that “compelling” was narrower, and the Chairperson said that “compelling” was much stronger.

Mr Jeffery said that basically the Bill was giving the CC the opportunity to hear any case, but this clause was giving the court grounds for refusing to hear a case.

Mr Swart asked how the original drafts had read. He thought that “compelling” was used as an adjective, but he had thought that the “compelling” test suggested by Judge Cachalia stood on its own.

Mr de Lange said that an earlier draft had contained two options. The USA constitution referred to “compelling”. His earlier draft was worded “a matter of law that is imperative to be decided by the constitutional court”. He thought that the suggestion around the word “compelling” related not to the importance of the issue, but qualified the phrase “ought to be considered by the Court”. The CC would formulate and apply its own test, no matter what wording was used, so whatever adjective was used, the Court would base its consideration on matters that “ought to be considered”. 

Adv Holomisa agreed that “compelling” was stronger than “general” and thought that the importance had to be qualified. Anything in the interest of the public could be seen as compelling.

The Chairperson said that it was essentially that the courts would consider anything that was in the interests of justice.

Mr Jeffery thought that this was not a major issue. The Kenyan Constitutional Court provisions, the most recent ones, and those drawn by experts, referred to “matters of general public importance”.  New Zealand referred to a “matter of general or public importance”, Britain to “general public importance, India to a “substantial question of law”, Australia to “public importance” and Brazil to matters of “general repercussion”. Basically, the CC could decide what it wanted and would set out its own criteria, and he agreed that this was how it should be. However, he suggested that the words “of general public importance” should remain, as this was the qualifying point for refusal to consider a matter.

Ms Schäfer had originally thought that “in the interests of justice” might be apposite, and Adv Trengove had suggested that constitutional matters important to private parties could be considered. She was mulling over the points.
The Chairperson reiterated that the CC could anyway decide on virtually any matter.

Ms Smuts then moved on, to outline proposals for section 168 of the Constitution. The only legitimate reason for limiting the CC’s jurisdiction to constitutional matters only would be to leave a residual category in which the SCA was the highest court in the land. That was currently the scheme of the Constitution. She did not believe that there was, in fact, a distinction between constitutional and other matters, but the history of the country had led to the situation where there were effectively two appeal courts. There was currently a problem because it was left to Parliament to decide on where appeals should lie. If the CC did not have appeal jurisdiction in all matters, then the SCA must have it. She suggested that if the Labour Appeal Court (LAC) and the Competition Appeal Court (CAC) were to be treated separately, then this should be specified. She was not sure that this should be done in the Constitution. Section 168(3), as it was currently proposed, was destructive of the current scheme. She suggested that one solution was to use section 166, which set out the courts, and to decide if appeals lay only to the CC. Some appeals may not fall in the category of constitutional matters or matters of general importance. She believed that the phrase “except where an Act of Parliament decides otherwise” should be deleted. Judge Cachalia had touched on this issue on the previous day.

Mr Swart agreed with the concerns, saying that he too had been worried, from the outset, that there was not consistency in the structure set up in the Constitution, since there had been gradual erosion of the SCA jurisdiction by national legislation. An argument was advanced that there had been a definite intention to create the new appeal courts, but he wondered if sufficient thought had been given, at the time, to whether the SCA jurisdiction should be changed. He fully appreciated the concerns about the complex nature of competitions matters, in particular, and that was why on the previous day he had made the point to the judges that forums such as water and tax courts could be set up by national legislation, which would tamper with the structure of courts set out in the Constitution.

Mr Jeffery said that he thought this was a circular argument. The current route of appeals from CAC or LAC, to the SCA, and then the CC, was untenable, particularly since constitutional and labour issues were invariably urgent. This structure resulted in waste of time and money. The SCA had not had a fine record in either competition or labour matters. It heard only very few, but several of its decisions had been overturned by the CC. The several tiers of courts were a luxury that South Africa could not afford. Judge Nugent indicated that he, personally, would not have problems with the SCA not hearing these matters, whilst Judge Cachalia cautioned that there must be a rational basis for any changes. Judge Cachalia said that the SCA heard matters quite speedily, but the SCA still had to apply its mind to whether it would hear the matters, and this caused delays. If South Africa was serious about economic growth, it had to address this point, particularly for competition matters. It was impossible to set out the hierarchy in the Constitution, because only certain matters could be sent to the SCA, and its jurisdiction in these had to be respected. However, once the CC had a wider jurisdiction, and if a matter was of “general” public importance because the CAC or LAC had made a mistake, the CC should consider the appeals, although the SCA would be the general appeal court.  He did not have a problem with the wording of section 168. Perhaps the Committee should start the process by saying that only the Minister of Justice could introduce legislation affecting the structure of the Courts.

Ms Schäfer agreed that there would have to be a rational basis for changing the system. Judge Cachalia had raised the point that intellectual property matters could be as important for public economics as labour matters. However, labour and competition matters, unlike intellectual property, had existing structures, and the existence of their appeal courts could be a rational basis to make distinctions. There were no experts in some courts to decide the matters. She shared the concerns regarding the unlimited nature of the exclusion referring to an Act of Parliament. She suggested that perhaps section 167(3)(2) could also refer to any other matters from the Labour Appeal Court or Competition Appeal Court, for which an appeal to the Constitutional Court is not provided. Section 168 could include a reference that was not a general exclusion, after “the High Court of South Africa” to ensure that any gaps would be addressed, by saying that certain matters could still be referred to the CC.

Mr Jeffery said that the Constitution did not recognise the LAC or CAC, so they could not be named. Perhaps there could be reference to “any other court that does not provide for an appeal to the SCA”. However, that would oblige the CC to hear the appeals. He suggested that “general public importance” would cover every matter, since the CC would essentially be setting labour law parameters. The LAC would be concerned with the interpretation of the law, not the facts. It might be possible to include the factors that the SCA used to determine when it would hear appeals from the LAC and CAC. He pointed out that if, for instance, new legislation was introduced to say that no water court matter could be referred to the SCA, this would be covered.

Ms Schäfer was concerned that the courts presently in existence excluded the SCA jurisdiction, and she cautioned that wording in this Bill should not allow for exclusion of others.

Mr Swart thought Mr Jeffery’s point could be considered. He was not sure whether to support exclusion of the two courts’ matters, pointing out that Parliament should not tamper with the structures to cater for limited numbers of cases. He reserved his position on this. He fully appreciated the economic implications, and noted the delays in the Walmart case. However, he thought it necessary, as far as possible, to limit the erosion of the SCA jurisdiction.

Mr Jeffery agreed that the Walmart matter involved millions of rands. The SCA test for whether it would hear further appeals from the CAC was that the applicant must show reasonable prospects of success and special circumstances justifying leave to appeal from the CAC.

Mr Swart reiterated that over four years, only four applications for leave to appeal were put to the SCA, and two of these were dismissed.

The Chairperson noted that the concerns were not with the numbers, but the time taken.

Ms Smuts added that the SCA judgments had restricted the functioning of the Competitions Board. The DA was trying to find a way that would result in expediting such cases.

Mr Jeffery said that when the legislature created some courts, it affected others, and this related to the argument of whether there were indeed specialist courts, and whether they should be collapsed.

The intention was good, namely to have the matters decided expeditiously. The special appeals courts were set up so that specialist judges could deal with matters urgently, particularly in labour matters. At the time, no objection was raised to Parliament creating the courts, and there was a check that it should be “Parliament” (and not a committee) who could decide upon the courts. It was desirable, as mentioned earlier, to have the Minister of Justice oversee creation of any courts. He reiterated that this was not a question of Parliament ousting the SCA, but the CC should be able to hear a matter if special circumstances dictated this. Perhaps “special circumstances” should be included. He compared the original wording of the Bill to what appeared at the moment.

The Chairperson said that if this proposal was included, a litigant, after having gone to the LAC, could opt to go straight to the CC.

Mr Jeffery said that the problem with the CAC in particular was that it was in the interests of one litigant to object as long as possible. If the other party was prevented from approaching the SCA, it had to be able to approach the CC to pursue a speedy resolution. The same applied to labour matters, since the labour court might order reinstatement of workers, but the employer could drag the matter out through appealing to the LAC and the SCA, by which time the company may have closed. These abuses had to be restricted. Perhaps it might be necessary to revert to using “the interests of justice”, as in the original Bill.

Mr Swart still did not think this helped the erosion of SCA jurisdiction.

Mr Jeffery answered that the issue that Adv Trengove raised was not erosion of the SCA, but Parliament being able to determine that neither the SCA nor CC could hear a matter.

Mr Swart said it would be included if “national legislation” was used.

Mr Jeffery reiterated that a reversion to “interest of justice” might solve the problem.

Mr Swart said that even a reference to “national interest” could still erode the SCA. The Committee had to deal with the SCA’s position.

The Chairperson said that what was set out in the latest draft was contained in the Constitution. He agreed that if the words “except where an Act of Parliament provides otherwise” were deleted, it could solve the problem.

Mr Jeffery said that the SCA powers would be reduced by wider CC jurisdiction, but the question was whether the CC should hear matters from LAC and CAC. There had been compelling arguments that the SCA hearing these matters was unnecessary, and negative to speedy resolution of matters affecting economic development (in the case of the CAC) or workers’ rights (LAC). Even though the SCA had heard only a few matters, there had been substantial delay. Harm done in the LAC or CAC could equally be corrected in the CC, and on some occasions, the SCA had in any event been corrected in the CC.

The Chairperson asked how to prevent Parliament further eroding the jurisdiction, in other legislation.

Mr Jeffery said that provided this was in the context of the Constitution, it could well happen, but there was a safeguard, as it would have to be agreed upon by the full Parliament. In future, the country may not be able to afford two general appeal courts, but at the moment there was a desire to retain the en banque CC system, which was why the SCA existed. There could be further developments by way of the Superior Courts Act (once passed) or another Constitutional Amendment. Parliament should be able to set up other specialist courts, but it must set out the appeal opportunities. Now, however, the Committee had to be consider whether the current draft was adequate, or whether the courts should be listed, or reference made to “special circumstances for hearing an appeal from a court that does not appeal to the SCA” or to return to the original draft.

Ms Schäfer said that the concerns related not to creating new courts but those that ousted the jurisdiction of the SCA. She thought that there should be an entrenchment so that Parliament could not create other courts that would oust the jurisdiction of the SCA, other than by way of a Constitutional amendment.

Mr Swart pointed out that Judge Mohamed had said that an amendment that went to the heart of the structure may not be considered by the CC to be a constitutional amendment. The CC judges said a preferential appeal might, in itself, be unconstitutional. This had to be considered. It was possible that even if Parliament were to pass a Constitutional amendment, it could be ruled unconstitutional.

Ms Smuts agreed that any Constitutional amendment had to be accepted by the Constitutional Court. Ms Schäfer’s point was worth considering, especially if Parliament was being given the power to “nibble away” at the basic scheme. Essentially, she thought the wording needed to be changed. Everyone was in favour of expediting competition and labour appeals, but this had to be done without harming the structure of the courts.

Mr Jeffery commented that the Bill had been in the public arena for some time, and only Judge Cachalia had raised the points about the possible unconstitutionality.

Ms Smuts countered that it was precisely when matters reached the final stages that people would start applying their minds to the issues, so she was not particularly concerned about matters being raised at a late stage. This was a good process.

Mr Jeffery summarised that the issues were basically to consider how to avoid erosion of the SCA jurisdiction when specialist courts were developed, how to widen the CC’s powers as the apex court, to hear any matter where substantial injustice could otherwise occur, and consideration around the reference to an Act of Parliament. Another possibility (with which Ms Smuts disagreed) was to incorporate a reference to the LAC and CAC into the Constitution.

The Chairperson said serious consideration had to be given amending the Constitution to provide that only the Minister of Justice could introduce any legislation dealing with the courts.

Prevention and Combating of Torture Bill
Mr Jeffery said that the Bill had been passed, but although the version adopted by the Committee had read “Parliament of the Republic of South Africa enacts..” the printed version now read “Be it therefore enacted by the Parliament”.  He noted that the matter had been taken up with Mr Neil Bell, but wanted to draw attention to this point.

The Chairperson said that whilst this may seem a small issue, nobody should be altering what the Committee had agreed to. He said that the reasons for this should be requested.

Mr Jeffery agreed that the error must, at the least, be pointed out. He was not sure whether the House would have to amend it, and he would check with the Table on this point.

Deputy Public Protector interviews
Ms Christine Silkstone, Content Advisor, said that the researchers had looked through the applications and although Mr Vhonani Ramaano, Committee Secretary, was checking up on some points, the applications seemed to comply with the eligibility requirements. 

The Chairperson noted the agreement of Members to hold interviews for all five candidates on Monday 19 November, at 10:00.

The meeting was adjourned.

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