Constitution Seventeenth Amendment Bill: Adoption, Superior Courts Bill Version of 14 November

Meeting report

Constitution 17^th Amendment Bill
Mr Johan De Lange, Principal State Law Advisor, Department of Justice and Constitutional Development, tabled a document dated 15 November, that set out some options for the clauses of the Constitutional 17^th Amendment Bill (the Bill) that required a final decision by the Committee.

In relation to the proposals on section 166, he explained that when the Bill was introduced, it referred to “high courts, including any high court of appeal”. When the Constitution was framed, it was anticipated that an intermediary court of appeal might be established, so this section was worded to deal with the old Supreme Court, the Supreme Courts in the provinces and in the former homelands. The new amendment now omitted the wording that had since become irrelevant, since the intermediary court was no longer anticipated, to refer simply to “high courts”.

He said that Mr Jeffery had raised a query whether this could include the Labour Appeal Court (LAC). However, he had provided “option 1” in case something might be lost. Whilst he did not think that this wording was strictly necessary, it could not be harmful. It would cater for the possibility of other courts with a status similar to a High Court.

Mr J Jeffery (ANC) was concerned about subclause (e), which referred to “any other court, including..”. However, he could see that the Labour Appeal Court and Competition Appeal Court (CAC) may fall under (e), as they were of similar status to the High Court. The Labour Appeal Court could also be established under (c), as the Labour Court had a similar status to the High Court. He thought that (c) was clearer, because the LAC was a “court of appeal”. The point had been raised whether the Labour Appeal Court was included in the Constitution at the moment.

Ms M Smuts (DA) said that strictly speaking, section 166 might have to be re-written, with new sections to describe the LAC and CAC, as it basically set out the structure, but this was not the time to do so. She would be in favour of retaining the original wording. She agreed that the Labour Appeal Court did take appeals.

Mr de Lange said that it fell under (e), because those listed in (c) heard appeals from High Courts.

Mr Jeffery realised that this was why Mr de Lange had changed the wording of (e). The Magistrate’s Courts had been in the Constitution from the start, whilst the Labour and Competition Appeal Courts were not mentioned in the Constitution. There were also other courts, such as the tax and water courts, that were not mentioned. He was pleased that the Members wanted the structure to remain as it was. He would prefer to use the option for amending (c).

Ms Smuts said that if the Committee could not satisfactorily concluded the section 168(3) issue, it could, when introducing the Committee Bill to change section 76(3) of the Constitution  (which would ensure that only the Minister of Justice could introduce legislation involving courts), it might be possible to deal with it at that time.

Adv S Holomisa (ANC) pointed out that when (e) was put in the Constitution, it was done in anticipation of some new courts being established. He wondered why the courts were not being stated specifically. He believed that (e) should be retained, to cover any other court that needed to be established. The LAC was not listed.

Mr Jeffery said that these other courts were all creatures of statute, not the Constitution, and if they were to be mentioned in the Constitution, they would have to be defined. It was not possible to define something in the Constitution in terms of ordinary legislation. He urged that the Committee should rather use the proposed optional amendment to (c).

Ms Smuts agreed with the point about the courts being created by statutes, but still thought it would have been preferable to spell out the courts.

Mr de Lange said that the Constitution was capturing the mainstream courts. Other courts with similar status to the High Court would include the Land Claims Court, LAC and CAC, but one of the qualifications for judges there was that they must already be judges of the High Court, as there were no independent judges. Another problem was that the Land Claims Court was never envisaged to be a permanent court, as it would cease to exist at some point. He had no doubt that the framers of the Constitution would have had the same debate.

The Chairperson asked for a list of the specialist courts.

Mr de Lange said that they were listed: as the Electoral Court, the Land Claims Court, the LAC and CAC. The reasons that they were removed from the Superior Courts Bill was that it was not viable, particularly for the Electoral Court, to give it the status of a fully-fledged High Court as it sat for only certain periods every five years.

Discussions on Section 168
Mr de Lange the moved on to discuss the four options for section 168(3). The first (referred to as Option 1 Cheadle) was drafted by Mr Halton Cheadle, and referred to “labour or competition matters”. He quipped that a competition in the World Cup could not be taken to this court. He explained that because some areas of competition matters lay in the domain of the Supreme Court of Appeal (SCA) it was not possible to say that no appeals would lie there.

Options 2 and 3 set out other alternatives for appeals in labour or competition matters. His personal preference was option 4, which set out two exceptions.

Ms D Schäfer (DA) was concerned whether Option 4 might not pose problems in interpretation, if the words “to such extent” applied to only (i), but not to (ii).

Mr de Lange said he was satisfied that the wording would refer to an Act of Parliament established at any time.

Ms Schäfer said this was her concern.

Mr de Lange said it was possible that another court might be established, but it would have to deal with labour or competition laws.

Ms Smuts said that at the time of the American Soda Ash competition case, the Competition legislation already said that appeals should go to the SCA. Judge Dennis Davis had suggested that this was because the drafters of that legislation had simply forgotten section 168 of the Constitution. She asked why the American Soda Ash company had managed to argue that the SCA could not be excluded, and what would be matters beyond its jurisdiction.

Mr de Lange said that the first part of section 62 of the relevant legislation contained wording to the effect that the CAC had exclusive, final jurisdiction in respect of matters emanating from the Tribunal but subsection set out those matters in which there was not an exclusion from the SCA. The case had been based on those grounds.

Mr Jeffery said the problems with option 2 and 3 was that they assumed that once a LAC and CAC were in existence, they dealt with all matters, and this was not correct. There was a need to keep the existing systems. He agreed that the preferable options were 1 and 4. It was essentially recognised that in the event of a dispute, the Constitutional Court (CC) would decide whether it had the jurisdiction to deal with the case on the basis of the definitions. Although labour and competition appeals were not finally defined, the CC would be making those definitions. Including the words “such extent as may be determined by an Act of Parliament” solved the problem, because that Act would attend to the definition. The two options contained the same content, but differed in style. Option 4 set out the matters in sub-paragraphs. Option 1 referred to “labour or competition matters”, with a full stop after that, and Option 4 to “labour or competition laws”.

Ms Smuts asked if there was any difficulty with allowing Parliament to oust a portion of the jurisdiction of the SCA.

Mr de Lange said that there was not, if the Constitution empowered this. Whilst he thought option 4 gave a clearer indication of what the drafters had in mind, he had no problem with option 1.

Ms C Pilane-Majake (ANC) thought that option 4 was too complex in wording.

She noted the earlier comments made in relation to section 166 and wondered if the courts should not be defined.

Mr S Swart (ACDP) said that this draft went some way to address his concerns around the gradual erosion of the SCA power. However he wanted to reserve his rights to consider it further. On the face of it, he thought that option 1 read more easily.

Ms Smuts said the response of Adv Wim Trengove had been opposed to the original draft on the basis that it was immunising labour and competition matters from the jurisdiction of the SCA. This new definition “softened” the wording by adding “to such extent as may be determined by an Act of Parliament”.

The Chairperson noted that the majority of Members preferred option 1.

The Chairperson said that if section 168 revisions were adopted, a matter might be referred to the Constitutional Court, who could decide that it did not wish to hear a matter and might refer it back to the SCA.

Mr Jeffery said that if the SCA did not have jurisdiction, this could not happen.

Mr Swart said that if the matter fell within the exclusionary part, the SCA might be able to hear it, so he agreed that there was a slight possibility of this happening.

Ms L Adams (COPE) said that in practice this would not happen, as it was highly unlikely for any court to say that the CC was wrong in deciding to hear a matter.

Ms Schäfer agreed that this wording covered the gap between matters specified in the relevant legislation, and those not.

Clause 167
Mr de Lange indicated that there were two options. The one in the longer document was drafted by Mr Herman Smuts, Principal State Law Advisor, Office of Chief State Law Advisor, and the other, on the one-page document, had been drafted in response to some queries raised by Ms M Smuts. They both referred to section 167(3)(b)(ii).

The second option, (on the one-page document) contained, firstly, a cross reference to other sections. It added a new test “on the grounds that it is compelling, for the development and application of the labour or the competition law, that the matter be decided by the Constitutional Court”. Sub-paragraph (iii) remained the same.

Ms Smuts summarised that the CC would therefore deal with (a) constitutional matters (b) any other matters where the CC granted leave to appeal on the grounds that a matter raised arguable points of public importance. The question was what would happen if labour or constitutional matters were referred to the CC, that were neither addressing constitutional issues, or were raising matters of public importance. She also wondered why subparagraph (ii) appeared in its current place, as she felt it would have been more appropriate to number it as (iii). She was not convinced that the jurisdiction should be to state clearly that some matters should go to the SCA, and those that were of constitutional or public import must go to the CC. She felt that this had gone some way to fill in the gap that had caused concern to Members. However, now that section 166 had been amended, by adopting option 1, she wondered if it was possible even to do without this wording.

Her second question was that, if the SCA jurisdiction was excluded, except for matters set out in the statute, and the case did not meet that requirement, then the CAC would be the final court. That was what the legislature had sought to achieve. She appreciated the effort put into both options presented for this section, but wondered if either was needed, because section 166 had now dealt with the matter.

Mr de Lange said that he and Mr Smuts agreed that subparagraph (ii) was not in fact necessary any more. He reiterated that nobody would tell the CC that a matter was not in its jurisdiction.

Mr Jeffery said that senior counsel had expressed a view that subparagraph (iii) would already allow the CC to consider anything, by including the term “general public importance”. In a case where there was injustice, then a labour or competition matter could be referred to the CC. The idea was not to have an automatic right of appeal from CAC to CC, but only referral of exceptional cases. The CC had to have some basis for refusing leave to appeal.

Mr Swart agreed that (ii) was no longer necessary. If the CC wanted to hear a matter, it would say that it was an arguable point of law of general public importance.

The Chairperson noted the agreement of all Members that the proposed section 167(3)(b)(ii) would be excluded.

Mr Jeffery said that what was set out in part (c) of the clause 3 was intended for what the SCA had referred to as the “sea lawyers” (unqualified people in correctional centres who drew up petitions for others). The CC was indeed the final court and no other court was empowered to say that it was wrong, although critics may comment and hold different views. This was stating the obvious, but it was wording that was essentially directed at the public.

Ms Smuts asked for comment on the revisions to section 167(6), relating to direct approaches to the Court. The judges of the CC had doubted it was justifiable. She was the person who had originally raised some points on this, but she thought, on reconsideration, that the CC judges were right and would not pursue her points. She suggested that the wording remain in its original form, without insertion of the word “constitutional”.

Mr de Lange said that the CC would always have a constitutional jurisdiction, but in any event it would be up to the CC to decide what it would take.

Ms Schäfer wondered if wording such as “bring any matter within its jurisdiction directly to the CC” might be better.

Mr Jeffery suggested that wording of “to bring a matter directly to the CC” could be used.

The Chairperson thought that neither was necessary, because the new section 167(3)(c) covered it.

Ms Smuts read out the existing wording of the Constitution and suggested that it should remain. The whole of the portion of that clause in the Bill, which had sought to change (6) must fall away.

Mr Jeffery returned to the discussions on the courts, and said he felt very strongly that the courts should not be listed. He wondered what needed to be done about the Land Claims Courts. There could be other courts created, and this would make it difficult for some to be listed. All those that Mr de Lange had read out were in any event covered under the five subsections of section 166. Provisional Courts were covered in another chapter.

Mr de Lange reported back briefly on the NCOP decisions on this Bill, and said that the issues they wanted to raise would be aired in the debate. They had a lot to say about the Acting Appointment of the Deputy Chief Justice, and around the apex court, because Gauteng had raised some reservations on this. They also queried the value of this debate to the NA processes. Mr de Lange had assured the Select Committee that the NA would take into account the sentiments expressed.

Members then proceeded to vote on the Bill, using the version dated 14 November, the options (dated 15 November) and the single page option. Mr de Lange explained that because this was an amending Bill it was confusing to use square brackets and the “track changes” computer function had been used.

Mr Jeffery asked for clarity from other Members on whether they wished to use the words “general public importance” or “compelling public importance”.  They agreed that “general” was preferable.

The voting was as follows:

Long Title
Members agreed to this

Clause 1
Members agreed to this clause

Clause 3: Amendments to section 167
Mr Jeffery summarised that the Members were agreeing to what was set out in the document dated 15 November, under Option 1, and the version of subclause (e) that was contained in, the document of 14 November, and agreed to on that date.

Working from the single-page option for clause 3, Members agreed to that wording, without (ii), which was altogether excluded.

Clause 3(b) on that page correctly reflected what Members had agreed upon

Clause 3(c) on that page was rejected (amendments to subsection (6).

Mr Swart noted that he was reserving his position on this clause.

Ms Adams noted that COPE would note an objection to the Bill, later.

Clause 4: Amendment of Section 168
Mr Jeffery summarised that Members agreed to Option 1 for this section, as set out on the document dated 15 November.

Clause 5: substitution Section 169
Members agreed to this substitution.

Clause 6: Substitution of Section 170
Mr de Lange briefly drew attention to the fact that since there was no option included in this version to change “Magistrate’s Court” to “lower court”, the wording of clause 6 appearing after “all courts” and up to “lower than” was, strictly speaking, not necessary. However, that was better than the original version, which had referred to “all other courts”. This was a clearer way of setting it out, as it referred to sections 167, 168 and 169.

Members agreed to this clause.

Clause 7: Amendment of Section 172
Members agreed to this clause

Clause 8: Substitution of Section 173
Members agreed to this clause, noting that it referred to the High Court.

Clause 9: Substitution of section 175 of the Constitution
Ms Smuts said that this was a formulation to ensure that the Judge President was appointed from the ranks of sitting Constitutional Court judges.

Ms Schäfer asked if there was a time limit, and whether it was notionally possible that an acting Judge might be able to act for a substantial period.

Mr de Lange noted that this was specified as happening in the event of a vacancy or absence, but there was no change to the original principle.

 Members agreed to the clause

Clause 10: Amendment of Section 178
Members agreed to this clause.
 
Ms Smuts questioned the numbering of the Bill.

Mr de Lange noted that it was certified and introduced as the 17^th Amendment Bill, although there was some confusion because the 16^th Amendment Bill had been withdrawn. However, the certified version had been changed to reflect the current heading.

The Chairperson put the whole Bill, as amended, to the Committee for a vote.

Mr Swart indicated that his party (ACDP) was abstaining.

Ms Adams noted that COPE was voting against the Bill. The reasons behind this were quite complex and she did not want to open up debate now. Whilst clauses, other than the amendments to sections 167 and 168, found favour with COPE, it was unable to vote on those alone, but believed that sections 167 and 168 should not be tampered with, and the jurisdiction of the CC should remain as it was, without being extended.

The majority of Members voted in favour of the Bill.

Adoption of Committee Report on the Bill
The Chairperson noted that the second line of paragraph 4 should read “Minister responsible for justice”.

Members agreed to delete the phrase “and issues connected with decisions on constitutional matters” from paragraph 3, whilst the latter part of the sentence would be changed to read “ “arguable points of law of general public importance”. 

Ms Adams believed the Report covered the main issues. She wondered if anything should be said about the appointment of the Acting Deputy Chief Justice, as other issues were more technical.

Mr Jeffery disagreed, since the Memorandum would summarise the issues, and the intention of this Report was to deal with matters considered important to the Committee.

Mr S Holomisa (ANC) questioned why two lines following each other read “.. reports the Bill as follows: The Committee wished to report further”. 

Mr Jeffery said that the words “reports the Bill as follows” should be deleted, reference to “with amendments” must be inserted, and then “The Committee wished to report further” should appear.

Members adopted the Report, as amended.

Superior Courts Amendment Bill
Members held a brief discussion whether it was necessary to deal with this matter now, or whether a quorum could be obtained on the following day. They decided to continue going through the amendments to the Bill.

Mr Jeffery found the document very difficult to read. The draft of 8 November contained underlining. Another document was entitled “Parliament Portfolio Committee Amendments to Superior Courts Bill”. He wanted to get the latest version of 8 November, from which the Committee would be working. He asked that the Departmental officials take the Committee quickly through the changes, but the Committee would not be voting on them today.

Mr de Lange said that he would work from the document dated 8 November. Where there was a comment, this appeared in the margin, on the right-hand side. For example, on page 2, it was noted that the “whereas” had been changed on 8 November.

In clause 1, the definitions clause, there was a change of date.

On page 10, there were no changes, but there was still an outstanding issue relating to clause 12, as the Committee had not decided if it would be omitted.

Ms Smuts said that this was incorrect. She was surprised that 12 November draft referred to a majority of two judges, since the Committee had not agreed to this.

Mr De Lange agreed and reminded her he was reading from the draft of 8 November. Clause 12(1)(b) would be deleted.

He noted that Latin terms had been added back in.

Mr Swart referred to the footnote on page 18. This was not a matter that the Committee could deal with. It was a contentious and controversial issue and it was disputed by the Court. It related to abandoning judgments and rescissions, with the consent of the judgment creditor. He suggested that this issue could be taken further in the NCOP.

Ms Schäfer asked why it was a contentious matter.

Mr de Lange said that there was no court decision on this. The judges wanted the provision in the Magistrate’s Court Act to be replicated in the Bill, because they had not been in favour of the amendments previously affecting this principle. It was indeed a matter needing further clarification.

Mr Jeffery questioned the footnotes on page 17 of the version dated 7 November.

Mr de Lange said that this did not affect the wording.

Mr de Lange said that page 19 captured new wording for clause 29(2), and said that the Minister must table every rule, and every amendment or repeal in Parliament for approval at least 30 days before the publication of that rule.

He reminded Members that they had opted to follow the shorter version of clause 45.

He noted that on page 29, clause 54 now set out that the Minister must consider and address requests. This was in line with the request that Mr JB Skosana had made.

Mr de Lange then turned to the Schedule. They had previously been asked by the Committee to give careful consideration to whether the legislation relating to the former TBVC states could be repealed. He and Mr Smuts had concluded that it would not be appropriate to repeal these laws altogether. Although both of them believed that some of the provisions mentioned had been superceded by the Constitution, some did relate to traditional courts. From a strict legal viewpoint, these provisions may no longer be valid. However, if they were repealed altogether in this Bill it might influence the tagging of the Bill and require consultation with the House of Traditional Leaders.

Therefore, in the A list, in item 5 of Schedule 1, he noted that the deletions would relate to the Chapter establishing the Bophuthatswana Supreme Court. Sections 59 up to 67 would be repealed. The other sections mentioned would be removed, as they were not to be repealed.

In item 6, the words “and section 72” would be removed, as this section was to remain in force.

Mr Holomisa said that clause 50 referred to towns, but he thought that some of the places had new names.

The Chairperson asked to be reminded of the discussions.

Mr Jeffery said that it was raised in the ANC Caucus. The same comment also related to the names of the seat of the Courts. Although municipalities had adopted the new names, the place names of towns had to be amended by the Minister of Arts and Culture. So, for instance, the municipality was known as Makhana, but the town was still called Grahamstown, until the legal process was completed. Pretoria was another town subject to a legal dispute. Changes such as ‘Mahikeng” and “Polokwane” had already been gazetted.

Mr Holomisa said that the general public did not understand this.

Mr Jeffery agreed and said that perhaps the Committee Report, and the debate in the House, could address this point.

Mr de Lange added that the Renaming of High Courts Act applied to the courts, and they must still be reflected as listed in that Act.

Ms S Shope-Sithole (ANC) sought an explanation for clause 54(2)

Ms Smuts explained that this wording was used because the Office of the Chief Justice was being created as a new branch.

Ms Sithole said the Secretary General would be the Accounting Officer. However, she questioned who would be the Accounting Authority, as noted in the Public Finance Management Act (PFMA). She thought that the Accounting Authority was essentially the political head. The caucus meeting had been clear that a judge could not be held liable. It was clear that, in respect of the Department of Justice, the Minister was the Accounting Authority.

Ms Adams thought that the answer lay in the words “subject to”. It was not possible for this Committee to change the PFMA.

Mr Herman Smuts referred to sections 36 and 49 of the PFMA. Every Department and Constitutional institution must have an accounting officer. However, the Chapter dealing with public entities referred to the “authority, who is accountable”.  The term “accounting authority” related to public entities, not to departments. He had discussed this with Adv van Schoor, who confirmed that only one accounting body could exist. In the case of a public entity it would be one identifiable person who was held accountable.

Ms Sithole said that she was not sure that this was correct. She asked that the drafters should research the matters and report back.

Mr Jeffery suggested that National Treasury be consulted. This was a financial matter, and it was desirable to have consistency. He suggested that clause 54 be sent to the National Treasury legal advisors, with a request that they comment on the text.

Ms Sithole requested that they should respond in writing.

The Chairperson noted that public entities were listed in the PFMA schedule The Office of the Chief Justice was not listed.

The meeting was adjourned.