Superior Courts Bill: Preliminary briefing by Department of Justice

Meeting report

The Chairperson announced that the Committee would have to defer the agenda item for deliberation on magistrates' remuneration to the following day, because of shortage of time.

Superior Courts Bill: Department of Justice and Constitutional Development preliminary briefing
Mr Johan de Lange, Principal State Law Advisor, Department of Justice and Constitutional Development, explained that the Superior Courts Bill (the SC Bill) and Constitution 17^th Amendment Bill (now an Act) had been introduced as a "package". They had taken quite some time to process, because there were various time-consuming amendments proposed. The SC Bill aimed to rationalise, consolidate and amend the laws relating to the Constitutional Court, Supreme Court of Appeal and High Courts into a single piece of legislation. The various high courts that had existed would become a single High Court with divisions. The SC Bill also aimed to establish an integrated system of court governance, with the Chief Justice (CJ) as Head of the judiciary. The Bill was fully aligned with the Constitution 17^th Amendment Bill (now an Act) and gave effect to the court rationalisation set out in the Constitution.

Mr de Lange firstly summarised some important revisions effected by the Constitution 17^th Amendment Act. Section 165(5) of the Constitution said that the CJ was to be the head of the judiciary and would exercise responsibility for the establishment, and monitoring of, norms and standards, as also the judicial functions of all courts. He explained that this was an important point as it was the first time that the CJ was granted such authority. However, he hastened to add that this was not unfettered power being given to an individual as the SC Bill set out clearly that all of this must be done "in consultation" with the rest of the judiciary.

Section 167 of the Constitution now stated that the Constitutional Court would be the apex court. However, section 168 contained some consequential amendments to deal with the matters that would or would not be referred to the Supreme Court of Appeal.

Section 169 established a single high court of South Africa. At one stage there had been a single Supreme Court with various divisions, and this was replaced by various High Courts (in the interim Constitution). The system would now revert to having a High Court, with divisions in all provinces.

Section 175 of the Constitution now made provision for the appointment of an Acting Deputy Chief Justice. If the CJ was not available to perform functions as set out in the SC Bill, the Deputy Chief Justice would automatically do so. However, if this person was not available, then it was necessary to provide for appointment of an Acting Deputy Chief Justice.

Mr de Lange then moved on to set out, very briefly, some of the provisions of the SC Bill. He said that this was only a preliminary and broad presentation, and it set out the framework, rather than going into much detail.

The SC Bill comprised of a Preamble, linked to constitutional imperatives, and nine chapters containing 56 clauses, and a schedule.

Mr de Lange stressed that a large part of the SC Bill was essentially re-writing what was already contained in other various pieces of legislation, such as the Supreme Court Act and the Constitutional Court Complementary Act, putting the information into one consolidated Bill, and the various other pieces of legislation would then be repealed. He drew Members' attention to Schedule 1, which really served to emphasise why this consolidated legislation was needed, since some of the acts to be repealed dated back as far as 1959, whilst others were enactments of the former TBVC states, and some of the existing high courts were still functioning under these outdated acts.

Mr de Lange noted that shortage of time meant that he would only briefly touch upon the remainder of the slide presentation. Anyone wanting to introduce new courts (such as a Labour Court) would firstly be required to consult with the Minister of Justice. Chapter 2 dealt with the Constitutional Court, Supreme Court of Appeal and High Court of South Africa, and he noted that clause 4(2) set out that the Deputy Chief Justice would always act in the absence of the Chief Justice. The Deputy President of the Supreme Court of Appeal would act in the absence of the President of this Court. Circuit courts were also covered in this chapter, with the provisions essentially lifted from the 1959 legislation.

Clause 6 set out that the High Court was to consist of a number of divisions, more fully described in the attached presentation. Clause 50 contained the transitional arrangements as to how the existing high courts would become the courts referred to in clause 6. Some, like those in Bisho, would become local divisions of the court in the province.

Chapter 3 dealt with governance and administration. Clause 8 was linked with the reference to the CJ being able to establish norms and standards. He briefly summarised the content of clause 8 and emphasised that the authority of the CJ included making written protocols or directives for functioning of the courts. The CJ could delegate to another officer. Management of the judicial functions of each court would vest with the head of that court, and the Judge President of a division would be directly involved in the lower courts within that jurisdiction. Any protocol would have to enjoy the majority support of the heads of the courts, and must be published in the Government Gazette. This emphasised the point that everything of consequence must be done with the agreement of those that would be affected by the decision - so that in the case of the superior courts, it would be the head of the court affected. They would have to agree, for instance, on norms and standards being issued. Other functions described in this chapter included determinations on the sitting of the court, assignment of judicial officers to sittings, determination of places and management of procedures to be adhered to, finalisation of matters, outstanding judgments, and recesses.

The provisions in Chapter 4 again reflected existing legislation, as they dealt with the manner of arriving at decisions by the Constitutional Court, the Supreme Court of Appeal and the divisions.

Chapter 5 related to orders of constitutional invalidity, appeals and settlement of conflicting decisions. Mr de Lange said that once again, there was essentially nothing new in clauses 15 to 20. The Minister of Justice had the power to make a decision to refer a case to the Supreme Court of Appeal or the Constitutional Court, in cases where there had been conflicts in decisions between divisions. 

Chapter 6 set out the provisions applicable to the High Court only, which mirrored existing legislation.

Chapter 7 dealt with the Rules of the Constitutional Court, Supreme Court of Appeal and High Court. The National Assembly, when deliberating on this Bill, had made one change to the Rules Board for the Courts of Law Act, specifying that the CJ would be, ex officio, the Chairperson of the Rules Board. However, Mr de Lange noted that the Rules of Court were still at an interim stage as the final work had not yet been legislated upon, and the Department of Justice would keep the Committee informed.

Chapter 8 set out the general provisions applicable to all courts, and he briefly summarised the content as seen by the headings. He briefly explained what a commission rogatoire was. If a court in Canada, for instance, wanted a South African court to assist it, it could, through the respective departments dealing with foreign affairs, ask for the second court's assistance, whereafter the matter would be dealt with in South Africa and referred back to the Canadian court.

Mr de Lange also noted that clause 47 said that there could not be issuing of summons or subpoena in civil proceedings against a judge. He also stressed that another important point was that an Acting Judge appointment would, in the superior courts, remain valid to finalisation of that case, including appeals, even if the time of the initial appointment had expired.

Mr de Lange told Members that the Minister was permitted to make regulations, but on the recommendation of the CJ.

Chapter 9 set out the transitional provisions. The rules that were already in place immediately before the passing of the Bill into an Act would remain in place. Pending proceedings would also be kept alive. If there were references in any other law to the previous names of any courts, they would be deemed to be references to the new relevant courts as set out in this Bill.

Mr de Lange then noted that the Office of the Chief Justice had been established. Clause 54(1) said that the Minister must ensure that there were financial budget and accountability provisions similar to those prescribed for departments of the state. The Secretary General would be the administrative head of the Office of the Chief Justice and would be the Accounting Officer, with responsibility for the financial and other records. This was also a major shift in responsibility, as previously this function resided with the Director General of the Department of Justice and Constitutional Development.

The Chairperson thanked Mr de Lange. He said that Members should not engage with the presentation at this time, but should go through the document in more detail, noting issues that they would like to discuss for the next meeting.

The meeting was adjourned.