Constitution of SA Amendment Bill & Promotion of National Unity & Reconciliation Amendment Bill: briefing

NCOP Security and Justice

17 September 2003
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Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
17 September 2003
CONSTITUTION OF SOUTH AFRICA AMENDMENT BILL & PROMOTION OF NATIONAL UNITY AND RECONCILIATION AMENDMENT BILL: BRIEFING

Chairperson:
Mr M L Mokoena (ANC)

Relevant documents
Superior Courts Bill [B52-2003]
Constitution of South Africa Amendment Bill [B60-2003]
Promotion of National Unity and Reconciliation Amendment Bill [B34-2003]
Portfolio Committee Amendments to National Unity and Reconciliation Amendment Bill

SUMMARY
The Canadian High Commission delegate briefed the Committee on its expectations for the planned visit to Canada in October 2003. The Committee was informed that the Reconciliation Amendment Bill provided for reparations from the Truth and Reconciliation Commission process, to be made to communities as well, and not only to individual victims of human rights violations. The Bill allowed the Minister of Justice to appoint an amnesty committee to reconsider only those matters which had already been considered by the Amnesty Committee, but which a court of law had decided was not properly decided. It also allowed the Minister to correct technical and administrative errors in the Truth and Reconciliation Commission Final Report, but it did not allow the Minister to alter the content of the Final Report.

The Constitution Amendment Bill sought to revert to the single unitary High Court of South Africa structure, and also aimed to merge the current Labour Court and Labour Appeal Court with the mainstream court structure. During the discussion Members asked whether judges currently serving on the Labour Appeal Court and Labour Appeal Court circuit would be incorporated into the mainstream court structure, whether the Supreme Court of Appeal would now consist of two separate divisions and whether the continued status of the former TVBC state courts would be dealt with in the Superior Courts Bill.

MINUTES
Introduction by Chairperson
The Chair informed Members that the delegate from the Canadian High Commission would address the Committee on its expectations for the visit to Canada in October 2003.

Office of the Canadian High Commissioner
Mr Nicholas Coghlan, a delegate from the Canadian High Commission, informed Members that Canada was currently between High Commissions at the moment. The new High Commissioner would be arriving in South Africa in two or three weeks time.

Mr L Lever (DA) [North West] stated that he had been informed that Canada had a very advanced legal system, especially its reformative justice programmes. This Committee would thus be interested to see how that would be organised in relation to the criminal justice system as a whole.

Mr B Mkhaliphi (ANC) [Mpumalanga] stated that it would also be interesting to see how Canada co-ordinated between its three law enforcement agencies. He asked whether those three operated in a cluster format as was the case in South Africa, and stated that it would be beneficial for Members to find out how the Canadian government deals with juvenile offenders.

The Chair stated that Canada's programmes for the rehabilitation of offenders were very good, and its recidivism rate was very low. The Committee would look into this during the visit because recidivism was very high in South Africa, and even deliberate in some cases.

Mr Johan de Lange, Legal Drafter: Department of Justice and Constitutional Development, stated that it would be interesting to see the link between Canada's provinces and its national government, and how that link would be reflected in the setup of the judicial system.

Mr Coghlan stated that these inputs were very helpful. He stated that the Committee Secretary also mentioned that the Committee would be interested in Canada's restorative justice programmes, especially those applied amongst its aboriginal communities. Canadian constitutional norms permitted the use of traditional forms of justice and restitution, or what were commonly be referred to as "healing circles".

He stated that this Committee's first point of contact when it would begin its visit would probably be corresponding with Parliamentary Committee. The closest match would be the Standing Committee on Justice and Human Rights in the House of Commons. Mr Coghlan stated that he would leave a list of its Members, the work it was currently engaged in and the scope of its mandate with the Committee Secretary for Members convenience.

Mr Coghlan suggested that this Committee's primary interlocutor would be an agency called Correctional Services Canada (CSC), which in turn belonged to the Ministry of the Solicitor General. The Ministry of the Solicitor General included the Royal Canadian Mountain Police (RCMP), CSC and one or two other security agencies. The Canadian Department of Justice also fell beneath the Ministry of the Solicitor General, but was separate from that Ministry. The Canadian Department of Justice would probably also be of some interest to Members.

All the Canadian agencies' headquarters were located in Ottawa. He stated that the country was vast, and the principal correctional facilities were found in Kingston on Lake Ontario. The Committee should thus probably remain in Ontario. It would also be useful for Members to visit the Indian Reserves to find out about the aboriginal restorative justice programmes, and the division of powers between those communities and the local authorities.

Mr Coghlan stated that Canada was a highly decentralised country and its ten provinces had relatively very considerable powers, more powers than the South African provinces. The federal government was responsible for defense and foreign policy, and would only set minimum guidelines for the national government on matters relating to health and education policy. He stated that there were really two traditions of justice in Canada. The French-speaking province of Quebec was based on the Napoleonic Code, whereas the rest of Canada was based on the British Westminster style of justice. The manner in which these were conciliated was quite interesting. These systems were usually effective, but occasionally matters were taken all the way to the Canadian Supreme Court.

Mr Coghlan cautioned Members to prepare themselves for the below freezing temperature during their visit. He stated that he would leave selected documentation on Canada and its legal system with the Committee Secretary for Members' convenience.

Constitution of South Africa Amendment Bill
Mr de Lange informed Members that this Bill was totally dependent on the decisions taken in respect of the Superior Courts Bill, which was presently being deliberated on by the Justice Portfolio Committee. The current court structure would be changed by the Superior Courts Bill because the Constitution provided the structure in such detail.

Single versus fragmented high court structure
When the Interim Constitution Act 200 of 1993 was drafted it had to make provision for the transition of the justice system into the new constitutional dispensation. Prior to 1993 the superior courts structure consisted of a single Supreme Court of South Africa, which consisted of an Appellate Division and various Provincial and Local Divisions. The Interim Constitution carried over this structure, but the Constitutional Court was introduced. It operated outside the Supreme Court structure. The Interim Constitution also converted the divisions of the former TBVC States into part of the Supreme Court of South Africa, with the status of provincial or local divisions within that Supreme Court.

The 1996 Constitution made quite a distinct difference. It retained the separate Constitutional Court introduced by the 1993 Constitution, and this had thus remained. The 1996 severed the Appellate Division from the Supreme Court of South Africa and created the Supreme Court of Appeal, as a loose-standing unit which was the final court of appeal in all matters except constitutional matters. The more far-reaching alteration was that the 1996 Constitution abolished the old single, unitary Supreme Court South Africa which consisted of the various Provincial and Local Divisions. It converted every single supreme court that existed, whether a local or provincial division, into a high court. Mr de Lange stated that the present situation was thus that South Africa did not have provincial or local divisions, but it merely had high courts scattered all over the country.

This gave rise to some problems. A strong school of thought questioned whether the intention behind the 1996 Constitution was really to cause this fragmentation of the court structure into several high courts. They argued that the abolition of the unitary Supreme Court of South Africa was really an unintended consequential as a result of the redrafting into plain language of the 1996 Constitution. An indication of this could be found in the Constitution itself which referred to the high court in the singular each and every time, as is the case in Section 166.

This was carried throughout the Constitution, with one exception: Section 178(1)(k), which dealt with the Judicial Services Commission (JSC), specifically refers to "a provincial or local division of the High Court". Mr de Lange stated that much discussion had taken place on whether South Africa should not return to a single unitary High Court of South Africa again. There were advantages to reverting to a single High Court. For example, under the previous unitary structure attorneys and advocates were admitted to the Supreme Court of South Africa. Yet it was not certain whether they were admitted to the Cape Town High Court or any other High Court within the Republic under the modern splintered structure. Even if they were admitted to the Cape Town High Court, it was not certain whether this would mean that they had the right of appearance in any other High Court in the Republic. This was regulated by the Right of Appearance Act, but even that Act was drafted in terms of the Interim Constitution and did not therefore take cognisance of the modern severed structure.

A second complication was the uncertainty regarding the transfer of a judge from one provincial division to another. It was not clear whether that person would have to go through the entire JSC process again, including being re-interviewed simply to be appointed at the new provincial court. Mr de Lange stated that if a unitary High Court structure were to be reverted to, such a judge would be a judge of the High Court anywhere in the Republic, irrespective of the physical seat of the specific court.

The Minister then established a Steering Committee tasked with looking into the rationalisation of the High Courts, because this had never been done before. This Committee was headed by the Chief Justice of South Africa, Justice Chaskalson, along with other judges and officials from the Department. That Committee took this matter further and began developing the Superior Courts Bill. A point was reached at which that Committee decided that South Africa should revert to a single High Court of South Africa. Thus both the Constitutional Court of South Africa and the Supreme Court of Appeal would be retained as separate institutions as provided in the Constitution, but the fractured high courts structure would be repealed.

Mr de Lange stated that that this was one of the two main changes proposed by the Superior Courts Bill.

Labour courts
The second major change was that the Steering Committee became aware of the fact that the Labour Relations Act (LRA) created two separate labour courts: the Labour Appeal Court and the Labour Court. Both these courts had been created outside the mainstream South African court structure. The LRA provided that the Labour Appeal Court had been established as a court equal in status to the Supreme Court of Appeal, and also stipulated that the Labour Court had been created as a court equal in status to a high court. Some constitutional problems arose. Firstly, the Constitution very clearly provided for the establishment of a court equal in status to a high court, but it did not stipulate that a court could be created that would be equal in status to the Supreme Court of Appeal in a high court. It was thus not possible to create a Labour Appeal Court that would be equal in status to the Supreme Court of Appeal

Mr de Lange stated that the second problem arose with the jurisdiction of the Labour Appeal Court, because the Constitution itself stipulated that the Supreme Court of Appeal was the highest court in the Republic on all matters except constitutional matters. It would thus not be possible to exclude the jurisdiction of the Supreme Court of Appeal in respect of any other matter without amending the Constitution. These were the two technical legal problems.

There were other major problems. The LRA provided that many of the Labour Court judges were not appointed on the same basis as their counterparts in the High Court. The judge of a High Court was appointed for life, although there was no fixed term. They could be discharged from active service once they had served fifteen years on the bench. Yet they would still remain a judge and receive a salary until death and, upon death, the spouse or partner would receive two-thirds of the salary until his/her death.

Mr de Lange stated that some of the Labour Court judges where by contrast appointed on a fixed term, yet they did not have the same security of tenure as the High Court judges. This has led to an increasing unwillingness to serve as a judge of the Labour Court because it meant that one would have to be a real labour law expert to be drawn to the Labour Court as a judge, and they would also then have to start from square one as it were once their fixed term expired. The Judge President of the Labour Court and Labour Appeal Court was thus having trouble in appointing Labour Court judges. In most cases High Court judges were being appointed as acting Labour Court and Labour Appeal Court judges.

It was decided that the obvious route to follow would be to merge the Labour Court with the mainstream courts. Yet the specialist nature of labour would have to be retained by ensuring that the judges that would adjudicate in labour matters were labour law experts. It was for this reason that the Superior Courts Bill envisaged the establishment of a panel that would adjudicate specifically in labour matters. Mr de Lange stated that he did not wish to delve into any greater detail of the Superior Courts Bill because that Bill was subject to change, but the principle was very unlikely to change. The principle would be that the Supreme Court of Appeal would become the final court of appeal in labour matters as well, but a second Deputy President of the Supreme Court of Appeal would be appointed in order to retain that specialist nature of labour adjudication. The functions of that second Deputy President would be primarily to assist in the management of labour appeals adjudication. This amendment was contained in Clause 3 of the Bill.

Mr de Lange stated that the remainder of the Bill dealt with the unitary structure of the High Court of South Africa outlined earlier. Those clauses thus effected the minor technical amendments to every section of the Constitution which referred to "a High Court" or "the High Courts".

In conclusion Mr de Lange noted that the Bill thus dealt with only two matters: it made provision for the appointment of a second Deputy President of the Supreme Court of Appeal and ensured that a unitary High Court of South Africa was reverted to.

Discussion
Mr Lever (DA) asked if the judges that were currently serving on the Labour Appeal Court would be incorporated into the Supreme Court of Appeal.

Mr de Lange said that there would in effect be a merger between the current Labour Appeal Court and the Supreme Court of Appeal. There were really no forgone conclusions in the transitional provisions proposed by the Superior Courts Bill in relation to the judges of both the Labour Court and Labour Appeal Court at this stage. It posed a constitutional dilemma because judges could not simply be relocated from one court to the next because the entire JSC procedure had to be followed, especially if the person was not a High Court judge. It was however fortunate that the current Judge President of the Labour Court and Labour Appeal Court was a High Court judge, as one of the requirements of the LRA.

He stated that a large number of Labour Court judges were also High Court judges, and the Constitution stipulated that those judges would automatically be deemed as part of that panel that would have to be established. They would thus be fit to adjudicate in labour matters effectively immediately. The remaining judges had to either go through the JSC process or they could be granted "a severance package for judges". They would thus be treated in the same manner as the Land Claims Court judges were handled.

Mr Lever asked whether the Supreme Court of Appeal would now consist of two separate divisions.

Mr de Lange replied in the negative, although this was a very strong possibility at some stage. It was very clear from the structure being proposed that no judge would now adjudicate in labour matters alone. Judges would now be fit and proper to deal with labour matters in addition to the other matters they dealt with. He stated that this would then be similar to the position with regard to the Equality Courts. The Superior Courts Bill did not make provision for the specialised training of judges in labour matters, but it did allow the establishment of the panel referred to earlier. Representatives from National Economic Development and Labour Council (NEDLAC) would also be present on that panel, as well as organised labour, the business sector and the State.

It would be interesting to note that the Superior Courts Bill did provide that, in those courts that had more than one judge, the majority of those judges would have to be appointed by the panel when a labour matter was being adjudicated. This was aimed at the development of a broad pool of judges that were specialised in labour matters as well.

He stated that there was also a second problem which lawyers alone would appreciate. It would often only be discovered during the course of a case that it was actually a labour matter, or a labour law matter might arise unexpectedly. Under the present structure the matter would then have to be heard de novo in a Labour Court, because only the Labour Court would have jurisdiction to hear the case. Furthermore, the client would have to bear the costs of this inconvenience. Mr de Lange stated that the Superior Courts Bill now provided that in such a situation, the matter could continue in the current court.

Mr Lever asked if the status and role of the TBVC states would also be dealt with by the Superior Courts Bill.

Mr de Lange stated that the Department no longer made reference to the courts of the TBVC States, and it would be changed very soon. The Superior Courts Bill proposed the establishment of a single High Court of South Africa, consisting of ten divisions. The Gauteng Province would have both a northern and a southern division, purely due to its demographics. The Superior Courts Bill stated clearly that there would no longer be any local or provincial divisions of the High Court. There would not be a single fixed main seat for each province, as the Superior Courts Bill stipulated that the Minister would determine one or more seats from time to time by publication in the Gazette. He stated that that in practice there would be a seat that would be busier than others or the seat at which the Judge President would be resident, but the seats would all be equal in status.

The Superior Courts Bill stipulated that, as a transitional provision, where there was a court at present that court would become immediately become a seat of the division in question. Yet this had not been cast in stone, as this would have to be approved by Parliament in each case.

Mr de Lange stated that the Superior Courts Bill stipulates that the proposed court structure was not necessarily bound by provincial boundaries when the jurisdiction of the court had been defined. The aim of this principle was to bring the courts to the people by considering demographics. People would now be able to go to the closest appropriate court, even if it was located in a separate province.

Mr de Lange stated that, as an aside, he felt that a move away from provincial names for the ten divisions would add a truly very South African tone to them.

Mr Mkhaliphi requested Mr de Lange to provide Members with a simplistic flow diagram of the changes that had been effected to the court structure by the 1993 and 1996 Constitutions, as well as the proposed changes to the current structure.

Mr de Lange said that he would provide this. He stated that this meeting was strictly intended as a briefing on the Constitution Amendment Bill yet he had to, of necessity, constantly refer to the Superior Courts Bill.

Mr Lever suggested that this Bill was really effecting grammatical changes in order to pave the way for the Superior Courts Bill.

Mr de Lange answered in the affirmative. He stated that "superior courts" would be a collective term for the Constitutional Court, the Supreme Court of Appeal and the High Courts. The unitary structure would be the High Court of South Africa, which would then have the ten divisions.

The Chair asked when the Committee would receive the Superior Courts Bill.

Mr de Lange replied that he was uncertain, because it appeared that substantial amendments would be proposed to the Superior Courts Bill. The Chief Justice and the Judge President of the Labour Appeal Court and Labour Court were very anxious for the Superior Courts Bill to become law as soon as possible, because the rationalisation of the High Court structure was really overdue.

Mr de Lange stated that a problem could be created if this House had a debate on the Bill before the new National Assembly had processed the Bill after the election. The Bill could either be kept alive by resolution in the new Parliament that would be established the following year, or the Bill could lapse and would have to be introduced de novo.
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Mr Lever stated that he was not aware that the Rules of Parliament would allow the Bill "to go stale" if it were not debated before the election.

Mr de Lange answered in the affirmative. He stated that the Constitution merely stipulated the date by which the Bill had to be submitted to the NCOP, but it did not specify the date for the debate.

The Chair requested the Committee Secretary and Researcher to consult the Rules of the NCOP as to whether the debate could possibly be deferred until after the elections. He requested Mr de Lange to inform Members of the Promotion of National Unity and Reconciliation Amendment Bill (TRC Bill).

Promotion of National Unity and Reconciliation Amendment Bill
Mr de Lange informed Members that the TRC Bill dealt with two issues. The first dealt with the statement made by the President during his State of the Nation Address that reparations would be paid out in a single amount to individual victims of human rights violations. The business sector and others have since indicated that they would be prepared to make large donations to communities. These would include reparations that were aimed at building a new medical facility, for example.

Yet the current wording of the TRC Act was very rigid and only made provision for reparations to be made from the President's Fund to individual victims, and did not accommodate community reparations. Parliament's Ad Hoc Committee on Reparations decided that individuals would receive a once-off payment of R30 000, and also proposed that the current TRC Act would have to be amended to allow for community styled reparations. This was the only proposed amendment to the tabled version of the TRC Bill.

The second issue dealt with the additional problems which arose after the introduction of the TRC Bill. After both the Truth and Reconciliation Commission (TRC) and the Amnesty Commission were dissolved, one of the applicants who did not receive amnesty took the matter to the Cape High Court. The court held that, in decided that amnesty should be refused, the Amnesty Commission did not apply its mind to the case, and referred the matter back to the Amnesty Committee for reconsideration. It recognised that the Amnesty Committee had been dissolved and ordered that the Minister must appoint an amnesty committee to consider the application for amnesty anew.

He stated that that it would clearly not be possible for the Minister to do this, and the solution proposed by the Justice Portfolio Committee (amendments attached) was that the Minister could appoint an amnesty committee to deal only with matters that were considered by the Amnesty Committee before it was dissolved, and which a court had decided to have reconsidered. Mr de Lange stated that it was a very confined application because it did not allow for any new applications to be heard, nor did it revive the TRC or the Amnesty Committee. The TRC Bill also contained certain consequential amendments of a technical nature, such as the amendments proposed to Sections 47B of the TRC Act.

Mr de Lange stated that the Bill's amendments to Section 47 of the TRC Act were aimed at correcting technical administrative errors contained in the proclamations published by the TRC, by enabling the Minister to publish an amending notice in the Gazette. The amendment did however contain the very big caveat that the Minister could not publish corrections to faults that appeared in the TRC's Final Report. He stated that the reason for this was that the Final Report was a fait accompli, and such faults would have to be challenged in the courts.

In conclusion, Mr de Lange noted that the victims of human rights violations that had been earmarked for reparations were awaiting the finalisation of this Bill so that they could receive reparations.

Discussion
The Chair stated that the proposed amendments did not seem to be contentious. He requested Members to familiarise themselves with the TRC Bill before the following meeting. The Committee would then vote on the Bill.

The meeting was adjourned.

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