Judicial Matters Second Amendment Bill and Superior Courts Bill: deliberations

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
28 October 2003
JUDICIAL MATTERS SECOND AMENDMENT BILL & SUPERIOR COURTS BILL: DELIBERATIONS

Chairperson: Adv J H de Lange (ANC)

Relevant documents
Judicial Matters Second Amendment Bill [W 42 - 2003]
Proposed Amendments to Clause 35B(1) of Judicial Matters Second Amendment Bill
Amended Section 35B(1) of Judicial Matters Second Amendment Bill
Letter from the Office of the National Treasury regarding Judicial Matters Second Amendment Bill
Superior Courts Bill [B52-2003]
Public Finance Management Act of 1999
Summary of Comments on Superior Courts Bill
Superior Courts Bill - working draft
State v Joshua Lubisi [E-mail [email protected] for document]

SUMMARY
Morning session: Judicial Matters Second Amendment Bill
The Committee's deliberations on the Judicial Matters Amendment Bill focused on Clauses 2, 4-7 & 23. The Chair proposed further amendments to the Committee Report on the Bill, so as to include the inputs made at that meeting. The Committee will vote on the Bill the following week.

Afternoon session: Superior Courts Bill
The Committee considered the creation of a separate budget for courts especially in Clause 8. Technical amendments were effected to Clause 9. Clause 10(2)(a) was restructured in order to read better, and the cost implications of having de novo hearings was considered. Technical amendments were effected to Clause 11, and the Chair proposed that a separate clause be inserted to deal with those cases in which the Judge President was absent. The Committee expressed concern at 1(b) which allowed a single judge to decide, by himself, to refer the case on to a full bench. It was agreed that the "unless clause" in sub 6(b) be inserted wherever de novo hearings were referred to.

The Chair stated that two primary arguments were raised with Clause 12: firstly, that the designation of labour judges by a panel other than the Judicial Services Commission (JSC) was unconstitutional and, secondly, concern was raised with the role of NEDLAC on that panel. The Chair contended that these arguments were unfounded and proposed that the training of such judges in labour matter be the deciding factor, and not the constitution of the panel. The JSC should remain the appointment authority for all judges. Concern was also raised with the deeming of labour court judges as judges of the superior courts in the new dispensation, and they should be made to apply to the JSC instead.

MINUTES
Morning session
Judicial Matters Second Amendment Bill
Clause 2: Agreements providing for termination and netting
The Chair referred to the amended version of Section 35B(1) of the Insolvency Act [document attached] and proposed the following formulation:

Notwithstanding any rule of the common law to the contrary, all unperformed obligations between the parties to a master agreement arising out of one or more of any master agreement, or obligations arising from such agreement in respect of assets in which ownership has been transferred as collateral security, shall, upon the sequestration of the state of a party to such master agreement, terminate automatically at the date of sequestration, the values of those obligations shall be calculated at market value as at that date, the values so calculated shall be netted and the net amount shall be payable.

He then asked the legislative drafters to explain the amendments in respect of Section 35(2)(a) of the Insolvency Act.

Mr L Basset, Legal Drafter: Department, explained that Section 35B(2)(a)(ii) has been deleted because it had already been covered under the main provision in Section 35B(1).

The Chair proposed that Section 35B(2)(a) be left a loose paragraph. He then requested that the clause be deferred to give the legislative drafters time to discuss it among themselves.

Mr Basset proposed the following formulation of "master agreement":

(a) an agreement in accordance with standards published by the International Swaps and Derivatives Association, the International Securities Lenders Association, the Bond Market Association or the International Securities Market Association, or any similar agreement, which provides that, upon the sequestration of one of the parties -
(i) all the performed obligations of the parties in terms of the agreement -
(aa) terminate or may be terminated; or
(bb) become or may become due immediately; and
(ii) the values of the unperformed obligations are determined or may be determined; and
(iii) the values are netted or may be netted, so that only a net amount (whether in the currency of the Republic or any other currency) is payable to or by a party; and
which may further provide that the values of assets which have been transferred as collateral security for obligations under that agreement or agreements shall be included in the calculation of the net amount payable upon sequestration.

The Chair agreed that the proposed amendment made sense. He stated that it captured all the inputs as discussed by the Committee, save that the definition of a "market value" in Section 35B(2) was still very vague. He proposed that square brackets be inserted around that definition. The Chair requested the legislative drafters to furnish the office of the National Treasury with the new clause.

Clause 3
The Chair noted that no further amendments were made in respect of this clause

Clause 4
Mr Basset pointed out that the proposed amendment sought to amend Section 79 of the Criminal Procedure Act (the CPA). The amendment was proposed by the office of the Director of Public Prosecutions, because psychiatrists were not prepared to constitute a panel of experts to investigate the mental condition of the accused. He referred to the case of State v Lubisi in which the court ordered the State to appoint a psychiatrist to constitute the panel of experts.

The Chair requested the legislative drafters to indicate the portion of the judgement that dealt with the problem regarding the appointment of a panel.

Mr Basset pointed out that the difficulty was in finding persons who were willing to sit on the panel.

The Chair was concerned that nowhere in the amendment to Section 79 was there a reference to an expert panel, and therefore he did not see how the proposed amendment would cure the problem.

Mr J Jeffery (ANC) proposed that a proviso be inserted to the effect that a court could provide an expert panel, if a psychiatrist was not available.

The Chair concurred and instructed the legislative drafters to go back to the drawing board and come up with a new formulation to that effect.

Clause 5
Mr Basset pointed that in Section 276(3)(b) of the CPA the words "or any other" had been inserted.

The Chair proposed that Section 276(3) of the CPA be drafted to the following effect:

Notwithstanding anything to the contrary in any law other than the Criminal Law Amendment Act, the provisions of sub 1 shall not be construed as prohibiting the court.

Mr Basset concurred.

Clause 6
Mr Jeffery expressed his concern that there was no limitation on the number of relatives who could attend the parole board meeting under Section 299(1)(f) of the CPA. He asked the legislative drafters to check as to how much number of relatives were envisaged to attend the parole board in the Correctional Service Act.

Clause 7
The Chair pointed out that this clause was a mechanism and a management tool through which Parliament could play an oversight role, especially in respect of trial awaiting prisoners. He proposed the following formulation of Section 342A(7)(a) of the CPA:

The National Director of Public Prosecutions must, within 14 days after the end of January and of July of each year, submit a report to the Cabinet member responsible for the administration of justice, containing the particulars indicated in the Table of Awaiting Trial Accused in respect of each accused whose trial has not yet commenced in respect of leading evidence".

He stated that this made it clear that the case must already have commenced.

Clauses 8-22
The Chair noted that no further amendments were made in respect of these clauses

Clause 23
The Chair asked whether this clause would still be of legal effect even if the three year period had expired before the rules could be passed. He stated that he was of the view that, if that clause could not be amended, a lacuna would be created in the law.

He then requested that the drafters to craft a clause which included the phrase "until the rules come into operation Section 23 would remain a law".

Clause 24
The Chair noted that no further amendments were made in respect of this clause.

Clause 25
The Chair requested the legislative drafters to furnish him with the copy of regulations as envisaged in sub (4).

Clauses 26-32
The Chair noted that no comments were made in respect of these clauses.

Clause 33
The Chair asked which law authorised the office of the Presidency to allocate numbers to Acts and Bills. He pointed out that the Bill would be voted on by the Committee next week.

Afternoon session
Superior Courts Bill: Consideration of Public Comments
Chapter 3: Appointment of judges and officers, and finances of Superior Courts
Clause 8: Finances and accountability
Comment by Justice Ngcobo
The Chair questioned whether the Department's budget actually contained a separate budget for courts exclusively, although that separate budget should be drafted to deal with courts specifically. Each court must be given a budget, as well as a breakdown of the percentage of the budget that it could spend separately.

He requested Mr Johan de Lange, Legal Drafter: Department, to engage with the Budget Division within the Department on aspects that should be included in the Bill, so that it could be spelt out in the legislation. The Chair stated that they should also indicate whether any amendments would have to be effected to the Public Finance Management Act (PFMA).

Mr L Landers (ANC) stated that this Committee would first have to secure the approval of the Ministry of Finance before any amendments could be effected to the PFMA. He stated that this was expressly stipulated in the PFMA.

The Chair agreed, and stated that it was for that reason that Treasury would have to be engaged on the matter. He proposed that a provision similar to Section 36(3) of the PFMA could be inserted into the Bill to prescribe the powers and functions of a Deputy Director-General, and must also be made to report directly to the Chief Justice.

Mr de Lange stated that Section 44 of the PFMA could possibly be a useful provision.

The Chair agreed, and stated that this clause would have to be referred to. He stated that the Department must also create a specific unit that dealt with court services, something similar to Mr Simon Jiyane's unit. This should however be stipulated in the legislation, because some of the judges felt much more comfortable knowing that a special court unit was established to deal with their issues, rather than it being dealt with simply by a national department.

Chapter 4: Manner of arriving at decisions in Superior Courts
Clause 9: Decisions by Constitutional Court
Mr de Lange stated that this clause was taken from Section 167(2) of the Constitution and Section 103 of the Interim Constitution.

Comment by Supreme Court of Appeal
The Chair stated that that was not really the case because "absent" was used when the judge would, for example, be attending a conference. The word "unable" was used when the judge would be ill for that period, for example, and "vacant" would be used when the position was simply not filled.

Mr de Lange responded that his greatest dilemma in amending this provision was that it stemmed from existing legislation, the Interim Constitution specifically. He doubted whether anything turned on this though.

Mr J Jeffery (ANC) stated that the phrase was necessary and would, at most, be a repeat. He proposed that it be retained.

The Chair agreed that it be retained.

Mr Jeffery stated that it would be dangerous to have eight judges hearing a case, because if something happened to one of those judges the entire case would have to be heard de novo. He asked whether any thought was given to reducing that number to seven judges.

The Chair stated that the Constitutional Court now consisted of eleven judges, and had a quorum of eight, which meant that three judges could be absent or unable. He agreed with Mr Jeffery that it would be dangerous to consider a case with less than seven judges, and this should never happen.

Comment by Cape Bar Council
The Chair stated he was not sure whether the word "Constitution" should be referred to, but stated that he understood the intention behind their proposal.

Mr de Lange replied that the clause actually referred to the quorum. He stated that it was appropriate to refer to "Constitution" in Clauses 3 and 4 of the Bill, but it should not be repeated in another heading. It was also worth noting that this concern was not raised in any of the other submissions received, and the judges for example would surely have picked up on this if it were a substantial problem..

The Chair stated that this clause dealt with the quorum of the Constitutional Court, and not with any decision taken by that court. The word "decisions" in the heading should thus be replaced with "quorum".

Mr de Lange proposed that the same be done for Clause 10, because the very first words of that clause referred to "quorum".

The Chair agreed.

Clause 10: Decision by Supreme Court of Appeal
The Chair stated that he was not particularly in favour of 10(2)(b), but it would do no damage to retain it.

Mr de Lange stated that this provision had been around for some time. He questioned whether 10(2) would ever be used in practice, and proposed that it was a bit of overkill.

The Chair agreed that it was highly unlikely to occur at Supreme Court of Appeal level. He requested Mr de Lange to check whether a de novo hearing should be provided for if there was no majority judgment.

Mr Landers asked whether the same judges who could not agree in the first case would hear the de novo hearing.

The Chair stated that it would not be the same judges, because the Supreme Court of Appeal had more than 20 judges with several benches that would sit simultaneously. He stated that this was the concern with the Constitutional Court, because it only consisted of one bench. This must be looked at.

He stated that 10(3)(a) should be split into two portions, because it dealt with two different aspects. The Chair stated that 10(2) could also be split into two sections, as this would make it easier to read. Mr Landers' concern would be cured by inserting a provision to preclude the same judges from sitting in the de novo hearing as well. He proposed that the headings of the clauses should properly state "Constitution and quorum", because Clause 10 clearly dealt with a constitution issue.

Comments by Supreme Court of Appeal & Cape Bar Council
The Chair noted that these were the same concerns raised under Clause 9, and the Committee had already considered them.

Comment by Law Society of South Africa
Mr de Lange stated that he initially thought this would be problematic, especially as the public perception of the discharge of criminal matters would be very grave. He stated that he approached Judge Harms, who also provided some input during the drafting stages of the Bill, for comment on the public submissions. Judge Harms stated, with reference to this specific comment, that:

… this issue was raised in similar context by the then Chief Justice in about 1980 and the thought at the time was that the State would foot the bill. The problem arose when a judge died during a trial. The problem as far as the Supreme Court of Appeal is concerned appears to be remote and has to date not arisen. To discharge an accused on this ground appears to be drastic. An absolution decision would require a restart of the proceedings with the same cost problems and may give rise to a plea of prescription.

The Chair agreed with Judge Harms. He stated that all that could be done here was to hope the courts remain mindful of this, and avoid stalemates. The taxpayers could not be expected to foot the bill.

Adv H Schmidt (DA) stated that the fact that it raised cost implications at least placed the willingness to proceed or not in the hands of the parties. He stated that if it were to be regarded as a finding of absolution of the instance or a discharge, this would take the matter out of the control of the parties. He proposed that the parties be allowed control in certain appropriate circumstances, so that they could decide whether they wanted to proceed de novo.

Mr de Lange replied that this could be done in civil matters, but a discharge in criminal matters would not be possible. He stated that this provision had existed for 30 years, and he could not understand why the Law Society of South Africa would now raise these concerns.

The Chair agreed with Mr de Lange. He stated that this would not be a problem because judges always used a common-sense approach in such matters. He asked whether a mechanism was included in the Bill which would allow another judge to be appointed to hear a case should one of the original judges be unable to sit, instead of hearing the entire case de novo. This would save costs.

Adv Schmidt stated that costs would be involved here in any event because legal counsel would have to be recalled when the matter was heard, and those fees would have to be paid by the client.

The Chair stated that there was no reason why this should happen. The Committee had amended the Criminal Procedure Act (the CPA) to now make it a rule that an appeal could now be heard on the record of the proceedings, and it was only when the Judge President ruled that a hearing would have to take place that an oral hearing would take place. He stated that there was no existing rule in law which stipulated that an appeal must be heard orally, and it was done in practice so that justice could also be seen to be done.

He requested Mr de Lange to insert a note that a mechanism which allowed for the adding of another judge in the event of a deadlock must be considered here.

Mr de Lange suggested that this all turned on the meaning of the term "hearing" here, and a distinction could perhaps be made between an oral argument and simply deciding the appeal. He stated that it would however be problematic in 10(1), and the words "be heard" here should instead be replaced with "be decided". The court should only determine whether oral arguments were to be heard or not once the matter was returned to that court.

The Chair agreed, because this could very well result in a contradiction between this Bill and the CPA as far as criminal cases were concerned. He requested Mr de Lange to insert a note regarding the possible harmonisation of this Bill with the CPA. This could equally apply to civil matters as well.

First Comment by Kwazulu-Natal Bench
The Chair stated that this proposal could not be entertained.

Second Comment by Kwazulu-Natal Bench
The Chair agreed with this proposal.

Mr de Lange agreed.

Clause 11: Decisions by Divisions
The Chair stated that the heading should be amended to read "Constitution and quorum of divisions of the High Court".

Mr de Lange reminded the Chair that "division" was a defined term.

The Chair agreed.

Mr Landers asked how exactly it would be determined which judge was most senior.

The Chair stated that this was determined according to the date of appointment that judge.

Mr de Lange stated that there was one deviation in 11(1)(a) from the existing Section 13(1)(a) of the Supreme Court Act, which stipulated "consisting of so many judges as he may determine" at the end of that provision. He stated that this phrased was changed in the Bill to now provide "not more than three judges".

The Chair proposed that a separate clause be inserted that would deal specifically with cases in which the Judge President was absent, and the Deputy Judge President would then be called upon, and the senior judge then in the absence of the Deputy Judge President. The current formulation was simply too cumbersome. The same should be done in all the other provisions that dealt with the Judge President.

Mr de Lange suggested that a similar provision could be inserted in Clause 3(2).

The Chair agreed. He stated that the point was that in theory this should never happen, because an Acting Judge President would be appointed where there was no Judge President, and so on. Theoretically, therefore, the situation should never occur in which the senior judge would be called upon to serve as the Judge President.

Adv Schmidt stated that this has happened in practice, on a Monday morning for example when an decision would have to be taken.

The Chair agreed, and stated that it must be included as a general point. He asked whether any law contained any empowering provision which referred to the appointment of an Acting Judge President and Deputy Judge President.

Mr de Lange responded that the only existing law that dealt with this was the Constitution.

The Chair stated that a note would have to be made of this. He stated that he agreed with the concerns raised by the Law Society of South Africa that 11(1)(b) allowed a single judge to refer the matter to a full court. This would involve significant costs to the parties. The Chair stated that he was aware that this was a very old provision, but he did not agree with it.

Ad Schmidt stated that he was in two minds here. It could involve a very junior judge who, with due respect, would not be able to make heads or tails of the matter when struck with the complexity of the facts of the case or the legal principles involved.

The Chair contended that that judge would have to go ahead and deliver a judgment, and the parties would then be entitled to appeal against that decision. He stated that an unconscionable judge who sat on a matter for months, and then decided that the matter would have to be referred to a full bench simply because he did not feel like doing all the paperwork. The Chair stated that this should not be allowed, and questioned the need for the inclusion of this provision.

Mr de Lange replied the he would research this matter. He stated that he was not sure whether this provision had ever been used in practice. It appeared very unfair to the litigants.

The Chair stated that he could not see any merit in the provision at all, because it amounted to an attempt to discontinue a matter which had already commenced. This provision would have to be placed in square brackets for now, and Mr de Lange would have to research this further.

He stated that 11(2)(a)(ii) should also be placed in square brackets, because one of the political issues which would have to be decided was whether this Committee would want to do away with the full courts, and whether the matter should instead be heard by the Supreme Court of Appeal.

The Chair asked why sub 4 referred to 11(2)(a), and sought clarity on the inclusion of the phrase "exercise all the powers, jurisdiction and authority of a Division". He stated that it should surely state "Judge President" and not "Division".

Mr de Lange responded that that phrase was taken from the existing Section 13(5) of the Supreme Court Act. He stated that 11(2)(a) was referring to the fact that that single judge could not hear an appeal from a lower court, as stipulated in 11(2)(a).

The Chair stated that 11(5) also had to be reconsidered, and the same note that was added to Clause 10(3) would have to be inserted here. He stated that the mechanism he was referring to earlier in Clause 10 was embodied here in 11(6).

Mr de Lange responded that this provision referred to the Van Rooyen case. The case was heard in the former Transvaal Provincial Division by Judge Southwood and another judge but, during the course of writing the judgment, the other judge passed away. Judge Southwood's judgment was then accepted as the judgment of the court in that case.

The Chair stated that this raised an important point, and another clause had to be inserted which would read the same as 11(6) but would deal with two judges. The remainder of 11(6)(b) after "unless" would then also be inserted in that clause. He stated that this same clause should also be inserted into Clause 10. The Chair stated that 11(7) might even be deleted, depending on the manner in which Mr de Lange formulated and included the new clause.

Comment by Supreme Court of Appeal
The Chair agreed with the proposal.

First Comment by Cape Bar Council
The Chair noted that this had already been dealt with.

Second Comment by Cape Bar Council
The Chair stated that this matter had also been dealt with, and Mr de Lange had been requested to look into the possible deletion of 11(1)(b).

Third Comment by Cape Bar Council
The Chair agreed with this proposal.

Me de Lange agreed.

Comment by Law Society of South Africa
The Chair that this was the same concern they raised under Clause 10, and it was dealt with by the Committee. He proposed that the "unless clause" in 11(6)(b) also be inserted in 11(5), and noted that Members agreed in principle to the insertion of that clause, wherever de novo hearings were referred to. This clause could even be included in those provisions that dealt with the Constitutional Court.

Mr de Lange agreed.

Adv Schmidt proposed that a rider be inserted in the "unless clause" when dealing with the Constitutional Court which would state that, should the Chief Justice not feel comfortable with having just seven judges ruling finally on a particular case because its implications were too far-reaching, and thus that it would be better to have a de novo hearing, he should be granted that form of discretion.

The Chair agreed that this would have to be included.

Mr de Lange questioned whether this would ever occur in the Constitutional Court. He stated that he could not recall a single occasion thus far in which that court sat with less than ten judges.

The Chair stated that there were cases in which this was a remote possibility, such as when Judge Goldstone went overseas and the passing of Judge Didcott. He stated that the litigants would in any event be allowed to agree that the judgment of fewer judges would be the final and binding judgment.

Mr de Lange questioned this approach. He stated that the litigants would not know beforehand whether the judges would agree with each other or not, and the litigants would thus have to unconditionally indicate beforehand that they would accept the judgment of the court. This could result in the situation in which four of the Constitutional Court judges deliver a judgment that would be binding on the government of this country, and would depend on the consent of the litigants.

The Chair proposed that Adv Schmidt's comment be inserted in the Bill, as the Constitutional Court judges would in any event have the opportunity to comment on the amendments when the Bill was referred back. The problem with having a de novo hearing in the Constitutional Court was that the same judges that heard the matter would also hear that hearing. He stated that the "unless clause" would be even more necessary in the Constitutional Court provisions.

Adv Schmidt agreed.

First Comment by KwaZulu-Natal Bench
The Chair stated that this had been dealt with.

Second Comment by KwaZulu-Natal Bench
The Chair stated that this concern had also been dealt with.

Third Comment by KwaZulu-Natal Bench
The Chair stated that 11(7) might be deleted in any event, so a reformulation might not be necessary.

Clause 12: Additional provision in respect of decisions in labour matters
The Chair contended that 12(3)(a)(iii) was problematic because if one of the parties mentioned decided not to attend, the meeting would not be able to take place. This must be considered further.

He stated that two issues were really raised with regard to this clause. The first regarded the designating judges to a panel, which some have argued was unconstitutional. The Chair stated that it was his view that such a mechanism was not unconstitutional. The second issue was the role of NEDLAC in the committee to be established. He stated that his view was that many of the arguments that were put forward on this second point were misplaced, for the following reasons.

It has been suggested that it would be unconstitutional for NEDLAC to appoint labour judges because, they argue, the Constitution stipulated that the Judicial Service Commission (JSC) alone was responsible for such appointments. The Chair stated that the Constitution did not provide for labour courts, because there judges were appointed for a term of office. They were not really judges, but were instead appointed as judges of that particular court for a particular period. The Constitution was silent on the role of the JSC in such cases. The Chair stated that he did not therefore understand this argument.

A further argument raised was that, as these judges were now to be appointed not as separate judges but as part of the High Court structure, NEDLAC's role in their appointment would be unconstitutional. The Chair stated that the fact of the matter was that this Bill did not afford NEDLAC any role in the appointment of the judges, as the committee of which NEDLAC would be a member would only apply once that judge had already been recommended by the JSC and appointed by the President. He stated that this argument was thus also misplaced.

The Chair stated that no-one, especially those in NEDLAC, has indicated the kinds of judges they wanted to sit on the committee. He stated that his understanding was that the judges that would be appointed here would be those that have completed the training course in labour law. If this was the case, the real issue would then be the training, and not the committee. This meant the committee would thus not be necessary if it was agreed that the training was the important factor, and would be necessary, as contained in 3(d). The Chair stated that if the route followed in the Equality Court legislation were to be followed here, then the training procedures would have to be done, and the JSC and NEDLAC would have to be included in the consultation process on the training needed.

He stated that this type of committee would avoid the problems that plagued the kind of committee proposed in the Bill. The Chair stated that this committee must properly be a committee of the JSC and should not be a free-floating committee, as was currently proposed. Those judges who did not want to be labour judges would simply not complete the training course, and that would be the barrier here.

The Chair stated that NEDLAC consisted of three completely different subordinate structures, which sometimes took diametrically opposed views. It was thus not realistic to suggest, as some commentators have, that the three would always form a single block with an aim to appointing specific kinds of judges here. He suggested that consensus should be reached to follow the route taken on training in other legislation, and that the training and not the committee would be focused on. This would solve all the problems, because the judges have already accepted the manner in which training was dealt with in those other pieces of legislation.

Adv Schmidt agreed that the JSC should be the primary institution responsible for the appointment of judges, irrespective of the field of law that he specialised in. He stated that he had no problem with requiring them to receive the prescribed training in labour law, especially if a precedent had already been set in other legislation in this regard. This training would even be useful for judges who had an interest in labour law, but who have not practiced it.

Mr de Lange contended that this largely depended on NEDLAC's view of its own role on the committee. He stated that he was concerned that NEDLAC would strive to transfer the existing system into the Bill, as far as possible. He agreed with the Chair that it would be less problematic if the training were to be made the overriding aspect.

The Chair stated that the President of the Supreme Court of Appeal had even indicated to him that if they would have no problems if the training were made the central aspect here. The clause could then stipulate that the Chief Justice or the Deputy Chief Justice, on the advice of the JSC and NEDLAC decide on the content of the training courses, and the Chief Justice must then ensure that that training has to take place. A system could not be created in which the validity of the appointment of judges was challenged.

Adv Schmidt agreed with the Chair. He stated that if judges could be appointed in terms of to different procedures, because this could create feelings of animosity, distrust or superiority amongst judges.

The Chair stated that he was concerned with the wording of 12(1) and 12(2). He stated that the vast majority of labour matters would be heard by single judges in the High Court and, if that was the case, a specific clause should be included to deal with this. This situation must be accommodated.

Mr de Lange replied that this was picked up by the Cape Bar Council, and it must be addressed.

Comment by Supreme Court of Appeal
The Chair stated that this issue had already been dealt with by the Committee.

First Comment by Cape Bar Council
The Chair stated that the Committee had just agreed to consider this matter. He asked whether each High Court would have the necessary jurisdiction to hear labour matters, or would they be pooled together at divisional level.

Mr de Lange responded that only the Judge President would have this authority, and each division of the High Court would have jurisdiction to hear labour matters.

The Chair asked whether this was stipulated in any clause in the Bill.

Mr de Lange replied that it was not specifically stated in a clause in the Bill. He stated that the term "labour matter" was defined in the Bill, and Clause 12 then specified how labour matters would be dealt with. The ordinary provisions in Clause 11, for example, would then kick in.

The Chair stated that a clause would have to be inserted in the Bill which stipulated that the court roll must have a separate section for labour matters as well.

Mr de Lange responded that no such clause was included in the Bill. He stated that the closest provision would be Clause 7(1)(a)(iv).

The Chair stated that this provision must be included in the Bill, because Clause 7(1)(a)(iv) was not properly structured to cover this concern. He requested Mr de Lange to look into this further.

Adv Schmidt proposed that some official at every division must take responsibility for labour matters, be it the Deputy Judge President or a judge appointed specifically for that role.

The Chair stated that it was for this reason that he proposed that a separate labour court roll and, should an unforeseen labour matter arise, no-one would be faulted for that. He stated that he would have to discuss this matter with Judge Zondo.

Second Comment by Cape Bar Council
The Chair stated that 3(a)(iv) might not be needed.

First Comment by Eastern Cape Bench
The Chair stated that it appeared to read the same as the provision in the Bill.

Mr de Lange replied that the two provisions were not the same. He stated that the proposal did stipulate that the Judge President or Deputy Judge President was bound to appoint such judges, and it was therefore a lighter provision.

Second Comment by Eastern Cape Bench
The Chair agreed with the proposal. He stated that the proposal would be effected if the Committee decided to retain 3(a).

Third Comment by Eastern Cape Bench
The Chair stated that the concern raised here might not arise, because the Committee was contemplating another route which focused on the training provided.

First Comment by Law Society of South Africa
The Chair agreed with the proposal.

Second Comment by Law Society of South Africa
The Chair stated that this proposal could not be entertained.

First and Second Comment by Kwazulu-Natal Bench
The Chair agreed.

Third Comment by Kwazulu-Natal Bench
The Chair stated that it was not true that NEDLAC would decide the cases to be heard by a Superior Court judge.

Comment by Justice Ngcobo
The Chair agreed.

First Comment by COSATU
The Chair stated that this was an important point.

Second Comment by COSATU
The Chair agreed.

First Comment by SASLAW
Mr de Lange informed Members that, since there would no longer be separate labour courts, SASLAW would still like to see advertisements or invitations for vacancies as labour court judges.

The Chair stated that this was a procedural issue, and would not be included in legislation.

Second Comment by SASLAW
The Chair stated that this would be revisited only if the Committee decided to retain that committee.

Third Comment by SASLAW
The Chair stated that it was envisaged, as a practical matter.

Fourth Comment by SASLAW
The Chair stated that this could be a criterion used by the JSC when appointing another judge. He asked Mr de Lange to explain whether Clause 6 was wide enough to cover the situation in which a judge was needed in another court.

Mr de Lange responded that this would be covered by Clause 6(4).

The Chair stated that Clause 6(4) might become very important for labour matters, and would allow a judge to be allocated to another court. He requested Mr de Lange to insert a footnote regarding a specific reference to labour matters. This would not happen in practice, because the committee would spot this shortcoming beforehand.

Mr de Lange replied that since the divisional setup was one in which all the judges of the division could in any event take up any seat within the division, in a relevantly short space of time all the divisions would have adequate labour staff.

The Chair asked Mr de Lange to summarise the transitional arrangements for those judges who were currently serving on the labour courts.

Mr de Lange responded that this was dealt with in Clause 46, and it stipulated that by the time the Bill was enacted all the current labour court judges would have been appointed as judges of the superior courts. They could also be awarded a severance package under 46(4), similar to the procedure followed with the Land Claims Court.

The Chair asked whether those judges would have to apply.

Mr de Lange replied that those who were not judges at the moment would have to apply, and would have to be recommended by the JSC.

The Chair asked whether additional posts would now have to be created in the High Court to accommodate these appointments.

Mr de Lange replied that the existing provisions would be used to effect this.

The Chair asked Mr de Lange to explain the produce that was followed with the former Land Claims judges.

Mr de Lange responded that he was not sure of the procedure followed with those judges.

The Chair requested Mr de Lange to research the matter.

Adv Schmidt stated that the problem with a deeming provision which would deem all labour court judges to be judges of the High Court, was that it would create the situation in which judges with only labour law knowledge would now be regarded as High Court judges. He stated that he thus supported the view that all those judges should first pass the muster of the JSC

The Chair stated that his concern was that sufficient posts must be made available if the Bill was to require those judges to apply to the JSC. He stated that this matter would have to be considered further.

The meeting was adjourned.