Judge Southwood's Judgement: Briefing; Supreme Court Decree, 1990 (Ciskei) Amendment Bill: Adoption

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Meeting Summary

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Meeting report

Select Committee on Security and Constitutional Affairs (National Council of Provinces)

20 June 2001

Chairperson: Mr J L Mahlangu

Documents handed out
Southwood Judgment
Supreme Court Decree, 1990 (Ciskei) Amendment Bill [B15-2001]

The Southwood judgement found some parts of the Magistrates Court Act to be unconstitutional. This decision is provisional pending confirmation by the Constitutional Court. In the interim, the Minister can appeal the decision or ask for a variation.
The vision is to work toward a single judiciary. Guidelines of the Constitutional Court will help the Department to merge judges and magistrates into one judicial system. To give effect to this vision there will have to be consultation with all affected parties. It will also require an amendment to the Constitution.

The committee passed the Supreme Court Decree, 1990 (Ciskei) Amendment Bill.

Mr De Lange (Department of Justice) briefed the committee on Judge Southwood's judgement which found some parts of the Magistrates Court Act to be unconstitutional.

The Department is concerned about the independence of the judiciary. They are working on the concept of a single judiciary. In such a judiciary both magistrates and judges will be called Judge and will be regulated by the same body. Their salaries will also be brought in line with each other.

A member asked if this meant that the judicial services would become one body.

Mr De Lange replied that this would be unavoidable. It will also be necessary to amend the Constitution to give effect to this. Another issue is how to go about this rationalisation process. In light of this they have organised a meeting with Judge Arthur Chaskalson on 6 July to discuss the Interim Rationalisation Bill. They have already had a meeting with Judge Chaskalson in April to determine the agenda for rationalisation. The Department cannot make decisions on its own. In order for the decision to be coherent and unanimous there must be consultation with all concerned parties.

Mr De Lange said that the Southwood judgment (of the High Court) held certain provisions of the Act unconstitutional. However, the same section that gives the High Court the authority to declare an Act unconstitutional also makes provision for the decision to be provisional pending confirmation by the Constitutional Court.

At this stage the Minister has options. He has the right of appeal against the order or he can apply for a variation of the order. For example, the 9 months stipulated in the judgement to get everything in order may be impractical especially in light of the fact that it took 14 or 15 months to deliver the judgement itself.

Mr De Lange said that the judgement will not change the vision of working towards a single judiciary but will help to shape it. The Constitutional Court will help by providing firm guidelines in this regard.

Mr Matthee (NNP, KwaZulu-Natal) asked what specifically the Judge found unconstitutional. (He knew that one aspect was in relation to the administrative powers of magistrates).
He also asked if the judgement dealt with the recent Kumarswami report.

Mr De Lange said that most of the issues bear on disciplinary proceedings. There was a brief mention of administrative duties. Regarding individual sections, the matter centres on the competency that the Minister can exercise. In terms of section 9 of the Act, the Minister is not bound by the decision of another body, whoever that may be.

Secondly, he replied that he had not as yet read the Kumarswami report and could not comment on it.

The Chairperson asked if there was a difference between the structuring of the judges and magistrates.

Mr De Lange replied that there was a structural difference between judges and magistrates. The composition of the Judicial Services Commission (JSC) was dealt with in the Constitution (Mr De Lange did not know off-hand what the magisterial composition was). At present they are appointed by the Minister but at the request of concerned bodies. Formerly, these bodies could designate but the perception now is that the Minister has discretion concerning who he appoints. However the Minister must consult first.

The Chairperson asked which procedures must be taken.

Mr De Lange said that the judgement is a starting point. The Constitution will probably have to be amended to enable the JSC and the Magisterial Services Commission to merge. This will entail major financial complications as a Head Office will have to be established. The Head Office will have to regulate the administration. This will require consultation with all parties before a final decision can be made.

Mr Matthee asked if the question of salaries had been raised in the judgement.

Mr De Lange replied that the matter had only been referred to in the judgement. This is something for the Minister to decide in consultation with the Minister of Finance.

Supreme Court Decree, 1990 (Ciskei) Amendment Bill
The Bill will enable the Bisho High Court to sit in East London to hear civil matters and to regulate certain taxation issues.

All members agreed to the Bill.

The meeting was adjourned.


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