Hansard: Debate on the Constitution Seventeenth Amendment Bill of 20 Nov 2012

House: National Assembly

Date of Meeting: 20 Nov 2012

Summary

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Minutes

UNREVISED HANSARD

NATIONAL ASSEMBLY

Tuesday, 20 November 2012 Take: 566

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FIRST ORDER OF THE DAY

CONSTITUTION SEVENTEENTH AMENDMENT BILL

(Second Reading Debate)

The MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Hon Speaker,
the Constitution Seventeenth Amendment Bill heralds a new era in our constitutional democracy and also unleashes an aura of hope, contentment and enhanced confidence in our judicial system by all peace-loving South Africans. This Bill brings about revolutionary reforms to our court system since the establishment of the Supreme Court and the Magistrates Courts through the Supreme Court Act of 1959 and the Magistrates Court Act of 1944 respectively. The proposed constitutional amendments provide a constitutional axis on which our judicial system, suited to the constitutional axis and requirements of the Constitution, will revolve under the watchful eye of the Chief Justice, whom the Bill formally ordains as the head of the judiciary. The Superior Courts Bill, which will be debated by this House this coming Thursday and which has, for more than 14 years been dealt with side by side with these constitutional amendments, provides the nuts and bolts that glue the judicial system together in its quest to deliver justice in keeping with the needs and aspirations of our people.

We have come a long way, and during the long journey to realise the vision of a transformed judiciary which starts to unfold before our eyes today. The ANC-led government has remained loyal to its commitment to upholding the independence of the judiciary...

The SPEAKER: Hon members please take your seats, and the noise level in the House is too high. Continue hon Minister.

The MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT: The ANC-led government remained loyal to its commitment to upholding the independence of the judiciary and the rule of law which are the bedrock of our constitutional democracy. The constitutional amendments we sought were neither aimed at tinkering with the independent justice system nor were they directed at curtailing the powers of the Constitutional Court as some wanted South Africans to believe during this robust public debate on the Bills. To the contrary, they sought to strengthen our constitutional democracy and the rule of law which is an important shield against any threat by government, real or perceived. Not only do courts resolve disputes in accordance with the law and fact, but perform a delicate balancing act between the rights and obligations of the state and individuals, and between individuals, in accordance with legislation, common law and existing social standards.

The courts' function of dispute resolution is a very important mechanism for ensuring social stability and cohesion. For a society to be stable, citizens need to be confident that the laws which govern them, not only reflect socially-accepted values and standards, but that should there be a dispute, the courts will interpret those laws impartially, and that a resolution will be achieved within a reasonable timeframe. The supremacy of the Constitution and the rule of law bind everyone, including Parliament, the executive and the judiciary.

You will remember that it is the Constitutional Court, in the case of the Speaker of the National Assembly and De Lille, decided in 1999, which stressed that under the rule of law, everyone including parliamentarians enjoy the protection of our courts. It stated as follows:

The Constitution is the ultimate source of all lawful authority in our country. No Parliament, however bona fide or eminent its membership, no President, however formidable be his reputation or scholarship and no official, however efficient or well meaning, can make any law or perform any act which is not sanctioned by the Constitution. Any citizen adversely affected by any decree, order, or action of any official or body, which is not properly authorised by the Constitution is entitled to the protection of the courts.

Whilst most of the amendments are straightforward, I wish to highlight two intriguing reforms contained in this Bill, which introduce what conveniently can be referred to as the judicial governance framework that is section 165(6) of the Constitution

Regarding the former amendments, it is during this term of this administration and under President Zuma that the government took bold and unwavering steps to establish a separate institution in the form of the Office of the Chief Justice as a separate entity from the Department of Justice and Constitutional Development. This was with a view to enabling the judiciary to regulate itself in the same way as the executive and this Parliament do, in keeping with the separation of powers. These steps, which were implemented through the Presidential Proclamation of August 2010, are transitional in nature and a constitutional and a legislative framework is necessary to establish a truly independent judicial administration. Therefore the proposed section 165(6) provides the required constitutional basis for the envisaged Judicial Council and court administration framework which will be unpacked in greater detail in subsequent national legislation.

Turning to the second significant changes brought about by the Bill, it is important to remind this House and South Africans that it is the ANC-led government that postulated the idea of a single judiciary in terms of which the Constitutional Court should be affirmed as the highest court of the Republic. This is evident from section 166 of the Constitution which places this court as the apex of our judicial system. Therefore, the proposed amendments introduce a sifting mechanism that will ensure that not all nonconstitutional matters progress to the Constitutional Court as the apex Court, but only those that must deservedly receive the attention of the Constitutional Court. This is with a view to maintain a three-tier appeal system up to the Supreme Court of Appeal to the extent that it is possible in view of the cost and time expended if appeals go through the entire hierarchy of our courts. It is in this context that the Constitutional Court and the Supreme Court of Appeal remain our centres of excellence where our evolving jurisprudence is distilled under the premise of our Constitution which is the Supremacy of our Constitution. With those few words, I thank you. [Applause.]

Mr L T LANDERS / LIM.../END OF TAKE

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Tuesday, 20 November 2012 Take: 567

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The MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT (Mr J T Radebe)

Mr L T LANDERS: Mr Speaker, in July 2010, Supreme Court of Appeal Judge Justice Cachalia said, and I quote:

By far the most often cited problem in most jurisdictions arising from the executive model is that judicial leaders have no say in the control of the allocation of resources to the courts. So, judges find themselves in the unedifying and compromising position of having to lobby politicians and executive officials for funds for improvements and simple repairs to court buildings, for essential material for libraries or for information technology.

This statement by Judge Cachalia encapsulated what is wrong with our judiciary and is what the Constitution Seventeenth Amendment Bill seeks to achieve the institutional independence of the judiciary and the individual independence of judges in enabling them to exercise the judicial functions in accordance with the law, free from any form of harassment, interference or intimidation. It does this by firstly defining the rule of the Chief Justice as the Head of Judiciary with responsibility over the judicial functions. It must be noticed that in practice the Chief Justice is already recognised as the Head of Judiciary. Lastly, Constitutional Court becomes the Apex or highest court on all matters by conferring on it the jurisdiction and authority to consider not only all constitutional matters, but also any other matter in respect of which it may grant leave to appeal.

As part of its consideration of this Bill, this must be read as a package with the soon to be debated Superior Courts Bill, the portfolio committee met with judges of the Supreme Court of Appeal in Mangaung and later with judges of the Constitutional Court on Constitutional Hill. Both these meetings were successful and were welcomed by all who are concerned.

In addition, as part of our engagement with civil society organisations and the general public, the portfolio committee engaged with, amongst others, Competition Commission; Law Society of South Africa; Judicial Officers Association of South Africa, Joasa; Business Unity of South Africa; Centre for Constitutional Rights; Legal Resources Centre and Section 27; Democratic Governance and Rights Unit; Adv Frans Reyneke; and Cosatu.

In their submission to the committee Joasa recommended that magistrates be referred to as judges of the lower courts and stress the fact that there was a considerable dissatisfaction amongst its members on the absence of legislation regulating magistrates' conditions of service and benefits. Joasa believes that distinction between judges and judicial officers has implications for magistrates' benefits. These were not matters provided for in this amendment Bill, nor did the portfolio committee believe they should be, since the main object of this amendment Bill relates to the rationalisation of the courts, amongst other things.

The Law Society of South Africa does not support the recognition of the Constitutional Court as an Apex Court. The Centre for Constitutional Rights shares this view, citing the increased workload, and the fact that the current composition and modus operandi of the Constitutional Court was not conducive to an Apex Court. These views were shared by the Democratic Rights and Governance Unit who felt that turning the Constitutional Court into an Apex Court would be harmful to constitutional jurisprudence; that this step would cast doubt on the future of the Supreme Court of Appeal, which has built significant expertise within its field of jurisdiction, and has made significant contributions to the development of South African jurisprudence. We therefore cannot fault any of these sentiments.

However, the de facto position is that the Constitutional Court already determined what it can or cannot consider. There were organisations, though, which were in favour of creating an Apex Court. The Legal Resources Centre and Section 27 where one of these, and made a point that the distinction between Constitutional and non-constitutional matters should be removed.

In its submission, the Competition Commission pointed to the fact that both the Supreme Court of Appeal and the Constitutional Court have jurisdiction in matters arising from the Labour Appeals Court and the Competition Appeals Court. What this means according to the Competition Commission is that there is one layer of appeals too many, which results in exorbitant costs to litigants and an inordinate amount of time spent resolving such appeals.

In Labour Appeals Court matters, this adversely affects the rights of workers that might have been unfairly dismissed; and wish their matter to be resolved as quickly as possible. In Competition Appeals Court matters, such delays, we are informed, could adversely affect the economy and foreign direct investments.

The solution proposed by the Competition Commission was the elimination of the Supreme Court of Appeal from the system and for litigants and affected parties to be allowed to appeal directly to the Constitutional Court. After much debate, including the hearing of views of Judge Dennis Davies and the opposing views of the judges of the Supreme Court of Appeal, the portfolio committee chose to accept the Competition Commission's approach and agreed the elimination of the Supreme Court of Appeal from the system. This means that in terms of the amendment to section 168 of the Constitution, appeals emanating from the Competition Appeals Court and the Labour Appeals Court will now go directly to the Constitutional Court.

This was not an easy decision for the portfolio committee to reach because there were strongly held views that this effectively eroded the jurisdiction of the Supreme Court of Appeal. I want to refer to the committee's report on this Bill, and quote to you from item 3:

The Bill recognises the Constitutional Court's jurisdiction to hear not only constitutional matters, but also matters that raise arguable points of law of general public importance. The increased jurisdiction confirms that the Constitutional Court is the highest court in the land.

Our report goes further in item 4 and say, and I quote:

The committee is concerned that there may be instances where courts are established in legislation that is not introduced by the Minister responsible for justice. In the committee's view, this is wholly undesirable as it undermines the development of a coherent judicial system. The committee believes that a further constitutional amendment is necessary whereby only the Minister of Justice and Constitutional Development can introduce legislation establishing courts in the same way as it's only the Minister of Finance that may introduce Money Bills.

A committee Bill providing for this Constitutional Amendment Bill is in the process of being tabled. We therefore commend this amendment Bill for this House for approval.

I want to take this opportunity at this point, on behalf of the portfolio committee, to thank everyone who contributed to the finalisation of this amendment Bill. We want to express our special gratitude to Adv Johnny de Lange for his patience and role in helping to draft this amendment Bill. I thank you. [Applause.]

Ms M SMUTS / VM/ END OF TAKE

UNREVISED HANSARD

NATIONAL ASSEMBLY

Tuesday, 20 November 2012 Take: 568

Mr L T LANDERS

Ms M SMUTS: Mr Speaker, I can think of no one better placed than the Judges of the Constitutional Court to describe the overall effect of the amendments tabled in the Constitutional Seventeenth Amendment Bill. They welcomed the overall effect of the amendments to the portfolio committee on a visit to that Court in March, because: Firstly, the amendments affirm the Chief Justice's role as the head of the judicial authority, thereby removing the spectre of Ministerial oversight which the preceding draft created.

Secondly, the amendments clarify the position of the Constitutional Court as the apex court in all matters. Thirdly, they make appropriate amendments to the position of other courts. I will deal with the Bill under those three effects, or headings.

The Chief Justice becomes the head of the judicial branch and exercises responsibility over the norms and standards for the judicial functions of all courts. It is those very judicial functions which a previous Ministry tried to bring under executive oversight in the then Fourteenth Constitutional Amendment, which President Mbeki withdrew as a result of a storm of judicial protest. This Bill not only places the judicial functions explicitly in the hands of the judges, it moreover, when read with the Superior Courts Bill, which we will be debating on Thursday, begins the process of creating an institutionally independent judicial branch, as proposed by the former Chief Justice Ngcobo. All persons who are committed to the separation of the powers will support it.

The Constitutional Court becomes in law what it is already seen to be by South Africans who take pride in their Constitution and in the court that acts as its guardian, the apex court. It is settled law that the Chief Justice sits there - at that porch, and it is a matter of historical logic that it now becomes the highest court of the Republic and not just the highest court in constitutional matters. This brings me to the clause that has been the most difficult to resolve, which is the jurisdiction of the Constitutional Court and that is section 167(3) of the Constitution.

To date, its jurisdiction was nominally limited to constitutional matters. However, the Constitution is the Supreme Law and all law is subject to the Constitution. To have a Supreme Law and jurisdiction based on a distinction between the Supreme Law and other law is artificial, and it was not going to last, it did not last. The Bill as tabled therefore gave the Court jurisdiction in constitutional matters and other matters, with the interests of justice set as the test for giving leave to appeal in other matters.

Now, the Constitutional Court, the whole court, does not believe that a distinction should be made between constitutional matters and other matters, but that the Bill should make it quite plain that it is the highest court in all matters. We have likewise argued that there should not be a bifurcation between constitutional matters and other matters, but we believed that a narrower test than the interests of justice was appropriate, namely arguable points of law of significant or general public importance. That is the test or filter found in almost all apex appeal courts in common law systems.

The jurisdiction to which the ANC and DA have agreed remains bifurcated, but the general public importance test for matters other than constitutional matters now takes the place of the interests of justice. That is satisfactory because it allows the Constitutional Court to decide any constitutional matter, whether of public importance or not; in other words, also where a matter is important to the parties if not to the public. The general public importance test for other matters, meanwhile, will take us closer to the proper function of a common law system apex appellate court.

Now, let me address the position of other courts, above all the Supreme Court of Appeal, sir, that may in theory be affected, but inasmuch as the Constitutional Court has already been taking cases beyond the artificial boundary of constitutional matters, perhaps the difference will not be very great at all.

May I say that again, because there are many hon members in the opposition who are not satisfied with the compromise that has been reached; the Constitutional Court has already been taking case beyond the artificial boundary of the constitutional matter, and in fact, they have been working on the interest of justice test. What is here done is a narrower test. I don't think the difference is going to be very different at all, like many people, I don't think there is going to be a change.

I do not believe that the fact, moreover, that we now exclude competition and labour matters to the extent that an Act of Parliament determines will make any difference to the Supreme Court of Appeal at all, given the small number of such cases emanating from the competition hierarchy that it has taken; the tiny proportion of Labour Appeal Court cases; and the fact that the Supreme Court of Appeal will still be hearing appeals in both fields from High Court rulings.

May I mention that the esteemed Supreme Court of Appeal during their visit to us last week, I don't want competition on labour matter. Take them away. So, there is more than one of you there.

Sir, the Supreme Court of Appeal remains the general appellate court, and to ensure this the justice committee is moving a further constitutional amendment, of which you have heard this afternoon, to limit the creation of courts to the justice Ministry, and by extension to the justice portfolio committee.

We take the utmost pride in the Supreme Court of Appeal, which has long since overcome the perceived legitimacy problems of the past. It was impossible to clothe it in 1994, with the power to strike down the laws and conduct of a democratically constituted government and legislature. However, when that Court now exercises the power of judicial review, it speaks with unquestioned legitimacy and with the very great intellectual authority it has built up over the years.

If the Constitutional Court is the heartbeat of our law, the SCA is its head.

Sir, the idea that constitutional matters were somehow separate, as in the civil law systems on which the Constitutional Court was based in 1993, has long been abandoned. The Supreme Court of Appeal acquired its constitutional powers after the Final Constitution was adopted. It is a matter of South African transitional history that we have two appeal courts.

Our tentative re-exploration of the idea that the two should become two chambers of one court found no ready answer. That question will have to evolve. What is crystal clear, however, is that we need both courts. The DA supports the Bill. Thank you. [Applause.]

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END OF TAKE

Ms L H ADAMS ...

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Ms M SMUTS

Ms L H ADAMS: Hon Speaker and Members of Parliament, on 14 February 1995 at the opening of the Constitutional Court, former President Mandela said as follows:

The Constitutional Court is not just a building that we inaugurate, handsome though it is. It is not a body of wise men and women that we launch on their path, important though we regard their work. It is not just our blessings that we give to their work, confident as we are in their integrity and commitment to justice. It is an institution that we establish - South Africa's first Constitutional Court.

Today, 17 years after this statement was made, this House will be asked to, amongst others, change the jurisdiction of the Constitutional Court and the Supreme Court of Appeal. Cope cannot support the passing of this Bill, since we are of the view that there is nothing wrong with the current jurisdiction of the Constitutional Court as well as jurisdiction of the Supreme Court of Appeal. The Bill in its current form is an unnecessary deviation from our history in this country. The question should be asked: If it is not broken, why fix it?

The problem in our justice system has nothing to do with the jurisdiction of these two courts but it has everything to do with bad administration, ill-discipline of prosecutors, a serious of lack of resources, creative lawyers and the bad appointment of judges from the Judicial Service Commission. Just yesterday, it was reported that yet another prosecutor appeared in court for accepting a bribe to destroy a court docket. We also know of jobs in the Department of Justice and Constitutional Development that was sold and that money exchanged hands.

Former President Mandela confidently stated that -

... the success of the Constitutional Court will depend in large measure on the successful functioning of the ordinary courts. Every court, from the most isolated magistrate's court to the Appeal Court in Bloemfontein, has a role to play. The letter and the spirit of the Constitution must permeate every aspect of justice in our country. A particularly heavy responsibility rests on the Appellate Division, to ensure that legislation is interpreted, and that the common law and custom are developed, in the light of the principles enunciated in the Constitution.

It can thus not follow that the change in the jurisdiction of the Constitutional Court and the Supreme Court of Appeal will guarantee the successful functioning of the courts. In fact, what this Parliament should hasten to address is the weaknesses in all the lower courts before we think of fixing what is not broken. We must urgently account to victims of crime why there are lengthy delays in court cases, why some cases never appear on the court roll and why certain Ministers on not less than two occasions indicated that they will consult with the National Prosecuting Authority to withdraw cases from court.

Former President Mandela went further to say that, "South Africans did not establish this court to be another rubber stamp." Hon Speaker, indeed with the extension of the jurisdiction of the Constitutional Court, as proposed in this Bill, our Constitutional Court will become the new rubber stamp court. It is true that the judges of the Constitutional Courts supported this Bill, but it is also true that over the years Constitutional Court judges became creative in determining what is a constitutional matter and what is not. The creativity has reached a level where there is now confusion amongst certain legal circles as to what is a constitutional matter and what is not. Through this creativity, the Constitutional Court judges extended its jurisdiction case by case, but this creativeness does not mean that the Constitution must be changed. It simply means that we must evaluate the process that the Judicial Service Commission uses to appoint these judges.

I conclude with the words of former President Mandela when he said, "In the end you have only a Constitution and your conscience on which you can rely." [Interjections.] Cope would not support this Bill. Thank you. [Applause.]

Mr M G ORIANI-AMBROSINI

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NATIONAL ASSEMBLY

Tuesday, 20 November 2012 Take: 569

Ms L H ADAMS

Mr M G ORIANI-AMBROSINI: Speaker, our position to this Bill is neither polemic nor antagonistic; it is principled. The hon Smuts pointed out how we are moving away from the compromises and visions reached at the Word Trade Centre. She remarked that we are moving more towards the background of common law countries and moving away from that of the civil law systems on which our Constitutional Court was grounded. That by itself highlights the difficulty we have with the fundamental mistake made within the thinking underpinning the shift of jurisdiction of the Constitutional Court from a court of special jurisdiction to a court of potentially general jurisdiction.

The reason why the Constitutional Court was chosen on the basis it was, was not in emulation of civil law systems but it arises from the fact that we have adopted a long Constitution with second- and third-generation human rights, as in many civil law systems, that requires a type of constitutional adjudication which is fundamentally different from what takes place in an ordinary court of law where the legal syllogism supports the activity of a court and is limited to the fact of comparing a norm, comparing a provision of law, to a set of facts. Within the parameters of constitutional adjudication under a long constitution, what is required is something more. It is the political wisdom, the policy capability to go beyond the provisions of laws, to look at what happens in society, to determine at what point in time society is ready for any given measure of implementation of second- and third-generation human rights, as it happened in respect of the Treatment Action Campaign case in which the Constitutional Court had to determine whether there was sufficient capability for government to roll out the nevirapine treatment, and as it will happen when the Constitutional Court will be called upon to determine when the time is ripe for the people to enjoy the right to shelter and then the right to education.

In this context, the proposed expansion of the jurisdiction of the Constitutional Court changes radically the nature of the activity and purposes of the court. We cannot possible support it; neither can we support the fact that we have another layer of jurisdiction before we reach a final sentence. Even though that layer is potential rather than actual and is subject to what effectively will become a certiorari mechanism, as in the United States, it will nonetheless constitute a possibility for each and every lawyer to try and use when seeking not to finalise a decision of a court.

The test used on an arguable point of law is as wide, as any point of law can be properly argued if sufficient money is put behind it in hiring lawyers capable of doing so. For this reason, the IFP will not be in the position to support and is duty bound and principle bound to oppose this Bill.

Ms M C C PILANE-MAJAKE / GG//Mia END OF TAKE

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Tuesday, 20 November 2012 Take: 570

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Mr M G ORIANI-AMBROSINI

Ms M C C PILANE–MAJAKE: Hon Speaker, hon Deputy President of RSA, Comrade Kgalema Motlanthe, hon members of the House, our constitutional democracy is founded on the constitutional supremacy and the rule of law, which require that state institutions act according to the law. Chief among the principles of our democracy, are the separation of powers and the independence of the judiciary. The South African Constitution contains a general provision that the judicial authority is independent, impartial and subject only to the Constitution and the law.

The Bill clarifies the role of the Chief Justice by providing that he or she is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of judicial functions. The committee is of the view that

the Bill will greatly assist the effectiveness and efficiency of the judicial system. The committee understands that the Chief Justice has already actively begun to co-ordinate the role-players in addressing case flow management and welcomes this.

The Billprovides that the Constitutional Court is the highest or apex court in all matters; regulates the jurisdiction of the Constitutional Court and the Supreme Court of Appeal accordingly; provides for the appointment of an acting Deputy Chief Justice if there is a vacancy in that office; and provides that the Supreme Court of Appeal may decide appeals in any matter arising from the High Court of SA or a court of a status similar to the High Court of SA, except where an Act of Parliament provides otherwise.

The Bill reduces the jurisdiction of the Supreme Court of Appeal, inter alia, to deciding appeals in any matter from the High Court of South Africa except in respect of labour or competition matters to such extent as may be determined by an Act of Parliament. This amendment flows from the fact that the Bill posits the Constitutional Court as a last avenue of appeal on any matter, thus making it the apex court of South Africa. Therefore, it does not become necessary that a matter heard by either the Labour Appeal Court or the Competition Appeal Court be heard by the Supreme Court of Appeal before being heard by the Constitutional Court. What a milestone in terms of the reduction of litigation costs for South Africans! The Bill further promotes democracy in South Africa. Cope says that this is an unnecessary deviation but we disagree that it is an unnecessary deviation. I am not sure what the relevance of jobs that are being sold is in terms of this 17th Amendment Bill as alluded to by Cope.

The changes envisaged in respect of the role of the Chief Justice as the head of the judiciary and the establishment of a single High Court of SA as opposed to the existing various courts, would lay the constitutional basis for the provisions of the Superior Courts Bill of 2011, that are aimed at giving effect to those changes. Therefore, this will be in line with the amendment of clauses 2, 5, 7and 8, sections 166, 169, 172 and 173 of the Constitution so as to convert the various High Courts into a single High Court of SA, comprising of divisions, seats and jurisdiction as determined in terms of an Act of Parliament. This is different from the current situation wherein a judgement that is precedent setting in one province would not affect other provinces, thus making South Africans not to experience the law in the same way.

The amendment of section 175 of the Constitution provides that the President may appoint an acting Deputy Chief Justice from the ranks of the judges of the Constitutional Court if there is a vacancy in that office. As in the case of the appointment of acting judges of the Constitutional Court, such an appointment must be made on the recommendation of the Minister of Justice acting in concurrence with the Chief Justice. The amendment would ensure that a person is in office to perform the functions of the Chief Justice should both the Chief Justice and the Deputy Chief Justice be absent or their offices are vacant.

The committee understands that the process of capacitating the Office of the Chief Justice, which was proclaimed as a government department in September 2011, is well underway. The committee, once again, welcomes these developments and understands that this is the only way to establish the Office of the Chief Justice in a short term.

Furthermore, the bill regulates the composition and functions of the Judicial Service Commission, by allowing for national legislation to extend the role of the Commission to matters pertaining to judicial officers of the lower courts. Section 178 of the Constitution is amended in order to allow for national legislation to make provision for the Judicial Service Commission to be involved in the appointment, promotion and transfer of judicial officers of the lower courts; and for the establishment of a committee and subcommittees comprising members designated by the commission and other co-opted members in order to facilitate that involvement. For this purpose, the chairperson and deputy chairperson of the committee in question will also be members of the Judicial Service Commission. All of the provisions, in fact, can be articulated as political wisdom in contrast to hon Ambrosini's idea that there is no political wisdom in this Bill and its provisions.

The committee has had extensive public hearings regarding the draft legislation and received substantial inputs from a wide range of interested parties that have supported the provisions of the Bill. The ANC supports the Bill. I thank you, hon Speaker.[Applause.]

Mr S N SWART

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Tuesday, 20 November 2012 Take: 570

Ms M C C PILANE – MAJAKE

Mr S N SWART: Speaker, Deputy President, the ACDP expressed strong reservations about the amendments to sections 167 and 168, which increase the jurisdiction of the Constitutional Court and reduce that of the Supreme Court of Appeal. We, like others including members of the ANC, initially shared the view of retired Supreme Court of Appeal Justice Farlam that, if it is not broken, what are we trying to fix?

The test in the introduced Bill of matters of interests of justice was clearly too wide. However, we appreciate that a large degree of artificiality exists, and that the Constitutional Court already hears any matter that it desires as it is very easy to find a constitutional angle to such cases. The test has now been narrowed to allow the Constitutional Court to hear those matters that raise arguable points of law of general public importance. Well done, hon Dean Smuts for your suggestion! This was the test suggested as well by the Supreme Court of Appeal judges in 2009 and is supported by the ACDP. The test will require an appellant to carefully formulate this point of law and will, unlike the interests of justice test, prevent an avalanche of appeals to the Constitutional Court.

However, the amendment does have far-reaching implications for the Supreme Court of Appeal, which until now, was the highest appeal court in nonconstitutional matters. This will no longer be the case. The amendments further erode the Supreme Court of Appeal's jurisdiction by excluding certain appeals from specialist Competition and Labour Appeal Courts. This is of great concern to me. I was concerned that we will lose valuable expertise, insight and judicial wisdom which five Supreme Court judges brought in hearing these further appeals. However, after deep reflection, I have to concede that the arguments against such further appeals to the Supreme Court of Appeal are compelling.

This, particularly as we understand that it was the intention when those pieces of legislation were drafted. Our nation is faced with decreasing foreign direct investment, 43% decrease, and everything possible must be done to facilitate a business-friendly environment. Litigation surrounding mergers and acquisitions must be dealt with speedily to ensure investor confidence in our country. Foreign and domestic investments are crucial for economic growth to address widespread unemployment and poverty.

Our further major concern was that the jurisdiction of the Supreme Court of Appeal could then be gradually eroded by other courts such as water courts and income tax courts, also requesting to bypass the Supreme Court of Appeal. This could then result in the Supreme Court of Appeal becoming an empty shell. As a direct result of these concerns, the Bill has been further amended to state that only competition and labour matters are immunised from appeals to the Supreme Court of Appeal. Thus, whilst we initially expressed severe reservations about the impact of these amendments on the Supreme Court of Appeal, we are persuaded that on the balance, the positive aspects outweigh the negative. Therefore, the ACDP will support this Bill. I thank you. [Applause.]

Mr J H JEFFERY / A N N / END OF TAKE

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NATIONAL ASSEMBLY

Tuesday, 20 November 2012 Take: 571

Mr S N SWART

Mr J H JEFFERY: Hon Speaker, as we come to the end of the debate, I just want to make a few points. The first point is that as the hon Minister raised in his speech, there has been a lot of trauma in the newspapers about a year ago, regarding the ANC code tampering with the Constitution and dealing with the powers of the Constitutional Court. Here, we have the Seventeenth Amendment Bill, which has been in this Parliament for nearly two years, which does deal with Chapter 8 of the Constitution and its courts and the administration of justice.

As you have heard from the Ministers and many of the speakers, it enhances the independence of the judiciary and increases the powers of the Constitutional Court. So, I would hope that when there is another sought of boogie that is thrown up, that every body will take the chance to actually investigate as to what the issues are, rather than talking about things that they are afraid of and that they fear may be.

By the time when this Bill has been in Parliament, the committee has deliberated a lot about it. I think you heard a lot of the points and concerns that have been raised. The issue of the jurisdiction and the issue of the Competition and the Labour Appeals Courts have only been finalised at the very close end.

Maybe one of the additional points to make on the jurisdiction of the Constitutional Court is that we have kept constitutional matters as a category and, in doing so, we followed the Kenyan example, which is very recent in the Constitution, which provided this general category.

As far as the Labour Appeal and Competition Appeal Courts, we had specifically referred to labour and competition matters rather than as it was before, which was that any Act of Parliament could determine that a matter did not have to go to the Supreme Court of Appeal.

I am surprised by the speeches, I mean, we heard from Dr Ambrosini quoting that the IFP is duty bound and principle bound to oppose this Bill. Unfortunately, they did not fill the principle and duty bound them enough to attend the meetings of the committee and we never saw them. [Applause.]

So, I was in fact sitting in my seat wondering as to how the IFP is going to vote on the Bill because we never heard them. They never came, never participated and made use of their opportunities. That Chair, is a fact. No, I won't take the question. [Interjections.]

Dr M G ORIANI-AMBROSINI: Mr Speaker, will the ...

Mr J H JEFFERY: I said I won't take a question.

The SPEAKER: He won't take a question, hon member.

Mr J H JEFFERY: That is as far as the IFP is concerned. We were also a little surprised with Cope. Ms Adams from Cope did participate in the deliberations to a large extend, not in every meeting, but to a large extend. As the committee, we were not aware that Cope was opposing the Bill until we came to vote on it last Thursday evening. It's a pity again that those concerns were not raised, but I am not sure as to how many of those concerns come from Ms Adams herself or are they coming from her party because quite frankly I cannot understand them.

As Ms Adams was at this very podium, she said, "Extending the jurisdiction of the Constitutional Court will turn it into a rubber stamp." Now, I might be suffering from a bit of a cold and have a bit of a fuzzy head at the moment, but I cannot understand that how extending the Constitutional Courts jurisdiction will turn it into a rubber stamp. I mean that is bizarre. Anyway, good luck to Ms Adams and to Cope, but I think it unfortunately places Cope and shows it's irrelevance and confusion around this and other matters. [Interjections.]

The SPEAKER: Order hon members, order!

Mr J H JEFFERY: Generally, I would like to say to all members of the House that really as many members have spoken, this is a Bill that has been around for a long time, it has been extensively debated and it started it's life I think way back in 2003. It was introduced before and withdrawn. The debate has really reached the point where every body has found each other. This Bill is generally supported by most people in the justice system, most constitutional lawyers and most people concerned about the Constitution. It seems to only be the lunatic fringe factor as witnessed by hon Dr Ambrosini and Cope. The ANC supports this Bill. I thank you. [Applause.]

THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AZM MNGUNI/VM / END OF TAKE

UNREVISED HANSARD

NATIONAL ASSEMBLY

Tuesday, 20 November 2012 Take: 572

Mr J H JEFFERY"National Assembly Chamber Main",Unrevised Hansard,20 Nov 2012,"[Take-572] [National Assembly Chamber Main][NAC-Logger][ct].doc"

The MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Hon Speaker, I just want to appeal to Cope and the IFP to support this Bill that has been developed by the Congress of the People of South Africa, not the Cope that is in the House. Thank you. [Laughter.] [Applause.]

Debate concluded.

Question put.

Agreed to. (Inkatha Freedom Party and Congress of the People dissenting).

The SPEAKER: Order, order, hon members.

DIVISION.

The SPEAKER: Order hon members. Please take your seats. Have all members taken their seats? Hon members, this Bill falls within the ambit of section 74(3) of the Constitution. A supporting vote of two thirds of the Members of the Assembly is therefore needed. I would like to remind members that they may only vote from their allocated seats. When requested to do so, members must simply indicate their vote by pressing the appropriate button. If a member inadvertently presses the wrong button, the member may thereafter press the correct button. The last button pressed will be recorded as a member's vote when the voting session is closed by the Chair. Order!

The question before the House is that the Constitution Seventeenth Amendment Bill be read a second time. Are all members in their allocated seats? Voting will now commence.

Are there members who are having problems with their voting machines? Shall we get the names of the people who have problems with their machines. There seems to be three. Apart from those three, the voting session is now closed.

Question accordingly agreed to in accordance with section 74(3) of the Constitution.

Billaccordinglyread a second time.

The SPEAKER

UNREVISED HANSARD

NATIONAL ASSEMBLY

Tuesday, 20 November 2012 Take: 572

The SPEAKER

BIRTHDAY WISHES

(Mr Eric Mtshali)

The SPEAKER: Order, hon members. Before we move on to the next item on the Order Paper, I would like to take this opportunity to congratulate a Member of the House, hon Eric Mtshali, who turned 80 years old today – it is his 80th birthday. Would you stand so that the members would know who to send the birthday presents to. Happy birthday, hon member! [Interjections. ] [Applause.] Members, you now know where to send the birthday presents.

As hon members would be aware, Orders Three and Four will stand over.

FIFTH ORDER / ARM / END OF TAKE

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