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 Constitution Seventeenth Amendment Bill.
They welcomed the overall effect of the amendments to the portfolio committee on a visit to that court in March, because, one, 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.
Two, the amendments clarify the position of the Constitutional Court as the apex court in all matters. Three, 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 Constitution Fourteenth Amendment Bill, 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 debate on Thursday - begins the process of creating an institutionally independent judicial branch, as proposed by 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 court, 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, the jurisdiction of the Constitutional Court was nominally limited to constitutional matters. But the Constitution is the supreme law. 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; 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 - and, that is, 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 the 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 appeal court.
Now, let me address the position of the other courts, above all the Supreme Court of Appeal 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 cases beyond the artificial boundary of constitutional matters, and, in fact, they have been working on the interests of justice test. What is done here is a narrower test. I don't think the difference is going to be very great 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. And, may I mention that esteemed Supreme Court of Appeal Judge, Judge Nugent, said during their visit to us last week, "I don't want competition in labour matter. Take them away." So, there is more than one of you there.
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. But 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.
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.]