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, namely the institutional independence of the judiciary and the individual independence of judges, enabling them to exercise their judicial functions in accordance with the law, free from any form of harassment, interference or intimidation. It does this by, one, defining the rule of the Chief Justice as the Head of the Judiciary with responsibility over the judicial functions. It must be noticed that in practice the Chief Justice is already recognised as the Head of the Judiciary. Two, the 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 - which 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 concerned.
In addition, as part of our engagement with civil-society organisations and the general public, the portfolio committee engaged with, amongst others, the Competition Commission, the Law Society of SA, the Judicial Officers Association of SA or Joasa, Business Unity SA, the Centre for Constitutional Rights, the Legal Resources Centre and Section 27, the 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 stressed the fact that there was considerable dissatisfaction amongst its members on the absence of legislation regulating magistrates' conditions of service and benefits. Joasa believes that the distinction between judges and judicial officers has implications for magistrates' benefits.
These were not matters provided for in this amending Bill, nor did the portfolio committee believe they should be, since the main object of this amending Bill relates to the rationalisation of the courts, amongst other things.
The Law Society of SA does not support the recognition of the Constitutional Court as the 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 that 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 Africa's jurisprudence. We cannot fault any of these sentiments. However, the de facto position is that the Constitutional Court already determines 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 were one of these, and made the point that the distinction between Constitutional and nonconstitutional 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 Appeal Court and the Competition Appeal 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 Appeal Court matters this adversely affects the rights of workers who may have been unfairly dismissed and wish their matter to be resolved as quickly as possible. In Competition Appeal Court matters, such delays, we are informed, could adversely affect the economy and foreign direct investment.
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 Davis 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 to 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 Appeal Court and the Labour Appeal 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 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 to say:
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 can introduce legislation establishing courts in the same way that only the Minister of Finance may introduce Money Bills.
A committee Bill providing for this Constitutional Amendment Bill is in the process of being tabled. We commend this amending Bill for this House's 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 amending Bill. We want to express our special gratitude to Adv Johan de Lange for his patience and role in helping to draft this amending Bill. I thank you. [Applause.]