Madam Deputy Speaker, Deputy President and hon members, I have the honour and privilege of contributing to today's debate on the Superior Courts Bill, a debate which takes place against the backdrop of the approval by this House of the Constitution Seventeenth Amendment Bill earlier this week. The constitutional amendments provide the constitutional basis for the enactment of the Superior Courts Bill, which will go down in history as the beginning of a new chapter in the South African legal system.
The Superior Courts Bill, similar to the Constitution Seventeenth Amendment Bill and the Legal Practice Bill, has been in gestation for a very long time and all these Bills combined hold the key to the realisation of our constitutional imperative of access to justice and the equal protection and benefit of the law. A delay to one impacts on and affects the other.
We are indebted to the Portfolio Committee on Justice and Constitutional Development, all my predecessors, Chief Justice Mogoeng Mogoeng, and former Chief Justices - Chief Justice Chaskalson, Chief Justice Langa and Chief Justice Ngcobo - for their insightful contributions and wisdom, which have helped shape this Bill that we have come to debate today.
The Superior Courts Act - should Parliament pass this Bill - will not only constitute a blueprint for the superior courts suited to the requirements of our Constitution, but also set out a framework for the transformation of magistrates' courts and other specialised courts in our land.
In this context the Superior Courts Act sets out the fundamental principles that will inform the new Lower Courts Act that will eventually replace the out-of-sorts Magistrates' Courts Act, as well as bring the specialised courts into conformity with the single judiciary principle contemplated in our democratic Constitution.
Initially we had intended to include certain amendments through which we sought to harmonise the magistracy with the judiciary as a way of advancing the ideal of a single judiciary. I would like to thank the Portfolio Committee on Justice and Constitutional Development for its guidance that we should instead come up with separate legislation that was geared to the wholesale transformation of the magistracy, thereby ensuring its full integration into the judiciary.
The envisaged Lower Courts Act will mirror the Superior Courts Bill in all material respects. We have started to engage with the lower court judiciary and the Magistrate's Commission in anticipation of the drafting of the Lower Courts Bill, which I intend to submit to Cabinet and introduce in Parliament during 2013.
Hon members, other than setting the broad framework for all courts, the Superior Courts Bill imports two fundamental principles that constitute the thrust of the transformation of our judicial system, which I wish to focus on. These are the constitutionally mandated rationalisation of the courts and the judiciary-based courts administration.
Regarding the former, hon members will recall that the Constitution converted the former provincial and local divisions of the former Supreme Court into various High Courts, thereby implying that every province could have its own High Court.
It has now emerged that a system of establishing several High Courts in different provinces within a single judicial system not only imports federal characteristics which are not compatible with the principle of a single judiciary and the features of our unitary state, but defeats the purpose of establishing a collective leadership, which is indispensable for an effective and efficient judicial system.
In addressing this undesirable state of affairs, the Superior Courts Bill provides for the reconfiguration of the current 13 High Courts, spread out in all provinces other than Limpopo and Mpumalanga, into a single High Court. The single High Court will, in turn, comprise nine divisions, one for each province, and as many local seats under each division as may be necessary to enhance access to justice, particularly for communities in remote rural villages of the country.
It is important to remind ourselves of the reality that, 18 years into our democracy, the areas of jurisdiction of both our superior courts and lower courts are still largely premised on the pre-1994 demarcations, which were designed in accordance with the boundaries of the territories of the now defunct Republic of South Africa, the self-governing states, and the Transkei, Bophuthatswana, Venda and Ciskei Bantustans, as they were then called.
These demarcations continue to dislodge large sectors of our society and perpetuate the legacy of deprivation and denial of access to justice for the previously marginalised and underdeveloped communities living in the traditionally black areas and rural villages of our land. It is only by passing and enacting this Superior Courts Bill that the remnants of the Transkei, Bophuthatswana, Venda and Ciskei constitutions can finally be expunged from our Statute Book.
These constitutional provisions have been kept alive by the transitional provision in item 16(1) of schedule 6 to the Constitution, which states the following, and I quote:
Every court, including courts of traditional leaders, existing when the new Constitution took effect, continues to function and to exercise jurisdiction in terms of the legislation applicable to it ... subject to -
a) any amendment ...; and
b) consistency with the ... Constitution.
It is in this context that the superior courts define a new era in our judicial landscape, and any further delay will continue to be a black spot in our endeavour to transform the judicial system and thereby establish a system that is legitimate in the eyes of our people and consistent with the values that underpin our Constitution.
Not only will the long awaited rationalisation of the courts ensure that every province has a division of the High Court and every municipality has a magistrate's court, but it will also increase public trust in the justice system and broaden access to justice, thereby enhancing the rule of law.
We have, in anticipation of the enactment of this Bill, commenced with the construction of the High Court in Polokwane, which is earmarked for completion by June 2013. We have also obtained land in Nelspruit for the construction of the seat of the High Court in the Mpumalanga province.
On the aspect of court administration, the Superior Courts Bill is a necessary transition towards the ultimate goal of a judiciary-based court administration. In line with this commitment, the Bill places the administration of the superior courts under the Office of the Chief Justice, thereby providing a holding mechanism through which these courts can be managed and funded separately from the Department of Justice and Constitutional Development.
We shall continue to learn lessons from the practical implementation of these transitional measures, which will assist in shaping the ultimate end product of our desired court administration model. The implementation of the desired model of court administration will require separate legislation, which we will consider in due course.
Hon members, the Superior Courts Bill brings about important changes to our Labour Court dispensation, changes which are intended to enhance the effectiveness and independence of the Labour Court. It is important to bring to the attention of this House the fact that judges of the Labour Court and the Labour Appeal Court have, since the enactment of the Labour Relations Act of 1995, been appointed according to a different dispensation to that of the judges of the other courts and appointed for a fixed term of 10 years. They therefore do not enjoy the same security of tenure as that enjoyed by their peers.
This has led to an unsatisfactory state of affairs, which in turn has resulted in a high turnover of judges in the Labour Court, as a new judge has to be appointed after the expiration of their fixed term. This practice will become a thing of the past with the enactment of this Bill, as judges of the Labour Court will henceforth be appointed on similar terms and conditions to those of other judges of the High Court.
I would like to thank former justices, the Judge President of the Labour Appeal Court, Justice Mlambo, as well as Justice Zondo, my colleague in the Ministry of Labour, the department, and the National Economic Development and Labour Council, Nedlac, for their co-operation and insight in bringing about these desired reforms.
In conclusion, let me assure this House that the Superior Courts Bill has the full support of the judiciary. The views and comments of the heads of courts, the legal profession and other role-players in the justice family were carefully considered during the process of drafting of the Bill. Both the department and the office of the Chief Justice are ready to implement the Bill if it is passed by this esteemed Parliament. The approval of the Bill by the House today will provide the required impetus and vigour to make up for lost time. May the Bill see the light of day. Thank you. [Applause.]