Mr Speaker, our opposition 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 World Trade Centre. She remarked that we are moving more towards the background of common-law countries and moving away from that of 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 the Constitutional Court was chosen on the basis it was, was not in emulation of civil-law systems, but derives 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 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 will happen when the Constitutional Court is 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 radically changes the nature of the activity and purposes of the court. We cannot possibly support that; 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 to 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 the Bill and is duty-bound and principle-bound to oppose this Bill.