A Better Kind of Justice (The Witness Newspaper)

ON 09 SEPTEMBER 2013.

A better kind of justice
29 Aug 2013

THE Constitution 17th Amendment and the Superior Courts Act came into effect last Friday, August 23, significantly altering the structure and functioning of the judicial system in our country.

The Constitution 17th Amendment makes the chief justice the head of the judiciary and gives him or her responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts. It makes the Constitutional Court indisputably the highest court in the land, as previously it could only consider constitutional matters and issues connected with decisions on constitutional matters. Now it can consider any matter that raises an arguable point of law of general public importance, which ought to be considered by the Constitutional Court. The appeal layer to the Supreme Court of Appeal has been dispensed with in respect of labour and competition matters, thereby reducing the costs and time that would otherwise be expended in respect of the additional layer of appeal.
The Superior Courts Act repeals the old Supreme Court Act of 1959 and finally abolishes the high courts of the former so-called independent homelands of Transkei, Bophuthatswana, Venda and Ciskei. Apart from establishing a division of the high court in each of the nine provinces, the Superior Courts Act assigns judicial administration responsibilities, including case flow management functions, to the chief justice and heads of court. This includes making provincial judges president responsible for the co-ordination of judicial functions of magistrate’s courts within the area of jurisdiction of the division concerned. This not only improves the administration of justice significantly, but also enhances the integration of the magistracy as part of the judiciary, and thereby safeguards its independence.
Both acts took a long time in the making to try to achieve consensus among all role players within the justice system. One of the main debates was whether the minister of Justice, as the person politically responsible for the administration of justice in South Africa, should play a more dominant role in the administration of the courts. The latter position stemmed from the understanding that the minister is responsible to the electorate on matters relating to functioning of the courts and needed to be able to make necessary interventions where they did not function properly. The counter-argument was that the minister’s intervention would interfere with judicial independence.
The debate has been resolved with both laws strengthening the independence of the judiciary by making the chief justice ultimately responsible for the administration of judicial functions of the courts. While the court administrative staff are still appointed by the minister, the requirement that the minister can only make such appointments in consultation with the head of court concerned ensures that the judiciary has a meaningful say in the administration of the courts. The independence of the judiciary has been enhanced by the creation of the Office of the Chief Justice as a national department separate from the Department of Justice and Constitutional Development, with the chief justice as its head, to assume responsibility for the administration of the superior courts. Currently, the responsibility for the administration of the Constitutional Court and Supreme Court of Appeal resort under the Office of the Chief Justice and therefore under the chief justice. The administration of the superior courts will be gradually brought under the Office of the Chief Justice as the requisite capacity and resources are added to the Office of the Chief Justice. Placing the administration of the superior courts under a government department in the form of the Office of the Chief Justice is not the desired end state, but a holding mechanism pending the development of legislation that will place court administration under the realm of the judiciary.
It is a pity that when the Superior Court Act was signed into law, the only report in The Witness focused on negative aspects. The headline “Zuma signs disputed new courts bill into law” is disingenuous and misleading. Not only was the bill passed with the undoubted support of most of the parties in Parliament, including the largest opposition party, it also had the general backing of the judiciary and the legal profession. Allowing the Constitutional Court to hear any case of national importance as opposed to “constitutional matters and issues connected with decisions related to constitutional matters”, formalises what was already happening; namely, that as the Constitution permeates all aspects of our society. The Constitutional Court generally, in the past, could find a basis for hearing and deciding on any matter that it wished to. The Constitutional Court remains the only court that can strike down an act of Parliament or provincial act if it does not meet the constitutionality test. Any such order made by a high court has to be confirmed by the Constitutional Court. The Supreme Court of Appeal was previously not the final court of appeal as the Constitutional Court had the final say on constitutional matters and matters connected with decisions relating to constitutional matters. In terms of the new legislative changes, labour and competition matters have been excluded from the jurisdiction of the Supreme Court of Appeal as decisions of the Labour Appeal Court and the Competition Appeal Court can only be appealed at the Constitutional Court. This will reduce the time taken to obtain a final decision in labour and competition matters as there is always immense pressure to finalise these matters speedily. Protracted labour- and business-oriented disputes have the potential of weakening the economy and diminishing investor confidence, which are essential for our fledgling democracy.
The article quoted an anonymous judge who felt that allowing the SCA to sit outside Bloemfontein would create roving appeal court judges and was a recipe for logistical chaos. The judge’s argument is difficult to follow and I suspect that he or she may have been basing his or her view on a much earlier draft of the bill. The provision in the Superior Courts Act is that the president of the SCA can hold a sitting somewhere other than Bloemfontein if it appears to him or her that it is expedient or in the interests of justice to do so. There is a similar provision for the Constitutional Court and divisions of the High Court of South Africa can sit outside their seats on circuit. I fail to see how this will be a recipe for logistical chaos.
The coming into effect of these two laws is a significant milestone in ensuring that we have an effective and independent judicial system and needs to be acknowledged and recognised as such.
• John Jeffery is the Deputy Minister of Justice.
Constitution 17th
Amendment

• Makes the Constitutional Court the highest court in the land.
• Makes the chief justice the head of the judiciary and he or she is ultimately responsible for the administration of all judicial functions of the courts.
• Does away with the appeal layer of the Supreme Court in labour and competition matters.
Superior Courts Act

• Abolishes high courts of former independent homelands.
• Establishes a division of the high court in each of the nine provinces.
• Assigns judicial administration responsibilities, including caseflow management functions, to the chief justice and heads of court. This includes making provincial judges president responsible for the co-ordination of judicial functions of magistrate’s courts within the jurisdiction of the division