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Govt determined on courts bill
09/01/2006 20:31 - (SA)
Cape Town - The government is pressing ahead with legislation that will bar all courts from suspending the coming into force of an act of parliament, the department of justice confirmed on Monday.
The provision is contained in the Constitution Fourteenth Amendment Bill, one of several measures that were floated as discussion documents at a meeting between judges and government in April last year.
The bill, published in a Government Gazette in mid-December, also seeks to give the justice minister explicit control over the administration and budget of all courts, and to create a single High Court of South Africa.
Law academics told Sapa the anti-suspension provision probably had its roots in the United Democratic Movement's 2002 challenge to the floor-crossing legislation.
The UDM won in the Cape High Court, but lost in the Constitutional Court.
'Judicial intrusion'
The High Court suspended the commencement of the package of floor-crossing bills pending the outcome of a Constitutional Court application.
The government, in turn, appealed to the Constitutional Court, asking it to rule that the High Court did not have the jurisdiction to make the order.
It said this constituted judicial intrusion of the most far-reaching kind into the legislative domain.
The constitutional judges upheld the appeal, but on other grounds, saying it was not necessary in that particular case to decide on the jurisdiction issue.
The clause in the bill reads: "Despite any other provision of this constitution, no court may hear a matter dealing with the suspension of, or make an order suspending, the commencement of an act of parliament or a provincial act."
Democratic Alliance justice spokesperson Sheila Camerer, who sits on the judicial service commission (JSC), confirmed that the clause had been in the April 2005 discussion document.
"What alarms us is that it's more or less the same bill that served before the judges' colloquium in April. It caused a furore," she said.
The most-controversial aspect from the DA's point of view had been the clause giving the minister control over administration and budget.
"We cried foul and raised a great fuss about that at the time, and we'll do it again," she said.
The DA would also challenge a provision that, she said, sidelined the JSC in the appointment of High Court judges-president and their deputies.
'Needs to be examined under a microscope'
On the suspension clause, she said clearly the courts should retain all their power to declare a law unconstitutional once it was in force.
"Certainly, this needs to be examined under a microscope," she said. "I think we remain to be convinced that this clause is necessary."
Justice department spokesperson Kaizer Kganyago said the department would not comment on the constitutionality of the bill.
The department of justice is accepting public comment on the bill until January 15.
- SAPA
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