Constitutional amendment close

2012-11-07 18:22
The Constitutional Court. (Picture: Sapa)

The Constitutional Court. (Picture: Sapa)

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Cape Town - Political parties on Wednesday neared accord on the Constitutional 17th amendment bill and said it should be passed this month still.

However, the Democratic Alliance continued to press for the bill to anoint the Constitutional Court as the highest court on all matters, while the ANC argued more conservatively to widen its jurisdiction.

In the latest draft of the bill, the question is resolved in a compromise whereby the Constitutional Court will become the highest court on constitutional matters and any other matter the court decides to hear in the interests of justice.

DA MP Dene Smuts said this still made for a "bifurcation" between the Constitutional Court and the Supreme Court of Appeal and therefore the very anomaly the bill was meant to remove remained.

"We are stuck in a 'twin peaks' situation where one peak is a little higher and that is the apex court and that is the Constitutional Court," she said in deliberation in the portfolio committee on justice.

Smuts said it made no sense in post-apartheid South Africa as the Constitution has "established itself as the heartbeat of our law precisely because it deals with everything".

ANC MP John Jeffery said the distinction between the jurisdiction of the two highest courts was a historical one dating from 1994 and it made sense to retain it to some extent for the sake of developing constitutional law.

"We want to keep the Constitutional Court as the court that interprets the Constitution. We are simply widening the ambit so that they can look at other matters."

Furthermore, removing any distinction in the bill would see the Supreme Court of Appeal lose its current name and status and become an appeal division one step below the Constitutional Court.

In public hearings on the bill last year, law experts had argued that it would be undesirable to lose the special status and the expertise of the Supreme Court of Appeal.

University of Cape Town public law lecturer Richard Calland said: "We submit that it should be left to do the job it does across the full range of the law and that the Constitutional Court should remain a specialist court."

Calland said an abrupt move to a single apex court would undermine the gradual and careful development of constitutional law, and said if such a step were taken there should be a transition period of 15 to 20 years.

The bill also seeks to define the role of the chief justice as the head of the judiciary, to provide for a single high court with nine divisions, and to change references to magistrate's courts to lower courts.

The DA and ANC said they believed they would clinch a compromise on the definition of "other matters" next week, and the bill would then be sent to the National Assembly, where supports of two-thirds of the house is required for it to be adopted.

Under the Constitution, an amendment needs to be subjected to a public debate in the National Council of Provinces, though the second house of the legislature does not vote on it.

The committee is also set to finalise the Superior Courts Bill, which seeks to rationalise, consolidate and amend the laws relating to the Constitutional Court, the SCA and the high courts, next week.

At issue still is the extent of the powers of the office of the chief justice.

Judges of the SCA have objected to the extent to which the bill would allow the chief justice to delegate powers and micro-manage matters they believed should remain with individual heads of court.

MPs on Wednesday clarified that administrative decisions, such as the construction of new courts, would remain with the justice department.

The Superior Courts Bill will have to go through the National Council of Provinces and is therefore only likely to become law next year.


Read more on:    da  |  anc  |  dene smuts  |  legislation

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