Inclusion of SCA decisions in ConCourt review ‘concerning’

2012-03-27 12:00

The Democratic Alliance has expressed “concern” at the inclusion of the Supreme Court of Appeal’s decisions in a department of justice review of the Constitutional Court.

In an apparent about turn, the Department of Justice and Constitutional Development expanded its planned review of Constitutional Court cases to include decisions of the Supreme Court of Appeal (SCA).

This became apparent yesterday when the department issued the terms of reference for the “assessment of the impact of the decisions” of the two courts.

Dene Smuts, DA spokesperson for justice, said the inclusion of the SCA in the assessment would prompt concern when seen in light of ANC pronouncements last week.

Smuts was referring to the fact that ANC spokesperson Jackson Mthembu last week expressed “disappointment” with an SCA ruling that the decision to drop criminal charges against Jacob Zuma could be challenged by the DA in court.

Mthembu said it was “clear that democracy can be undermined by simply approaching courts to reverse any decision arrived at by a qualified organ of state”.

Smuts said that “any serious study” would have to include the SCA, but questioned whether there was any need for a “state-sponsored” study.

Justice department spokesperson Tlali Tlali said it was “appropriate” for the SCA to be included, because it was the highest appeal court in non-constitutional matters.

This is a departure from Justice Minister Jeff Radebe’s announcement last month of what the review would entail, which limited the proposed assessment to the Constitutional Court.

It also appears to be a departure from the original decision taken by Cabinet, which called for an “assessment of the decisions of the Constitutional Court ... by a research institution”.

The terms of reference for the assessment are as follows:

» A comprehensive analysis to establish if court decisions are reforming the South African jurisprudence in line with Constitutional values;

» An assessment of whether government can afford implementing decisions;

» The costs of litigation in these courts and the effect this has on access to justice;

» An assessment of the speed with which cases are finalised in the two courts.

The department has invited interested research institutions to submit tenders for the review and will keep a close eye on the successful bidder.

The terms of reference state that “quarterly/monthly meetings shall be held between the service provider and the Department” for the 18 months the review is expected to take.


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