SHOULD they be signed into law, the Superior Courts Bill and 17th Constitutional Amendment Bill will be positive steps towards the transformation of the judicial system. The bills are set to go before the National Assembly on Tuesday, before being sent to the National Council of Provinces for approval before being signed into law.
The bills are the result of almost 10 years of negotiations between Parliament and the judiciary and will establish the Constitutional Court as the highest, or apex, court in the land. They will also expand the jurisdiction of the Constitutional Court and place the administration of the courts firmly in the hands of the chief justice. The purpose of the changes is to improve judicial efficiency by streamlining the courts so they are able to serve the public efficiently and impartially.
At present, the jurisdiction of the Constitutional Court is limited to constitutional matters; the amendment would allow the court to also hear cases concerning nonconstitutional matters. However, appellants will not have an automatic right to appeal and each case will be decided on its own merits.
The Constitutional Court was established as an apex court untainted by South Africa’s apartheid past and the plan was always to consolidate the judicial system and establish a single apex court. As time has passed, the distinction between constitutional and nonconstitutional matters has become increasingly difficult to define, making the amendment even more necessary.
The 17th Constitutional Amendment Bill would reduce the jurisdiction of the Supreme Court of Appeal by removing its power to review decisions of the Labour Appeal Court and Competition Appeal Court.
The existing multiple appeal route has resulted in lengthy delays, which have in many cases frustrated the pursuit of justice. The changes will mean that once the labour and competition appeal courts have ruled on a matter, further appeals can go only to the Constitutional Court — if it agrees this is necessary. The new bill will also ensure that the administration of courts remains in the hands of the judiciary rather than the executive. Initially, the bill sought to make courts administration the ultimate responsibility of the justice minister, but this was roundly criticised by the judiciary on the grounds it would directly compromise the independence of the courts.
While the new bills are sound in principle, there are concerns that it may be too early in South Africa’s democratic history to effect such sweeping changes. Some worry that despite being able to refuse appeal cases, the changes will significantly increase the Constitutional Court’s case load. This could result in delays and poor access to justice — precisely the problems the changes sought to address.
To counter this possibility, the executive will have to make more resources available, a change that might require a further constitutional amendment.
The new laws will also have consequences for the appointment of Constitutional Court judges. Of the 11 judges on the bench at present, only four are required to come from the ranks of the judiciary. The others can be appointed directly from the advocates profession or from academia. Given that the Constitutional Court will now be able to hear appeals on all matters — not just constitutional issues — it will be necessary for the bench to have a far wider legal knowledge and skills base.
There are also concerns that doing away with two centres of judicial power and making the Constitutional Court the apex court might increase the risk of a dominant political party controlling the judiciary.
Despite these concerns, the number of revisions made to the bill and amendment since they were first introduced suggests that the resultant laws will make a positive contribution to the access and execution of justice in South Africa.