The two bills will establish the Constitutional Court as the highest court in the land and will expand its jurisdiction. The amendment would also place the administration of the courts firmly in the hands of the chief justice.
When the bills first saw the light of day as draft legislation, later to be tabled in Parliament in 2006, they sought to place the administration of justice in the hands of the justice minister and not in the hands of the chief justice. This caused an uproar, with the legal community rejecting them as violating the independence of the judiciary. These bills were withdrawn from Parliament in 2006 and returned in 2010 after substantial redrafting.
Parliament's justice committee last week completed years of painstaking negotiation and deliberation on the bills and approved them for their second reading debate in the assembly. Once approved by the assembly they will have to be approved by the National Council of Provinces before being signed into law.
At present, the jurisdiction of the Constitutional Court is limited to constitutional matters. When the bills are law this jurisdiction will be expanded to include other legal matters which the court itself can decide to hear.
The 17th Constitutional Amendment Bill also reduces the jurisdiction of the Supreme Court of Appeal by removing its power to review decisions of the Labour Appeals Court and the Competition Appeal Court. This was in response to pleas that urgent labour and competition matters were being delayed by appeals to the Supreme Court of Appeal.
The change will mean that once the labour and competition appeal courts have ruled on a matter, further appeals can only go to the Constitutional Court, bypassing the appeal court. The committee's decision goes against a submission by Supreme Court of Appeal judges Robert Nugent and Azhar Cachalia that the court's jurisdiction not be eroded.
There was concern that allowing the jurisdiction of the court to be changed through an act of Parliament could be unconstitutional, leading to a clause which limited such interventions to specifically labour and competition matters.
University of Cape Town law professor Pierre de Vos said on his website, Constitutionally Speaking: "One may therefore view the proposed amendment to section 165 of the constitution, contained in the Constitutional Seventeenth Amendment Bill, and argue that the amendment will help to safeguard the independence of the judiciary by clarifying the roles of the head of the judiciary (who happens to be the chief justice) and minister of justice regarding the administration of justice."
Source: Business Day via I-Net Bridge
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