CFCR Submissions on the Constitution Seventeenth Amendment Bill

by Adv Nikki de Havilland
Posted 5 August 2011

The Constitution Seventeenth Amendment Bill (the Bill), published in the Gazette on 21 May 2010, seeks - amongst other things -
  • to define the role of the Chief Justice as the head of the judiciary;
  • to change references to “Magistrates’ Courts” to “Lower Courts”;
  • to provide for a single High Court of South Africa;
  • to provide that the Constitutional Court is the highest (apex) court in all matters;
  • to further regulate the jurisdiction of the Constitutional Court and the Supreme Court of Appeal;
  • to provide for the appointment of an Acting Deputy Chief Justice; and  
  • to further regulate the composition and the functions of the Judicial Service Commission (JSC).

On 21 July 2011 the Center for Constitutional Rights submitted its comments on the Bill to the Portfolio Committee on Justice and Constitutional Development.

The Centre expressed the view that amendments to the Constitution should be approached with caution for two reasons. Firstly, the Constitution is the supreme law of the land which prescribes the principles and values which should both inform and define our constitutional democracy. It should accordingly not be amended without good reason. Secondly, the Constitution is the outcome of long and arduous negotiations by all the major parties in our country, all of which had to make difficult compromises. It is thus a national compact which embodies the sum of rights and duties which the collective founders of our new democratic order, in their wisdom, felt was necessary for a democratic and just society which would improve the quality of life of all citizens and actualize each person’s potential. Accordingly, there should be compelling justification for any constitutional amendment - and any suich amendment  should be premised on sound constitutional principles and should be effected as a measure of last resort. This is particularly so when the amendments have bearing on one of the vital features of the Constitution, such as the structure of the judiciary.

The Centre was concerned that the proposed amendments would bring about changes to fundamental constitutional principles, necessitating further far-reaching amendments to the Constitution. Whilst certain aspects of the Bill were to be welcomed, other specific clauses were cause for concern.

The Centre welcomed the appointment of the Chief Justice as head of the judiciary as this will further entrench the institutional independence of the Judiciary and will help to prevent interference by other branches  of government.  It also serves to safeguard judicial  independence by clarifying the  role of the Chief Justice with regard to  the administration of justice. However, the enhanced duties that the Chief Justice will now have to perform will require even greater care that the right person is appointed to the office.  The enhanced post will require considerable administrative skills and experience in addition to the extensive judicial wisdom and experience  that the incumbent will have to possess.  
The Centre also welcomes the new provision for the appointment of an acting Deputy Chief Justice since this will facilitate the smooth administration of justice by ensuring  that there is a suitable person to act when the Chief Justice and Deputy Chief Justice are both absent.

Although the Centre does not oppose the notion of a single apex court, it would seem that insufficient consideration has been given to the practical and logistical implications of the proposed amendments. These implications would include an increased work load for the Constitutional Court.    They would also involve the time-consuming consequences of perpetuating a distinction between constitutional matters and non-constitutional matters, particularly in respect of both direct access and direct appeals. In addition, the current composition of the Constitutional Court and its modus operandi  may not be conducive to, or practically feasible for, an apex court which would also have to deal with issues requiring specialised judicial knowledge and experience.

There is also cause for concern that the creation of a single apex court will amount to a reversal of a very important policy decision taken by the Constitutional Assembly and will undermine a valuable constitutional purpose that the framers of the Constitution sought to  achieve. The Hon Mr Justice Farlam explained in a recent article, titled ‘Why fix something that ain’t broke?’, that the Constitutional Assembly had decided, after careful and thorough consideration, on a specialist constitutional court instead of a single apex court. The Constitutional Assembly had found that there was a trend in modern constitutions elsewhere in the world to favour a specialist constitutional court that was concerned only with constitutional matters. The decision also incorporated a number of features to be found in the German Constitution, such as “a special appointment procedure which gives recognition to the fact that many of the decisions to be made by the Court relate to constitutional issues which are closely bound up with socio-political issues, as well as the idea that judges of the Constitutional Court are appointed for a single non-renewable term (12 years in Germany, now 12 to 15 years in South Africa, depending on the circumstances)”. This decision was based on the fact that, “as many decisions of the Constitutional Court depend in the last analysis on socio-political questions, it is important that socio-political attitudes that found favour years ago should not continue to be determinative of decisions of the top court.”

Furthermore, the existing appointment criteria and terms of office of the Constitutional Court Judges do not support the requirements of a single apex court, as it is premised on an understanding that the Constitutional Court’s jurisdiction would be confined to constitutional matters. As a result, in determining the suitability of a judge, greater emphasis was placed on their competence to decide constitutional issues and human rights issues as opposed to their competency in adjudicating on matters involving questions of the common law and commercial law, and especially the more esoteric and specialized branches of law such as Intellectual Property, Income Tax Law and Admiralty.

If cogent reasons are found to support the notion of a single apex court, then the proper establishment of an apex court should be accompanied by a full consideration of its appropriate composition, appointment criteria and the way it should sit. It is possible that such considerations may necessitate further amendments to the Constitution, which should not be introduced on an ad hoc basis.

The Centre was also concerned about provisions that would standardise the appointing body for all of the judiciary. The Bill gives insufficient consideration to the possibility that the increased workload that thisprovision will entail may render the Judicial Services Commission unworkable. Furthermore, the question arises as to whether or not the JSC  is institutionally designed or has adequate resources to perform its envisaged enhanced mandate, as Commissioners are not full-time administrators and are in fact all involved in other professions. The notion of vesting the primary responsibility for the selection of judicial officers in an undefined committee is also worrisome. The structure, composition and nature of the relationships between the Committee, Magistrates Commission and the JSC, which is unclear in the Bill, should also be clarified and dealt with in detail.    

Public hearings on the matter will be held by the Portfolio Committee on 3 August 2011. The Centre will continue to monitor any developments in this regard.