The legal fraternity has hailed the reworked Superior Courts Bill for ensuring the administrative independence of the courts, but warned that the enhanced power it gives the Constitutional Court could prove fraught.
The long-awaited bill, withdrawn by then President Thabo Mbeki in 2006 amid an outcry, was finally approved by Cabinet this week with any vestige of initial attempts to place the administration of courts under the Justice Minister understood to be removed. In its new incarnation, the bill makes the office of the Chief Justice responsible for running the country's courts, including the magistrates' division.
Justice and Constitutional Development Minister Jeff Radebe said that this provision would be reality before the end of the year and would enshrine the "independence, impartiality and dignity of the judiciary".
Legal experts welcomed it as a radical departure from the Mbeki-era draft that was slated by the opposition as seeking to give the justice minister the power to hand-pick judges and the ruling party the ability to sideline those deemed unsympathetic to its cause. "The threat to the independence of the judiciary has been completely averted," constitutional law expert Pierre de Vos said on Thursday, after Cabinet announced it had approved the bill.
But the chairperson of the General Council of the Bar, Patrick Mtshaulana, said that it would be misguided to see the new legislation as purely the product of the Zuma administration and blame Mbeki for all that was once wrong with it. He pointed out that after withdrawing the bill, Mbeki put it in the hands of Radebe, as head of the African National Congress's (ANC's) policy unit, with a brief to take into consideration the criticism heaped onto the legislative project.
That fed into resolutions taken at the ruling party's watershed Polokwane conference and into the final version of the bill, that has won rare praise from the Democratic Alliance for "restoring the proper relationship between the executive and judicial branches of the State".
Said Mtshaulana: "I understand that this minister does not want to in any way effect the independence of the judiciary and it is consistent with this purpose." He voiced concern, however, about the bill's confirmation of the Constitutional Court as South Africa's new Apex Court, a move that breaks with the Commonwealth and European justice models to borrow from the American system.
Mtshaulana argued that the creation of an Apex Court contradicted the agreement reached in negotiations on the constitution at Kempton Park that made the Constitutional Court the final authority on constitutional matters but conferred on the Supreme Court of Appeal an equal status on all other matters. The bill removes the distinction and seals the jurisdiction of the Constitutional Court as the highest court in the land for all litigation. The prospect has divided legal experts for years, with some warning that it would put the ANC in a position to dominate the judiciary by doing away with the notion of two centres of judicial power. "Once a court acquires the status of an apex court, what that court decides is the beginning and the end. It becomes possible for one court to dominate the judiciary," Mtshaulana said. "I can foresee that, in years to come, what we have seen in the last two years will be nothing. I mean the conflict between the executive and the judiciary with the executive believing that the courts come too close to taking political decisions."
A hint in this direction was heard in the National Assembly in March when Human Settlements Minister Tokyo Sexwale said that government could approach Chief Justice Sandile Ngcobo over a landmark ruling in the South Gauteng High Court could throw housing policy into "chaos". Sexwale told Members of Parliament that there was a danger that case law could impact on policy with dramatic consequences, in that particular case by denting State coffers. The court evicted squatters from a building in Berea but ordered the Johannesburg city council to provide them with temporary accommodation, or pay each occupier or household head R850 to rent elsewhere.
De Vos said that differing views about the creation of the Apex Court endured. "One view is that it is not healthy because legal certainty is compromised. "Others, and I subscribe to this view, say that there is a need to transform the law to infuse ordinary lives with the values of equality, respect for dignity and procedural fairness and the price to pay for that is less certainty."
De Vos said that in practice, the ambit of the Constitutional Court had already grown beyond as innovative lawyers realised that any question in law could be "made into a constitutional matter". But he warned that once the bill cast that tendency in stone, the court's caseload would increase considerably.
"I'm a little bit nervous that the highest court will be overburdened and it would make it difficult to sustain the level of thoughtfulness we have seen up to now."
Source: Polity
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