Honourable Speaker,
The Constitution Seventeenth Amendment Bill heralds a new era in our constitutional democracy and unleashes an aura of hope, contentment and enhanced confidence in our judicial system by all peace loving South Africans. This Bill brings about revolutionary reforms to our court system since the establishment of the Supreme Court and the Magistrates Courts through the Supreme Court Act of 1959 and the Magistrates Court Act of 1944 respectively.
The proposed constitutional amendments provide a constitutional axis on which our judicial system, suited to the requirements of the Constitution, will revolve under the watchful eye of the Chief Justice, whom the Bill formally ordains as the head of the judiciary.
The Superior Courts Bill, which will be debated by this House this coming Thursday and which has, for more than 14 year been dealt with side by side with the constitutional amendments, provides the nuts and bolts that glue the judicial system together in its quest to deliver justice in keeping with the needs and aspirations of our people.
We have come a long way, and during the long journey to realise the vision of an transformed judiciary which starts to unfold before our eyes today, the ANC- led government remained loyal to its commitment to upholding the independence of the judiciary and the rule of law which are the bedrock of our democracy. The constitutional amendments we sought were neither aimed at tinkering with the independent justice system nor were they directed at curtailing the powers of the Constitutional Court as some wanted South African to believe during the robust public debate on the Bills.
To the contrary, they sought to strengthen our constitutional democracy and the rule of law which is an important shield against any threat by Government, real or perceived. Not only do courts resolve disputes in accordance to law and fact, but performs a delicate balancing act between the rights and obligations of the State and individuals, and between individuals, in accordance with legislation, common law and existing social standards. The courts’ function of dispute resolution is an important mechanism for ensuring social stability and cohesion.
For a society to be stable, citizens need to be confident that the laws which govern them, not only reflect socially accepted values and standards, but that should there be a dispute, the courts will interpret those laws impartially, and that a resolution will be achieved within a reasonable time-frame. Honourable members will remember that it is the Courts that assured everyone, including Parliamentarians, of their protection under the rule of law. This was in the case of Speaker of the National Assembly and De Lille (decided in 1999), and I quote:
“[The Constitution] is the ultimate source of all lawful authority in the country. No Parliament, however bona fide or eminent its membership, no President, however formidable be his reputation or scholarship and no official, however efficient or well meaning, can make any law or perform any act which is not sanctioned by the Constitution. Any citizen adversely affected by any decree, order, or action of any official or body, which is not properly authorised by the Constitution is entitled to the protection of the Courts.”
Whilst most of the amendments are straight forward, I wish to highlight two intriguing reforms contained in the Bill, namely, amendments to section 165(6) of the Constitution which introduces what conveniently can be referred as new judicial governance framework, and section 168 which has come to be known as the Apex Court debate.
Regarding the former amendments, it during this Administration and under President Zuma’s reign that the Government took bold and unwavering steps to establish a separate institution in the form of the Office of the Chief Justice as a separate entity from the Department of Justice and Constitutional Development. This was with a view to enabling the judiciary to regulate itself in the same way as the Executive and this Parliament do, in keeping with the separation of powers embedded in our Constitution.
These steps which were implemented through the Presidential Proclamation of August 2010 are transitional in nature and a constitutional and a legislative framework is necessary to establish a truly independent judicial administration. Therefore the proposed section 165(6) provides the required constitutional basis for the envisaged Judicial Council and court administration framework which will be unpacked in greater detail in national legislation.
The rationale for the judicial governance framework is two-fold, firstly to give effect to our separation of powers and thereby enhance the independence of the judiciary, and secondly, it seeks to promote and enhance judicial accountability. It is through this governance framework that the Chief Justice will be able to ensure the development and monitoring of norms and standards for the effective functioning of all courts. In the absence of an effective governance framework contemplated by the Bill, the Code of Judicial Conduct approved by Parliament recently, will be toothless.
Turning to the second significant changes brought about by the Bill, it is important to remind this Honourable House and South Africans that it is the ANC-led government that postulated an idea of a single judiciary in terms of which the Constitutional Court should be affirmed as the highest court of the Republic. This is evident from section 166 of the Constitution which places the CC at the apex of the “judicial system”.
The proposed amendment introduces a sifting mechanism that will ensure that not all non-constitutional matters progress to the Constitutional Court as the apex Court, but only those that must deservedly receive the attention of the Constitutional Court. This is with a view to maintain a three-tier appeal system up to the Supreme Court of Appeal to the extent that it is possible in view to cost and time expended if appeals go through the entire hierarchy of the courts. In this context the Constitutional Court and the Supreme Court of Appeal remain our centres of excellence in the development of our evolving jurisprudence premised on the Supremacy of our Constitution.
