MPs adopt Constitution amendment

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Constitutional Court Independent Newspapers. The Constitutional Court. Picture: Antoine de Ras.

Parliament - A long-awaited change entrenching the Constitutional Court as the highest court in the land was approved by the National Assembly on Tuesday.

The Constitution 17th Amendment Bill was adopted by 276 votes to 25 - far more than the required two-thirds majority - despite objections by the Congress of the People and the Inkatha Freedom Party.

The amendment alters section 165 of the Constitution to make the chief justice the head of the judiciary, with responsibility for the exercise of the judicial functions of the courts.

The provision was welcomed by the Democratic Alliance, which said it created an “institutionally independent judicial branch” as demanded by the separation of powers.

The bill also rewrites section 167 of the Constitution to state that the Constitutional Court has jurisdiction in all constitutional matters “and any other matter in which it may grant leave to appeal on the grounds that the matter raises an arguable point of law of general public importance”.

The much-debated clause was drafted by MPs as a way of narrowing the ambit of the court, while confirming it as the apex court, and preserving the status of the Supreme Court of Appeal as the general appellate court.

The African National Congress conceded that its approach was more conservative than it could have been, but that taking another route would have meant the “collapse” of the SCA into a chamber of the Constitutional Court.

Opening the debate on the bill, Justice Minister Jeff Radebe put it thus: “The proposed amendments introduce a sifting mechanism that will ensure that not all non-constitutional matters proceed to the Constitutional Court as the apex court, but only those that must deservedly receive the attention of the Constitutional Court.

“This is a with a view to maintaining a three-tier appeal system up to the Supreme Court of Appeal to the extent that it is possible in view of the cost and time that is expended if appeals go through the hierarchy,” he told the National Assembly.

The bill narrows the jurisdiction of the SCA in section 168 of the Constitution by explicitly removing its power to review rulings of the Labour Appeal Court and the Competition Appeal Court as provided for in labour legislation.

This particular provision prompted soul-searching among MPs as to whether it was proper to allow an act of Parliament to restrict a court's powers.

It was included at the insistence of the ANC, which argued that having another layer of appeal in labour matters was untenable because of the cost and time involved.

“This was not an easy decision to reach because there were strongly-held views that this eroded the jurisdiction of the court,” said Luwellyn Landers, the chairman of Parliament's portfolio committee on justice.

Landers conceded that the decision to make the Constitutional Court the apex court had a mixed reception within the legal fraternity, but he said it was in fact entrenching “a de facto position” as the court in practice already decided what it could hear.

DA MP Dene Smuts said the distinction between constitutional and other matters was an outworn, artificial boundary, but she supported the move to maintain the status of the SCA.

The country needed both courts, and the SCA had built up unquestionable legitimacy in the post-apartheid era.

“If the Constitutional Court is the heartbeat of our law, the SCA is its head,” Smuts said.

“It is a matter of South African transitional history that we have two appeal courts. Our tentative re-exploration of the idea that the two should become two chambers of one court found no ready answer. That question will have to evolve. What is crystal clear, however, is that we need both courts.”

Cope opposed the bill on the basis that there was no need to fix a system that functioned well, while the IFP said the Constitutional Court was never meant to function as an ordinary court of law. - Sapa


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