Parliament - In an eleventh hour call, MPs on Wednesday raised the possibility that the Constitutional 17th Amendment Bill could yet prove unconstitutional.

The African Christian Democratic Party's Steve Swart queried a provision that would allow Parliament to limit the powers of the Supreme Court of Appeal through legislation.

“When is a constitutional amendment unconstitutional,” Swart asked to sighs of exasperation, before members of other parties conceded that the clause was potentially problematic.

The bill was due to be finalised by the portfolio committee on justice this week, and is set down for debate in the National Council of Provinces on Thursday.

At issue is one of its central implications, namely revoking the SCA's current power to review decisions of the Labour Appeals Court and the Competition Appeals Court.

This will be achieved through a sub-clause in the proposed amendment to section 168 of the Constitution, which states that the SCA can hear an appeal on any matter high court matter, except where national legislation determines otherwise.

In terms of existing labour legislation, these appeals would then bypass the SCA, in a step intended by political parties across the board to prevent unnecessary delays and costs, given that litigants now have the Constitutional Court as a last resort.

Swart acknowledged the economic implications of long appeal processes in labour matters, but said the amendment would mean that in future new laws could be passed to further curtail the jurisdiction of the SCA in other areas.

“My concern is, is this the narrow edge of the wedge that other courts will also call to be excluded from the jurisdiction of the SCA and that the SCA becomes an empty shell?

“I also appreciate that multiple layers of appeal are not desirable (from the) time and the cost perspective ... but surely one cannot lose the experience of the SCA by gradually eroding their jurisdiction through national legislation.”

The ANC's John Jeffery said it would be unwise to retreat, and added that it was a fact that the jurisdiction of the SCA was being reduced as that of the Constitutional Court was being extended.

“This is the issue that we want to address. We cannot afford to have two general appeal courts in this country. It is untenable and a waste of money.”

The judges of the SCA on Tuesday queried the wisdom of the provision, saying they were “of the view that it is unnecessary and undesirable to alter the appellate structure of the South African courts in this way”.

In a memorandum to the committee, they disagreed that handling appeals from the two courts in question caused untenable delays and that the SCA bench lacked the expertise to deal with these cases.

The judges said that since 2008 the SCA had accepted two requests for appeal from the Competition Appeal Court and 11 from the Labour Appeal Court.

The chief objective of the amendment bill is to confirm the Constitutional Court as the country's apex court, and it does so in the current draft by expressly extending its jurisdiction beyond constitutional to other matters.

MPs have been grappling with how to define “other matters” in a limited way so that the SCA was not reduced to a lower division of the Constitutional Court.

In a legal opinion solicited by the Democratic Alliance's Dene Smuts, Wim Trengove SC said the only legitimate reason for limiting the Constitutional Court's jurisdiction in the bill, was to “leave a residual category of matters in which the SCA is the highest court in the land”.

But he argued that this objective was simultaneously “destroyed” by the very same amendment when it allowed Parliament to pass laws that would deprive the SCA of parts of its jurisdiction. - Sapa