There is every reason to hope that the restructuring of the courts under Minister of Justice Jeff Radebe will be a more considered process than the attempted assault on judicial independence by Minister Bridget Mabandla and her Deputy, Johnny de Lange after the 2004 election.

At that time, the judiciary was shocked at the inclusion of provisions in the then 14th Constitutional Amendment Bill and the Superior Courts Bill which would have allowed the government to take administrative control of the courts as well as other provisions which had not been discussed with the judges.

By contrast, a new (19th) Constitutional Amendment Bill and a revised Superior Courts Bill will only be published after the views of the judiciary have been received and considered, as the Minister has advised me in reply to a Parliamentary question (number 154).  In addition, I believe that the Minister agreed at a meeting with the Chief Justice and Heads of Court in early June to proceed with the rationalisation of the areas of jurisdiction of all courts but to leave the contentious aspects of the Mabandla policy aside for discussion.

The Minister's reply to my question confirms that general jurisdiction is to be conferred on the Constitutional Court as our new apex court.  This development, long under discussion, is to be welcomed.  As now-retired Constitutional Court Judge Kate O'Regan has said, "a split or two-peak system has created difficulty in making sure that the Constitution really roots itself in our broader legal system."

Although much will depend on the actual provisions of both the new Constitutional Amendment and the new superior Courts Bill, the inclusion of the Labour Appeal Court in the Supreme Court of Appeal and the conversion of special courts into divisions of the High Court are proposals that have merit.

It is understood that our new Chief Justice Ngcobo is committed to retaining the administrative control of the courts.  The indications are the tumult of the immediate past is behind us.

PARLIAMENTARY QUESTION FOR ORAL REPLY 

QUESTION NO.:  154

DATE OF PUBLICATION: 1 OCTOBER 2009

Ms M Smuts (DA) to ask the Minister of Justice and Constitutional Development:

(1)    Whether he agreed to a request by the Chief Justice and Heads of Court on 7 June 2009 that the rationalization of the areas of jurisdiction of all courts be given priority; if so,

(2)    whether legislation is being prepared on (a) the establishment of the Constitutional Court as the apex court and (b) the incorporation of the special courts into the Supreme Court of Appeal and the High Courts; if not, what is the position in this regard; if so, what are the relevant details in each case?

NO1865E

REPLY:-

While the Superior Courts Bill would facilitate the holistic rationalisation of the areas of jurisdiction of all the High Courts, the request of the Heads of Courts, which I have acceded to, seeks to accelerate the rationalization of certain areas of jurisdiction of the High Courts which were affected by the changes in the boundaries of certain provinces in terms of the Constitution Fifteenth Amendment Act, 2005.  The interim changes that will be effected pending the finalization of the Superior Courts Bill are in relation to the following High Courts:

The Limpopo High Court:-

The proclamation of the Polokwane circuit High Court of the Northern Gauteng High Court as the second High Court for the Limpopo province. (The first High Court is the old Venda High Court which was recently renamed the Limpopo High Court: Thohoyandou). The proclamation of the second Limpopo High Court would be done through a legislative amendment in the Judicial Matters Amendment Bill, 2009 (which is at the advanced stage of drafting).  This will ease the hardship endured by the community of the Limpopo Province of having to travel to Pretoria to access the High Court.

The North West High Court:-

To place the area of Taung under the area of jurisdiction of the North West High Court in line with the changes effected to the boundary of the North West Province.

The Northern Cape High Court:-

To place the area of Kuruman under the area of jurisdiction of the Northern Cape High Court in line with the changes effected to the boundary of the Northern Cape province.

Further investigations are underway regarding the areas of Odi; Moretele; Pampierstad; Oberholzer, Khutsong, Moutse; and Mount Currie which were also affected by the changes in the provincial boundaries. The process also takes into account the pending court matters relating to some of the areas.

(2) Proposed constitutional amendments and draft legislation (the revised Superior Courts Bill) have been drafted to confer general jurisdiction on the Constitutional Court as the apex court in the Republic and to incorporate specialist courts into the Supreme Court of Appeal and High Court respectively. The draft Bills have been submitted to the Chief Justice for the comments of the judiciary and they will be published for public comments after the views of the judiciary have been received and considered.

Statement issued by Dene Smuts, MP, Democratic Alliance shadow minister of justice and constitutional development, October 23 2009

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