Too many levels of appeal, says Competitions Appeal Court Judge President Dennis Davis
12 Sep 2012
Competitions Appeal Court Judge President, Judge Dennis Davis, has pleaded with parliamentarians to reduce the number of levels of appeal that currently exist in the judicial system. In a presentation to the Portfolio Committee on Justice and Constitutional Development he said the appeal processes was not only expensive, it also discouraged investment in the country.
Judge Davis made a presentation on the Constitution 17th Amendment Bill, which would exclude the Supreme Court of Appeal (SCA) from hearing competition matters. The amendment would change section 168 (3) of the Constitution, to read "the SCA is the final court of appeal, except where an Act of Parliament determines otherwise."
He argued such exclusion of appeal to the SCA should prevail for the competitions and labour cases.
Committee member, Ms Dene Smuts, said there could be too many levels of litigation, and too many levels of appeal. The Competition Commission and the Competition Appeals Tribunal worked on the inquisitorial principle. But she did not feel that there were too many formal levels of appeal. "I am fundamentally sympathetic to you, but these are the things that worry me and I have not taken any formal decision."
Judge Davis said in reply: "My fundamental premise is that the country has too many levels of appeal. The principle of access to justice is at war with the broad structures of our judiciary at present. You cannot expect people to jump through three or four hoops if you want access to justice. Resources are precious, courts are under pressure and a whole range of similar resource base and equity reasons dictate that we should think very carefully about that."
Judge Davis further stated that if someone wanted to subvert a merger, they could drag the process out forever with interminable litigation.
"If I was a foreign investor and I looked at this, I would say this is crazy. I know because it was told to me in a number of cases. The foreign investors had looked at this and said 'if you guys did X we would have been out of here'. It's a really huge burden to think about."
Mr John Jeffrey, another committee member, said he was converted, but the amendment needed more than ruling party support.
"The difficulty is that to get a constitutional amendment through, we would need the support of some opposition parties. In any event, constitutional amendments are better if supported by as many, if not all parties," he argued.
Statement issued by Parliament of South Africa, September 12 2012
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