The Minister of Justice and Constitutional Development, Mr J T Radebe, MP, intends introducing the Constitution Amendment Bill, 2010, in the National Assembly. The particulars of the proposed amendments are hereby published for public comment in accordance with section 74(5)(a) of the Constitution of the Republic of South Africa, 1996. Any person wishing to comment on the proposed amendments is invited to submit written comments to the Minister of Justice and Constitutional Development. Comments should kindly be directed to the attention of Mr J A de Lange, Private Bag X 81, Pretoria 0001, by not later than 30 June 2010. (Electronic mail address: jdelange@justice.gov.
To amend the Constitution of the Republic of South Africa, 1996, so as to further define the role of the Chief Justice as the leader of the Judiciary; to change references to "Magistrates' Courts" to "Lower Courts"; to provide for a single High Court of South Africa; to provide that the Constitutional Court is the highest court in all matters; to further regulate the jurisdiction of the Constitutional Court and the Supreme Court of Appeal; to provide for the appointment of an Acting Deputy Chief Justice; to further regulate the terms of office of judges of the Constitutional Court; to further regulate the composition and the functions of the Judicial Service Commission; and to provide for matters connected therewith.
Gazettes Online/National/Notices - General, Government and Others/2010/May/GG 33216 - 21 May 2010 - Government Gazette - Vol 539/No: 414 Title: Constitution of the Republic of South Africa, 1996: Publication of bill amending Constitution: For public comment Origin: Justice and Constitutional Development, Department of Class: General Notice Page: 3/1. Amendment of section 165 of Constitution.
Amendment of section 165 of Constitution.
"(6) The Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts.".
"(e) any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to either the [High Courts] High Court of South Africa or the [Magistrates'] Lower Courts.".
Gazettes Online/National/Notices - General, Government and Others/2010/May/GG 33216 - 21 May 2010 - Government Gazette - Vol 539/No: 414 Title: Constitution of the Republic of South Africa, 1996: Publication of bill amending Constitution: For public comment Origin: Justice and Constitutional Development, Department of Class: General Notice Page: 3/3. Amendment of section 167 of Constitution, as amended by section 11 of Constitution Sixth Amendment Act of 2001.
Amendment of section 167 of Constitution, as amended by section 11 of Constitution Sixth Amendment Act of 2001.
makes the final decision whether a matter is a constitutional matter [or whether an issue is connected with a decision on a constitutional matter].
"(5) The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, [a] the High Court of South Africa, or a court of similar status, before that order has any force."
"(a) to bring a constitutional matter directly to the Constitutional Court; or".
Gazettes Online/National/Notices - General, Government and Others/2010/May/GG 33216 - 21 May 2010 - Government Gazette - Vol 539/No: 414 Title: Constitution of the Republic of South Africa, 1996: Publication of bill amending Constitution: For public comment Origin: Justice and Constitutional Development, Department of Class: General Notice Page: 3/4. Amendment of section 168 of Constitution, as amended by section 12 of Constitution Sixth Amendment Act of 2001.
Amendment of section 168 of Constitution, as amended by section 12 of Constitution Sixth Amendment Act of 2001.
(3) (a) If the Constitutional Court refuses leave to appeal in a matter referred to in section 167 (3)(b)(ii), the Supreme Court of Appeal is the final Court of appeal in that matter.
The Supreme Court of Appeal may decide appeals in any matter arising from the High Court of South Africa or a court of a status similar to the High Court of South Africa.
any other matter that may be referred to it in circumstances defined by an Act of Parliament.
Gazettes Online/National/Notices - General, Government and Others/2010/May/GG 33216 - 21 May 2010 - Government Gazette - Vol 539/No: 414 Title: Constitution of the Republic of South Africa, 1996: Publication of bill amending Constitution: For public comment Origin: Justice and Constitutional Development, Department of Class: General Notice Page: 3/5. Substitution of section 169 of Constitution.
Substitution of section 169 of Constitution.
169. decide- High [Courts] Court of South Africa.
any other matter not assigned to another court by an Act of Parliament.
the assigning of jurisdiction to a Division or a seat within a Division.
has the number of other judges determined in terms of national legislation.
"170. [Magistrates' Courts and other] Other courts.-[Magistrates' Courts and all] All other courts may decide any matter determined by an Act of Parliament, but a court of a status lower than [a] the High Court of South Africa may not enquire into or rule on the constitutionality of any legislation or any conduct of the President.".
"(a) The Supreme Court of Appeal, [a] the High Court of South Africa or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.". Inherent power.-The Constitutional Court, the Supreme Court of Appeal and the High [Courts] Court of South Africa each have the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.".
Gazettes Online/National/Notices - General, Government and Others/2010/May/GG 33216 - 21 May 2010 - Government Gazette - Vol 539/No: 414 Title: Constitution of the Republic of South Africa, 1996: Publication of bill amending Constitution: For public comment Origin: Justice and Constitutional Development, Department of Class: General Notice Page: 3/9. Substitution of section 175 of Constitution, as amended by section 14 of Constitution Sixth Amendment Act of 2001.
Substitution of section 175 of Constitution, as amended by section 14 of Constitution Sixth Amendment Act of 2001.
175. Appointment of acting judges.-(1) The President may appoint a woman or man to [be] serve as an acting Deputy Chief Justice or judge of the Constitutional Court if there is a vacancy in any of those offices, or if [a judge] the person holding such an office is absent. The appointment must be made on the recommendation of the Cabinet member responsible for the administration of justice acting with the concurrence of the Chief Justice, and an appointment as acting Deputy Chief Justice must be made from the ranks of the judges of the Constitutional Court.
"(1) A judge of the Constitutional Court [judge] , the Supreme Court of Appeal or the High Court of South Africa holds office [for a non-renewable term of 12 years, or] until he or she attains the age of 70, [whichever occurs first, except where] or until he or she is discharged from active service in terms of an Act of Parliament [extends the term of office of a Constitutional Court judge]."
Gazettes Online/National/Notices - General, Government and Others/2010/May/GG 33216 - 21 May 2010 - Government Gazette - Vol 539/No: 414 Title: Constitution of the Republic of South Africa, 1996: Publication of bill amending Constitution: For public comment Origin: Justice and Constitutional Development, Department of Class: General Notice Page: 3/11.
Amendment of section 178 of Constitution, as amended by section 2 of Constitution Second Amendment Act of 1998 and section 16 of Constitution Sixth Amendment Act of 2001.
"(k) when considering matters relating to a specific Division of the High Court of South Africa, the Judge President of that [Court] Division and the Premier of the province concerned, or an alternate designated by each of them."
(4) (a) The Judicial Service Commission has the powers and functions assigned to it in the Constitution and national legislation.
National legislation referred to in paragraph (a) must make provision for the Commission to be involved in the appointment, promotion and transfer of judicial officers of the Lower Courts, and for the establishment of a committee and sub committees comprising members designated by the Commission and other co-opted members in order to facilitate that involvement.
Gazettes Online/National/Notices - General, Government and Others/2010/May/GG 33216 - 21 May 2010 - Government Gazette - Vol 539/No: 414 Title: Constitution of the Republic of South Africa, 1996: Publication of bill amending Constitution: For public comment Origin: Justice and Constitutional Development, Department of Class: General Notice Page: 3/12. Short title and commencement.-This Act is called the Constitution Nineteenth Amendment Act of 2010, and comes into effect on a date determined by the President by proclamation in the Gazette.
Short title and commencement.-This Act is called the Constitution Nineteenth Amendment Act of 2010, and comes into effect on a date determined by the President by proclamation in the Gazette.
1.1 The Bill aims to amend the Constitution of the Republic of South Africa, 1996, in order to further define the role of the Chief Justice as the head of the judiciary; to change references to the "Magistrates' Courts" to "Lower Courts"; to provide for a single "High Court of South Africa", comprising of various Divisions; to provide that the Constitutional Court is the highest (apex) Court in all matters and to regulate the jurisdiction of the Constitutional Court and the Supreme Court of Appeal accordingly; to provide for the appointment of an acting Deputy Chief Justice if there is a vacancy in that office; and to further regulate the composition and functions of the Judicial Service Commission, by allowing for national legislation to extend the role of the Commission to matters pertaining to judicial officers of the Lower Courts.
1.2 The changes envisaged in respect of the role of the Chief Justice as the head of the judiciary, and the establishment of a single "High Court of South Africa" as opposed to the existing various High Courts, would lay the constitutional basis for the provisions of the Superior Courts Bill that are aimed at giving effect to those changes.
2.1 Clause 1: Section 165 of the Constitution is amended in order to provide that the Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts. In this way a Constitutional foundation would be laid for establishing an integrated system of court governance within a single judiciary.
2.2 Clauses 2, 5, 7 and 8: Sections 166, 169, 172 and 173 of the Constitution are amended so as to convert the various High Courts into a single "High Court of South Africa", comprising of Divisions, seats and jurisdiction as determined in terms of an Act of Parliament (the Superior Courts Bill). The present High Courts would thus be rationalised into a single High Court, with each province having, at least, a Division of the High Court. In section 166 (clause 2) the reference to "Magistrates' Courts" is also substituted by a reference to "Lower Courts". This would make it possible, when developing new legislation regarding the establishment and structures of the lower courts, to move away from the denomination of "magistrates' courts", which is a relic from a bygone era (the Magistrates' Courts Act dates back to 1944).
2.3 Clause 3: Section 167 of the Constitution is amended so as to confirm the status of the Constitutional Court as the apex court, with jurisdiction in all constitutional matters and any other matter in which it may grant leave to appeal. The Constitutional Court would therefore be the highest court for all matters, constitutional and non-constitutional, with the Supreme Court of Appeal as an intermediate court of appeal.
2.4 Clause 4: Section 168 of the Constitution is amended in order to provide that decisions of the Supreme Court of Appeal would be final if the Constitutional Court does not grant leave to appeal in a matter. During the consultations with the Judiciary on the Bill, it was pointed out by the latter that there might possibly be an argument that the names of the Constitutional Court and the Supreme Court of Appeal should also be changed, since the former would now be the apex and, effectively, the "Supreme" Court, whilst the latter would not necessarily be a final Court. However, the view is held that the name "Constitutional Court" has already gained historic significance and internationally renowned jurisprudence, and that it would not be appropriate, at this stage, to tamper with the names of the Courts involved.
2.5 Clause 6: Section 170 of the Constitution is amended by deleting the reference to "Magistrates' Courts". This amendment is consequential to the amendment of section 166 in clause 2 (par 2.2 above).
2.6 Clause 9: Section 167 of the Constitution establishes the offices of Chief Justice and a Deputy Chief Justice and section 174(3) provides for appointments to be made to those offices. It is envisaged in the Superior Courts Bill, 2010, to authorise the Deputy Chief Justice to perform the functions of the Chief Justice whenever the Chief Justice is absent or during a vacancy in that office. The amendment of section 175 of the Constitution provides that the President may appoint an acting Deputy Chief Justice from the ranks of the judges of the Constitutional Court, if there is a vacancy in that office. As in the case of the appointment of acting judges of the Constitutional Court, such an appointment must be made on the recommendation of the Minister (of Justice) acting with the concurrence of the Chief Justice. The amendment would ensure that a person is in office to perform the functions of the Chief Justice should both the Chief Justice and the Deputy Chief Justice be absent or their offices vacant.
2.7 Clause 10: Section 176 of the Constitution is amended in order to align the term of office of a judge of the Constitutional Court with that of other Superior Court judges. The effect of this amendment will be that the present non-renewable 12-year term of office of Constitutional Court judges would be replaced by the conventional dispensation in terms of which a judge continues in active service until he or she attains the age of 70 years or, if he or she, on attaining that age, has not yet served for 15 years, until he or she attains the age of 75 years or has completed 15 years' active service, whichever occurs first.
Clause 11: Section 178 of the Constitution is amended in order to allow for national legislation to make provision for the Judicial Service Commission to be involved in the appointment, promotion and transfer of judicial officers of the Lower Courts, and for the establishment of a committee and subcommittees comprising members designated by the Commission and other co-opted members in order to facilitate that involvement. For this purpose, the chairperson and deputy chairperson of the committee in question will also be members of the Judicial Service Commission.
3.1 During August 2003, a forerunner of this Bill (namely the Constitution of the Republic of South Africa Amendment Bill, 2003) together with the Superior Courts Bill, 2003, were introduced into Parliament and referred to the Portfolio Committee on Justice and Constitutional Development (National Assembly) for consideration. The Portfolio Committee embarked on extensive public hearings regarding the draft legislation and received substantial inputs from a wide range of interested parties.
3.2 Following the elections in 2004, the Constitution Amendment Bill in question was allowed to lapse but the development of the legislation continued and earlier versions of both Bills were extensively discussed at a Judicial Colloquium hosted by former Minister Mabandla during April 2005. In December 2005, a draft Constitution (Fourteenth) Amendment Bill was subsequently published in the Gazette with the view to the introduction and consideration thereof along with the revised Superior Courts Bill of 2003. The Portfolio Committee in question held public hearings on the Bills early in 2006, during the course of which it became clear that more consensus needed to be developed between role-players on certain aspects of the draft legislation. As a result, the Constitution (Fourteenth) Amendment Bill was not introduced and the processing of the Superior Courts Bill was put on hold pending the further development of broad policy guidelines on the transformation of the judiciary and the courts.
Following the elections in 2009, the Superior Courts Bill, 2003, was allowed to lapse, paving the way for the introduction of the new, revised Constitution Amendment Bill, 2010, and a new Superior Courts Bill, 2010, into Parliament. Both Bills result from further consultation with, particularly, the Judiciary. The draft Constitution Amendment Bill, 2010, is further being published in the Gazette for public comment in accordance with section 74(5)(a) of the Constitution and, since the Bill is closely linked to the transformation envisaged by the Superior Courts Bill, 2010, the latter draft Bill is simultaneously published for public comment.