MEMORANDUM ON THE OBJECTS OF THE JUDICIAL OFFICERS (CONDITIONS OF SERVICE) AMENDMENT BILL, 2003

MEMORANDUM ON THE OBJECTS OF THE SUPERIOR COURTS BILL, 2003

1. PURPOSE OF BILL
The purpose of the Bill is to rationalise and to consolidate the laws pertaining to the Constitutional Court, the Supreme Court of Appeal and the High Courts in a single Act of Parliament.

2. OBJECTS OF BILL
2.1 The Superior Courts Bill was drafted under the auspices of a Steering Committee on the rationalisation of the courts, appointed by the Minister for Justice and Constitutional Development, and headed by the Chief Justice. The Bill deals with the Constitutional Court, the Supreme Court of Appeal and the High Courts, referred to collectively as the "Superior Courts". The main thrust of the Bill is to rationalise the various Superior Courts and the legislation applicable thereto in order to establish a judicial system suited to the Constitution. It repeals the outdated Supreme Court Act 59 of 1959 and the corresponding legislation of the former TBVC states. It also consolidates the laws pertaining to the Constitutional Court, the Supreme Court of Appeal and the High Courts in a single Act of Parliament and, lastly, makes provision for the merging of the existing Labour Court and Labour Appeal Court with the (new) High Court of South Africa and the Supreme Court of Appeal, respectively.

2.2 Since the structure and functioning of the Constitutional Court are comprehensively dealt with in the Constitution itself, the Bill does not contain any significant new provisions relating to that Court, other than to incorporate the applicable provisions of the Constitutional Court Complementary Act 13 of 1995 into the Bill.

2.3 Regarding the Supreme Court of Appeal, provision is made for the appointment of a second Deputy President of that Court, who will mainly be responsible for managing appeals in regard to labour matters. Provision is also made that, although Bloemfontein will remain the seat of that Court, the Court may hold sittings at any place elsewhere than at the seat of the Court, according to practice as established from time to time by the President of the Court. A third important change relating to this Court is the fact that the Supreme Court of Appeal will also deal with appeals from the High Court in labour matters, due to the abolition of the Labour Appeal Court.

2.4 The High Courts

2.4.1 The Bill provides for the restructuring of the existing High Courts into a single High Court of South Africa, comprising one Division in each province, with the exception of Gauteng, where there will be a Northern Gauteng Division as well as a Southern Gauteng Division. Each Division will have a Judge President and, if the President so determines, one or more Deputy Judges President.

2.4.2 The Bill does not make provision for "Local Divisions". The Minister for Justice and Constututional Development must, instead, determine one or more seats for each Division. If a Division has more than one seat, the Judge President may divide the area under the jurisdiction of that Division into seat areas, but the principle is established that a Division may deal with any matter falling under its jurisdiction at any seat of that Division. This structure is confirmed by the transitional provisions of the Bill, that provide for each existing High Court to become a seat of the Division of the High Court in the province concerned.

2.5 Labour matters: The Bill also makes provision for the abolition of the Labour Court and Labour Appeal Court. Jurisdiction in labour matters is bestowed on the High Court of South Africa, whilst labour appeals will be dealt with by the Supreme Court of Appeal. However, the specialist nature of, and special interests involved in "labour adjudication" is affirmed by establishing a panel of specially selected judges who may hear labour matters. This selection will be done by a committee comprising—
* the President and Deputy Presidents of the Supreme Court of Appeal;
* three representatives of NEDLAC, representing Business, Labour and the State;
* the Judges President; and
* an advocate and an attorney.
As pointed out in paragraph 2.3 above, provision is also made for the appointment to the Supreme Court of Appeal of a second Deputy President, who will be primarily responsible for managing labour appeals in the Supreme Court of Appeal.

2.6 The remaining provisions of the Superior Courts Bill are largely procedural in nature and are mostly carried over from the existing laws.

3. DEPARTMENTS/BODIES/PERSONS CONSULTED

The Chief Justice, President of the Supreme Court of Appeal and Judges President of the High Courts
The Department of Labour
NEDLAC

4. IMPLICATIONS FOR PROVINCES
None.

5. FINANCIAL IMPLICATIONS FOR STATE
The establishment of new Courts in Limpopo and Mpumalanga will require major expenditure. The Department of Justice and Constitutional Development would have to obtain funding for this through the Department's ordinary budgetary process, but this would require a comprehensive costing of the draft legislation. It is unavoidable that such costing would to a considerable extent have to be informed by changes that Parliament may effect to the legislation. The Bill, if enacted in its present form, would not require any immediate significant expenditure, as provision is made for the Northern Gauteng Division of the High Court to continue functioning as the Limpopo and Mpumalanga Divisions until such time as their seats are formally established.

6. PARLIAMENTARY PROCEDURE
The Department of Justice and Constitutional Development is of the opinion that this Bill should be dealt with in terms of the procedure established by section 75 of the Constitution, since it contains no provision to which the procedure set out in section 74 of 76 of the Constitution applies.