SUMMARY OF COMMENTS ON SUPERIOR COURTS BILL (SUPPLEMENTED)

[B 52—2003]

Clause no.

Name of person or body

Comment

1

Supreme Court of Appeal

(SCB 3)

  1. Definition of "full court": Replace "more" with "three".
  2. Definition of labour matter: After "justiciable matter", insert "except criminal proceedings".

1

Cheadle Thompson & Haysom Attorneys

(SCB 22)

Definition of "labour matter": Section 82 of the Mine Health and Safety Act, 1996, currently provides for disputes arising out of that Act to be dealt with by the Labour Court. The definition of "labour matter" should be extended to include such disputes.

2

Cape Bar Council

(SCB 5)

  1. There are some anomalies regarding the definition of "labour matter".
  2. Since the labour court was established as a "court of law and equity", it may be necessary to make provision for labour matters to be dealt with on an equity basis.

2

COSATU

(SCB 25)

Subclause (1)(b): COSATU’s preferred option would have been to retain the Labour Court and Labour Appeal Court as separate structures. However, they recognise the imperative underlying the rationalisation of the courts. They strongly believe that this process should ensure the retention of separate specialised arrangements for the determination of labour matters. There is international recognition for the need to provide for specialised labour courts.

3

Supreme Court of Appeal

(SCB 3)

  1. Subclause (3)(a): Only one Deputy President should be appointed for the Supreme Court of Appeal. The President of the Supreme Court of Appeal can assign a judge of that Court to assist in managing labour appeals.
  2. Subclause (4)(a): Delete items (ii) and (iii).

3

Cape Bar Council

(SCB 5)

  1. Subclauses (1)(b) and (3)(b): Sittings of the Constitutional Court and the Supreme Court of Appeal at places elsewhere than their seats should only be allowed on applications made to those Courts.
  2. Subclause (3)(b): The number of judges of the Supreme Court of Appeal should be determined by the Bill.
  3. Provision should be made for a procedural mechanism for consultation with NEDLAC.

3

COSATU

(SCB 25)

  1. Subclause (3)(a): The provision for the second Deputy President of the Supreme Court of Appeal will ensure that there is an explicit commitment to ensure that specialised labour needs are catered for.
  2. Subclause (4)(a)(iii): The provision for consultation with NEDLAC is strongly supported.

4

Cape Bar Council

(SCB 5)

  • Subclause (2)(b): Any possibility of confusion or ambiguity in regard to section 174(6) of the Constitution should be avoided.
  • Should the headquarters of a Judge President also be specified?
  • Subclause (5): The term "local division" is preferred to "seat area".
  • 4

    Eastern Cape Bench

    (SCB 4)

    Each Division of the Supreme Court should have a main seat, and could have one or more local seats. This will enable the agreements that were reached between the existing Eastern Cape High Courts to be formalised. The determination of seat areas by the Judge President (subclause (5)(a) ) should be done after consultation with the Chief Justice, but (5)(b) should be deleted as it will cause practical problems such as forum shopping or appeals from the same magistrate’s court being heard at different seats.

    4

    Circle Council of Limpopo

    (SCB 2)

    The establishing of the Limpopo Division of the High Court is welcomed. See, however, comment in respect of clause 45.

    4

    Law Society of the Northern Provinces

    (SCB 6)

    The "fragmentation" of the High Court is not supported. However, if Divisions of the High Court are established in the provinces, it is suggested that-

    1. the Mpumalanga, Limpopo and North West Divisions should have concurrent jurisdiction with the Northern Gauteng and/or Southern Gauteng Divisions; and
    2. the Northern and Southern Gauteng Divisions should have concurrent jurisdiction.

    4

    Law Society of South Africa

    (SCB 7)

    1. Subclause (2)(b): It is unnecessary to make provision for the appointment of more than one Deputy Judge President.
    2. Subclause (4)(a): Provision should be made for consultation with the legal professions regarding the determination of any seats and territorial jurisdictions.

    4

    Brits Attorneys’ Association

    (Page 7 of "SCB 7")

    The magisterial district of Brits should fall under the jurisdiction of the Northern Gauteng Division, alternatively, that Division and the North West Division should have concurrent jurisdiction.

    4

    Mpumalanga Attorneys Council

    (Annexure to

    "SCB 7")

    This Council is concerned about the proposals regarding concurrent jurisdiction between various Divisions, but the Council is also divided on this matter. The Highveld Region is in favour of concurrent jurisdiction between the Mpumalanga and the Northern Gauteng Divisions, whilst the Lowveld Region is opposed thereto.

    4

    KwaZulu-Natal Bench

    (SCB 8)

    In terms of this provision (read with clause 45) there will be one Division in KwaZulu-Natal with seats in Durban and Pietermaritzburg. The seats will enjoy concurrent jurisdiction and there does not appear to be any objection to this.

    4

    Black Lawyers Association

    (SCB 13)

    1. Provinces which have more than one Division could have concurrent jurisdiction between those Division, e.g. Northern and Southern Gauteng Divisions.
    2. The BLA is opposed to concurrent jurisdiction between Divisions located in different provinces. Permitting concurrent jurisdiction will undermine the very essence of establishing courts in all the provinces.
    3. However, the BLA supports the principle that a Division’s area of jurisdiction is not restricted by provincial boundaries. For example, for the purposes of convenience or because of the long distances between the courts, areas such as Brits, GaRankuwa, Mabopane and Hammanskraal could be incorporated in the jurisdiction of the Northern Gauteng Division.

    6

    Cape Bar Council

    (SCB 5)

    1. Subclause (2): Deputy Judges President should not be appointed for a fixed term. This would be inconsistent with judicial independence.
    2. Subclause (3): This provision should not be limited to "acting" judges.
    3. An earlier version of the Bill contained a similar provision to section 11 of Act 59 of 1959 (judge not to hold any other office of profit). Its omission needs to be explained.

    7

    Cape Bar Council

    (SCB 5)

    1. Subclause (1): The need for court managers/assistant court managers is not evident. How do they relate to the registrars?
    2. Subclause (2): Why is provision not made for research assistants for the High Courts?

    7

    Eastern Cape Bench

    (SCB 4)

    The provisions relating to the appointment of court managers are welcomed, but the following amendment is proposed in respect of subclause (1)(c):

    "A court manager is the senior executive officer of the court where he or she has been appointed, and exercises administrative control over the persons referred to in paragraph (a)(ii) to (v) and, under the control and direction of the head of the Court concerned, and perform such other functions as agreed to from time to time by the Minister and the Chief Justice.".

    7

    Justice Ngcobo

    (SCB 16)

    1. Subclause (1): It is necessary to make it clear that all officers and staff of a court perform their functions under the Head of that Court.
    2. Subclause (1)(c): It is assumed that the Chief Justice will reach agreement with the other heads of court when agreeing on functions with the Minister.

    7

    SASLAW

    (SCB 26)

    Subclause (1)(a)(iv): Labour matters will be dealt with more expeditiously and effectively if a registrar dealing only with labour matters continues to do so.

    8

    Justice Ngcobo

    (SCB 16)

    Having regard to the responsibility of the judiciary to determine and manage its own budget, it will be necessary to define properly the nature of the relationship between the offices of the Chief Justice and the Director-General.

    9

    Supreme Court of Appeal

    (SCB 3)

    Subclause (2): Delete "or if a vacancy among the members of the court arises", as this is covered by the references to absence and inability.

    9

    Cape Bar Council

    (SCB 5)

    The word "decisions" in the heading should be substituted with "Constitution of", similar to sections 12 and 13 of Act 59 of 1959.

    10

    Supreme Court of Appeal

    (SCB 3)

    Subclause (3): Delete "or if a vacancy among the members of the court arises", as this is covered by the references to absence and inability.

    10

    Cape Bar Council

    (SCB 5)

    The word "decisions" in the heading should be substituted with "Constitution of", similar to sections 12 and 13 of Act 59 of 1959.

    10

    Law Society of South Africa

    (SCB 7)

    Subclause (2): The cost implications of de novo hearings raise some concern. It is proposed that, where there is no majority judgment, the decision must be regarded to be a finding of absolution of the instance in civil matters and as a discharge in criminal matters.

    10

    KwaZulu-Natal Bench

    (SCB 8)

    1. Subclause (4): This provision is unnecessary as any judge worth his or her salt would know that he or she cannot sit in appeal on his or her own judgment and, in any event, the parties would insist on his or her recusal.
    2. Subclause (5): The words "in chambers", at the end, should be removed and inserted after "hear and determine" in the second line.

    11

    Supreme Court of Appeal

    (SCB 3)

    Subclause (4): Replace "vacation" with "recess", as the former is outdated, misleading and wrong.

    11

    Cape Bar Council

    (SCB 5)

    1. The word "decisions" in the heading should be substituted with "Constitution of", similar to sections 12 and 13 of Act 59 of 1959.
    2. Subclause (1)(b): A reference to a full court should be made only after consultation with the Judge President or a Deputy Judge President.
    3. Subclause (5): Amend as follows: "…where the decision of there is no decision in which a majority of the judges of any such court are not in agreement concur, the hearing…".

    11

    Law Society of South Africa

    (SCB 7)

    Subclause (5): The cost implications of de novo hearings raise some concern. It is proposed that, where there is no majority judgment, the decision must be regarded to be a finding of absolution of the instance in civil matters and as a discharge in criminal matters.

    11

    KwaZulu-Natal Bench

    (SCB 8)

    1. Subclause (2)(b): This provision is unnecessary as any judge worth his or her salt would know that he or she cannot sit in appeal on his or her own judgment and, in any event, the parties would insist on his or her recusal.
    2. Subclause (4): Replace "vacation" with "recess", which has less of the flavour of a holiday.
    3. Subclause (7): The time honoured "mutatis mutandis" is preferred to "with the changes required by the context".

    12

    Supreme Court of Appeal

    (SCB 3)

    The entire clause is objectionable and must be deleted. The exercise of any choice of a judge, or a panel of judges, made or effected from outside the ranks of the judiciary is inimical to judicial independence and therefore open to constitutional challenge. The fact that NEDLAC had a statutory right of input before, has become irrelevant.

    12

    Cape Bar Council

    (SCB 5)

    1. Subclauses (1) and (2): It is inappropriate to refer to "the majority of the judges" if a labour matter is heard by a single judge. It is not clear what will happen if a single judge’s name does not appear on the panel referred to in subclause (3). See clause 46(7)(c)(ii), which implies that the matter has to commence de novo. Litigants in labour matters could be severely prejudiced. It must be made clear that clause 12(2) also applies to a matter heard by a single judge.
    2. Subclause (3): Judges should not be appointed to hear specific matters by a body other than the JSC. For the purpose of its deliberations on such appointments, representatives of NEDLAC could be incorporated on an ad hoc basis. Paragraph (a)(iv) would read better if it commenced with the reference to the Judge President.

    12

    Eastern Cape Bench

    (SCB 4)

    1. The Eastern Cape Bench object in principle to the designation of particular judges for specific matters within the High Court of South Africa. The designation procedure may not be countenanced by the Constitution, and may offend the fundamental principles of judicial independence and the separation of powers. They propose that subclauses (1) and (2) be replaced by the following subclause: "In determining the judge or judges who will hear any labour matter in the Supreme Court of Appeal or a Division, the President of the Supreme Court of Appeal or the Judge President of a Division must take into consideration the judges whose names appear on the panel of judges referred to in subsection (2)."
    2. The word "concentrating" in (3)(a) seems ill-chosen.
    3. Subclause (3)(b) should also refer to "a majority" of the NEDLAC delegation, otherwise the absence of one member could wreck the quorum of a meeting.

    12

    Law Society of South Africa

    (SCB 7)

    1. The LSSA supports the incorporation of the Labour Appeal Court into the Supreme Court of Appeal, as it is both proper and desirable given the constitutional conundrum that its existence has caused.
    2. However, the LSSA is opposed to the abolition of the Labour Court as a separate and specialist Court that is devoted to the application of the Labour Relations Act and functioning as a court of equity. The problems currently associated with that Court should be addressed by making more resources available to the Court and by bringing the provisions pertaining to its judiciary into line with those of High Court judges.

    12

    KwaZulu-Natal Bench

    (SCB 8)

    1. Subclause (3) is a most objectionable provision. A committee (not even the JSC) is charged with designating judges to the panel.
    2. The phrase "concentrating (on) and developing judicial knowledge" is vague and clumsily worded. The meaning of "judicial knowledge" is also vague and it is difficult to understand how that is to be developed.
    3. The objection in principle is that a committee of judges and representatives of NEDLAC make a decision in regard to what cases an appointed Superior Court Judge can hear or not hear. Judges are therefore categorised with respect to labour matters as "suitable" or "unsuitable" by, inter alia, representatives of trade unions and organised business. This impinges on the independence of the judiciary and is therefore unconstitutional.

    12

    Justice Ngcobo

    (SCB 16)

    Subclause (3): The "training" provision is a significant development which is crucial not only to the development of a pool of labour judges, but a judges’ pool in general.

    12

    COSATU

    (SCB 25)

    1. Subclause (1): The principle of a labour panel is strongly supported. Since the designation of the judge(s) who must actually hear a labour case will still be done by the Judge President concerned, the Committee will not be designating judges for specific cases and the independence of the judiciary is therefore not affected.
    2. Subclause (3)(a)(iii) (NEDLAC’s involvement): COSATU points out that in some foreign jurisdictions, notably the United Kingdom and Canada, members of the general public are involved in the appointment of judges. In South Africa the JSC is mostly comprised of judges and lawyers. Experience in the JSC has shown that NEDLAC representatives add considerable value to the appointment of labour judges. NEDLAC’s involvement on the panel is strongly supported, and the word "state" should be replaced by "Department of Labour".

    12

    SASLAW

    (SCB 26)

    1. Subclause (3): The panel should not simply be selected from existing High Court judges. Some judges should also be appointed (as judges) on the strength of their specific expertise in labour law, otherwise there could be a loss of expertise in this area.
    2. Subclause (3)(a)(v) and (vi): SASLAW is willing to recommend practitioners as envisaged in these provisions.
    3. Is it envisaged that the current Labour Court premises will continue to be used for labour matters?
    4. Is it envisaged that judges will specifically be appointed to Divisions where there are very few judges with expertise in labour law?

    13

    Cape Bar Council

    (SCB 5)

    1. Subclause (1)(a): "Applicable rules of court" should be replaced with "rules of the Constitutional Court".
    2. Subclause (1)(b): Replace "…the court must deal" with "…the Constitutional Court must deal". The words "of that Court" should be added at the end of the clause.

    14

    Cape Bar Council

    (SCB 5)

    1. Subclause 14(1)(a) and (b): Why should all appeals in labour matters be heard by the Supreme Court of Appeal, and not by a full court?
    2. Subclause 14(1)(d): The reference to a "court of a status similar to the High Court" is vague. Those courts should be listed in the clause.
    3. Subclause 14(2)(b) – (d): The senior judge (of those considering an appeal) should also have this power.

    14

    KwaZulu-Natal Bench

    (SCB 8)

    1. Subclause (2)(b): The issue of the practical effect of a decision on appeal will only arise when the case is allocated to the full bench panel of judges. The senior judge presiding in the appeal should have the power to call for the representations contemplated in this provision, and this should not be peremptory ("must" should be changed to "may").
    2. The word "or" before "failing which" should be deleted as it is unnecessary and ungrammatical.

    14

    COSATU

    (SCB 25)

    Subclause (1)(b) is strongly supported since it replicates the current process applicable under the Labour Relations Act and it would prevent a situation where an appeal is heard by judges, the majority of whom are not part of the labour panel.

    15

    Cape Bar Council

    (SCB 5)

    1. Subclause (1)(c): There may be several "real issues" between the parties. Paragraph (c) should be amended as follows: "where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties the balance of convenience favours the granting of leave to appeal."
    2. Subclause (2)(e): The proviso is problematic – how is the application to be formulated if no reasons have been given for refusal of leave to appeal. This "referral option" could also be abused by unsuccessful applicants.
    3. Subclause (5)(a): The test for the referral of a matter to the Supreme Court of Appeal is too narrow ("a question of law of importance"). The Bill should revert to the existing test contained in section 20(2)(a) of Act 59 of 1959.

    15

    Eastern Cape Bench

    (SCB 4)

    1. Subclause (1)(a)(i): The test should be "reasonable prospect of success".
    2. Subclause (1)(c): The word "although" should be inserted at the beginning.

    15

    KwaZulu-Natal Bench

    (SCB 8)

    1. Subclause (1)(a): This would introduce a new and vague test. What does "real" or "compelling reason" mean? The existing test (reasonable prospect of success) should be retained, as it has worked well and is clearly set forth in case law.
    2. Subclause (1)(c): The word "against" should be inserted after "appealed" in the first line.

    16

    Cape Bar Council

    (SCB 5)

    Subclause (2): The provision deals with orders which currently are not appealable. It will invite disputes as to whether its effect is to render such orders appealable.

    16

    Eastern Cape Bench

    (SCB 4)

    Subclause (2)(a): Rule 43 matters should not be made appealable. That will inevitably defeat the finalisation of divorce matters and increase costs. Interim custody and maintenance orders are in any event subject to variation if justified by changed circumstances.

    16

    Law Society of South Africa

    (SCB 7)

    Subclause (1): The operation and execution of a decision should only be suspended once an appeal has been lodged. Applications for leave are often lodged where the applicant has no reasonable prospect of success, and the procedure is then drawn out to frustrate the respondent’s right to execute the order. An adverse or special cost order will not compensate the respondent for any loss suffered as a result of the delay. In the event of a bona fide application for leave to appeal, it is suggested that the applicant must furnish some form of security where the application relates to a judgment sounding in money.

    16

    KwaZulu-Natal Bench

    (SCB 8)

    1. Rule 43 orders and interlocutory orders should not be made appealable. Women and children will be severely prejudiced. The law at present in this regard is satisfactory and there is no need for change. (Section 20(7) of Act 59 of 1959.)
    2. Subclause (2): "(u)nder special circumstances" should be changed to "in special circumstances".

    17

    Eastern Cape Bench

    (SCB 4)

    1. Paragraph (a): The majority of Eastern Cape Judges are opposed to hearing appeals without oral argument. Open oral hearings contribute to the hallowed principle of "justice being seen to be done". However, some judges feel that, in appeals without obvious merit from the magistrates’ courts, it will be practical and useful to dispose of them without an oral hearing.
    2. Paragraph (c): At the end, replace "and" with "or".

    17

    KwaZulu-Natal Bench

    (SCB 8)

    In the first line, "appeal jurisdiction" should be changed to "appellate jurisdiction".

    18

    Justice Ngcobo

    (SCB 16)

    The Supreme Court of Appeal should not decide a question of law "for guidance" where such question involves a constitutional matter. Such questions should be submitted to the Constitutional Court. Conflicting decisions should be referred to the Chief Justice, who must direct whether the matter must be decided by the Constitutional Court of the Supreme Court of Appeal.

    19

    Supreme Court of Appeal

    (SCB 3)

    1. Subclause (1): Delete the words "subject to the direction of the Judge President concerned" and insert the following new subclause: "The Judge President concerned may direct where any cases referred to in (1)(a) and (b) above may be heard."
    2. Subclause (3)(a): The proviso should be deleted. Although this is taken from the existing provision, it is not a requirement for High Court jurisdiction that the cause of action must arise within the area of jurisdiction.

    19

    Cape Bar Council

    (SCB 5)

    1. How is the jurisdiction of "seat areas" to be defined?
    2. Subclause (1): The words "subject to the direction of the Judge President concerned" are new, and may give rise to procedural point-taking.
    3. Subclause (3): The concept of arrest of a natural person to found jurisdiction is inconsistent with modern law and may be unconstitutional.

    19

    KwaZulu-Natal Bench

    (SCB 8)

    Subclause (3)(a): After the word "fuga", "also" should be changed to "even".

    20

    Cape Bar Council

    (SCB 5)

    This provision is unnecessary as review powers can be dealt with under the common law. Clause 19 is sufficient in this regard.

    22

    Cape Bar Council

    (SCB 5)

    1. "Civil summons" should be defined (as in Act 59 of 1959).
    2. A Division should have a discretion to dispense with or condone non-compliance with these time-limits.
    3. Time periods are not consistently referred to – in this clause "months" and "weeks" are being used, and in others references are made to "days" (which should be "court days").

    22

    Law Society of South Africa

    (SCB 7)

    Add the following proviso: "Provided that if the last day on which a party may enter an appearance to defend in terms of this section falls on a Saturday, Sunday or public holiday, the time allowed for entering an appearance will only expire on the first court day following on that Saturday, Sunday or public holiday."

    22

    KwaZulu-Natal Bench

    (SCB 8)

    "Civil summons" should be defined (as in Act 59 of 1959).

    25

    Supreme Court of Appeal

    (SCB 3)

    The following amendments are proposed in respect of subclause (1):

    "Subject to any other law, if any proceedings have been instituted in a Division or court of similar status, and it appears to the Court concerned that such proceedings—

    (a) should have been instituted in another Division or court, including a magistrate’s court; or

    (b) would be more conveniently or more appropriately heard or determined—

    (i) at another seat of that Division; or

    (ii) in another Division,

    that Court may, on its own initiative or upon application by any party thereto and after hearing all other parties thereto, order in chambers that such proceedings to be removed to that other Division or seat or court, as the case may be."

    25

    Cape Bar Council

    (SCB 5)

    Subclause (2): The words "may hear" should be replaced with "shall hear".

    30

    Justice Ngcobo

    (SCB 16)

    Rule-making powers should not be fragmented, and should vest in a Rules Committee in the Office of the Chief Justice.

    32

    Law Society of South Africa

    (SCB 7)

    This clause should be deleted and dealt with in the Rules of Court.

    33

    Supreme Court of Appeal

    (SCB 3)

    Subclause (5): After the first "document", insert "in hard copy or electronic medium".

    33

    Law Society of South Africa

    (SCB 7)

    This clause should be deleted and dealt with in the Rules of Court.

    34

    Law Society of South Africa

    (SCB 7)

    This clause should be deleted and dealt with in the Rules of Court.

    36

    Cape Bar Council

    (SCB 5)

    1. Subclause (1): The Supreme Court of Appeal should also have the power to obtain evidence on commission.
    2. The Bill does not define "commissioner" and do not provide for the manner in which such commissioner must be appointed. Provision should be made for appointment in terms of the rules.

    39

    Justice Ngcobo

    (SCB 16)

    A mechanism should be introduced to effect execution of judgments against the state. It is suggested that the Bill should amend the State Liability Act 20 of 1957 to this effect.

    41

    Supreme Court of Appeal

    (SCB 3)

    In subclauses (1) and (2), the word "media" should be replaced by "medium".

    41

    Cape Bar Council

    (SCB 5)

    Subclause (1)(a): Amend as follows: "…may be transmitted by telegraph, fax, or by means of any other electronic media as may be in the manner provided for by the rules of that court."

    42

    Law Society of South Africa

    (SCB 7)

    This clause should be deleted and dealt with in the Rules of Court.

    44

    Supreme Court of Appeal

    (SCB 3)

    Subclause (1): Amend as follows: "Notwithstanding any other law, no private prosecution (and) no civil proceedings …"

    44

    Justice Ngcobo

    (SCB 16)

    The consent of the Chief Justice, as the head of the judiciary, should also be sought where a Judge President is being sued.

    45

    Circle Council of Limpopo

    (SCB 2)

    Subclause (1): The fact that Thohoyandou has been named as the seat (sic) of the Limpopo Division is regretted. It is recommended that this subclause be amended to provide that Polokwane will be a (the) seat of the Limpopo Division, and that subclause (2) be amended to provide for (a period of) concurrent jurisdiction between the Polokwane and Northern Gauteng Divisions.

    (Note: Clause 45 is a transitional provision, dealing with the "fate" of existing Courts (seats). It is proposing that Thohoyandou becomes a (not "the") seat of the Limpopo Division, without any immediate alteration of the area of jurisdiction of the existing Court at Thohoyandou. As there is presently no High Court in Polokwane, it would amount to a fiction to convert that "court" to a seat of the Limpopo Division.)

    46

    Supreme Court of Appeal

    (SCB 3)

    Subclause (1): The reference to the "panel referred to in section 12(3)" should be deleted, in line with the Supreme Court of Appeal’s comment on clause 12.

    46

    Cape Bar Council

    (SCB 5)

    1. Subclause (7)(c): This is impractical and may give rise to delay and injustice. Provisions should be made for cases to continue as if the Bill had not been passed.
    2. Provision should also be made for the finalisation of part-heard applications on motion without oral evidence.

    46

    Justice Ngcobo

    (SCB 16)

    Subclause (7): The manner in which pending labour matters are to be dealt with must be provided for in the Bill so that parties know how to take these matters forward.

    48

    KwaZulu-Natal Bench

    (SCB 8)

    Subclause (3): The time honoured "mutatis mutandis" is preferred to "with the changes required by the context".

    50

    KwaZulu-Natal Bench

    (SCB 8)

    It is probably not desirable to have a separate Rules Board for Labour Matters. There should in any event not be a margin of only one between the legally trained and non-legal members.

    50

    Justice Ngcobo

    (SCB 16)

    1. Clause 50 read with clause 30 creates a number of anomalies. It creates a situation where two sets of rules apply in the same court – one for labour matters and another for general matters. Secondly, it creates a situation where two different entities, namely the President of the Supreme Court of Appeal and the Rules Board, will make rules for the Supreme Court of Appeal. Thirdly, the Rules Board has no power to make rules for the Supreme Court of Appeal as this is taken away by clause 30, yet it has the power to make rules for that Court in terms of clause 50. These situations underscore the undesirability of fragmenting rulemaking power.
    2. Managing labour matters in the Supreme Court of Appeal and the High Court can be resolved by harmonising the rules of those Courts with the rules of the Labour Court and the Labour Appeal Court. This process can be undertaken by Civil Justice Reform Committee of the Rules Board after consultation with the President of the Supreme Court of Appeal and the existing Rules Board for Labour Courts.

    50

    COSATU

    (SCB 25)

    This provision is strongly supported since it provides a dedicated mechanism through which it may be ensured that labour matter proceedings are less formalised and therefore more accessible. The appointment of members to the Standing Labour Matters Rules Committee on the advice of NEDLAC is of particular importance (subclause (2)(c)).

    50

    SASLAW

    (SCB 26)

    1. The new section 5B(4): There appears to be an inconsistency between this provision and clause 47.
    2. SASLAW is willing to recommend practitioners referred to in the new section 5B(2)(c)(i) and (ii).

    Schedule

    1

    SASLAW

    (SCB 26)

    Legal practitioners, as defined in the Labour Relations Act, should continue to enjoy a right of appearance in labour matters. This does not appear clearly from the Bill. (Note: The right of appearance in labour matters is dealt with in section 161 of the LRA – a section which is not repealed by the Superior Courts Bill.)