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 |
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) |
|
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) |
|
3 |
Cape Bar Council (SCB 5) |
|
3 |
COSATU (SCB 25) |
|
4 |
Cape Bar Council (SCB 5) |
|
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-
|
4 |
Law Society of South Africa (SCB 7) |
|
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) |
|
6 |
Cape Bar Council (SCB 5) |
|
7 |
Cape Bar Council (SCB 5) |
|
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) |
7 |
Justice Ngcobo (SCB 16) |
|
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) |
|
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) |
|
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) |
|
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) |
|
12 |
Eastern Cape Bench (SCB 4) |
|
12 |
Law Society of South Africa (SCB 7) |
|
12 |
KwaZulu-Natal Bench (SCB 8) |
|
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) |
|
12 |
SASLAW (SCB 26) |
|
13 |
Cape Bar Council (SCB 5) |
|
14 |
Cape Bar Council (SCB 5) |
|
14 |
KwaZulu-Natal Bench (SCB 8) |
|
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) |
|
15 |
Eastern Cape Bench (SCB 4) |
|
15 |
KwaZulu-Natal Bench (SCB 8) |
|
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) |
|
17 |
Eastern Cape Bench (SCB 4) |
|
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) |
|
19 |
Cape Bar Council (SCB 5) |
|
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) |
|
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 |
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) |
|
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 |
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) |
|
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) |
|
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) |
|
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.) |