analysisBy Sipho Hlongwane
Parliament passed the 17th Constitutional Amendment on Tuesday by more than the required two-thirds majority. The new laws entrench the Constitutional Court as the highest in the land, while ensuring that the Supreme Court of Appeal isn’t reduced to a mere chamber of the former.
Practically all the parties agreed to it too, as a bit of tidying up and tying loose ends in our most supreme law.
The African National Congress and the Democratic Alliance have often tussled with each other over the matter of the Constitution, sometimes quite dramatically. The opposition party makes a habit of accusing the governing party of flouting the supreme law of South Africa, and has warned of dark times if it is allowed to change it unilaterally.
On a night vigil outside Constitutional Hill, the DA Youth once unveiled a poster showing a copy of the Constitution on fire. “The first is that there is a clear and pressing threat posed to numerous elements of the Constitution and the second is that, in the DA’s future, the Constitution will reign supreme as the ultimate law. There will be no person or body above that law,” the leader Makashule Gana said.
This prompted a response from top ANC man Trevor Manuel, who said, “Cyril Ramaphosa made a very important point the other day. He said the Constitution did not come down from Table Mountain on stone tablets; it was written by men and women, and we are some of them. We have changed and amended the Constitution 17 times already, and we will continue to amend it because it is a living document – never fear that.”
Another type of relationship between the two parties over the matter of the Constitution took over on Tuesday, as Parliament voted for the 17th amendment by 276 to 25 (in a parliament of 400 members), significantly more than the required two-thirds majority (69%) required by law.
The amendment is a rearranging and tweaking of the relationship between the Constitutional Court and the Supreme Court of Appeal, and is accompanied by the Superior Courts Bill.
The amendment changes section 165 of the Constitution to make the chief justice the head of the judiciary, with responsibility for the exercise of the judicial functions of the courts.
The amendment of Section 167 was more controversial. MPs debated how to narrow the ambit of the Constitutional Court, but still placing it as the apex court, and confirming the status of the Supreme Court of Appeal as the general appellate court.
The section now says that the Constitutional Court “has jurisdiction in all Constitutional matters… and any other matter in which it may grant leave to appeal on the grounds that the matter raises an arguable point of law of general public importance”.
Justice and constitutional development minister Jeff Radebe said that they had held back on court reforms, to prevent the Supreme Court of Appeal from being a mere chamber of the Constitutional Court.
“The proposed amendments introduce a sifting mechanism that will ensure that not all non-constitutional matters proceed to the Constitutional Court as the apex court, but only those that must deservedly receive the attention of the Constitutional Court,” Radebe (who also serves as head of policy for the ANC) said at the debate of the bill in Parliament.
“This is a with a view to maintaining a three-tier appeal system up to the Supreme Court of Appeal to the extent that it is possible in view of the cost and time that is expended if appeals go through the hierarchy.”
Dene Smuts, the DA spokesperson for justice and constitutional development, welcomed the bill, saying: “If the Constitutional Court is the heartbeat of our law, the Supreme Court of Appeals is its head. It is a matter of South African transitional history that we have two appeal courts. Our tentative re-exploration of the idea that the two should become two chambers of one court found no ready answer. That question will have to evolve. What is crystal clear, however, is that we need both courts.”
Only two parties, the Inkatha Freedom Party (IFP) and Cope were opposed to the new bill, the former on the grounds that the highest court in the land was never meant to function as an ordinary court, and the latter on the grounds that the system worked and didn’t need changing.
A senior MP for the DA said to Daily Maverick that the changes were necessary because the Constitution was written in a great hurry to kick-start the new democracy as quickly as possible and prevent civil war. Inevitably, some things were not arranged in the best possible way.
“This is about tying up some loose ends,” he said.
This innocuous amendment bill had a difficult birth. It was introduced at the beginning of the last decade, and was to be tabled in 2006. At the time, it sought to make the justice minister responsible for the administration of justice and not the chief justice. That met with much hostility, as opposition MPs and legal experts contended that this eroded the independence of the judiciary. A much-changed bill was reintroduced in 2010.
Not everyone is a fan of making the Constitutional Court the apex court of the land. One strong objector is the retired Judge Ian Farlam, who wrote that it was never envisaged as a normal court. When the Constitutional Assembly formulated the new court, it provided that only (or at least) four of the 11 members of the court needed to have judicial experience as court justices.
“In other words a majority of the members of the Court need not have any judicial experience, either as judges of first instance or as appellate judges. While this has the advantage already stated in Constitutional matters, the reverse is the case in other matters where it is important that the members of the top court which decides such cases have extensive experience and expertise in the law and judicial practice.
Hence the decision to have a two-apex court system,” Farlam wrote.
More important were the socio-political attitudes and Constitutional expertise of the members of the Court.
The retired judge – who is currently chairing the Marikana Commission of Inquiry – also said that the Judicial Service Commission, the president of the country and the leaders of the parties in the National Assembly whom he had to consult regarding their appointment were never required to apply their minds as to the fitness of the appointees for office in a court of last resort in non-constitutional matters.
Farlam’s concerns notwithstanding, the bill represents an example of an unsung phenomenon: political parties that differ on so many fundamental issues coming together to fix what they agree is a problem. It took 10 years, and some serious wrangling, but the Constitution is still a “living document” which can adapt to a changing society.