Mungo Soggot
Minister of Justice Penuell Maduna wants to explore the viability of merging South Africa’s two highest courts: the five-year- old Constitutional Court in Johannesburg and the Supreme Court of Appeal in Bloemfontein.
Maduna referred to a possible merger of the two courts at a recent meeting in Johannesburg of the General Council of the Bar, the national body that represents advocates countrywide. Although there has been much debate in legal circles about a possible rationalisation of the two courts, this is the first time the government has indicated it is prepared to consider such a radical move.
Advocates present at the meeting said that Maduna discussed the strikingly different workloads of the two courts.
The 11-strong Constitutional Court has a considerably lighter case load than the Supreme Court of Appeal. The Constitutional Court is, however, far better resourced than the Bloemfontein court, which is staffed by 17 judges. Maduna noted that a merger would allow better use of the judicial talent in the Constitutional Court.
Maduna’s representative, Paul Setsetse, said this week the minister had no firm plans regarding a possible merger of the two courts – a move which would involve an amendment to the Constitution.
Setsetse said Maduna had asked the Department of Justice to explore how best to use “our scarce resources in the courts”, adding that the fusion of the Supreme Court of Appeal and the Constitutional Court was one of several possible changes to the structure of the courts that Maduna wanted to consider.
Setsetse said Maduna would not do anything without consulting “all the role-players and getting people’s comment on his view”.
Maduna’s remarks are likely to fuel a debate that started during the constitutional negotiations preceding the 1994 election. Key legal players, including representatives of the Bloemfontein appeal court (then known as the Appellate Division), suggested a joint court at the time. But proponents of a separate Constitutional Court won the day, arguing that the development of a constitutional dispensation had to be entrusted to a new court that had no links to the old order.
Some of the lawyers who formerly proposed a joint court now openly admit they were wrong, having been won over by the success of the Constitutional Court. “The Constitutional Court has proven itself. It has a credibility unparalleled by any other court in the country,” said one advocate who was previously in favour of a combined court.
He said that the main rationale for a separate Constitutional Court – that the development of constitutional jurisprudence should not be left to “unreformed” old-order judges – will remain apt for some years to come. The Supreme Court of Appeal still includes judges who presided over some of the most reactionary judgments in apartheid case law. Some lawyers argue, however, that a merger would help bury some of the last remnants of the apartheid judiciary.
Chief Justice Ismail Mahomed, who was formerly deputy president of the Constitutional Court, is understood to be open to the idea of a merger. Judge Mahomed is the only member of the Supreme Court of Appeal who is not a white male.
The judges on the Constitutional Court enjoy considerably better resources than their common law counterparts, and this has fuelled resentment among their colleagues in other courts. Although it is arguable that, as the highest court in the land, the Constitutional Court needs the best resources, the relative luxury in which its judges operate stands in sharp contrast to the decaying state of the rest of the justice system.
One parliamentarian and lawyer involved in the constitutional negotiations said the issue is a “dead duck”.
“It is the kind of theoretical point lawyers like discussing, but I don’t think it is feasible politically. It took us a year to negotiate the hierarchy of courts. If he [Maduna] does go forward on this, I hope he canvasses widely.”