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Khadija Magardie Minister of Justice and Constitutional Development Penuell Maduna this week threw his weight behind Constitutional Court president Arthur Chaskalson as his choice to lead a new super court. Maduna endorsed Chaskalson as the country’s top judicial officers gave the thumbs-up to a merger of the two highest courts in the land – the Supreme Court of Appeal and the Constitutional Court. This will likely result in a collapsing of the two courts into a single body, or the creation of a court with two separate, parallel chambers. Up until now, there has been speculation in legal circles that a black judge would be selected to lead the new court. The judiciary, which was unscathed by the negotiated revolution in 1994, remains dominated by white males despite efforts by the Judicial Service Commission to make the Bench more representative. Speaking at a two-day legal colloquium just outside Pretoria, Maduna refused to speculate on which “model” he preferred, but stressed that, either way, he was in favour of the court being headed by Chaskalson. Lauding Chaskalson as a great legal mind who had exhibited sterling leadership qualities during his time at the Constitutional Court, Maduna said it was vital that someone of high calibre, combined with the necessary experience, should drive the process of integrating the two courts. He dismissed speculation in legal circles that the incumbent would need to be black. “I don’t think, in philosophical terms, that he [Chaskalson] is any less representative than anyone else because of his pigmentation – we need a leader,” said Maduna, adding that it was possible that once the new court structure was in place, authorities would look towards grooming someone else to take over the reins from Chaskalson. It is unclear whether Chaskalson, who is up for retirement at the end of next year, will make himself available. “We may persuade him to stay,” added Maduna. The relationship between the Constitutional Court and the Supreme Court of Appeal, formerly known as the Appellate Division, dominated the opening of the colloquium on Thursday. Emphasising the need to “ration- alise” the courts, several prominent speakers hinted at a “tension of judicial authority” between the two courts – and called for an urgent review of the status quo.
In terms of the Constitution, all appeals on constitutional issues must first be heard in the Supreme Court of Appeal, a high court or another court with a similar status, before being taken to the Constitutional Court, which has the “final word” on all constitutional matters. This has created an apparent tension between the two courts – with Supreme Court decisions often overruled by the Constitutional Court. Insiders say this has also facilitated an unspoken tension within the judicial hierarchy. In his opening speech, Maduna urged that the relationship between the courts needs to be redefined -saying: “It needs to be settled once and for all which is the highest court in the land.” Implying that the system as it currently stands favours the rich, allowing them to “litigate at will”, Maduna said it was necessary to address the issue, as it was inextricably linked to access to justice. The main problem, he said, was that the caseload of the Supreme Court was reaching unacceptably high proportions. Coupled with delays in courts hearing appeals, considerably increased costs and lack of adequate resources, the “rationalisation” of the two courts could have significant implications – such as a possible reduction in the number of appeals heard by the courts. National Director of Public Prosecutions Bulelani Ngcuka echoed Maduna’s sentiments, calling for a rapid solution to the problem of maintaining the two courts. Describing the present situation, which gives the Supreme Court no constitutional jurisdiction, as “inappropriate” and “a troublesome distinction”, Ngcuka said the time had come for the country to have one supreme court, headed by one judge. “I am in favour of the merger of the Supreme Court of Appeal and the Constitutional Court into one supreme tribunal which will have the final say on law and constitutional matters,” he said. Ngcuka also broadened the issue of backlogs to the rest of the country’s courts, saying measures needed to be put in place to reduce the numbers of trials – as well as to speed up those already in process. He said it was time for legislative recognition of the plea-bargain system, an arrangement between the prosecutor and the defendant whereby the defendant pleads guilty to a lesser charge in the expectation of a lighter sentence. Describing plea-bargaining as a “groundbreaking reform of the criminal justice system”, Ngcuka urged judicial officers to “experiment” with the system even before the legislation is officially passed, saying it would ease the burden on the courts. The gathering of the country’s top legal minds – including judges, academics, legal professionals and politicians – is expected to thrash out several other contentious issues, which the Department of Justice and Constitutional Development says it will use in looking at ways to improve the system. Among other things, some of the issues that will fall under the spotlight are the role of traditional courts, languages used in court proceedings, broadening access to legal aid, and the highly contentious issue of establishing structures to facilitate and deal with grievances against judges.