The government is pressing ahead with legislation that will bar all courts from suspending the coming into force of an Act of Parliament, the Department of Justice and Constitutional Development confirmed on Monday.
The provision is contained in the Constitution 14th Amendment Bill, one of several measures that were floated as discussion documents at a meeting between judges and the government in April last year.
The Bill, published in the Government Gazette in mid-December, also seeks to give the justice minister explicit control over the administration and budget of all courts, and create a single high court of South Africa.
Law academics said the anti-suspension provision likely has its roots in the United Democratic Movement’s 2002 challenge to the floor-crossing legislation.
The UDM won in the Cape High Court, but lost in the Constitutional Court.
The high court suspended the commencement of the package of floor-crossing Bills pending the outcome of a Constitutional Court application.
The government in turn appealed to the Constitutional Court, asking it to rule that the high court did not have the jurisdiction to make the order, which it said constituted judicial intrusion of the most far-reaching kind into the legislative domain.
The constitutional judges upheld the appeal, but on other grounds, saying it was not necessary in that particular case to decide on the jurisdiction issue.
The clause in the Bill reads: ”Despite any other provision of this Constitution, no court may hear a matter dealing with the suspension of, or make an order suspending, the commencement of an Act of Parliament or a provincial Act.”
Democratic Alliance justice spokesperson Sheila Camerer, who sits on the Judicial Service Commission (JSC), confirmed that the clause had been in the April 2005 discussion document.
”What alarms us is that it’s more or less the same Bill that served before the judges’ colloquium in April. It caused a furore,” she said.
The most controversial aspect from the DA’s point of view has been the clause giving the minister control over administration and budget.
”We cried foul and raised a great fuss about that at the time, and we’ll do it again,” she said.
The DA will also challenge a provision that she said sidelines the JSC in the appointment of high-court judges president and their deputies.
On the suspension clause, she said clearly the courts should retain all their power to declare a law unconstitutional once it is in force.
However, it is ”a bit of a moot point” whether the courts should be able to prevent its commencement.
”It’s a question of when the powers kick in. Certainly this needs to be examined under a microscope,” she said. ”I think we remain to be convinced that this clause is necessary.”
African Christian Democratic Party justice spokesperson Steve Swart said, however, that the clause challenges ”the very nature of a constitutional democracy”.
”We thus have no doubt whatsoever that this amendment itself will not survive legal challenge, but it is still a matter of grave concern that such an amendment has even been considered,” he said.
The trade union Solidarity said it is disappointed by the clause, and by the Bill’s proposed abolition of the Labour Appeals Court — which will be subsumed into the Supreme Court of Appeal.
The anti-suspension clause means the Constitutional Court will be prevented from acting as watchdog against human rights violations.
The scrapping of the Labour Appeals Court, about which there has been no ”open” consultation with workers or unions, will contribute to the already high workload and backlog of cases in South African courts.
Department of Justice and Constitutional Development spokesperson Kaizer Kganyago said the department will not comment on the constitutionality of the Bill.
He said the Bill, which has been approved by Cabinet, will now go through the parliamentary process.
”We are hoping it will be dealt with this year, but Parliament has got its own programme, which is not influenced by us,” he said.
The department is accepting public comment on the Bill until January 15. — Sapa