No malice was intended when gazetting draft constitutional amendments for public comment over the Christmas holiday period, the Department of Justice and Constitutional Development said on Monday.
”It was really just a coincidence,” Director General of Justice and Constitutional Development Menzi Simelani told reporters in Parliament on the Constitution 14th Amendment Bill.
”It is, in fact, a procedure … that we have to publish a Bill once Cabinet has approved it.”
The draft document, which proposes changes to the judicial system, was approved by the Cabinet in November and published for comment on December 14. The deadline for comment was Sunday.
Simelani denied assertions that this was an attempt to obstruct comment on the Bill, and said he was not aware of objections from judges to the timing of its publication in the Government Gazette.
”I don’t think it [the timing] compromises anybody.”
Simelani said he would not have expected objections from judges as extensive deliberations on the amendments were held with them, up to a point where it became clear that further consensus was impossible.
The Bill still needs to be introduced to Parliament, along with judges’ comments, and ”sufficient time” remains for interest parties to make inputs, Simelani added.
On speculation of further changes, he said: ”We are of the view that we have covered the issues as much as we possibly can take them at this point in time. We couldn’t take them any further.”
Simelani said the version of the Bill published in December does not differ fundamentally from that last discussed with judges, but includes some alterations suggested by them.
The draft Bill makes the justice minister responsible for the administration and budgets for all courts.
The chief justice is the head of judicial authority — responsible for the establishment of norms and standards for courts’ judicial functions.
The Democratic Alliance has criticised the conferment of administrative and budgeting powers to the minister, but Simelani defended the separation of powers he said the Bill seeks to achieve.
He said the draft amendments exclude the executive from involvement in the exercise of judicial powers — such as the adjudication of cases or referring cases to judges.
The minister’s administrative powers would be limited to the hiring and firing of court staff, the management of court facilities and related issues, he said.
”The minister will deal with … anything to do with the provision of services to the public in courts.”
The director general denied claims that the amendments seek to diminish the powers of the chief justice or sideline the Judicial Services Commission in appointments.
In fact, the Constitution does not currently stipulate the powers of the chief justice, and merely outlines his functions. Any existing powers would be assumed and could be challenged, Simelani said.
”What this amendment seeks to do is to actually confer that authority.”
The draft Bill has been criticised for removing an earlier requirement for the chief justice to concur in the president’s appointment of an acting deputy chief justice, acting constitutional court judge, acting Supreme Court of Appeal deputy president, or acting high court deputy judge president. It now requires mere consultation.
The draft seeks to make the Constitutional Court the highest court in the land. Limited to the adjudication of constitutional matters in the past, the court would now be able to decide any appeal it considered in the interests of justice to hear.
The Bill provides that no court may hear any matter dealing with the suspension of, or make an order suspending, the commencement of an Act of Parliament or a provincial Act.
Parliament’s justice portfolio committee chairperson Fatima Chohan-Khota also denied accusations that the amendments were being sneaked in.
”This is … absolute rubbish,” she told a committee sitting on the matter.
Chohan-Khota said the draft Bill had been under debate for four years and nobody had been prevented from making submissions. She was confident even late submissions would be considered.
The DA earlier said it would ask the government to allow more time for comments on the draft amendments, saying their publication took judges by surprise.
A Sunday newspaper article said judges had described the proposed draft as sinister and a threat to their independence, but did not quote any judge as saying so other than one judge whom the paper did not name.
Simelani said the Constitutional Court remains the ultimate referee on the constitutionality of all legislation, including these amendments. — Sapa