Deputy Minister of Justice and Constitutional Development Johnny de Lange has clashed publicly with George Bizos over a draft constitutional amendment Bill that seeks to alter the administration of courts and which the veteran lawyer believes could presage a “mini constitutional crisis” if not amended. De Lange is the Bill’s staunchest proponent and Bizos its most outspoken critic.
At a debate on Monday night, De Lange repeatedly berated Bizos for his vocal and public opposition to the Draft Constitutional Fourteenth Amendment Bill and implored him to “set an example”.
De Lange told an audience of 400 at a debate organised by University of Cape Town law students that the proposed amendment, in so far as it concerns the division of judicial and administrative authority, would change nothing.
“Since 1652, or whenever the first guy arrived, the administrative functions have never been performed by anyone other than the Department of Justice.”
The United Kingdom had recently enacted similar legislation and in Canada the administration of courts was also not under judicial control.
Bizos’s key objections to the draft Bill include the ouster clause, which would bar any court from suspending the commencement of an Act of Parliament; the diminution of the Judicial Service Commission’s (JSC) role to mere consultation in the appointment of senior acting judges by the president; and the distinction the draft Bill seeks to draw between judicial and administrative functions, thereby constitutionalising control over court administration in the hands of the minister.
Bizos claimed that if De Lange did not moderate his position South Africa would face a “mini constitutional crisis”. He said it was likely the Constitutional Court would rule the draft Bill, and certain provisions of the other legislation that hangs off it, unconstitutional. He alluded to the “basic structure doctrine” enunciated by the late chief justice Ismael Mohamed, who said that certain amendments, even if passed with massive majorities, might be unconstitutional if they violated the very essence of the Constitution.
He said the 34 constitutional principles agreed at Kempton Park and against which the final Constitution was certified by the court in 1996, would be violated by the new law. De Lange insisted that these principles had no further force or effect.
Bizos said: “One can imagine a situation in the future where a case is being heard in which one of the litigants is the government, in which it is possible that one judge may tilt the outcome, and there is a vacancy on the court needing to be filled by an acting judge.” Under the proposed amendment, he argued, the president could appoint an acting judge without the approval of the JSC or the chief justice.
“We trust this president and we trust this government, but constitutional amendments are forever,” said Bizos.
Another panellist, Judge Dennis Davis, asked: “Why does the remedying of any of the above issues require a constitutional amendment?”
But Dumisa Ntsebeza, the former head of the Truth and Reconciliation Commission’s investigative unit and a member of the Black Lawyers Association, said the Bill did not offend constitutional principles as set out in a noted Canadian judgement R v Valente.
The judgement laid down the minimum criteria of judicial independence: judges security of tenure, financial security and institutional independence.
But Bizos countered that in Canada the head of courts administration holds a position comparable to that of the governor of the Reserve Bank. It is at arm’s length from the judiciary, enjoying its own independence and security of tenure. Davis argued that under former justice minister Penuell Maduna draft Bills were produced that came close to an agreement on a similar basis. “The draft Bills are still there,” he said, but De Lange rubbished these claims, stating that the Canadian model had never been discussed, and that the Bills had been debated for 11 years.
Responding to De Lange’s criticism of his public criticism, Bizos said the JSC had been bypassed. And he had taken the decision after the Legal Resources Centre (to which he is attached) was informed by the secretary of the parliamentary portfolio committee on justice that no public hearings on the Bill were expected.
Judge Davis said the judiciary welcomed what he called President Thabo Mbeki’s “statesman-like approach” in extending the period for comment and noted, based on newspaper reports, that the president had not been aware of the contentious nature of the draft Bill. De Lange denied this, saying the president was fully informed as the draft Bill had been through Cabinet.
Keightley Reynolds is a law student at the University of Cape Town
Additional reporting by Sarah Lawrence