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21 December 1994
RE: NEW CONSTITUTION
Enclosed
herewith please find a copy of a memorandum containing proposals relating
to the structure of the courts under the new constitution which has already
been
sent to the Department of Justice. We should be happy to give
oral evidence in amplification of the
views set out
therein.
JUDGE S SELIKOWITZ
JUDGE
I G FARLAM
MEMORANDUM
It is suggested
that in the Permanent Constitution, provision should be made for the
administration of justice at superior court level
by means of a three tiered
court system, as follows :
(1) 9 provincial divisions of the
Supreme Court, one for each
province, with provision for temporary (circuit)
local divisions and, where necessary, permanent local divisions at centres some
distance
away from the seats of the provincial divisions : the provincial
divisions could also hear appeals from inferior courts in the
province.
(2) 3 appellate divisions of the Supreme Court, each
having as
its area of appellate jurisdiction, a circuit made up of three
provinces. It is suggested that the 3 appellate areas could be : (a)
the
provinces of the Western Cape, the Eastern Cape and Kwazulu/Natal (the First
Circuit Court of Appeals or the Coastal Circuit);
(b) the Northern Cape, the
North West and the Orange Free State (the Second Circuit Court of Appeals or the
Central Circuit); and
(c) the provinces of Pretoria-Witwatersrand Vereeniging,
the Eastern
Transvaal and the Northern Transvaal (the Third
Circuit Court of Appeals or the Northern Circuit). The grouping of the
provinces
into appellate circuits has partly been dictated by convenience. The
three maritime provinces (Western Cape, Eastern Cape and Kwazulu/Natal)
are
linked by regular and easily accessible airline routes.
(3) One
High Court - the highest Court in the land - which
would hear appeals
from the Circuit Courts of Appeals, but only in those cases in which it has
given leave to appeal to itself. In
other words, it would function as does the
United States Supreme Court and only hear those cases it chooses to hear.
(Possibly provision
could be made for appeals as of right to it in cases between
Provincial Governments and the Central Government and a Provincial Government
and cases where a Circuit Court of Appeals had declared unconstitutional an Act
of the central Parliament. If the Permanent Constitution
makes provision for
advisory opinions to be sought by Parliament on the constitutionality of
proposed legislation, then such cases
could also be brought before the High
Court without its
cont/....
3
leave
being first obtained.)
It is considered that judges of all tiers of the
Supreme Court should be empowered to deal with constitutional matters and should
have the power to declare Acts of Parliament unconstitutional and that provision
should not be made for a separate Constitutional
Court. The present system with
constitutional questions going to the Constitutional Court and other questions
going to the Appellate
Division, with the consequent delays and other problems
associated therewith should not, it is considered, form part of the permanent
constitutional arrangements. The factors which we believe led to the present
dichotomy between the Constitutional Court and the
Appellate Division and the
decision to give only the Constitutional Court the power to declare Acts of
Parliament unconstitutional
should no longer be applicable under the permanent
constitution.
The structure suggested above is based on the federal court
structure in the United States. In a sense it involves decentralising
the
Appellate Division, breaking its three chambers down into separate appellate
courts, and putting the High Court at the apex with
the power to hear
constitutional matters and also important cases of a non-constitutional nature
where the importance and difficulty
of the point at issue justifies the case
being heard at the highest
cont/....
level. For example, a
question such as whether there is a general enrichment action could and should
be considered by the highest
court as would cases where the various Circuit
Courts of Appeal have given conf licting judgments.
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