Landmark legislation

The proposed Superior Courts Bill is a landmark piece of legislation that intends to ensure the administrative independence of all South Africa’s courts under the office of the chief justice.

In a previous incarnation of the Bill, proposed in 2006 during the Mbeki era, responsibility for the administration of the courts would have been given to the minister of justice, prompting fears that the independence of the judiciary could be compromised.

Following a public outcry the 2006 Bill was withdrawn.

The 2010 Bill also affirms the Constitutional Court as South Africa’s highest court. At present, the Constitutional Court is the final authority in all constitutional matters while the Supreme Court of Appeal has equal status in all other matters.

Legal opinion is divided over the creation of the Constitutional Court as the single centre of judicial power. Some experts argue that the two centres of power currently in existence is more desirable because they provide checks and balances that prevent the executive from dominating the judiciary.

There are also concerns that the Constitutional Court could become overburdened with cases, given its proposed new status as the highest court in ­­ the land.

The 2010 Bill also attempts to rationalise the ”fragmented court structure and infrastructure” inherited from apartheid and provide ”a uniform framework for judicial management, by the judiciary, of the judicial functions of all courts”.

This means a proposed reshuffle of certain high court seats along the following lines:

• In Gauteng the North Gauteng and South Gauteng high courts become the seats of the high courts for the North ­Gauteng and South Gauteng general divisions respectively;
• The North Gauteng High Court will also function temporarily as the seat of the Limpopo and Mpumalanga ­general divisions, until the minister gazettes their areas ­of jurisdiction in consultation with the Judicial Service Commission;
• Once gazetted, the Limpopo and Mpumulanga general divisions will be re-seated in Polokwane and Nelspruit respectively;
• In the Eastern Cape General Division the seat of the high court moves from Grahamstown to Bhisho, although Grahams­town continues as the seat of the division until a date determined by the minister in consultation with the Eastern Cape judge president;
• In KwaZulu-Natal the seat of the high court moves from Durban to Pietermaritzburg;
• The seats of the Northern Cape, Western Cape, Free State and North West general divisions remain unchanged.