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The most notable change proposed in the 19th Constitution Amendment Bill is the conversion of the Constitutional Court into the apex appellate court alongside the Supreme Court of Appeal, which remains the highest court of appeal except when the Constitutional Court gives leave to appeal a matter in the interests of justice.

This brings an end to the transitional concept of a court whose jurisdiction was limited to constitutional matters. As Supreme Court of Appeal Judge Carol Lewis said five years ago in her 10th Oliver Schreiner Memorial Lecture, there is no real difference between constitutional matters and others. "The case for a review of the system of twin peaks - two apex appeal courts with overlapping jurisdiction - was compelling" even in 2005 because it " threatens to impede the coherent development of the law". The apex court should hear matters of general public importance in the interest of the development of the law. Her views were endorsed by the General Council of the Bar.

The Constitutional Court as we know it was created to satisfy consideration of legitimacy at the time when South Africa adopted a new supreme law. Its judges were drawn from beyond the ranks of those usually eligible for appointment, as in the case, for example, of now former Constitutional Court Judge Albie Sachs.

At least two of the questions Judge Lewis asked in her landmark lecture merit debate now:
Should the court be given a new name if it is no longer solely a constitutional court?
Should all of its appointees not be drawn from the High Courts or the Supreme Court of Appeal? The 19th amendment leaves the existing provision in place which requires that only four of the Constitutional Court's eleven judges should come from the bench. But whereas constitutional insight may be found outside the bench, the judges of the apex court would need to have far wider legal knowledge and skill.

The range of legal skill required raises a question about the timing of a new idea introduced with the 19th amendment: that the judges of this court should no longer be appointed for 12 years only, but for the same term as any other judge, that is until they are 70 or are discharged from service. The fact is that existing appointments were made while the Constitutional Court had more limited jurisdiction than that now proposed. We certainly do not want the Chief Justice's term to expire in a year's time - but the Constitution already provides for extension by an Act of Parliament. When dealing with the proposal, it will be necessary to consider the range of expertise available on the Constitutional Court as it is now constituted, and the dates of discharge of the sitting judges under the 12 year provision.

The proposals that caused a storm of protest when the previous Constitutional Amendment and Superior Courts Bill were published in 2005 have largely been removed. For example, the Chief Justice is firmly in charge of the setting and monitoring of norms and standards for the exercise of the judicial functions. These include the assignment of judges to sittings, the assignment of cases to judges, the determination of standards and procedures, case flow management, outstanding judgements and recesses.

Yet at least one provision that runs directly counter to this recognition of the independence of the courts has partially survived, and must be reconsidered: the Ministerial regulation-making power that appears in the Superior Courts Bill (s 59). It still allows administrative interference in the judicial functions: for example the judges can be required to "furnish periodical returns of statistics "on any aspect of the functioning and administration of the courts and the performance of judicial functions" Therefore it still, as the GCB said in 2005, causes judges to account to the Executive and betrays an employer v employee mentality towards the judiciary.

The two new Bills incorporate the Magistracy in the judiciary proper in an ambitious but laudable attempt to stop treating the lower courts as an extension of the public service - no provision that allows the higher courts to be so treated should be allowed onto the statute book.