The Court’s position in the justice system 

The Constitutional Court is South Africa’s highest court on constitutional matters. 

The is restricted to constitutional matters and issues connected with decisions on constitutional matters. 

Chapter 8 of the final Constitution, entitled “Courts and Administration of Justice”, sets out the structure of South Africa’s court system and defines the role of each court. 

Section 165 says the judicial authority of South Africa is vested in the courts, which are independent and subject only to the Constitution and the law. 

Section 166 identifies these courts as: 

the Constitutional Court; the Supreme Court of Appeal; the High Courts; the Magistrates’ Courts; and any other court established or recognised by an Act of parliament. 

The Supreme Court of Appeal, which used to be known as the Appellate Division, sits in Bloemfontein and is the highest court in respect of all other matters. 

It can hear and decide an appeal against any decision of a High Court. 

Decisions of the Supreme Court of Appeal are binding on all lesser courts and the decisions of the High Courts (which used to be known as the Supreme Courts) are binding on Magistrates’ Courts within their areas. 

These decisions are an important source of law. A decision of a High Court in one division is not binding on another, but in practice has strong persuasive force. 

How cases reach the Constitutional Court 

A case can reach the Constitutional Court in a variety of ways: 

  • as the result of an appeal from a judgment of the High Court or the Supreme Court of Appeal; 
  • as a direct application to the Court, asking it to sit as a court of first and last instance because of the urgency of the matter; 
  • as the result of the court below declaring a piece of legislation invalid, which requires confirmation by the Constitutional Court; or 
  • as a Bill parliament asks the Court to review. 

The Court has the discretion whether or not to hear a matter; an exception is where an Act has already been declared invalid and the Court is required to confirm the finding. 

Typically, cases that reach the Constitutional Court start in the High Court, which has the power to grant various remedies and can declare legislation invalid. 

Any decision that invalidates provincial or parliamentary legislation or any conduct of the President must be confirmed by the Constitutional Court before it has any effect. 

If the High Court rules against an application, the Constitutional Court may be approached on appeal. Since the Court may only hear constitutional matters, an applicant must show that the case concerns a constitutional matter. 

The Constitutional Court judges will decide if an important principle relating to the interpretation of the Constitution has been raised and will consider whether there is a reasonable prospect that the appeal may succeed. But there is no automatic right of appeal. 

If the Court decides to grant leave to appeal, or if it is unsure and wishes to hear argument on whether leave to appeal should be granted, the case is set down on a certain date so that argument from the parties can be heard. Each party submits written submissions before the date of argument so that the judges can familiarise themselves with the case and the position taken by each party. 

Sometimes at this point other interested parties may ask to be joined in proceedings, or be admitted as an amicus curiae (friend of the court). They too will make written submissions and sometimes give oral argument if directed by the chief justice to do so. 

As for direct access, section 167 of the Constitution allows a person, “when it is in the interests of justice and with leave of the Constitutional Court”, to bring a matter directly to the Constitutional Court; or to appeal directly to the Constitutional Court from any other court. 

This procedure is ordinarily permitted only in exceptional circumstances. 

The procedure in bringing a case is set out in the rules of the Constitutional Court. 

How it decides cases 

The Constitution requires that a matter be heard by a quorum of at least eight judges. In ordinary practice, all 11 judges hear every case. If any judge is absent for a long period or a vacancy arises, an acting judge may be appointed. 

The Court does not hear evidence or question witnesses. 

As a court that functions largely as a court of appeal, it considers the record of the evidence heard in the original court that heard the matter. 

A result of this is that the Court works largely with written arguments presented to it. The hearings are intended to tackle difficult issues raised by these arguments. 

Each judge sitting in a case must indicate his or her decision; the ruling is then determined by majority vote. The reasons are published in a written judgment. 

Once a case has been set down, the chief justice will ask a particular judge to do special preparation and possibly write the judgment. Usually cases will be spread out so that each judge writes from time to time. 

Once all parties have been heard, the judges meet to discuss the possible outcome of the case. 

This is one of the central features of the Court: 

the judges act collegially and meet often to discuss important and controversial aspects of a case. A few days later, the writing judge will submit a memo to all the others, indicating where he or she stands. If there are disagreements about the decision or the route taken in reaching it, the judge who disagrees with the main writer will prepare to write a concurrence or dissent. 

Writing a judgment is a long process. The judge prepares a first draft and circulates it. The judges then meet and submit comments or changes. If a dissenting judgment has been written, the justices will begin to indicate which judgment they will follow and why. Sometimes lengthy discussions take place. 

Once consensus is reached, the judgments are thoroughly checked. 

The judgment is then handed down – released at a public sitting of the Court.