The Constitutional Court

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 (SCA) is based in Bloemfontein in the Free State. It was established in 1910 as the Appellate Division. It is designated as the Supreme Court of Appeal by the Constitution. The court consists of a President, a Deputy President and a number of judges of appeal.

Ordinarily, proceedings are presided over by 3 or 5 judges, depending on the nature of the appeal. An appeal in a criminal or civil matter may be heard before a court consisting of 3 judges. A court consisting of a larger number of judges hear a matter of importance.

The SCA decides appeals except in labour and competition matters. Appeals to the SCA emanate from the High Court of South Africa or a court of a similar status to the High Court. Except for the Constitutional Court, no other court can change a decision of the SCA. The SCA may change its own decision.

The final decision of the SCA is the one supported by most of the judges listening to the case. If a judgment is not agreed to by a majority of the judges, the matter is adjourned and recommenced afresh before a new court. The President of the SCA determines the constitution of the new court.

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.

Supreme Court of Appeal

The Supreme Court of Appeal (SCA) is based in Bloemfontein in the Free State. It was established in 1910 as the Appellate Division. It is designated as the Supreme Court of Appeal by the Constitution. The court consists of a President, a Deputy President and a number of judges of appeal.

Ordinarily, proceedings are presided over by three or five judges, depending on the nature of the appeal. An appeal in a criminal or civil matter may be heard before a court consisting of three judges. A court consisting of a larger number of judges hear a matter of importance.

The SCA decides appeals except in labour and competition matters. Appeals to the SCA emanate from the High Court of South Africa or a court of a similar status to the High Court. Except for the Constitutional Court, no other court can change a decision of the SCA. The SCA may change its own decision.

The final decision of the SCA is the one supported by most of the judges listening to the case. If a judgement is not agreed to by a majority of the judges, the matter is adjourned and recommenced afresh before a new court. The President of the SCA determines the constitution of the new court.

High Courts

The High Court of South Africa consists of the following Divisions:

(a) Eastern Cape Division, with its main seat in Grahamstown.

(b) Free State Division, with its main seat in Bloemfontein.

(c) Gauteng Division, with its main seat in Pretoria.

(d) KwaZulu-Natal Division, with its main seat in Pietermaritzburg.

(e) Limpopo Division, with its main seat in Polokwane.

(f) Mpumalanga Division, with its main seat in Mbombela.

(g) Northern Cape Division, with its main seat in Kimberley.

(h) North West Division, with its main seat in Mahikeng.

(i) Western Cape Division, with its main seat in Cape Town.

Each Division of the High Court consists of a Judge President, one or more Deputy Judges President and judges. The number of judges in each Division are determined in accordance with prescribed criteria and approved by the President.

Each Division has an area of jurisdiction which comprises of any part of one or more provinces. Each Division has a main seat and one or more local seats. A local seat has its own (exclusive) area of jurisdiction. Appeals arising from a decision of a single judge or of a Magistrate’s Court within the local seat, may, by direction of the Judge President be heard at the main seat of the Division. The main seat has concurrent (the same) appeal jurisdiction over a local seat. Judges are assigned within the Division by the Judge President. The High Court may sit elsewhere than the main or local seat to hear a matter, as determined by the Judge President after consulting the Minister. The reasons for doing so are expediency or the interests of justice.

A civil matter heard by a court of first instance, meaning that the matter is not an appeal matter, is presided over by a single judge. Any matter may be heard by a court consisting of not more than three judges. A single judge hearing a civil matter may discontinue the hearing and refer it for hearing to the full court of that Division. This is done in consultation with the Judge President or, in the absence of both the Judge President and the Deputy Judge President, the senior available judge.

The law relating to criminal procedure determines the number of judges hearing a criminal case as a court of first instance.

Two judges hear any civil or criminal appeal. If the judges hearing the appeal do not agree, then at any time before a judgment is handed down, a third judge will be added to hear the appeal. The decision of the majority of the judges of a full court of a Division is the decision of the court. Where the majority of the judges disagree, the hearing is adjourned and commenced from the start (de novo) before a court consisting of three other judges.

The High Court decides constitutional matters, with two exceptions. The Constitutional Court may agree to hear the matter directly or an Act of Parliament may assign another court of a status similar to the High Court to hear the constitutional matter. The High Court decides other matters that have not been assigned to another court by an Act of Parliament.

Circuit Courts of the Divisions of the High Court

Circuit courts are part of the High Court. Circuit courts serve far flung and rural areas. Circuit courts are established by the Judge President of a Division by way of a notice in the Gazette. A Circuit court’s jurisdiction applies within the area of the Division. The area of jurisdiction of a Circuit court is the circuit district. Circuit courts adjudicate civil or criminal matters. The boundaries of a circuit district may be altered by notice in the Gazette. Circuit courts are held at least twice a year. The court is presided over by a judge of the Division. The judge president of the division determines the times and places for the sittings of the court to hear the matters.

Important officers in a High Court Division:

The Registrar of the High Court – The functions of a registrar are mainly administrative. The registrar also has semi-judicial duties, e.g. issuing civil process (summonses, warrants, subpoenas) and so on. Other important duties of the registrar are that of taxing-master for that particular High Court division. Registrars also compile case lists, arrange available courts, lend assistance to judges in general and keep records.

The Family Advocate- The Family Advocate assists the parties to reach an agreement on disputed issues, namely custody, access and guardianship of children. If the parties are unable to reach an agreement, the Family Advocate evaluates the parties’ circumstances in light of the best interests of the child and makes a recommendation to the Court with regard to custody, access or guardianship.

The Master of the High Court- The Master’s Branch is there to serve the public in respect of:

• Deceased Estates;

• Liquidations (Insolvent Estates);

• Registration of Trusts;

• Tutors and Curators; and

• Administration of the Guardian’s Fund (minors and mentally challenged persons).

Tax Courts

Tax Courts are established by the President of the Republic by proclamation in the Gazette. In March 2003 the tax courts were established for areas. The special income tax courts constituted before 1 April 2003 for the hearing of income tax appeals were abolished. A tax court is established for the area of the Division of the High Court.

Division of the High Court of South Africa
Seats of tax courts
Western Cape Division
Cape Town
Eastern Cape Division
Gqeberha
Northern Cape Division
Kimberley
Free State Division
Bloemfontein
Gauteng Division
Pretoria and Johannesburg
KwaZulu-Natal
Durban

The tax court hears tax appeals. A tax court is presided over by a judge or an acting judge of the High Court, who is the president of the tax court. The judge is assisted by an accountant and a representative of the commercial community. In appeals relating to the business of mining or the valuation of assets, the representative must be a registered mining engineer; or a sworn appraiser.

Three judges hear a dispute if a dispute exceeds R50 million; or SARS and the ‘appellant’ jointly apply to the Judge-President.

The Judge President of the Division of the High Court nominates and seconds a judge or an acting judge of the division to be the president of the tax court. A secondment applies for a period, or for the hearing of a particular case.

The President of the Republic appoints the panel of members of a tax court for a term of office of five years. A member is eligible for reappointment for a further period or periods as the President may think fit. The President of the Republic may terminate the appointment of a member at any time for misconduct, incapacity or incompetence. A member’s appointment lapses in the event that the tax court is abolished. A member of the tax court must perform his/her functions independently, impartially and without fear, favour or prejudice.

The Commissioner of the South African Revenue Services appoints the registrar of the tax court. The registrar and persons appointed in the office of the registrar are SARS employees.

When the tax court sits to hear an appeal, the proceedings are not public. The president of the tax court may in exceptional circumstances, on request of any person, allow that person or any other person to attend the sitting. In such a matter, the court considers any representations made by the ‘appellant’ and a senior SARS official who appears in support of the assessment or ‘decision’.

The tax court makes the following orders in appeals –
(a) Confirm an assessment or decision;
(b) Order an assessment or decision to be altered; or
(c) Refer an assessment back to SARS for further examination and assessment.

In the case of an appeal against an understatement penalty imposed by SARS, the court may reduce, confirm or increase the understatement.

Appeal against the decision of the tax court
The taxpayer or SARS may appeal against a decision of the tax court. An appeal against a decision of the tax court lies—
(a) to the full bench of the Provincial Division of the High Court which has jurisdiction in the area in which the tax court sitting is held; or
(b) to the Supreme Court of Appeal, without an intermediate appeal to the Provincial Division, if—
(i) the president of the tax court has granted leave under the rules; or
(ii) the appeal was heard by the tax court.

Magistrates’ Courts

The Magistrates’ Courts are the district courts and the regional courts.

The district courts hear limited types of civil cases. They cannot deal with certain matters such as divorce, arguments about a person’s will and matters where it is asked if a person is mentally sane or not.

The types of civil matters that the magistrates’ courts hear are set out in the Magistrates Courts Act (32 of 1944 as amended). With effect from 27 March 2014, district courts hear matters up to the amount of R200 000. Regional courts hear civil matters above R200 000 up to and including 400 000. The Minister may change these amounts at any time by notice in the Gazette.

Some of the civil matters that the Magistrates’ Courts hear are:
(i) delivery or transfer of any property, movable or immovable;
(ii) ejectment against the occupier of any premises or land;
(iii) matters arising from a mortgage bond;
(iv) matters arising out of a credit agreement;
(v) other matters not already set out above, such as claims for damages caused negligently to a vehicle or injuries to a person.

Divorces
In addition to civil matters, a regional court hears:
(a) the nullity of a marriage or a civil union;
(b) divorces and ancillary matters; and
(c) matters in terms of the Recognition of Customary Marriages Act, 1998 (Act 120 of 1998). A regional court in these matters has the same jurisdiction as a High Court. The Regional Magistrate may be assisted by two assessors to advise on questions of fact.

Criminal matters in the Magistrates’ Courts
The State prosecutes people who are charged with breaking the law. The criminal cases are held in the criminal courts. Criminal Courts can be divided into two groups:

Regional Courts
A Regional Magistrate makes the decisions in a Regional Court, sometimes with the support of lay assessors.

The Regional Courts deal with serious cases such as murder, rape, armed robbery and serious assault. These courts do not hear treason cases. The Criminal Law (Sentencing) Amendment Act (38 of 2007) obliges the court to sentence a person to life imprisonment for offences such as murder or rape. The convicted person must prove “substantial compelling” circumstances in order for the court to impose a sentence less than life imprisonment. A Regional Court may impose a maximum fine of R600 000 and a maximum sentence of 15 years in common law offences (no statute or act of Parliament determines the sentence for the offence). A statute may prove for a maximum term of imprisonment in excess of 15 years for specific offences. An example is the Drugs and Drug Trafficking Act (140 of 1992). The maximum sentence of imprisonment for dealing in drugs is 25 years.

District Courts
The district courts try the less serious cases. They do not hear cases of murder, treason, rape, terrorism, or sabotage. The maximum term of imprisonment in common law crimes (crimes that are not specified by a statute / an act of Parliament) is 3 years. The maximum fine is R120 000. A statute may provide for a maximum term of imprisonment in excess of 3 years for specific offences that are heard in the district magistrates’ courts.

Specialised Magistrates’ Courts
There are a number of specialised courts located at the level of the Magistrates’ Courts that deal with certain types of matters:
• Specialised Commercial Crimes Courts (SCCCs)
• Small Claims Courts
• Equality Courts
• Maintenance Courts
• Sexual Offences Courts
• Children’s Courts

Circuit Courts of the Divisions of the High Court

Circuit courts are part of the High Court. Circuit courts serve far flung and rural areas. Circuit courts are established by the Judge President of a Division by way of a notice in the Gazette. A Circuit court’s jurisdiction applies within the area of the Division. The area of jurisdiction of a Circuit court is the circuit district. Circuit courts adjudicate civil or criminal matters. The boundaries of a circuit district may be altered by notice in the Gazette. Circuit courts are held at least twice a year. The court is presided over by a judge of the Division. The judge president of the division determines the times and places for the sittings of the court to hear the matters.

Website: https://www.judiciary.org.za/index.php

Important officers in a High Court Division

The Registrar of the High Court – The functions of a registrar are mainly administrative. The registrar also has semi-judicial duties, e.g. issuing civil process (summonses, warrants, subpoenas) and so on. Other important duties of the registrar are that of taxing-master for that particular High Court division. Registrars also compile case lists, arrange available courts, lend assistance to judges in general and keep records.

The Family Advocate- The Family Advocate assists the parties to reach an agreement on disputed issues, namely custody, access and guardianship of children. If the parties are unable to reach an agreement, the Family Advocate evaluates the parties’ circumstances in light of the best interests of the child and makes a recommendation to the Court with regard to custody, access or guardianship.

The Master of the High Court- The Master’s Branch is there to serve the public in respect of:
• Deceased Estates;
• Liquidations (Insolvent Estates);
• Registration of Trusts;
• Tutors and Curators; and
• Administration of the Guardian’s Fund (minors and mentally challenged persons).

The Sheriff of the court – The Sheriff is an impartial and independent official of the Court appointed by the Minister of Justice and Constitutional Development who must serve or execute all documents issued by our courts. These include summonses, notices, warrants and court orders.

The Directors of Public Prosecutions – are responsible for all the criminal cases in their provinces, so all the prosecutors are under their control. The police bring information about a criminal case to the Director of Public Prosecutions or his/her representative prosecutors. The Director of Public Prosecutions or his/her representative prosecutor then decides whether there is a good reason to have a trial and whether there is enough information to prove in court that the person is guilty.

The State Attorney – The State Attorney’s Division of the Department of Justice functions like an ordinary firm of attorneys, except that its clients are the different departments of government and not private individuals. The state attorney’s major function is to protect the interests of the State by acting for all government departments and administrations in civil cases, and for officials sued in their official capacity.