Constitution of the Republic of South Africa, 1993/1994-07-22/Chapter 15

Transitional arrangements: Judiciary

241. (1) Every court of law existing immediately before the commencement of this Constitution in an area which forms part of the national territory, shall be deemed to have been duly constituted in terms of this Constitution or the laws in force after such commencement, and shall continue to function as such in accordance with the laws applicable to it until changed by a competent authority: Provided—

that an appellate division of a supreme court which immediately before the commencement of this Constitution exercised jurisdiction in respect of an area which forms part of the national territory, other than the Appellate Division of the Supreme Court of South Africa, shall cease to exist with effect from the date of commencement of the Constitution of the Republic of South Africa Third Amendment Act, 1994; that any case pending before any such appellate division immediately before the said date shall be disposed of by such appellate division and the judges of appeal serving in such appellate division as if such division had not ceased to exist; and that any person who immediately before the said date was the chief justice in respect of any such appellate division, shall continue in office without any change in the terms and conditions of his or her service and shall be deemed to be the Judge President of the supreme court of which that appellate division previously formed part until the existing court structures have been rationalised as contemplated in section 242(1).

(1A) Until the court structures contemplated in Chapter 7 have been established as required by section 242(1), the jurisdiction of courts of law which existed immediately before the commencement of this Constitution and which continued to exist by virtue of subsection (1) of this section, shall be as follows:

The Appellate Division of the Supreme Court of South Africa shall have the same jurisdiction as that which is vested in terms of this Constitution in the Appellate Division contemplated in section 101(1), and shall exercise such jurisdiction in respect of the whole of the national territory; a provincial or local division of the said Supreme Court of South Africa, and any other supreme court or general division thereof, shall have the same jurisdiction as that which is vested in terms of this Constitution in a provincial or local division contemplated in section 101(1), and shall exercise such jurisdiction in respect of the area of jurisdiction for which it was established; and any other court shall, in addition to the jurisdiction vested in it immediately before the commencement of this Constitution, have the same jurisdiction as that which is vested in terms of section 103 in a court of similar status contemplated therein, and shall exercise such jurisdiction in respect of the area of jurisdiction for which it was established.

(1B) For the purposes of the application of this Constitution while the existing court structures referred to in subsection (1) continue, any reference in this Constitution to any of the court structures contemplated in Chapter 7 shall, unless inconsistent with the context or clearly inappropriate, be deemed to be a reference to the corresponding existing court structure, and in such application a reference to a provincial division shall be construed also to refer to any of the other supreme courts, or general division of any such court, referred to in subsection (1A)(b).

(2) The Chief Justice of South Africa, the judges-president and deputy judges-president of the various divisions of the Supreme Court of South Africa, the judges of appeal of the Appellate Division of the said Supreme Court, and the other judges of the said Supreme Court, holding office immediately before the commencement of this Constitution, shall be deemed to have been duly appointed to the corresponding positions in terms of Chapter 7 and shall continue to hold office in accordance with the applicable laws.

(2A) The chief justice of a supreme court referred to in the proviso to subsection (1) who in terms of that proviso continues in office as the Judge President of such supreme court, and the other judges of such supreme court, including the judges of any other supreme court which did not have an appellate division, holding office immediately before the commencement of this Constitution, shall be deemed to have been duly appointed to the corresponding positions in terms of Chapter 7 and shall continue in office in accordance with the applicable laws.

(3) All other judicial officers holding office immediately before the commencement of this Constitution in terms of a law, shall continue to hold such office in accordance with such law.

(4) Every attorney-general holding office immediately before the commencement of this Constitution in terms of a law, shall continue to hold such office in accordance with such law.

(5) Subject to this Constitution, all measures which immediately before the commencement of this Constitution were in operation and applied to judicial officers and attorneys-general, including measures regarding the remuneration, pension and pension benefits, leave gratuity and any other term and condition of service, shall continue in operation and to apply to the said judicial officers and attorneys-general, until amended or repealed by a competent authority: Provided that no such measure shall, except in accordance with an applicable law, be changed in a manner which affects such judicial officers and attorneys-general to their detriment.

(6) The provisions of section 236(5) and (6) shall apply mutatis mutandis in respect of persons referred to in subsections (3) and (4) of this section.

(7) (a) Persons referred to in subsections (2), (2A), (3) and (4) shall within 30 days of the election of the President in terms of section 77(1)(a) make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before the Chief Justice or a judge of the Supreme Court designated by the Chief Justice for this purpose, or, in the case of a person continuing in office or appointed as the Chief Justice or the President of the Constitutional Court, before the President.

(b) For the purposes of paragraph (a) a reference in the relevant oath of office or solemn affirmation set out in Schedule 3 to a Judge of the Supreme Court shall, in the case of a judicial officer referred to in subsection (3), be construed as a reference to the office of such judicial officer.

(8) All proceedings which immediately before the commencement of this Constitution were pending before any court of law, including any tribunal or reviewing authority established by or under law, exercising jurisdiction in accordance with the law then in force, shall be dealt with as if this Constitution had not been passed: Provided that if an appeal in such proceedings is noted or review proceedings with regard thereto are instituted after such commencement such proceedings shall be brought before the court having jurisdiction under this Constitution.

(9) Any legal proceedings instituted before or after the commencement of this Constitution by or against a government, authority or functionary which ceased to exist at or after such commencement, may be continued by or against the relevant government, authority or functionary which superseded the said government, authority or functionary.

(10) The laws and other measures which immediately before the commencement of this Constitution regulated the jurisdiction of courts of law, court procedures, the power and authority of judicial officers and all other matters pertaining to the establishment and functioning of courts of law, shall continue in force subject to any amendment or repeal thereof by a competent authority.