Constitution of the Republic of South Africa, 1996/2001-11-21/Chapter 8

Constitutional Court

The Constitutional Court consists of the Chief Justice of South Africa, the Deputy Chief Justice and nine other judges.

A matter before the Constitutional Court must be heard by at least eight judges.

The Constitutional Court —

is the highest court in all constitutional matters; may decide only constitutional matters, and issues connected with decisions on constitutional matters; and makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.

Only the Constitutional Court may —

decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state; decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the circumstances anticipated in section 79 or 121; decide applications envisaged in section 80 or 122; decide on the constitutionality of any amendment to the Constitution; decide that Parliament or the President has failed to fulfil a constitutional obligation; or certify a provincial constitution in terms of section 144.

The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, a High Court, or a court of similar status, before that order has any force.

National legislation or the rules of the Constitutional Court must allow 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.

A constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution.

Supreme Court of Appeal

The Supreme Court of Appeal consists of a President, a Deputy President and the number of judges of appeal determined in terms of an Act of Parliament.

A matter before the Supreme Court of Appeal must be decided by the number of judges determined in terms of an Act of Parliament.

The Supreme Court of Appeal may decide appeals in any matter. It is the highest court of appeal except in constitutional matters, and may decide only —

appeals; issues connected with appeals; and any other matter that may be referred to it in circumstances defined by an Act of Parliament.

Appointment of judicial officers

Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer. Any person to be appointed to the Constitutional Court must also be a South African citizen.

The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.

The President as head of the national executive, after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal.

The other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly, in accordance with the following procedure:

The Judicial Service Commission must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President. The President may make appointments from the list, and must advise the Judicial Service Commission, with reasons, if any of the nominees are unacceptable and any appointment remains to be made. The Judicial Service Commission must supplement the list with further nominees and the President must make the remaining appointments from the supplemented list.

At all times, at least four members of the Constitutional Court must be persons who were judges at the time they were appointed to the Constitutional Court.

The President must appoint the judges of all other courts on the advice of the Judicial Service Commission.

Other judicial officers must be appointed in terms of an Act of Parliament which must ensure that the appointment, promotion, transfer or dismissal of, or disciplinary steps against, these judicial officers take place without favour or prejudice.

Before judicial officers begin to perform their functions, they must take an oath or affirm, in accordance with Schedule 2, that they will uphold and protect the Constitution.

Acting judges

The President may appoint a woman or a man to be an acting judge of the Constitutional Court if there is a vacancy or if a judge is absent. The appointment must be made on the recommendation of the Cabinet member responsible for the administration of justice acting with the concurrence of the Chief Justice.

The Cabinet member responsible for the administration of justice must appoint acting judges to other courts after consulting the senior judge of the court on which the acting judge will serve.

Terms of office and remuneration

A Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first, except where an Act of Parliament extends the term of office of a Constitutional Court judge.

Other judges hold office until they are discharged from active service in terms of an Act of Parliament.

The salaries, allowances and benefits of judges may not be reduced.

Judicial Service Commission

There is a Judicial Service Commission consisting of —

the Chief Justice, who presides at meetings of the Commission; the President of the Supreme Court of Appeal;

one Judge President designated by the Judges President; the Cabinet member responsible for the administration of justice, or an alternate designated by that Cabinet member; two practising advocates nominated from within the advocates’ profession to represent the profession as a whole, and appointed by the President; two practising attorneys nominated from within the attorneys’ profession to represent the profession as a whole, and appointed by the President; one teacher of law designated by teachers of law at South African universities; six persons designated by the National Assembly from among its members, at least three of whom must be members of opposition parties represented in the Assembly; four permanent delegates to the National Council of Provinces designated together by the Council with a supporting vote of at least six provinces; four persons designated by the President as head of the national executive, after consulting the leaders of all the parties in the National Assembly; and when considering matters relating to a specific High Court, the Judge President of that Court and the Premier of the province concerned, or an alternate designated by each of them.

If the number of persons nominated from within the advocates’ or attorneys’ profession in terms of subsection (1)(e) or (f) equals the number of vacancies to be filled, the President must appoint them. If the number of persons nominated exceeds the number of vacancies to be filled, the President, after consulting the relevant profession, must appoint sufficient of the nominees to fill the vacancies, taking into account the need to ensure that those appointed represent the profession as a whole.

Members of the Commission designated by the National Council of Provinces serve until they are replaced together, or until any vacancy occurs in their number. Other members who were designated or nominated to the Commission serve until they are replaced by those who designated or nominated them.

The Judicial Service Commission has the powers and functions assigned to it in the Constitution and national legislation.

The Judicial Service Commission may advise the national government on any matter relating to the judiciary or the administration of justice, but when it considers any matter except the appointment of a judge, it must sit without the members designated in terms of subsection (1)(h) and (i).

The Judicial Service Commission may determine its own procedure, but decisions of the Commission must be supported by a majority of its members.

If the Chief Justice or the President of the Supreme Court of Appeal is temporarily unable to serve on the Commission, the Deputy Chief Justice or the Deputy President of the Supreme Court of Appeal, as the case may be, acts as his or her alternate on the Commission.

The President and the persons who appoint, nominate or designate the members of the Commission in terms of subsection (1)(c), (e), (f) and (g), may, in the same manner appoint, nominate or designate an alternate for each of those members, to serve on the Commission whenever the member concerned is temporarily unable to do so by reason of his or her incapacity or absence from the Republic or for any other sufficient reason.