Constitution of the Republic of South Africa, 1996/2013-08-23/Chapter 8

Judicial authority

The judicial authority of the Republic is vested in the courts.

The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

No person or organ of state may interfere with the functioning of the courts.

Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.

An order or decision issued by a court binds all persons to whom and organs of state to which it applies.

The Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts.

Judicial system

The courts are —

the Constitutional Court; the Supreme Court of Appeal; the High Court of South Africa, and any high court of appeal that may be established by an Act of Parliament to hear appeals from any court of a status similar to the High Court of South Africa;

the Magistrates’ Courts; and any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to either the High Court of South Africa or the Magistrates’ Courts.

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 of the Republic; and may decide —

constitutional matters; and any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court; and

makes the final decision whether a matter is within its jurisdiction.

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, the High Court of South Africa, 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 arising from the High Court of South Africa or a court of a status similar to the High Court of South Africa, except in respect of labour or competition matters to such extent as may be determined by an Act of Parliament. The Supreme Court of Appeal 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.

High Court of South Africa

The High Court of South Africa may decide —

any constitutional matter except a matter that —

the Constitutional Court has agreed to hear directly in terms of section 167(6)(a); or is assigned by an Act of Parliament to another court of a status similar to the High Court of South Africa; and

any other matter not assigned to another court by an Act of Parliament.

The High Court of South Africa consists of the Divisions determined by an Act of Parliament, which Act must provide for —

the establishing of Divisions, with one or more seats in a Division; and the assigning of jurisdiction to a Division or a seat within a Division.

Each Division of the High Court of South Africa —

has a Judge President; may have one or more Deputy Judges President; and has the number of other judges determined in terms of national legislation.

Other courts

All courts other than those referred to in sections 167, 168 and 169 may decide any matter determined by an Act of Parliament, but a court of a status lower than the High Court of South Africa may not enquire into or rule on the constitutionality of any legislation or any conduct of the President.

Powers of courts in constitutional matters

When deciding a constitutional matter within its power, a court —

must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and may make any order that is just and equitable, including —

an order limiting the retrospective effect of the declaration of invalidity; and an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.

The Supreme Court of Appeal, the High Court of South Africa or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.

A court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief to a party, or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of that Act or conduct. National legislation must provide for the referral of an order of constitutional invalidity to the Constitutional Court. Any person or organ of state with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms of this subsection.

Inherent power

The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa each has the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.

Appointment of acting judges

The President may appoint a woman or man to serve as an acting Deputy Chief Justice or judge of the Constitutional Court if there is a vacancy in any of those offices, or if the person holding such an office 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, and an appointment as acting Deputy Chief Justice must be made from the ranks of the judges who had been appointed to the Constitutional Court in terms of section 174(4).

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.

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 Division of the High Court of South Africa, the Judge President of that Division 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.