This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
Chapter 8 - Courts and Administration of Justice
165. (1) The judicial authority of the Republic is vested in the courts.
(2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
(3) No person or organ of state may interfere with the functioning of the courts.
(4) 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.
(5) An order or decision issued by a court binds all persons to whom and organs of state to which it applies.
166. The courts are
a. the Constitutional Court;
b. the Supreme Court of Appeal;
c. the High Courts, including any high court of appeal that may be established by an Act of Parliament to hear appeals from High Courts;
d. the Magistrates' Courts; and
e. any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to either the High Courts or the Magistrates' Courts.
167. (1) The Constitutional Court consists of a President, a Deputy President and nine other judges.
(2) A matter before the Constitutional Court must be heard by at least eight judges.
(3) The Constitutional Court
a. is the highest court in all constitutional matters;
b. may decide only constitutional matters, and issues connected with decisions on constitutional matters; and
c. makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.
(4) Only the Constitutional Court may
a. 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;
b. decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the circumstances anticipated in section 79 or 121;
c. decide applications envisaged in section 80 or 122;
d. decide on the constitutionality of any amendment to the Constitution;
e. decide that Parliament or the President has failed to fulfil a constitutional obligation; or
f. certify a provincial constitution in terms of section 144.
(5) 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.
(6) 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
a. to bring a matter directly to the Constitutional Court; or
b. to appeal directly to the Constitutional Court from any other court.
(7) A constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution.
Supreme Court of Appeal
168. (1) The Supreme Court of Appeal consists of a Chief Justice, a Deputy Chief Justice and the number of judges of appeal determined by an Act of Parliament.
(2) A matter before the Supreme Court of Appeal must be decided by the number of judges determined by an Act of Parliament.
(3) 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
b. issues connected with appeals; and
c. any other matter that may be referred to it in circumstances defined by an Act of Parliament.
169. A High Court may decide
a. any constitutional matter except a matter that
i. only the Constitutional Court may decide; or
ii. is assigned by an Act of Parliament to another court of a status similar to a High Court; and
b. any other matter not assigned to another court by an Act of Parliament.
Magistrates' Courts and other courts
170. Magistrates' Courts and all other courts may decide any matter determined by an Act of Parliament, but a court of a status lower than a High Court may not enquire into or rule on the constitutionality of any legislation or any conduct of the President.
171. All courts function in terms of national legislation, and their rules and procedures must be provided for in terms of national legislation.
Powers of courts in constitutional matters
172. (1) When deciding a constitutional matter within its power, a court
a. must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and
b. may make any order that is just and equitable, including
i. an order limiting the retrospective effect of the declaration of invalidity; and
ii. an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.
a. The Supreme Court of Appeal, a High Court 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.
b. 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.
c. National legislation must provide for the referral of an order of constitutional invalidity to the Constitutional Court.
d. 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.
173. The Constitutional Court, Supreme Court of Appeal and High Courts have 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 judicial officers
174. (1) 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.
(2) The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.
(3) 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 President and Deputy President of the Constitutional Court and, after consulting the Judicial Service Commission, appoints the Chief Justice and Deputy Chief Justice.
(4) The other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the President of the Constitutional Court and the leaders of parties represented in the National Assembly, in accordance with the following procedure:
a. 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.
b. 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.
c. The Judicial Service Commission must supplement the list with further nominees and the President must make the remaining appointments from the supplemented list.
(5) 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.
(6) The President must appoint the judges of all other courts on the advice of the Judicial Service Commission.
(7) 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.
(8) 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.
175. (1) 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 President of the Constitutional Court and the Chief Justice.
(2) 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
176. (1) A Constitutional Court judge is appointed for a non-renewable term of 12 years, but must retire at the age of 70.
(2) Other judges hold office until they are discharged from active service in terms of an Act of Parliament.
(3) The salaries, allowances and benefits of judges may not be reduced.
177. (1) A judge may be removed from office only if
a. the Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and
b. the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members.
(2) The President must remove a judge from office upon adoption of a resolution calling for that judge to be removed.
(3) The President, on the advice of the Judicial Service Commission, may suspend a judge who is the subject of a procedure in terms of subsection (1).
Judicial Service Commission
178. (1) There is a Judicial Service Commission consisting of
a. the Chief Justice, who presides at meetings of the Commission;
b. the President of the Constitutional Court;
c. one Judge President designated by the Judges President;
d. the Cabinet member responsible for the administration of justice, or an alternate designated by that Cabinet member;
e. two practising advocates nominated from within the advocates' profession to represent the profession as a whole, and appointed by the President;
f. two practising attorneys nominated from within the attorneys' profession to represent the profession as a whole, and appointed by the President;
g. one teacher of law designated by teachers of law at South African universities;
h. 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;
i. four permanent delegates to the National Council of Provinces designated together by the Council with a supporting vote of at least six provinces;
j. 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
k. when considering matters specifically relating to a provincial or local division of the High Court, the Judge President of that division and the Premier, or an alternate designated by the Premier, of the province concerned.
(2) 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.
(3) 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.
(4) The Judicial Service Commission has the powers and functions assigned to it in the Constitution and national legislation.
(5) 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).
(6) The Judicial Service Commission may determine its own procedure, but decisions of the Commission must be supported by a majority of its members.
179. (1) There is a single national prosecuting authority in the Republic, structured in terms of an Act of Parliament, and consisting of
a. a National Director of Public Prosecutions, who is the head of the prosecuting authority, and is appointed by the President, as head of the national executive; and
b. Directors of Public Prosecutions and prosecutors as determined by an Act of Parliament.
(2) The prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings.
(3) National legislation must ensure that the Directors of Public Prosecutions
a. are appropriately qualified; and
b. are responsible for prosecutions in specific jurisdictions, subject to subsection (5).
(4) National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.
(5) The National Director of Public Prosecutions
a. must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the Directors of Public Prosecutions, prosecution policy, which must be observed in the prosecution process;
b. must issue policy directives which must be observed in the prosecution process;
c. may intervene in the prosecution process when policy directives are not complied with; and
d. may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following:
i. The accused person.
ii. The complainant.
iii. Any other person or party whom the National Director considers to be relevant.
(6) The Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority.
(7) All other matters concerning the prosecuting authority must be determined by national legislation.
Other matters concerning administration of justice
180. National legislation may provide for any matter concerning the administration of justice that is not dealt with in the Constitution, including
a. training programmes for judicial officers;
b. procedures for dealing with complaints about judicial officers; and
c. the participation of people other than judicial officers in court decisions.