Background and Jurisdiction of the court
The court is the successor to the Appellate Division (AD) and was originally constituted in 1910 as the final South African court of appeal on the establishment of the Union of South Africa. With the creation of the Constitutional Court and the enactment of s 166 of the Constitution, 1996 the name of the Court was changed to the Supreme Court of Appeal (SCA).
Originally the head of the court was the Chief Justice, but that changed in 2001 when the head of the Constitutional Court became the Chief Justice. The head of the SCA is now called the President of the SCA.
Between 1994 and 2013 the Constitutional Court and the SCA were both ‘apex courts’ with different areas of jurisdiction, the Constitutional Court in respect of constitutional matters and the SCA in respect of all other matters. However, since August 2013 the Constitutional Court’s jurisdiction has been extended to deal with matters of general public importance in addition to constitutional matters, making it the highest court in all matters. The SCA exercises general appellate jurisdiction, save in respect of certain labour and competition matters, and is therefore the second highest court in South Africa. In many areas its judgments are definitive of South African law.
The SCA has no original jurisdiction and functions only as a court of appeal. A Deputy President assists the President of the SCA and there are at present 23 permanent judicial positions in the Court, in addition to the President and the Deputy President.
The legal system
The common law and statutes
South African law is a ‘mixed legal system’, an amalgam of different legal systems, and its origins are derived from the civil law systems of Europe and the common law of England. The foundation of the common law, now most accurately referred to as South African common law, is Roman-Dutch law, having its roots in the Roman law and then developed and applied in Holland and the other Dutch provinces during the 17th and 18th centuries. Custom also played its part. It was this legal system that prevailed in Holland and was introduced into and applied in South Africa after the arrival of Dutch settlers at the Cape in 1652.
During the British occupation of the Cape, from 1795 to 1803 and again after 1806, Roman-Dutch law was retained as the common law of the country. This was reflected in the Charter of Justice of 1828 and the second Charter of Justice in 1832. English, however, became the language of the courts in 1827 and English legal procedures and the English law of evidence in both criminal and civil matters were introduced. The influence of English private and public law also soon became apparent, sometimes because the lawyers and judges had trained in England and also because its sources were more readily available to practitioners than the Latin and High Dutch of the Roman-Dutch old authorities. Occasionally judges in the SCA need to delve into these old authorities to search for the origin and scope of an otherwise obscure legal rule or doctrine. Fortunately the SCA library has a substantial collection of the old authorities, but they are not all accessible to modern lawyers most of whom have not studied or are able to read Latin or Dutch.
South Africa’s common law’s foundations are to be found in Roman-Dutch legal principles as modified and interpreted by judicial precedent. The decisions of the SCA are binding on all lower courts and, in turn, the SCA is bound by decisions of the Constitutional Court. In addition, the SCA considers itself bound by its own decisions unless convinced that an earlier decision on the point in issue is patently wrong. Judicial decisions are thus themselves a source of law. The role of developing the common law is explicitly recognised in the Constitution, as is the obligation to give effect to the spirit, purport and objects of the Bill of Rights.
The common law is extensively modified by statute. South Africa’s statutory law, as with any other common law country, augments or varies the common law and is the primary source of state regulatory activity. It is also highly significant in the area of criminal law. Many of the cases before the Court are now concerned with the interpretation and application of statutes.
Because of the unique heritage of South African law, and the constitutional imperative to have regard to comparative law, foreign law is frequently consulted, not as binding but as persuasive authority.
Overarching this legal framework is the Constitution, against which all law must be measured for consistency, and which exerts a powerful influence over the development of the law.
Indigenous or customary law is an integral part of South African law and like all other law is subject to the Constitution and the need to comply with constitutional norms and values. It refers to the legal systems that evolved in different communities as part of their culture and traditions in relation to the structure and governance of those societies and personal relationships within those societies. It has particular relevance to family matters, engagements and pre-marriage gifts, customary marriage, the status of children, guardianship and childcare responsibilities, inheritance, land tenure and the conduct of community affairs. The latter includes issues concerning traditional leadership and the appointment of traditional kings and chiefs.
Any international agreement becomes law in the Republic when it is enacted into law by national legislation. Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament. When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.
One hundred years of history
Prior to the creation of the Union of South Africa in 1910 appeals from the colonial supreme courts of the Cape, the Transvaal (which became a colony in 1902) and Natal, lay directly to the Privy Council while decisions of the superior courts in the Eastern Cape and Griqualand West had first to be taken on appeal to the Cape Supreme Court and those from the Orange River Colony (as the Free State was called when it became a colony) to the Transvaal Supreme Court before further appeals were possible to the Privy Council. The need for an court of appeal to hear appeals from the various South African courts, with only limited resort thereafter to the Privy Council, was felt as early as 1905 when a conference of attorneys-general held at Bloemfontein proposed that a South African court be set up. During the November 1908 session of the National Convention, which was held in Cape Town, the constitution of a supreme court was discussed. It adopted a proposal by Sir James Rose Innes and Sir William Solomon that the Court be established and should consist of a chief justice and two ordinary (fulltime) judges of appeal and two additional (part-time) judges of appeal who would be members of one of the provincial divisions. This structure was incorporated in the Union of South Africa Act, 1909 under which the Union came in to existence.
That Act provided that the Appellate Division (AD) was the final court of appeal in South Africa. However, this was subject to a savings provision that the existence of the AD did not detract from the power of the Judicial Committee of Privy Council to hear appeals from it on special leave granted by the Board. In theory at least the AD was an intermediate court of appeal until the abolition of appeals to the Privy Council by the Privy Council Appeals Act 16 of 1950. However, this was largely theoretical as special leave was rarely forthcoming. Records, while imperfect, reflect only ten instances of appeals from judgments of the Appellate Division. Three of these were in cases from Southern Rhodesia (now part of Zimbabwe) at a time when appeals from the court of that colony lay to the AD, and only two in all were successful. To all intents and purposes therefore the Appellate Division was the final court of appeal in South Africa and that position was confirmed in 1950 with the abolition of appeals to the Privy Council.
From Union in 1910 until 1955 the AD was the highest court of appeal in at least some matters for the erstwhile Southern Rhodesia (now part of Zimbabwe) as it was also for South West Africa from 1918 until 1990, when the latter became independent as Namibia. It temporarily lost jurisdiction over parts of South Africa when the TVBC states (Transkei, Venda, Bophuthatswana and Ciskei) created their own final courts of appeal. With the reunification of the country in 1994 its position as the primary appeal court from those areas was restored.
The first Chief Justice was Sir Henry de Villiers who had been the chief justice of the Cape since 1873 and had presided over the deliberations at the National Convention in 1908 leading to the agreement to establish the Union. On his appointment as chief justice he was elevated to the peerage by the conferral of a baronetcy and became Lord De Villiers of Wynberg. The ordinary judges of appeal were Sir James Rose Innes, previously the Chief Justice of the Transvaal, and Sir William Solomon, also from the Transvaal bench. The additional judges of appeal were the newly appointed Judges President of the Cape and Transvaal Provincial Divisions, Christian George Maasdorp and Jacob Abraham Jeremy (Jaap) de Villiers. When Lord de Villiers died in 1914 Sir James Rose Innes was elevated to the chief justiceship and C G Maasdorp became an ordinary judge of appeal. Sir Henry Juta, the Judge President of the Cape (son of the founders of the well-known academic and legal publisher and a nephew of Karl Marx on his mother’s side) was appointed as an additional judge of appeal. Lord de Villiers was the only South African judge ever to sit in a Privy Council appeal. Although several of his successors as Chief Justice were appointed to the Privy Council, they were never called upon to serve on the Privy Council’s Judicial Committee.
In cases emanating from a court consisting of two or more judges all five of the members of the court had to sit, while in other cases a quorum of three judges was required. The Appellate Division Act 12 of 1920 increased the number of (ordinary) judges of appeal from two to four and the posts of additional judges of appeal were abolished. The two additional judges of appeal at the time, Jacob de Villiers and Sir Henry Juta, became fulltime judges of appeal. In 1922 on the retirement of C G Maasdorp his place was taken by Sir John Kotzé and the following year, on the retirement of Sir Henry Juta, Sir John Wessels joined the court. The members of the Court at that stage, Innes CJ, Solomon, J de Villiers, Kotzé and Wessels JJA have been referred to as ‘the five most qualified experts in Roman-Dutch law in South Africa’ at the time.
The South Africa Act 1909 provided for the seat of the Court to be in Bloemfontein but that, for the ‘convenience of suitors’, sittings could be held at other places in the Union. Lord De Villiers made no secret of the fact that he disliked the selection of Bloemfontein as the judicial capital, and Sir James Rose Innes also thought it unfortunate for two reasons. First, it increased the difficulty of staffing the Court and, secondly, it increased the cost of litigation.
In 1910 the Appellate Division made a short circuit of the provincial capitals, hearing appeals in Bloemfontein, Pretoria and Pietermaritzburg, but sat primarily in Cape Town. In 1911 the Court sat twice during short sessions in Bloemfontein, but otherwise sat in Cape Town. This was repeated in 1912. The Free Staters were incensed and this led to a clause being inserted in the Administration of Justice Act 27 of 1912 providing that applications for a change of venue for the hearing of an appeal should be heard only in Bloemfontein and that the hearing of an appeal elsewhere than at Bloemfontein would not be deemed to be for the convenience of any suitor unless exceptional circumstances existed. This expression was given a strict interpretation. Although a provision was added to the effect that while Lord De Villiers was Chief Justice applications for a change of venue could be heard in any place in the Union, in 1913 and 1914 prior to his death he sat in a number of appeals in Bloemfontein.
Very few applications for the court to sit elsewhere were granted between 1912 and 1933. The usual reason for granting such applications was that the cases could not be heard in the court term or that they involved death sentences. Controversy struck in 1933 when the judges permitted an appeal from what was then Southern Rhodesia to be heard in Cape Town. The appeal was expected to be lengthy and needed to be heard out of term. Apart from the logistical problems the appellant argued that Graham Mackeurtan KC, lead counsel, who was in poor health, would not survive the ‘hot summer months of December, January and February’. In the judgment granting the application these months were referred to as ‘the hottest and most trying months of the year’ and as ‘a time when the inured inhabitants find it necessary, if their circumstances permit, to seek relief by a vacation at the coast’. It went on to note that the Orange Free State Provincial Division had arranged its terms in such a way as to avoid sitting during those months when the climate was ‘trying’.
The Free Staters were very proud of Bloemfontein’s status as the judicial capital and were strongly opposed to any decision that took Court sittings away from the city. The decision to hear the matter in Cape Town was strongly condemned by the City Council, the local Chamber of Commerce and the local Bar Council. The Friend, a daily newspaper published in Bloemfontein, printed an anonymous letter, written in fact by the incumbent Judge President of the Free State, Fritz Krause. It included the following: ‘As an old Bloemfonteiner I wish to register my protest, with so many others of my townsmen, against the extraordinary and absurd decision of the Appeal Court to change the venue of a trial to Cape Town on the ground of the climatic conditions alleged to prevail here during the summer months … If there are judges who do not like to reside or sojourn here, well, let them hand in their resignations. There are as many good fish in the sea as come out of it … The health reasons relied on by the court are, in my opinion, as flimsy as a curtain of gossamer.’ T W Mackenzie, the editor of The Friend, was cited to appear before the Court to show cause why he should not be committed for contempt of court for publishing the letter. Mackenzie was ordered to publish an agreed apology and pay a fine of fifty pounds. But very few cases have subsequently been heard outside Bloemfontein.
The size of the court remained unchanged until 1948 when legislation was passed empowering the Governor-General to appoint as many judges of appeal as deemed necessary. The number was duly raised to six to enable the Court to handle the increase in workload which was expected following the extension of its powers in relation to criminal appeals, as it was now permitted to hear appeals on fact, and not just on legal grounds. By this stage the composition of the court had changed significantly. EF (Billy) Watermeyer was the Chief Justice, sitting with Centlivres, Tindall, Schreiner and Greenberg JJA. FP ‘Toon’ van den Heever, a Roman-Dutch scholar and a prominent Afrikaans poet, was appointed to the new seat on the court. Forty-three years later his daughter, Leo van den Heever, became the first woman to be appointed to the Court. In the only other instance of a parent being succeeded by their child, G G (Gus) Hoexter was appointed to the AD in 1982. His father, O H (Oscar) Hoexter had been appointed in 1949 in place of Tindall JA. Rumpff CJ was Harms JA’s father-in-law.
Twenty judges served on the Court during the period 1910 – 1948. Many of them were jurists of eminence who wrote judgments that clarified the law, influenced its development and are still cited today. They exerted an enormous influence on the foundational principles of the South African legal system, none more so than Sir James Rose Innes, widely regarded as one of the greatest, if not the greatest, judge to have been produced by this country. Unusually for this country, after his retirement he returned to public life in order to campaign against the efforts of the Hertzog government to remove the historic franchise rights enjoyed by Blacks in the Cape Province. In a prescient speech he said:
‘In a comparatively short time, we shall have to deal with a great body of [Black people] whose education has enabled them to appreciate the value of the political status denied them, and has stimulated their determination to obtain it, and they will be embittered by the grievances, economic and administrative which are bound to accumulate when one section of the people is deprived of those voting rights which its fellow citizens enjoy.
Is it seriously contemplated, may I ask, to repress these aspirations, to hold this aggrieved and angry multitude down by force? Because – let us make no mistake - it will come to that in the end. This is not a mere denial of liberty; it is a case of taking away liberty which has been long enjoyed. That process, however disguised, is an act of spoliation dependent on force but force is not solvent of human problems. One would think that in South Africa there would be no need to press home that truth. And yet we are apt to forget, in dealing with this problem, that you cannot kill the soul of the people; and that the spirit of man will not tamely submit to the loss of rights which materially and spiritually he values. ...
South Africa stands at the parting of the ways. She may take the path of repression, easy at first with its downward grade, but it leads to the abyss – not in our time, but in the time of our descendants, whose interests it is our sacred duty to guard.’
Another judge to return to public life was Tielman Roos, who had been appointed to the AD, directly from Parliament, where he had been Minister of Justice from 1924 to 1929. He resigned from the Court to relaunch his political career and campaign – ultimately successfully – for South Africa to leave the gold standard. But his hopes of becoming Prime Minister were not met and he died three years later having resumed his career at the Bar. Beyers JA came to the court from public life when Jacob de Villiers CJ died. He had not been in active practice at the Bar for several years and had been Minister of Mines before retiring on health grounds. Apparently there was resistance to his appointment from the sitting judges. He was the first judge to write judgments in Afrikaans. Like Roos he returned to politics after retiring as a candidate for Malan’s Herenigde Nasionale Party a fact that lends interest to his judgment in Wilken v Brebner 1935 AD 175.
The expansion of the Court’s membership in 1948 co-incided with the election of the National Party government and the implementation of the policy of apartheid. Shortly thereafter a constitutional crisis occurred with a confrontation between the Court and the government of the day precipitated by the introduction of legislation to remove so-called ‘coloured’ voters from the common voters’ rolls in the Cape Province.
In 1952 the Court was faced with a major test when the validity of the Separate Representation of Voters Act was challenged. The Act was passed to remove the coloured voters in the Cape Province from the common voters roll in the Cape Province. In Harris v Minister of the Interior (1) the Court held that even though Parliament was supreme and sovereign, this did not mean that it was free to adopt any procedure when a new law was enacted. The rights of the coloured voters had been entrenched by the South Africa Act and for Parliament to remove this right the legislation needed to be passed by a two-thirds majority of both Houses of Parliament in a joint session. The National Party could not muster such a majority and this procedure was not followed in enacting the Voters Act. On that ground the legislation was set aside. Parliament responded by passing legislation creating a new ‘court’ – the ‘High Court of Parliament’, consisting of all members of Parliament - for the sole purpose of reviewing the judgments of the Appellate Division in which legislation was declared invalid. The AD unanimously declared this Act invalid in Harris v Minister of the Interior (2).
In 1955 Parliament enlarged the Senate by a simple majority in order to attain the required majority in a joint sitting of both Houses of Parliament. Prior to this, legislation was passed providing that a decision by the AD on the validity of legislation had to be decided by a court of eleven judges. Five additional judges of appeal were appointed; the Senate enlarged and in 1956 the Voters Act was passed with the requisite majority. Later that year the enlarged Court constituted with eight judges who had not sat in the earlier case and only Schreiner JA dissenting, refused to declare the Act invalid resulting in the coloured voters being removed from the common voters’ roll in the Cape Province. This episode tarnished the Court’s image, especially as there was a perception that the government had loaded the Bench with supporters.
That perception was compounded by the government’s refusal to appoint Schreiner JA, the senior judge in the court after the Chief Justice, to succeed Centlivres CJ when the latter retired at the end of 1956. Instead it appointed Fagan JA, who was junior to both Schreiner and Hoexter. He was the only member of the court who was not a party to the decisions in Harris. In fairness to him he only accepted after consulting with Schreiner JA. Two years later when Fagan CJ retired, Steyn JA, a former chief state law adviser and the only member of the court not to object to its enlargement, was appointed as Chief Justice. Fagan then re-entered politics to campaign against the racial policies of the National Party. One commentator has described Schreiner JA, ‘the greatest Chief Justice South Africa never had’.
From the early 1960s and through until the early 1990s, when the ANC was unbanned and negotiations towards democracy commenced, the AD was confronted with a number of appeals seeking to review executive and administrative actions under apartheid legislation, the increasingly stringent security laws and, during the 1980s, two states of emergency. There were also numerous criminal appeals arising out of the same legislation. A narrow approach to the permissible scope of judicial review and a similarly narrow and literal approach to statutory construction characterised its judgments. In combination with an extreme deference to the notion of the sovereignty of parliament, this made it extremely difficult to mount legal challenges to government actions implementing apartheid policies and security legislation. With few exceptions the resultant judgments did little to further human rights and many of the broadly liberal principles of Roman-Dutch law were subverted in the process. The Court was often criticized for deliberately preferring an interpretation favouring the State in cases where a more equitable construction was available. Later legal commentators generally have an unfavourable view of its record in these areas at this time.
Such criticisms are legitimate and justified. As one former acting chief justice wrote of the court: ‘Its public image lay in ruins when apartheid came to an end’. Despite these failings it must also be recognised that this was not the only work that engaged the AD during this period and in other fields of the law significant contributions were made. Toon van den Heever JA was a scholar who delved into the old authorities of the Roman and Roman-Dutch law. Others who followed the same path, such as Steyn, Rumpff, Jansen, Rabie, Joubert, Van Heerden, Hefer and Nienaber were adept at investigating those sources of law. Trollip’s judgments in the areas of commercial law and intellectual property remain landmarks. Corbett, Miller and Holmes wrote with great clarity in many fields and Holmes was a master of the memorable phrase. In many areas the Court re-examined, extended, adapted or abrogated old principles in accordance with the needs of a changing society. In some instances this was directed at escaping from principles of English law that had taken hold in areas of the law such as criminal liability, delict, estoppel and nuisance, but in other areas, especially commercial law and intellectual property, reliance was placed on English law and other foreign legal systems in early exercises in comparative law. In a precursor to later constitutional developments, under Corbett CJ the AD extended the scope of judicial review, influenced especially by developments in England. An attempt was made in some cases to re-assert the more enlightened principles of Roman Dutch law. Many of the foundations laid during that period remain intact in the present constitutional era.
Perhaps the last word under this head should be given to Chaskalson CJ, the first head of the Constitutional Court, who in 1989 said:
‘[W]e will come to appreciate that we owe much to our old order judges …they have somehow … kept alive the principles of freedom and justice which permeate the [Roman Dutch] common law The notion that freedom and fairness are inherent qualities of the law lives on … This is an important legacy and one which deserves neither to be diminished or squandered.’
1994 to date
The creation of the Constitutional Court was the 1993 Interim Constitution’s only substantial change to the structure of the judiciary. The existing Supreme Court structure, with the AD at its head, was retained. Before the 1996 Constitution, the Constitutional Court and the AD formed the twin peaks of the judicial structure, with a notionally strict jurisdictional line dividing them. The Constitutional Court was vested with exclusive jurisdiction over constitutional matters and given the power to strike down legislation and executive conduct. The AD continued to be the final court of appeal in all other matters, but had no jurisdiction over constitutional issues. As there was no neat line neatly dividing constitutional from ‘other’ matters, this structure was clearly problematic. For example, the classification of judicial review as an entirely constitutional matter meant that the historic jurisdiction of the AD in regard to judicial review was removed.
This problem was addressed under the 1996 Constitution. The AD, now renamed as the Supreme Court of Appeal, acquired constitutional jurisdiction, while the Constitutional Court was given jurisdiction to develop the common law to reflect constitutional values. The SCA, together with the High Courts, was given power to strike down presidential conduct, Acts of Parliament and provincial Acts, subject to confirmation of their orders by the Constitutional Court. The Court is also required, when interpreting legislation or developing the common law, to promote the spirit, purport and objects of the Bill of Rights. This ushered in a radical new era of constitutional adjudication with the focus being on the Constitution and the norms and values incorporated in it.
The absence of a neat division between constitutional and non-constitutional issues, which had bedevilled the courts since 1994, continued to cause confusion: which court was truly the apex court in any particular matter? It soon became apparent that the extensive array of rights and guarantees under the Constitution, combined with the Constitutional Court’s generous and purposive interpretative approach, had the result that virtually any case could be characterised as raising a constitutional issue. As the Constitutional Court had the final decision on whether a matter was a constitutional issue, the reality was that, except in limited circumstances, it was the de facto apex court. This was recognised in August 2013 when the Constitution was amended to provide that the Constitutional Court is the highest court in South Africa, though it may only hear constitutional matters and matters which raise an arguable point of law of general public importance.
At the same time the legislation governing the structure of the courts (the Supreme Court Act of 1959) was repealed and replaced by the Superior Courts Act of 2013. This was intended to rationalise the country’s court structure and bring it into line with the Constitution. As a result, the SCA is now formally recognised in the governing legislation as a separate court and the High Court has become a single court made up of a number of divisions. The other notable change brought about by the Superior Courts Act was the transfer of the administration of the courts from the Department of Justice and Constitutional Development (as it was then known) to a newly constituted Office of the Chief Justice.
In 1994 all of the judges in the AD were white and only one (Leo van den Heever) was a woman. Like the country, the court has undergone a process of transformation. At the time of writing twenty-two appointees to the court since 1994 have been Black and ten have been women. The first Chief Justice who was not white was Ismail Mahomed, who came to the SCA having been one of the first judges on the Constitutional Court and its Deputy President. Sadly his period in office was cut short by illness and his death in 2000. In 2008 Lex Mpati became the next black President of the SCA and the current President, Mandisa Maya, succeeded him after having been a member of the court since 2005. She has the distinction of being the first woman to be the head of this court. The majority of judges in the SCA are now black, making the court more reflective of the population as a whole.
Amidst this uncertainty and complexity relating to jurisdiction and hierarchy, the SCA has in the democratic, constitutional era delivered many judgments that eloquently express the values of our Constitution while reflecting the best of the jurisprudential history and experience of the Court. The role played by the South African judiciary since 1994 has confirmed that an independent judiciary is essential to a vibrant democracy. The SCA continues to play its part in this, articulating the requirements of the Constitution fairly, resolutely and consistently. A the same time it continues to perform its vital role as the principal appellate court in South Africa responsible for the ongoing expression and development of the law.
In addition to the permanent judges of the SCA, there are at any time several acting judges of appeal who are co-opted onto the court from the High Court divisions to fill temporary vacancies, such as when permanent judges of appeal are on leave or are serving as acting justices in the Constitutional Court. Permanent judges of appeal are almost always drawn from the ranks of those who have had experience as acting judges of appeal.
The Court building
From 1910 the court used the chamber and accompanying suite of rooms in the Raadsaal, the building across the road in President Brand Street to the east of the current building. The Raadsaal was used by the legislative council in
the Orange River Colony from 1907 to 1910 and at Union became the seat of the provincial council. It is now the seat of the provincial legislature of the Free State. In 1929 the Court moved to the present building, which was opened on 10 October 1929 by the Minister of Justice, Oswald Pirow KC. At the ceremony Jacob de Villiers, who was acting Chief Justice after the death of Sir William Solomon, said courts everywhere ‘stand between the subject and the abyss.’
When the ceremony was over Pirow was presented with the gold key with which he had opened the door of the new Court building. In his book of reminiscences, Brushes with the Law, Marius Diemont JA, who as a youth was present on the day of the opening of the Court, recounts that years later, when appearing as junior counsel with Pirow, the two went to the Court to use the library but found the door locked. Pirow, unfazed, said: ‘I opened this building 20 years ago when I was Minister of Justice. Here is my name on the cornerstone and the key on my watch chain is the key they gave me.’ But the lock had been changed and the key did not open the door. The Court building was extended in 1967 with the construction of a second courtroom and more judicial chambers. A second extension with the new main court and additional chambers and office space for secretarial staff and researchers was completed in 2011.
The original building was designed in a free Renaissance style by J S Cleland, the Chief Government Architect, who was also responsible for many other major public buildings in South Africa. The oldest part was built with sandstone from Ladybrand, the newer western wing with sandstone from Ficksburg, and the latest extension with sandstone from Mookgophong in Limpopo. On each occasion, the extensions were constructed so as to preserve the style and appearance of the building as far as possible.
The furniture and wall cladding in the two original courtrooms and the library are in stinkwood (ocotea bullata), a scarce and valuable indigenous tree. Above the main entrance and set in stone is, in the words of Jacob de Villiers, acting Chief Justice of South Africa, at the opening of the court: ‘… the Helmet of the armour of Faith, symbolical of the nation’s fast faith in the justice and the power of the law; the Keys of Emancipation from Tyranny, where there is no law; and the Lamp and the Torches of Truth’. The reference to the Helmet of the armour of Faith appears to be a reference to Paul’s letter to the Ephesians in which he urges them to put on the whole armour of God including the ‘helmet of salvation’. The south entrance bears the head of Minerva, the Roman goddess of wisdom and protector of art and science, and the northern door, that of Jupiter, the head of the Roman pantheon.
It was hoped that the new courtroom could also be clad in stinkwood. This was not possible as there was a real threat that there would not be sufficient quantities of the wood to meet the project’s needs as the tree is now considered a threatened species. It was therefore substituted with Imbuia, a high quality decorative wood that is similar in appearance. The building was a National Monument under earlier legislation and is now a National Heritage Site.
In the basement of the Court are the court archives in which the records of every case heard in the Court since 1910 are stored. This is a rich treasure trove of history waiting to be explored by legal historians.
Housed on the upper floor of the building, the Library itself is on two levels. The original Library consisted of a single chamber with alcoves on both sides, together with an upper gallery. The Library has now been considerably extended, and has an additional wing made up of what were formerly judges’ chambers.
The Library’s upper gallery extends around the central chamber, and set in the centre of each of the four gallery walls are the coats of arms of the four Provinces of the former Union of South Africa, modelled in plaster and finished in colour. The shelves are of Burmese Teak and the floor is composed of stinkwood blocks.
The Library houses approximately 43 000 volumes, of which about 4 000 titles are ‘old authorities’ which consist, for the most part, of the writings of the Dutch and Continental jurists of the 16th, 17th and 18th centuries. The two oldest works in the library are both dated 1544. These are the complete works of Bartolus (1313-1357) in ten volumes and those of his pupil, Baldus (1327-1400). Written in Latin, they provide a commentary on the Corpus Juris Civilis of the Roman Emperor Justinian. Another unique item is the Tractatus Universi Juris, compiled at the end of the 16th century on the instruction of Pope Gregory. These works are not merely of antiquarian interest. Given the unique status of the ‘old authorities’ in the South African legal system, they are still consulted and occasionally referred to in judgments of the Court.
The Library also houses a comprehensive collection of South African textbooks and a fairly representative spread of Anglo-American and Continental court reports, textbooks and legal periodicals. It is at present attempting to improve its collection of constitutional and international law works.
It is customary for academics to donate copies of their legal treatises to the Library. Although the Library is primarily for the use of the judges of the Court, research staff also have access to it, as do members of the legal profession, and the public, under restricted conditions.
The portrait gallery
In the corridor leading to the Library hang photographs of the chief justices and most of the judges of the Court since its inception in 1910. There are paintings and busts of a number of the legal giants of the past, including the busts of South Africa's first five chief justices.
Dominating the old entrance hall, on the stairway, is the bust of Lord de Villiers (1873-1914), the Union of South Africa's first chief justice. A forceful personality and a man of immense dignity, he contributed enormously throughout his 40 year judicial career to the shaping of South African law. Moses Kottler, a renowned South African artist, sculpted the bust. Also hanging on the stairs are portraits of Sir James Rose Innes, Sir William Solomon and Sir John Wessels.
Lord de Villiers’ successor was Sir James Rose Innes (1855-1942) of whom there is both a painting on the stairway and a bust in the Library. He was renowned for his learning and the lucidity of his judgments. It is said he retired prematurely to enable his life-long friend and colleague, Sir William Henry Solomon (1852-1930) to serve a term as chief justice. Sir William’s bust is also in the Library and, like that of his friend, it was sculpted by E Grace Wheatley. The bust of Solomon's successor, Jacob de Villiers (1868-1932), sculpted by Moses Kottler, is also in the library. Wounded and captured during the Boer War, he was a prisoner of war in Bermuda. An imposing personality, his tenure as chief justice, like that of his predecessor, was brief and marred by ill-health.
There is also a bust of Sir Johannes (John) Wessels (1862-1936) in the Library, this one by Anton van Wouw. He was one of the most erudite of judges. A dynamic personality, with an outstanding intellect and amazing industry he was, by all accounts, also pugnacious and impatient on the Bench. It is of him that counsel laconically remarked, after an appeal, that: “We gave the Chief Justice a very fair hearing.”
The judicial career of Sir John Gilbert Kotzé (1849-1940) spanned 50 years from his appointment in 1877, when he was a mere 27 years old, until his retirement in 1927. As chief justice of the Transvaal Republic he was dismissed by President Kruger when he held that the courts had the right to test against the Constitution, and declare invalid, resolutions and acts passed by the legislature. It was to be over a century before South African courts acquired that power under the Constitution. A noted scholar, a man of immense learning and a collector of books, his collection of 1556 titles, bought by the government in 1927 for £800, formed the nucleus of the then fledgling library of the Appellate Division, and is still retained as a separate collection. His bust, also by E Grace Wheatley, is located with the collection.
Four other busts of previous members of the court stand in the entrance to the library. Leopold Greenberg (1885-1964)(sculpted by Jack Penn) was a judge of appeal from 1943 to 1955. He was famed for the incisiveness of his mind, his clarity of expression and his mordant wit. Two of his contemporaries were Oliver Deneys Schreiner (1890-1980)(sculpted by Naomi Jacobson) and F P (Toon) van den Heever (1894-1956)(sculpted by Laura Rautenbach). Schreiner was a judge of appeal from 1945 to 1960. He was highly esteemed as a judge and would, but for prevailing political circumstances, inevitably have been the chief justice. Van den Heever, a man of great versatility, is also renowned as an Afrikaans poet. Lastly, there is also a bust of Chief Justice L C Steyn (1903-1976)(sculpted by Daniella Geldenhuys). He was appointed as a judge of appeal in 1955 and as chief justice in 1959, in which capacity he served until his early retirement in 1971.
In one of the wings of the Library, there is the bust of Tielman Roos (1879-1935)(sculpted by Joseph Coplans) donated by his family. In a corridor outside the library is a portrait of Chief Justice Mahomed, likewise donated by his family.
Former Chief Justices of the Appellate Division
1910 - 1914 : Lord de Villiers of Wynberg (Died in office 2 September 1914.)
1914 - 1927 : Sir James Rose Innes (Judge of Appeal from 1910.)
1927 - 1929 : Sir William H Solomon (Judge of Appeal from 1910.)
1929 - 1932 : Jacob A J de Villiers (Additional Judge of Appeal from 1910 and Judge of Appeal from 1920. Died in office 16 September 1932.)
1932 - 1936 : Sir J W Wessels (Judge of Appeal from 1923. Died in office end 1936.)
1936 - 1938 : J S Curlewis (Judge of Appeal from 1927.)
1938 - 1939 : J Stratford (Judge of Appeal from 1927.)
1939 - 1943 : N J de Wet (Judge of Appeal from 1937)
1943 - 1950 : E F Watermeyer (Judge of Appeal from 1938)
1950 - 1957 : A van der Sandt Centlivres (Judge of Appeal from 1939)
1957 - 1959 : H A Fagan (Judge of Appeal from 1950.)
1959 - 1971 : L C Steyn (Judge of Appeal from 1955.)
1971 - 1974 : N Ogilvie Thompson (Judge of Appeal from 1958.)
1974 - 1982 : F L H Rumpff (Judge of Appeal from 1961.)
1982 - 1989 : P J Rabie (Judge of Appeal from 1970.)
1989 - 1996 : M M Corbett (Judge of Appeal from 1974.)
1997 - 2000 : I Mahomed ((Judge of Appeal from 1996. Died in office 17th June 2000)
2000 - 2001 : H J O Van Heerden (Acting Chief Justice) (Judge of Appeal from 1982.)
2001 : J J F Hefer (Acting Chief Justice) (Judge of Appeal from 1984.)
Presidents of the Supreme Court of Appeal
2008 - 2016 :
2016 to date
J J F Hefer (Acting President)
L Mpati (Judge of Appeal from 2000.)
M M L Maya (Judge of Appeal from 2005. Acting from 2016 to 2017)
Deputy Presidents of the Supreme Court of Appeal
2003 - 2008 :
2012 - 2014 :
2015 – 2016:
2017 to date
L Mpati (subsequently President of the Court)
K K Mthiyane (Judge of Appeal from 2001)
M S Navsa (acting)
MML Maya (subsequently President of the Court)
JBZ Shongwe (acting)
Appeal Judges from 1910
1910 - 1923 : Sir Henry H Juta (Additional Judge of Appeal from 1910 and Judge of Appeal from 1920.)
1922 - 1927 : Sir John G Kotzé
1929 - 1932 : T J de V Roos
1932 - 1937 : F W Beyers
1933 - 1939 : Sir Etienne de Villiers
1938 - 1949 : B A Tindall
1939 - 1944 : R Feetham
1943 - 1955 : L Greenberg
1945 - 1961 : O D Schreiner
1948 - 1956 : F P (‘Toon’) van den Heever
1949 - 1963 : O H Hoexter
1955 - 1960 : E N de Beer
1955 - 1957 : F G Reynolds
1955 - 1957 : H de Villiers
1955 - 1957 : C P Brink
1955 - 1956 : C G Hall
1956 - 1968 : D O K Beyers
1958 - 1976 : P J van Blerk
1958 : A B Beyers (Appointed Judge President of the Cape, 1958)
1959 - 1960 : A C Malan
1959 - 1961 : W H Ramsbottom (Died in office)
1961 - 1965 : D H Botha (Died in office)
1961 - 1963 : L J de V van Winsen (Returned to the Cape.)
1961 - 1967 : J T van Wyk (Appointed as South African ad hoc judge at the World Court until 1966. Then returned to the Cape becoming Judge President in 1973.)
1961 - 1977 : G N Holmes
1962 - 1967 : A Faure-Williamson (Died in office)
1963 - 1984 : P J Wessels
1965 - 1973 : H J Potgieter (Died in office)
1968 - 1988 : E L Jansen
1969 - 1981 : W G Trollip
1971 - 1984 : G V R Muller
1974 - 1978 : S Hofmeyr
1975 - 1976 : O Galgut
1976 - 1977 : J N C de Villiers
1976 - 1985 : G P C Kotzé
1976 - 1985 : S Miller
1977 - 1982 : M A Diemont
1977 - 1995 : C P Joubert
1978 - 1986 : J J Trengove
1980 - 1985 : P M Cillié
1980 - 1988 : G Viljoen
1982 - 1994 : G G Hoexter
1982 - 1996 : A S Botha
1983 - 1985 : H C Nicholas
1985 - 1986 : W G Boshoff
1985 - 1988 : H R Jacobs
1985 - 1998 : E M Grosskopf
1985 - 2002 : J W Smalberger
1986 - 1997 : H H Nestadt
1986 - 2003 : W Vivier
1988 - 1990 : M T Steyn
1988 - 1996 : M E Kumleben
1988 - 1994 : J P G Eksteen
1988 - 1993 : A J Milne (Died in office)
1988 - 2001 : F H Grosskopf
1990 - 1991 : G Friedman (Appointed Judge President of the Cape, 1991)
1990 - 1994 : R J Goldstone (Appointed to the Constitutional Court, 1994)
1990 - 2002 : P M Nienaber
1991 - 1996 : L van den Heever
1993 - 2008 : C T Howie
1993 - 1994 : J C Kriegler (Appointed to the Constitutional Court, 1994)
1995 - 2004 : R M Marais
1995 - 2003 : P J J Olivier
1995 - 2004 : W P Schutz (Died in office)
1995 - 2008 : D G Scott
1996 - 2007 : R H Zulman
1996 - 2000 : C Plewman
1997 - 2010 : P E Streicher
2000 - 2009 : I G Farlam
2000 - 2008 : E Cameron (Appointed to the Constitutional Court, 2008)
2000 - to date : M S Navsa
2002 - 2015 : F D J Brand
2002 - 2013 : R W Nugent
2002 - 2007 : J H Conradie
2003 - 2012 : T D Cloete
2003 - to date : C H Lewis
2003 - 2012 : J A Heher
2004 - 2013 : B J van Heerden
2004 - to date : V M Ponnan
2005 - 2009 : C N Jafta (Appointed to the Constitutional Court, 2009)
2005 - 2010 : D Mlambo (Appointed Judge President of Gauteng, 2010)
2007 - 2008 : P C Combrinck
2007 - to date : A Cachalia
2009 - 2014: S Snyders (Died in office)
2009 - 2016: N Z Mhlantla (Appointed to the Constitutional Court, 2016)
2009 - 2013 : F R Malan
2009 - 2018 : L O Bosielo (Died in office)
2009 - to date: J B Z Shongwe
2009 - to date: L E Leach
2009 - to date: Z L Tshiqi
2010 - 2017: L V Theron (Appointed to the Constitutional Court, 2017)
2010 - to date: S A Majiedt
2010 - to date: L W Seriti
2011 - to date: M J D Wallis
2013 - to date: N P Willis
2013 - to date: H K Saldulker
2014 - to date: K G B Swain
2014 - to date: B H Mbha
2014 - to date: D H Zondi
2015 – to date: N Dambuza
2015 – to date: R Mathopo
2016 - to date: BC Mocumie
2016 - to date: CHG van der Merwe
2018 - to date: T Makgoka
2018 - to date: MB Molemela
2018 - to date: A Schippers
Updated: August 2018