The Constitution lays out the framework for the judicial authority of South Africa, as follows:
- 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 the courts 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.
The Supreme Court of Appeal's position in the justice system
The Supreme Court of Appeal (SCA) is the successor to the Appellate Division, which was first established in 1910 when the Union of South Africa was created [History and Background]. The name of the court was changed on the adoption of the Constitution in 1996.
The SCA is, except in respect of certain labour and competition matters, the second highest court in South Africa. Previously it and the Constitutional Court were both ‘apex courts’ with different areas of jurisdiction. However, since August 2013 the Constitutional Court has been the highest court in all matters.
In terms of the Constitution, the SCA: -
- may decide any matter, except certain labour and competition matters; but
- is purely an appeal court, and it may decide only appeals and issues connected with appeals.
The SCA 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 confirmed by the Constitutional Court. The Composition, Authority and Jurisdiction of the Court
The SCA consists of a President, Deputy President and a number of judges of appeal determined by an Act of Parliament. At present there are 23 permanently appointed judges in addition to the President and Deputy President. [Judges of the Court]
The SCA has jurisdiction to hear and determine an appeal against any decision of the High Court. Decisions of the Court are binding on all lower courts, and the decisions of the High Court are binding on Magistrates' Courts within the respective areas of jurisdiction of the relevant Division of the High Court.
The most senior judge of the SCA is the President of the Court. In the pre-Constitutional era, its most senior judge was the Chief Justice of the country. However, in 2001 the head of the Constitutional Court became the Chief Justice and the head of the SCA the President of the Court. The seat of the SCA is at Bloemfontein. However, provision exists for a session of the Court to be held at another place when it is expedient or in the interests of justice. The Court’s process runs throughout the Republic and its judgments and orders must be executed in any area as if they were judgments or orders of the Division of the High Court or Magistrate’s Court having jurisdiction in the area.
The Court generally sits in panels of three or five judges, depending on the nature of the appeal. The President of the SCA is entitled in view of the importance of a matter to direct that it be heard before a panel of more than five judges. In 1955 legislation was passed as part of the government’s endeavours to remove coloured voters from the voters’ roll to provide that in cases where the validity of legislation was in issue the court should be composed of 11 judges. The court was expanded by the addition of 6 judges and thereafter the number of judges was increased accordingly. However, the provision for an expanded court, which was carried over in the Supreme Court Act 1959 was only used once in an appeal from Bophutatswana, where 11 judges sat. In another after democracy 9 judges sat. The composition of the panels differs for each case. The senior judge on each panel presides in that case. There may be more than one judgment in a case if there is a difference of opinion. The decision of the majority is the decision of the Court.
Judges and counsel robe in court.
The Court terms are prescribed in the Court Rules and are as follows:
15 February - 31 March
1 May - 31 May
15 August - 30 September
1 November - 30 November
There is no right of appeal to the SCA. Leave to appeal is required, either from the High Court or, if refused, from the SCA on an application for leave to appeal made to it. Where the High Court, sitting as a court of first instance, in granting leave to appeal is satisfied that the appeal requires the attention of the SCA, it must direct that the appeal be heard by the SCA, otherwise it must direct that it be heard by the full court. Such a direction may be set aside by the SCA. When the appeal is against the decision of the High Court on appeal to it, special leave of the SCA is required. This is so in relation both to appeal to a full court from the decision of a single judge in the High Court and in relation to appeals from the Magistrates’ Courts.
Criminal AppealsCriminal Appeals
The SCA is the court of appeal in respect of criminal trials in the High Court. There is no automatic right to appeal, but leave to appeal is required from the court of first instance, or failing that from the SCA. Appeals lie to the SCA except in cases where a court granting leave to appeal is satisfied that the appeal does not require the attention of the SCA. In such cases it directs that a full court hear the appeal. Such a direction may be set aside by the SCA. A further appeal is only permitted with special leave to appeal given by the SCA. The National Director of Public Prosecutions may appeal to the SCA against the sentence imposed on an accused by the High Court, but requires leave in accordance with the relevant legislation. Certain cases proceed by right to the SCA. These are questions of law reserved in connection with criminal cases heard by the High Court and special entries of an irregularity or illegality in the proceedings is made at the request of an accused on the record of the proceedings.
Referral by Minister
Referral by Minister If the Minister for Justice and Constitutional Development has any doubt as to the correctness of a decision by the High Court in a criminal case on a question of law, or whenever a decision in a criminal case on a question of law is given in any Division of the High Court which is in conflict with a decision given by another Division of the High Court, the Minister may submit the decision or the conflicting decisions to the SCA and cause the matter to be argued before that court in order that it may settle the matter. Whenever there are conflicting decisions on civil matters in different Divisions of the High Court, the Minister for Justice and Constitutional Development may submit the question to the Chief Justice, who must cause the matter to be argued before the Constitutional Court or the SCA to settle the matter.
Appointment of judges
Judges of the SCA are appointed by the President of the Republic on the advice of the Judicial Service Commission. The President and Deputy President of the SCA are appointed by the President after consulting the Judicial Service Commission. Anyone who is appropriately qualified and is a fit and proper person may be appointed as a judge. Conventionally judges of the Court could only be appointed from the ranks of High Court judges and there are only two instances in 1929 and 1932 of this convention being disregarded. The need for the judiciary to reflect broadly the racial and gender composition of the country must be considered when judicial officers are appointed.
Procedure before the Court
The Court decides cases upon the record of the proceedings before the court appealed from and after considering the written and oral arguments presented. Witnesses do not appear before the court, and the parties need not be present during the hearing of an appeal. A written judgment is usually handed down shortly after the argument.
The Court hears appeals on fact and since there are no jury trials, it has a relatively wide discretion to make its own factual findings. Because of this jurisdiction, judges have to read the record of the full proceedings in the lower courts. Typically, each judge is allocated cases with about 30 000 pages of evidence and exhibits per year. In addition, each judge is allocated applications for leave to appeal, which for historical reasons are referred to as petitions.
Updated: February 2023