Chapter 8 - Courts and Administration of Justice
The text below includes all amendments, up to and including the 16th Amendment to the Constitution (disclaimer).
- Judicial Authority
- Judicial System
- Constitutional Court
- Supreme Court Appeal
- High Courts
- Magistrates' Courts and Other Courts
- Court Procedures
- Powers of Courts in Constitutional Matters
- Inherent Power
- Appointment of Judicial Officers
- Acting Judges
- Terms of Office and Remuneration
- Judicial Service Commission
- Prosecuting Authority
- Other Matters Concerning Administrationi of Justice
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.
166. Judicial system
The courts are
- the Constitutional Court;
- the Supreme Court of Appeal;
- the High Courts, including any high court of appeal that may be established by an Act of
Parliament to hear appeals from High Courts;
- 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 Courts or the Magistrates' Courts.
167. Constitutional Court
- The Constitutional Court consists of the Chief Justice of South Africa, the Deputy Chief Justice and nine other judges.
[Sub-s. (1) substituted by s. 11 of Act No. 34 of 2001.]
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
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.
168. 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.
[Sub-s. (1) substituted by s. 12 of Act No. 34 of 2001.]
- A matter before the Supreme Court of Appeal must be decided by the number of judges determined in terms of an Act of Parliament.
[Sub-s. (2) substituted by s. 12 of Act No. 34 of 2001.]
- 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
- issues connected with appeals; and
- any other matter that may be referred to it in circumstances defined by an Act of
169. High Courts
A High Court may decide
- any constitutional matter except a matter that
- only the Constitutional Court may decide; or
- is assigned by an Act of Parliament to another court of a status similar to a High
- any other matter not assigned to another court by an Act of Parliament.
170. Magistrates' Courts and other courts
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. Court procedures
All courts function in terms of national legislation, and their rules and
procedures must be provided for in terms of national legislation.
172. 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, 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.
- 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.
173. Inherent power
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.
174. 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.
[Sub-s. (3) substituted by s. 13 of Act No. 34 of 2001.]
- 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.
[Sub-s. (4) substituted by s. 13 of Act No. 34 of 2001.]
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
175. 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.
[Sub-s. (1) substituted by s. 14 of Act No. 34 of 2001.]
- 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.
176. 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.
[Sub-s. (1) substituted by s. 15 of Act No. 34 of 2001.]
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.
- A judge may be removed from office only if
- the Judicial Service Commission finds that the judge suffers from an incapacity, is
grossly incompetent or is guilty of gross misconduct; and
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.
The President must remove a judge from office upon adoption of a resolution calling
for that judge to be removed.
- 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).
178. 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;
[Para. (b) substituted by s. 16 (a) of Act No. 34 of 2001.]
- 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.
[Para. (k) substituted by s. 2 (a) of Act No. 65 of 1998 and by s. 16 (b) of Act No. 34 of 2001.]
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.
[Sub-s. (7) added by s. 2 (b) of Act No. 65 of 1998 and substituted by s. 16 (c) of Act No. 34 of 2001.]
- 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 any other sufficient reason.
[Sub-s. (8) added by s. 2 (b) of Act No. 65 of 1998.]
179. Prosecuting authority
- There is a single national prosecuting authority in the Republic, structured
in terms of an Act of Parliament, and consisting of
- 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
Directors of Public Prosecutions and prosecutors as determined by an Act of Parliament.
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
- National legislation must ensure that the Directors of Public Prosecutions
- are appropriately qualified; and
are responsible for prosecutions in specific jurisdictions, subject to subsection (5).
National legislation must ensure that the prosecuting authority exercises its
functions without fear, favour or prejudice.
- The National Director of Public Prosecutions
- 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;
- must issue policy directives which must be observed in the prosecution process;
- may intervene in the prosecution process when policy directives are not complied with;
- 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:
- The accused person.
- The complainant.
Any other person or party whom the National Director considers to be relevant.
- The Cabinet member responsible for the administration of justice must exercise
final responsibility over the prosecuting authority.
All other matters concerning the prosecuting authority must be determined by
180. Other matters concerning administration of justice
National legislation may provide for any matter concerning the administration of
justice that is not dealt with in the Constitution, including
- training programmes for judicial officers;
- procedures for dealing with complaints about judicial officers; and
- the participation of people other than judicial officers in court decisions.
[ Top ]