SUPREME COURT OF APPEAL OF SOUTH AFRICA
* 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 Supreme Court of Appeal's position in the justice system
The Supreme Court of Appeal of South Africa is the successor to the Appellate Division, first established in 1910 when the Union of South Africa was created [History and Background]. The name of the court was changed by the Constitution of 1996.
According to the Constitution, the Supreme Court of Appeal -
* functions only as a court of appeal
* may decide any matter on appeal and,
* is, except for constitutional matters, the highest court of appeal.
The Supreme Court of Appeal has constitutional jurisdiction but the Constitutional Court -
* is the highest court in all constitutional matters, and
* may decide only constitutional matters and connected issues.
The Supreme Court of Appeal 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.
The composition, authority and jurisdiction of the court
The court is composed of the President and Deputy President of the Supreme Court of Appeal and a number of judges of appeal determined by an Act of Parliament. At present there are 22 positions in the court [Judges of the Court].
The Supreme Court of Appeal has jurisdiction to hear and determine an appeal against any decision of a High Court.
Decisions of the Court are binding on all lower courts, and the decisions of the high courts are binding on Magistrates' Courts within the respective areas of jurisdiction of the high courts.
Whereas previously the head of the Appellate Division was the chief justice, this is no longer the case. The Chief Justice of South Africa is now the head of the Constitutional Court.
The seat of the Supreme Court of Appeal is at Bloemfontein. Provision exists for a session of the court at another place when by reason of exceptional circumstances it is expedient to hold its sitting there. The court’s process runs throughout the Republic and its judgments and orders have effect and are executed in the areas of other courts as if they were original judgments or orders of those courts.
The Court sits in panels of five or three Judges, depending on the nature of the appeal. 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 are robed in court.
Supreme Court of Appeal Terms
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 Supreme Court of Appeal. Leave to appeal is required. When the appeal is against the judgment or order of the full court (consisting of three judges) of a high court on appeal to it against the judgment or order of a single judge, special leave of the Supreme Court of Appeal is required. In all other cases of an appeal against a judgment or order of a high court, whether sitting as a court of first instance or as a court of appeal, leave of that court is required to appeal to the Supreme Court of Appeal. Should leave be refused, an application for leave may be made to the President of the Supreme Court of Appeal Where the high court, sitting as a court of first instance, in granting leave to appeal is not satisfied that the appeal requires the attention of the Supreme Court of Appeal, it must grant leave to appeal to the full court. Such a direction may be set aside by the Supreme Court of Appeal.
The Supreme Court of Appeal is the court of appeal in respect of appeals and questions of law reserved in connection with criminal cases heard by a high court, except in cases where a court granting leave to appeal is satisfied that the appeal does not require the attention of the Supreme Court of Appeal. In such cases it directs that the appeal be heard by a full court. There is no automatic right to appeal, but leave to appeal is required of the court of first instance. If the intended appeal is against the decision of a full court, special leave to appeal to the Supreme Court of Appeal is required. If a special entry of an irregularity or illegality in the proceedings is made on the record, the person convicted has a right to appeal to the Supreme Court of Appeal. Questions of law arising in a high court may be reserved at the behest of the State or the accused for consideration by the Supreme Court of Appeal. The Director of Public Prosecutions may appeal to the Supreme Court of Appeal against the sentence imposed on an accused by a high court, but requires leave in accordance with the relevant legislation.
Referral by Minister
Whenever the Minister for Justice and Constitutional Development has any doubt as to the correctness of a decision by a 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 a high court which is in conflict with a decision given by another high court, the Minister may submit the decision or the conflicting decisions to the Supreme Court of Appeal and cause the matter to be argued before that court in order that it may determine the question of law for the future guidance of all courts. Whenever there are conflicting decisions on civil matters in different high courts, the Minister for Justice and Constitutional Development, after consultation with the South African Law Reform Commission, may submit the question to the Supreme Court of Appeal to settle the conflict for the future guidance of all courts.
Appointment of judges
Judges of the Supreme Court of Appeal are appointed by the President of the Republic on the advice of the Judicial Service Commission. Anyone who is appropriately qualified and a fit and proper person may be appointed as a judge. By convention judges of the court are appointed from the ranks of high court judges. 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 lower court 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 petitions for leave to appeal.