SUPREME COURT OF APPEAL OF SOUTH AFRICA
The Constitution lays out the framework for the judicial authority of South Africa, as follows:
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, 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 Supreme Court of Appeal 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 Supreme Court of Appeal: -
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 Supreme Court of Appeal 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 Supreme Court of Appeal 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 Supreme Court of Appeal is the President of the Court. In the pre-Constitutional era, its most senior judge was the Chief Justice of the country. However, this title now belongs to the head of the Constitutional Court.
The seat of the Supreme Court of Appeal 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 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 decision of the High Court on appeal to it, special leave of the Supreme Court of Appeal is required. In all other cases of an appeal against a decision of the 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 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 the 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 the High Court may be reserved by that court or 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 the High Court, but requires leave in accordance with the relevant legislation. The Director may also be given leave to appeal on questions of law decided by the High Court.
Referral by Minister
Whenever 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 Supreme Court of Appeal 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 Supreme Court of Appeal to settle the matter.
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. The President and Deputy President of the Supreme Court of Appeal 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. 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.
Updated: 22 May 2015