SUPREME COURT OF APPEAL OF SOUTH AFRICA

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History and Background

 

Jurisdiction of the court pic

In 1996 the Appellate Division was renamed the Supreme Court of Appeal of South Africa by the Constitution. According to the Constitution the Court functions only as a court of appeal; may decide any matter on appeal and is, except for constitutional matters, the highest court of appeal [About the Court]. It is presided over by a President of the Court, and assisted by a Deputy President. The Chief Justice now presides over the Constitutional Court in Johannesburg. There are at present 22 judicial positions in the Court, including the President and the Deputy President.

 

The legal system

 

            The common law and statutes
South African law is an amalgam of different legal systems, with its origin on the Continent and in Great Britain.  The foundation of South African law is Roman-Dutch law which is itself a blend of indigenous Dutch customary law and Roman law. It was this legal system that prevailed in Holland during the 17th and 18th centuries and was introduced into and applied in South Africa after the southernmost tip of the Cape was settled by the Dutch in 1653.

 

When, at the end of the 18th century, the Cape was occupied by the British, Roman-Dutch law was retained and confirmed as the common law of the country.  English, however, became the language of the courts 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 soon became apparent, more particularly because its sources were more readily available to practitioners than the Latin and High Dutch of the Roman-Dutch old authorities.  Occasionally it is still necessary for a modern judge to delve into these old authorities to search for the origin and scope of an otherwise obscure legal rule or doctrine.

 

As with any other country the common law has been augmented by statutory law and many of the cases before the court are now concerned with their interpretation and application.

 

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.

 

Judicial decisions are themselves a source of law.  The decisions of the Court are binding on all lower courts. This Court considers itself bound by its own decisions unless convinced that an earlier decision on the point in issue is patently wrong. In turn, it is bound by decisions of the Constitutional Court.

 

            Indigenous law
Indigenous or customary law denotes those legal systems originating from African societies as part of the culture of particular tribes.  In some matters tribalized Africans can claim to be judged by their tribal law and custom, provided that these are consonant with the Constitution. This applies mainly to customary marriages, succession, guardianship and land tenure.

 

            International Law
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.

 

The origins of the Court

The Appellate Division of the Supreme Court of South Africa was established in 1910 when four British colonies, namely the Cape, Natal, Orange Free State and Natal, joined to form a single country, the Union of South Africa.  The court structure set up provided for an Appellate Division as the highest judicial authority.  However, until 1949, the Privy Council could, under special circumstances, hear and determine appeals from the Appellate Division.

 

Because English constitutional law applied in South Africa, the Court was not authorised to decide on the constitutionality of Acts of Parliament, nor could it prevent the lawgiver from impinging upon human rights.
 
The Appellate Division was for limited periods also the highest court of appeal for the erstwhile Southern Rhodesia (now Zimbabwe) and South West Africa (presently Namibia).  It temporarily lost jurisdiction over parts of the country when independent areas such as Transkei chose to create their own final court of appeal. With the reunification of the country in 1994 it regained its authority over those areas.

 

Upon the creation of the Constitutional Court during 1994, the Appellate Division’s jurisdiction was temporarily restricted in relation to constitutional issues, such as the enforcement of the Bill of Rights. These restrictions have now fallen away and the Court is also called upon, when interpreting legislation or developing the common law, to promote the spirit, purport and objects of the Bill of Rights.

 

The seat of the Court

With the formation of the Union of South Africa in 1910, the four colonies vied for their respective capitals to be the capital of the country. The problem was resolved by designating Cape Town the legislative, Pretoria the administrative, and Bloemfontein the judicial capital.  Bloemfontein is the capital of the Free State and is about 400km south- west from Johannesburg.  The seat of the Court did not find favour with the first judges, especially, the first Chief Justice.  Having opened the court formally in Bloemfontein on 4 June 1910, he contrived to hear appeals in Cape Town.  This disregard of the constitution gave rise to dissatisfaction and an amendment which nearly led to De Villiers's resignation.  In 1933 the editor of a local newspaper was found guilty of contempt of court, having published a letter which was highly critical of the Court using a venue other than Bloemfontein.  The anonymous letter had in fact been written by the local judge president. Since then, the Court has hardly, if ever, sat elsewhere than in Bloemfontein.

 

The Court buildingpic

The Court initially used accommodation in the Raadsaal, a building across the road from the east of the current courtbuilding.  The Raadsaal is now the seat of the provincial legislature of the Free State.  The first and only court building was opened on 1 October 1929 and was extended during 1967. It is currently being refurbished and extended to accommodate the increase in the number of cases heard by it and the increased number of judges.

 

The building is said to have been built in a free Renaissance style.  The old part was built with sandstone from Ladybrand and the newer eastern wing with sandstone from Ficksburg. The new part of the building is being similarly clad.

 

The furniture and wall cladding in the two main courts and the library are in stinkwood (ocotea bolata), a scarce and valuable indigenous tree.  Above the main entrance and in stone is the helmet and armour of truth, the keys of emancipation from tyranny, and the lamp and torches of truth. The south entrance has the head of Minerva, the goddess of wisdom and protector of art and science, and the northern door, that of Jupiter.

 

The library

The elegant library, housed on the upper floor of the building, itself occupies two stories.  It consists of a single chamber with alcoves on either side and a gallery reached by two narrow winding staircases which extends around all four of its sides.  The coats of arms in the centre of the gallery are those of the four erstwhile provinces of South Africa and are modelled in plaster and finished in colour.  The shelves are of Burmese teak and form a series of bays furnished with stinkwood tables and chairs and armchairs upholstered in brown Morocco hide. The gallery rests on 12 pillars. The library is also being extended as part of the building renovation.

 

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The library houses approximately 43 000 volumes, of which about 4000 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 10 volumes and those of his pupil, Baldus.  Written in Latin, they provide a commentary on the Corpus Juris Civilis of the Emperor Justinian.  Other unique item is the Tractatu 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 contains 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.

 

Access to the library is normally restricted to the judges of the court.

 

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. In the judges' tea chamber there are photographs taken during the opening ceremony of the court in 1929 and some group photographs. Scattered throughout the entrance hall, the stairway and the library are paintings and busts of a number of the giants of the past.  The busts in the entrance hall and on the stairway are those of South Africa's first five chief justices.

 

Dominating the entrance hall, on the stairway, is the bust of Lord de Villiers (1873-1914), the Union of South Africa's first chief justice.  He presided over the National Convention which led to the creation of the Union of South Africa.  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.

 

His successor was Sir James Rose Innes (1855-1942) of whom there is both a painting on the stairway and a bust in the entrance hall.  He was renowned for his learning and the lucidity of his judgments.  He is said to have retired prematurely to enable his life-long friend and colleague, Sir William Henry Solomon (1852-1930) to serve a term as chief justice.  His bust is also in the entrance hall as is the bust of Solomon's successor, Sir Jacob de Villiers (1868-1932).  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.

 

Sir John Wessels (1862-1936), of whom there is a bust in the entrance hall and two paintings on the stairway, 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.

 

In the library there are several busts.  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.  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.

 

Leopold Greenberg (1885-1964) was a judge of appeal from 1943 to 1955.  He is famed for the incisiveness of his mind, his clarity of expression and his mordant wit.  Two of his contemporaries whose busts are also in the library are Oliver Deneys Schreiner (1890-1980) and F P (Toon) van den Heever (1894-1956).  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.  The last bust in the library is that of Chief Justice L C Steyn (1903-1976).  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 the judges' corridor, in an alcove on the south-eastern corner, there is a bust of Tielman Roos (1879-1935), a former Minister of Justice, a dynamic, jovial and popular political figure who was the only member of this court to be appointed directly as a judge of appeal from the ranks of politicians.

 

Former Chief Justices of the Appellate Division 
1910 - 1914 : Lord Henry de Villiers (first Chief Justice)
1914 - 1927 : Sir James Rose-Innes
1927 - 1929 : Sir William H Solomon
1929 - 1932 : Jacob de Villiers
1932 - 1936 : Sir J W Wessels
1936 - 1938 : J S Curlewis
1938 - 1939 : J Stratford
1939 - 1943 : N J de Wet
1943 - 1950 : E F Watermeyer
1950 - 1957 : A van der Sandt Centlivres
1957 - 1959 : H A Fagan
1959 - 1971 : Dr L C Steyn
1971 - 1974 : N Ogilvie Thompson
1974 - 1982 : F L H Rumpff
1982 - 1989 : P J Rabie
1989 - 1996 : M M Corbett
1997 - 2000 : I Mahomed (died 17th June 2000)

2000 : H J O Van Heerden (Acting Chief Justice)
2001: J J F Hefer (Acting Chief Justice)

2003 - 2008 : C T Howie

 

Presidents of the Supreme Court of Appeal 

2002 :

2003 - 14 August 2008: 

15 August 2008 to date:

J J F Hefer AP(Acting President)

C T Howie P

L Mpati P

 

Deputy Presidents of the Supreme Court of Appeal

2003 – 2008

2008

December 2008 to date:

L Mpati DP

LTC Harms ADP

LTC Harms DP

 

Appeal Judges from 1910

1910 - 1922 : C G Maasdorp
1914 - 1923 : Sir Henry H Juta
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 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 - 1974: N Ogilvie Thompson
1958 - 1976 : P J van Blerk
1958 - n/a   : A B Beyers

1959 - 1960 : A C Malan
1959 - 1961 : W H Ramsbottom
1961 - 1965 : D H Botha
1961 - 1963 : L J de V van Winsen
1961 - 1967 : J T van Wyk

1961 - 1977 : G N Holmes
1962 - 1967 : A Faure-Williamson
1963 - 1984 : P J Wessels
1965 - 1973 : H J Potgieter
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
1982 - 2000 : H J O van Heerden
1983 - 1985 : H C Nicholas
1984 - 2002 : J J F Hefer
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
1988 - 2001 : F H Grosskopf
1990 - 1991 : G Friedman
1990 - 1994 : R J Goldstone
1990 - 2002 : P M Nienaber
1991 - 1996 : L van den Heever
1993 - 2002 : C T Howie
1993 - 1994 : J C Kriegler
1993 - to date : L T C Harms
1995 - 2004 : R M Marais
1995 - 2003 : P J J Olivier
1995 - 2005 : W P Schutz
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
2000 - to date : M S Navsa
2000 - to date : L Mpati
2001 - to date : K K Mthiyane
2002 - to date : F D J Brand
2002 - to date : R W Nugent
2002 - 2007 : J H Conradie
2003 - 2013 : T D Cloete
2003 - to date : C H Lewis
2003 - 2013 : J A Heher
2004 - to date : B J van Heerden
2005 - 2009 : C N Jafta
2005 - 2010 : D Mlambo

2004 - to date : V M Ponnan
2006 - to date:  M M L Maya
2007 - 2008:     P C Combrinck
2007 - to date : A Cachalia
2009 - to date:  S Snyders
2009 - to date:  N Z Mhlantla

2009 - to date:  F R Malan
2009 - to date:  L O Bosielo
2009 - to date:  J B Z Shongwe
2009 - to date:  L E Leach
2009 - to date:  Z L LTshiqi
2010 - to date:  L V Theron
2010 - to date:  S A Majiedt
2010 - to date:  L W Seriti
2011 - to date:  M J D Wallis
2013 - to date:  N Willis

 

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