Historical Background of the Constitutional Court

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The Court’s position in the justice system

The Constitutional Court is South Africa's highest court on constitutional matters. So its jurisdiction - the scope of its authority to hear cases - is restricted to constitutional matters and issues connected with decisions on constitutional matters.

Chapter 8 of the final Constitution, entitled "Courts and Administration of Justice", sets out the structure of South Africa's court system and defines the role of each court.

Section 165 says the judicial authority of South Africa is vested in the courts, which are independent and subject only to the Constitution and the law. And section 166 identifies these courts as:

  • the Constitutional Court;
  • the Supreme Court of Appeal;
  • the High Courts;
  • the Magistrates' Courts; and
  • any other court established or recognised by an Act of parliament.

The Constitutional Court is the highest court in the country when it comes to the interpretation, protection and enforcement of the Constitution. It deals exclusively with constitutional matters - those cases that raise questions about the application or interpretation of the Constitution.

The Supreme Court of Appeal, which used to be known as the Appellate Division, sits in Bloemfontein and is the highest court in respect of all other matters. It can hear and decide an appeal against any decision of a High Court.

Decisions of the Supreme Court of Appeal are binding on all lesser courts and the decisions of the High Courts (which used to be known as the Supreme Courts) are binding on Magistrates' Courts within their areas. These decisions are an important source of law. A decision of a High Court in one division is not binding on another, but in practice has strong persuasive force.

At the moment there are 10 High Courts: the Cape of Good Hope; Eastern Cape; Northern Cape; Free State; Kwa-Zulu Natal; Transvaal; Transkei; Ciskei; Venda and North-West. There are also three local divisions: the Witwatersrand Local Division, the Durban and Coast Local Division and South-eastern Cape Division.

The main task of the Constitutional Court Section 167(3) of the Constitution says 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.

Section 167(4) goes on to give the Constitutional Court exclusive jurisdiction in deciding disputes about the powers and constitutional status of branches of government. 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;

decide on the constitutionality of any amendment to the Constitution; and

decide that parliament or the president has failed to fulfil a constitutional obligation.

Of course, the duties that fall to the other courts are borne by the Constitutional Court too. All courts in South Africa have to apply the Constitution and the law "without fear, favour or prejudice" - section 165. And section 39(2) of the Bill of Rights makes special mention of the judiciary's duty in interpreting and developing the law: it has to promote the spirit, purport and objects of the Bill of Rights.

In fact, the Constitutional Court, in the case of Carmichele v Minister of Safety and Security and another , held that the courts are "under a general duty to develop the common law when it deviates from the objectives of the country's Bill of Rights".

Last updated : 17-Mar-2016

This article was produced for South African History Online on 30-Mar-2011