Direct access to the Court and exclusive jurisdiction

Section 167(4) of the Constitution sets out the instances in which only the Constitutional Court may hear a matter. This is referred to as exclusive jurisdiction, making it a court of first and last instance. The Court has exclusive jurisdiction over the following matters:

a)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;
b)The constitutionality of any parliamentary or provincial bill;
c)Applications envisaged in sections 80 or 122 of the Constitution, which deal with either members of parliament or provincial legislature applying to the Court, to challenge the constitutionality of an Act of Parliament or provincial legislation;
d)The constitutionality of any amendment to the Constitution;
e)Whether Parliament or the President has failed to fulfil a constitutional obligation; or
f)Certify a provincial constitution.

An example of a case that was brought directly to the Court in terms of section 167(4)(e) of the Constitution is the Nkandla case (Economic Freedom Fighters and Others v The President of the Republic of South Africa and Others) where the EFF and other applicants were granted direct access to the Constitutional Court on the basis that the Court enjoys the exclusive jurisdiction to decide a failure by the President and the Parliament to fulfil his constitutional obligations.  

The Court as a court of appeal

Section 167(6)(b) provides that a person, when it is in the interests of justice and with permission of the Constitutional Court, can appeal directly to the Constitutional Court from any other court. This would be the most common way that cases reach the Constitutional Court.

An example of a matter that made it to the Constitutional Court by way of appeal from a lower court is the AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others where the matter was first brought to the High Court. When AllPay lost in the High Court it appealed its case to the Supreme Court of Appeal which dismissed AllPay’s matter which led it to appeal to the Constitutional Court where it also lost.

By the time the matter makes it to the Constitutional Court, it has, in most cases, been heard by two other courts, meaning the Constitutional Court was not the first court to hear the matter but rather the last court to hear the matter as a court of appeal.