Inner workings
of the Court

The Constitutional Court is tasked with adjudicating constitutional matters which have a direct bearing on the country. The justices of the Court have designed a working process which allows them to meet their responsibilities efficiently and effectively. Here you will learn how the judges of the
Court are appointed and how the Court works.

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Where does the Court derive its powers?

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How is the Court Structured ?

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What cases are heard by the Court?

The Constitutional Court is the only court that can adjudicate matters regarding:

disputes between organs of state;
the constitutionality of any parliamentary bill;
the constitutionality of any amendment of the Constitution; and
whether a member of the executive has failed to fulfil a constitutional obligation.

The 17th Amendment of the Constitution expanded the jurisdiction of the Constitutional Court so that, as well as constitutional matters, the Court has jurisdiction over other matters of general public importance that it chooses to hear.

One of the founding values of the Constitution is the supremacy of the Constitution. It follows from this principle that any law or conduct inconsistent with the Constitution is invalid. The corollary of constitutional supremacy is a strong form of judicial review which permits courts, and again particularly the Constitutional Court, to determine what conduct or laws are consistent with the Constitution.

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How are judges appointed?

The Judicial Service Commission (JSC), a body established by section 178 of the Constitution, draws up a list of candidates that must have three more candidates than the number of vacancies on the Court. The JSC does this after calling for public nominations and holding public interviews. After the interviews, the JSC submits a list of short-listed candidates from which the President can then make an appointment. The President, after consultation with the Chief Justice and the leaders of political parties represented in the National Assembly, then appoints the new judges by choosing from the JSC’s shortlist.

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How do cases reach the Court?

The Court can either hear a matter as ‘a court of first instance’, meaning the matter has gone directly to the Constitutional Court and has not been heard by a lower court first. Section 167(6)(a) of the Constitution allows a person, when it is in the interests of justice and with the permission of the Constitutional Court, to approach the Court directly instead of starting with the lower courts first. Section 167(6)(b) of the Constitution allows a person to appeal directly to the Constitutional Court from any other court. In this case the Court acts as a court of appeal.

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What does it cost to bring a case to the Constitutional Court?

The costs of bringing a case to the Court differs from case to case. Sometimes lawyers represent their client ‘pro bono’ (free legal services). But in most cases, clients pay their lawyers and advocates and this, together with the administrative costs involved in shepherding a case from the High Court to the Constitutional Court, can cost millions of Rands especially if the matter is complicated and requires a big legal team.

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How do litigants file a matter with the Court?

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What does the Court do with the litigant’s application?

The Constitutional Court has discretion whether or not to hear a matter. There is no automatic right to have your case heard by the Constitutional Court on appeal from the lower courts. Once the General Office has received an application, it is distributed to each of the eleven judges. As a group, they will decide if the case raises an important matter of public interest and public importance and will also consider whether there is a reasonable prospect that the matter may succeed. If the case is dismissed, the Chief Justice will send an order dismissing the application to the parties.

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How does the Court write its judgments?

Judgments are the detailed findings of the Court which set out the question the Court must answer, the facts of the case, the law, the Court’s finding and its reasons for making a particular finding. The general rule is that all of the Court’s 11 justices sit in every case and all are involved in the writing of a judgment. There are three stages in the writing of a judgment: 1. the post hearing deliberation; 2. The preparation of main, dissenting and concurring judgments; 3. drafting the order.

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What is the role of the law clerks?

The Constitutional Court became the first court in South Africa to assign law clerks to assist each of its justices. The law clerk’s primary responsibility is to assist the judges in fulfilling their duties. The clerks provide very valuable support by carrying out research and helping with judgment writing. However, all decisions relating to any dispute before the Court remains the sole duty and responsibility of the justices. The practice of appointing law clerks has now been adopted by the Supreme Court of Appeal, the labour courts and many high courts.

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Inner workings
of the Court

Where does the Court derive its powers?

How is the Court Structured ?

What cases are heard by the Court?

How are judges appointed?

How do cases reach the Court?

What does it cost to bring a case to the Constitutional Court?

How do litigants file a matter with the Court?

What does the Court do with the litigant’s application?

How does the Court write its judgments?

What is the role of the law clerks?

How does the Constitutional Court function within the broader democracy?

We, the people
South Africa

The Story of the Constitution

The Constitution Explained

We, the people south africa

EXPLORE THE ARCHIVE

Documents

Audio Visual

Inner workings of the Court

Where does the Court derive its powers?

How is the Court Structured ?

What cases are heard by the Court?

How are judges appointed?

How do cases reach the Court?

What does it cost to bring a case to the Constitutional Court?

How do litigants file a matter with the Court?

What does the Court do with the litigant’s application?

How does the Court write its judgments?

What is the role of the law clerks?

How does the Constitutional Court function within the broader democracy?

We, the peopleSouth Africa

The Story of the Constitution

The Constitution Explained

We, the people south africa

EXPLORE THE ARCHIVE

Documents

Audio Visual

Inner workings
of the Court

We, the people
South Africa