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CON 202 Judicial Authority Notes
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LESSON 5JUDICIAL AUTHORITY: SOUTH AFRICA’S HISTORY
What is the Judiciary?
In a constitutional democracy, the judiciary is an independent branch of the government
that interprets and applies the law impartially without consideration of the wishes of
politicians, businesses or civil society groups.
The judiciary acts as the referee of the democratic process while also ensuring the other
two branches of government (the legislature and the executive) act within the boundaries
set out by the constitution.
5 The judiciary and South Africa’s history
5.1 The historic legacy of parliamentary sovereignty and Apartheid on the
Judiciary
Before 1994, during apartheid, the doctrine of parliamentary supremacy was one of the
cornerstones of South African constitutional law. This means that ‘the rule of law was equated to
rule by law, all arbitrary exercise of power, exercised in terms of a law enacted by correct
constitutional procedures prescribed by Parliament was considered lawful and in accordance
with the rule of law. Due to this, the judiciary:
Was limited in its capacity to enforce individual rights and freedoms.
Did not have the option to review and reverse unjust laws; rather, the courts and all the
other institutions had to implement and administer such laws.
Functioned as part of the apartheid legal order.
Judges were regarded as mere mechanical interpreters of the law
5.1.1 Composition of the Judiciary
Before 1994, the judiciary was composed almost entirely of white males. Before 1990, there was
only one white female and no black judges who had been appointed. The first black male judge,
Ismael Mohamed, was appointed in 1991. In 1994, there was a total of 166 judges. 161 were
white males, 3 were black males, 2 were white females and 0 were black females.
,5.1.2 The Structure of the Judiciary pre-1996
(a) Appellate Division
The highest court in South Africa for all matters. Heard appeals from various Provincial
Divisions of the Supreme Court
(b) Supreme Court
Court of first instance
(c) specialized courts created by legislation
5.2 The Judiciary in the new constitutional dispensation
In the new constitutional dispensation, the judiciary is independent and free to interpret and
apply the law impartially to enforce the provisions of the Constitution. This is done to limit the
potential abuse of power and breaches of the Constitution.
5.2.1 The Structure of the Judiciary in the 1996 Constitution
Fulfilling the objectives of the 1996 Constitution meant the restructuring of the judicial system.
According to section 166 of the Constitution, the courts of South Africa are:
The Constitutional Court
Created in the interim Constitution to serve as the final court in all constitutional
and related matters.
Headed by the Chief Justice (head of the judiciary); Deputy Chief Justice (deputy
leader of the judiciary) and nine judges.
jurisdiction across the Republic
Supreme Court of Appeal
Created as a constitutional entity no longer a division of the Supreme Court.
Headed by the President of the SCA and Deputy President of the SCA.
Jurisdiction across the republic.
High Courts
Created from former provincial local divisions of the Supreme Court and superior
courts of the ‘independent’ homelands. Constitution created the High Court of
South Africa, consisting of Divisions of the High Court.
Headed by the Judge President and Deputy Judge President.
Limited jurisdiction and court of first instance and court of appeals.
, In 2013, Parliament passed legislation to streamline the High Court system to create
separate Divisions of the High Court for each of South Africa’s nine provinces. High
Court Divisions:
Eastern Cape Division, with its main seat in Grahamstown
Free State Division, with its main seat in Bloemfontein
Gauteng Division, with its main seat in Pretoria
KwaZulu-Natal Division, with its main seat in Pietermaritzburg
Limpopo Division, with its main seat in Polokwane
Mpumalanga Division, with its main seat in Nelspruit
Northern Cape Division, with its main seat in Kimberley
North West Division, with its main seat in Mahikeng
Western Cape Division, with its main seat in Cape Town.
The Magistrates’ Courts
Remain unchanged
Specialist Courts
Created by statute
Divided into superior specialist courts (the Labour Court, the Land Claims
Court and the Tax Court to name a few) and inferior specialist courts (the
Children’s Court, the Maintenance Court and the Domestic Violence
Courts).
Referred to as 'problem-solving courts' provide an opportunity for using
litigation as a way to promote constitutional values.
5.3 Constitutional jurisdiction of the various courts
5.3.1 What is jurisdiction?
Jurisdiction refers to the power or competence of a court to hear and adjudicate on, and to
determine and dispose of, a legal dispute.
Knowing court jurisdictions is important because it prevents litigants (civil matters) and the
National Prosecuting Authority (criminal matters) from approaching the wrong court.
Approaching the wrong court will result in the dismissal of the application.
Two types of issues affect jurisdiction rules:
i) constitutional issues (litigants have access to direct remedies i.e. arguments about
whether the law or the action of an entity is unconstitutional and invalid)
ii) non-constitutional issues (no access to direct remedies)
5.3.2 Constitutional Court
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